Title 7 Agriculture Parts 900 to 999

Revised as of January 1, 2011

Containing a codification of documents of general applicability and future effect

As of January 1, 2011

Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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Page Explanation ...... v

Title 7:

SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE (CONTINUED)

Chapter IX—Agricultural Marketing Service (Marketing Agree- ments and Orders; Fruits, Vegetables, Nuts), Department of Ag- riculture ...... 5

Finding Aids:

Table of CFR Titles and Chapters ...... 739

Alphabetical List of Agencies Appearing in the CFR ...... 759

List of CFR Sections Affected ...... 769

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To cite the regulations in this volume use title, part and section number. Thus, 7 CFR 900.1 refers to title 7, part 900, section 1.

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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further sub- divided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, January 1, 2011), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate Mar<15>2010 08:06 Mar 10, 2011 Jkt 223019 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Y:\SGML\223019.XXX 223019 jdjones on DSK8KYBLC1PROD with CFR Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. OBSOLETE PROVISIONS Provisions that become obsolete before the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on a given date in the past by using the appropriate numerical list of sections affected. For the period before January 1, 2001, consult either the List of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published in eleven separate volumes. For the period beginning January 1, 2001, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. ‘‘[RESERVED]’’ TERMINOLOGY The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ location at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that a portion of the CFR was left vacant and not accidentally dropped due to a printing or computer error. INCORPORATION BY REFERENCE What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law. What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are: (a) The incorporation will substantially reduce the volume of material published in the Federal Register. (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process. (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51. What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume. An index to the text of ‘‘Title 3—The President’’ is carried within that volume. vi

VerDate Mar<15>2010 08:06 Mar 10, 2011 Jkt 223019 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Y:\SGML\223019.XXX 223019 jdjones on DSK8KYBLC1PROD with CFR The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Register. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. REPUBLICATION OF MATERIAL There are no restrictions on the republication of material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd-numbered pages. For inquiries concerning CFR reference assistance, call 202–741–6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail [email protected]. SALES The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202- 512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2104, 24 hours a day. For payment by check, write to: US Government Printing Office – New Orders, P.O. Box 979050, St. Louis, MO 63197-9000. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers of the Presidents of the United States, Compilation of Presi- dential Documents and the Privacy Act Compilation are available in electronic format via www.ofr.gov. For more information, contact the GPO Customer Con- tact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s web site at www.archives.gov/federal-register.

RAYMOND A. MOSLEY, Director, Office of the Federal Register. January 1, 2011.

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Title 7—AGRICULTURE is composed of fifteen volumes. The parts in these volumes are arranged in the following order: Parts 1–26, 27–52, 53–209, 210–299, 300– 399, 400–699, 700–899, 900–999, 1000–1199, 1200–1599, 1600–1759, 1760–1939, 1940–1949, 1950– 1999, and part 2000 to end. The contents of these volumes represent all current regulations codified under this title of the CFR as of January 1, 2011.

The Food and Nutrition Service current regulations in the volume containing parts 210–299, include the Child Nutrition Programs and the Food Stamp Program. The regulations of the Federal Crop Insurance Corporation are found in the volume containing parts 400–699.

All marketing agreements and orders for fruits, vegetables and nuts appear in the one volume containing parts 900–999. All marketing agreements and orders for milk appear in the volume containing parts 1000–1199.

For this volume, Robert J. Sheehan, III was Chief Editor. The Code of Federal Regulations publication program is under the direction of Michael L. White, as- sisted by Ann Worley.

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(This book contains parts 900 to 999)

SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE (CONTINUED) Part

CHAPTER IX—Agricultural Marketing Service (Marketing Agreements and Orders; Fruits, Vegetables, Nuts), De- partment of Agriculture ...... 900

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Part Page 900 General regulations...... 7 905 Oranges, grapefruit, tangerines, and tangelos grown in Florida ...... 48 906 Oranges and grapefruit grown in Lower Rio Grande Valley in Texas ...... 70 915 Avocados grown in south Florida ...... 86 916 Nectarines grown in California ...... 105 917 Fresh pears and peaches grown in California ...... 123 920 Kiwifruit grown in California ...... 150 922 Apricots grown in designated counties in Wash- ington ...... 164 923 Sweet cherries grown in designated counties in Washington ...... 177 924 Fresh prunes grown in designated counties in Washington and in Umatilla County, Oregon ...... 189 925 Grapes grown in a designated area of southeastern California ...... 201 926 Data collection, reporting and recordkeeping requirements applicable to cranberries not subject to the cranberry marketing order ...... 213 927 Pears grown in Oregon and Washington ...... 216 929 Cranberries grown in States of Massachusetts, Rhode Island, Connecticut, New Jersey, Wis- consin, Michigan, Minnesota, Oregon, Wash- ington, and Long Island in the State of New York 231 930 Tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Wash- ington, and Wisconsin ...... 254 932 Olives grown in California ...... 281 944 Fruits; import regulations ...... 310

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Part Page 945 Irish potatoes grown in certain designated counties in Idaho, and Malheur County, Oregon ...... 324 946 Irish potatoes grown in Washington ...... 340 947 Irish potatoes grown in Modoc and Siskiyou Coun- ties, Calif., and in all counties in Oregon, except Malheur County ...... 357 948 Irish potatoes grown in Colorado ...... 373 953 Irish potatoes grown in Southeastern States ...... 392 955 Vidalia onions grown in Georgia ...... 404 956 Sweet onions grown in the Walla Walla Valley of southeast Washington and northeast Oregon ...... 414 958 Onions grown in certain designated counties in Idaho, and Malheur County, Oregon ...... 428 959 Onions grown in South Texas ...... 443 966 Tomatoes grown in Florida ...... 458 980 Vegetables; import regulations ...... 477 981 Almonds grown in California ...... 485 982 Hazelnuts grown in Oregon and Washington ...... 513 983 Pistachios grown in California, Arizona, and New Mexico ...... 533 984 Walnuts grown in California ...... 550 985 Marketing order regulating the handling of spearmint oil produced in the Far West ...... 569 987 Domestic dates produced or packed in Riverside County, California ...... 583 989 Raisins produced from grapes grown in California .. 609 993 Dried prunes produced in California ...... 674 996 Minimum quality and handling standards for domestic and imported peanuts marketed in the United States ...... 714 999 Specialty crops; import regulations ...... 724

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900.108 Mediator’s report. 900.405 Ballots. 900.109 Mediation agreement. 900.406 Referendum report. 900.110 Application for arbitration. 900.407 Confidential information. 900.111 Inquiry by the Administrator. 900.112 Notification. Subpart—Public Information 900.113 Submission. 900.114 Designation of arbitrator. AVAILABILITY OF PROGRAM INFORMATION, 900.115 Hearing. STAFF MANUALS AND INSTRUCTIONS, AND 900.116 Award. RELATED MATERIAL 900.117 Approval of award. 900.500 General. 900.118 Costs. 900.501 Public inspection and copying. 900.502 Indexes. Subpart—Miscellaneous Regulations 900.503 Request for records. 900.504 Appeals. 900.200 Definitions. 900.201 Investigation and disposition of al- Subpart—Information Collection leged violations. 900.210 Disclosures of information. 900.600 General. 900.211 Penalties. 900.601 OMB control numbers assigned pursuant to the Paperwork Reduction Act. Subpart—Procedure for Conduct of Referenda To Determine Producer Ap- Subpart—Assessment of Exemptions proval of Milk Marketing Orders To Be 900.700 Exemption from assessments. Made Effective Pursuant to Agricultural Marketing Agreement Act of 1937, as AUTHORITY: 7 U.S.C. 601–674 and 7 U.S.C. 7401. Amended SOURCE: 25 FR 5907, June 28, 1960, unless 900.300 General. otherwise noted. 900.301 Definitions. 900.302 Associations eligible to vote. 900.303 Conduct of referendum. Subpart—Rules of Practice and 900.304 Who may vote. Procedure Governing Pro- 900.305 Duties of referendum agent. ceedings To Formulate Mar- 900.306 Notice of the referendum. keting Agreements and Mar- 900.307 Time for voting. 900.308 Tabulation of ballots. keting Orders 900.309 Confidential information. 900.310 Supplementary instructions. AUTHORITY: 7 U.S.C. 610. 900.311 Submittals or requests. § 900.1 Words in the singular form. Subpart—Procedure for Determining the Words in this subpart in the singular Qualification of Cooperative Milk Mar- form shall be deemed to import the keting Associations plural, and vice versa, as the case may 900.350 General statement. demand. 900.351 Applications for qualification. 900.352 Confidential information. § 900.2 Definitions. 900.353 Qualification standards. As used in this subpart, the terms as 900.354 Inspection and investigation. defined in the act shall apply with 900.355 Annual reporting. 900.356 Listing of qualified associations. equal force and effect. In addition, un- 900.357 Denial of application; suspension or less the context otherwise requires: revocation of determination of qualifica- (a) The term Act means Public Act tion. No. 10, 73 Congress (48 Stat. 31), as amended and as reenacted and amended Subpart—Procedure for the Conduct of by the Agricultural Marketing Agree- Referenda in Connection With Mar- ment Act of 1937 (50 Stat. 246), as keting Orders for Fruits, Vegetables, amended. and Nuts Pursuant to the Agricultural (b) The term Department means the Marketing Agreement Act of 1937, as United States Department of Agri- Amended culture. (c) The term Secretary means the Sec- 900.400 General. 900.401 Definitions. retary of Agriculture of the United 900.402 Voting. States, or any officer or employee of 900.403 Instructions. the Department to whom authority has 900.404 Subagents. 8

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heretofore been delegated, or to whom thereof to be given as, in his opinion, authority may hereafter be delegated, are warranted. If the investigation and to act for the Secretary. consideration lead the Administrator (d) The term judge means any admin- to conclude that the proposed mar- istrative law judge appointed pursuant keting agreement or marketing order to 5 U.S.C. 3105, and assigned to con- will not tend to effectuate the declared duct the proceeding. policy of the act, or that for other (e) The term Administrator means the proper reasons a hearing should not be Administrator of the Agricultural Mar- held on the proposal, he shall deny the keting Service or any officer or em- application, and promptly notify the ployee of the Department to whom au- applicant of such denial, which notice thority has been delegated or may shall be accompanied by a brief state- hereafter be delegated to act for the ment of the grounds for the denial. Administrator. (b) If the investigation and consider- (f) [Reserved] ation lead the Administrator to con- (g) The term FEDERAL REGISTER clude that the proposed marketing means the publication provided for by agreement or marketing order will the act of July 26, 1935 (49 Stat. 500), tend to effectuate the declared policy and acts supplementary thereto and of the act, or if the Secretary desires to amendatory thereof. propose a marketing agreement or (h) The term hearing means that part marketing order, he shall sign and of the proceeding which involves the cause to be served a notice of hearing, submission of evidence. as provided in this subpart. (i) The term marketing agreement means any marketing agreement or § 900.4 Institution of proceeding. any amendment thereto which may be (a) Filing and contents of the notice of entered into pursuant to section 8b of hearing. The proceeding shall be insti- the act. tuted by filing the notice of hearing (j) The term marketing order means with the hearing clerk. The notice of any order or any amendment thereto hearing shall contain a reference to the which may be issued pursuant to sec- authority under which the marketing tion 8c of the act, and after notice and agreement or marketing order is pro- hearing as required by said section. posed; shall define the scope of the (k) The term proceeding means a pro- hearing as specifically as may be prac- ceeding upon the basis of which a mar- ticable; shall contain either the terms keting agreement may be entered into or substance of the proposed marketing or a marketing order may be issued. agreement or marketing order or a de- (l) The term hearing clerk means the scription of the subjects and issues in- hearing clerk, United States Depart- volved and shall state the industry, ment of Agriculture, Washington, DC. area, and class of persons to be regu- [25 FR 5907, June 28, 1960, as amended at 26 lated, the time and place of such hear- FR 7796, Aug. 22, 1961; 28 FR 579, Jan. 23, 1963; ing, and the place where copies of such 37 FR 8059, Apr. 25, 1972; 38 FR 29798, Oct. 29, proposed marketing agreement or mar- 1973; 67 FR 10829, Mar. 11, 2002] keting order may be obtained or examined. The time of the hearing shall not § 900.3 Proposals. be less than 15 days after the date of (a) A marketing agreement or a mar- publication of the notice in the FED- keting order may be proposed by the ERAL REGISTER, as provided in this sub- Secretary or by any other person. If part, unless the Administrator shall any person other than the Secretary determine that an emergency exists proposes a marketing agreement or which requires a shorter period of no- marketing order, he shall file with the tice, in which case the period of notice Administrator a written application, shall be that which the Administrator together with at least four copies of may determine to be reasonable in the the proposal, requesting the Secretary circumstances: Provided, That, in the to hold a hearing upon the proposal. case of hearings on amendments to Upon receipt of such proposal, the Ad- marketing agreements or marketing ministrator shall cause such investiga- orders, the time of the hearing may be tion to be made and such consideration less than 15 days but shall not be less

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than 3 days after the date of publica- by the Administrator that such notice tion of the notice in the FEDERAL REG- is impracticable, unnecessary, or con- ISTER. trary to the public interest with a brief (b) Giving notice of hearing and supple- statement of the reasons for such de- mental publicity. (1) The Administrator termination. Determinations by the shall give or cause to be given notice of Administrator as herein provided shall hearing in the following manner: be final. (i) By publication of the notice of hearing in the FEDERAL REGISTER; § 900.5 Docket number. (ii) By mailing a true copy of the no- Each proceeding, immediately fol- tice of hearing to each of the persons lowing its institution, shall be assigned known to the Administrator, to be in- a docket number by the hearing clerk terested therein; and thereafter the proceeding may be (iii) By issuing a press release con- referred to by such number. taining the complete text or a summary of the contents of the notice of § 900.6 Judges. hearing and making the same available (a) Assignment. No judge who has any to such newspapers in the area pro- pecuniary interest in the outcome of a posed to be subjected to regulation as proceeding shall serve as judge in such reasonably will tend to bring the proceeding. ntoice to the attention of the persons (b) Powers of judges. Subject to review interested therein; by the Secretary, as provided elsewhere (iv) By forwarding copies of the no- in this subpart, the judge, in any pro- tice of hearing addressed to the gov- ceeding, shall have power to: ernors of such of the several States of the United States and to executive (1) Rule upon motions and requests; heads of such of the Territories and (2) Change the time and place of possessions of the United States as the hearing, and adjourn the hearing from Administrator, having due regard for time to time or from place to place; the subject matter of the proposal and (3) Administer oaths and affirmations the public interest, shall determine, and take affidavits; should be notified. (4) Examine and cross-examine wit- (2) Legal notice of the hearing shall nesses and receive evidence; be deemed to be given if notice is given (5) Admit or exclude evidence; in the manner provided by paragraph (6) Hear oral argument on facts or (b)(1)(i) of this section; and failure to law; give notice in the manner provided in (7) Do all acts and take all measures paragraph (b)(1)(ii), (iii), and (iv) of necessary for the maintenance of order this section shall not affect the legal- at the hearing and the efficient con- ity of the notice. duct of the proceeding. (c) Record of notice and supplemental (c) Who may act in absence of judge. In publicity. There shall be filed with the case of the absence of the judge or his hearing clerk or submitted to the judge inability to act, the powers and duties at the hearing an affidavit or certifi- to be performed by him under this part cate of the person giving the notice in connection with a proceeding may, provided in paragraph (b)(1) (iii) and without abatement of the proceeding (iv) of this section. In regard to the unless otherwise ordered by the Sec- provisions relating to mailing in para- retary, be assigned to any other judge. graph (b)(1)(ii) of this section, a deter- (d) Disqualification of judge. The judge mination by the Administrator that may at any time withdraw as judge in such provisions have been complied a proceeding if he deems himself to be with shall be filed with the hearing disqualified. Upon the filing by an in- clerk or submitted to the judge at the terested person in good faith of a time- hearing. In the alternative, if notice is ly and sufficient affidavit of personal not given in the manner provided in bias or disqualification of a judge, the paragraph (b)(1)(ii), (iii), and (iv) of Secretary shall determine the matter this section there shall be filed with as a part of the record and decision in the hearing clerk or submitted to the the proceeding, after making such in- judge at the hearing a determination vestigation or holding such hearings,

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or both, as he may deem appropriate in counsel or representative, and the the circumstances. names and addresses and occupations of such person and such counsel or rep- § 900.7 Motions and requests. resentative. Any such person or such (a) General. All motions and requests counsel or representative shall give shall be filed with the hearing clerk, such other information respecting his except that those made during the appearance as the judge may request. course of the hearing may be filed with (2) Debarment of counsel or representa- the judge or may be stated orally and tive. Wherever, while a proceeding is made a part of the transcript. Except pending before him, the judge finds as provided in § 900.15(b) such motions that a person, acting as counsel or rep- and requests shall be addressed to, and resentative for any person partici- ruled on by, the presiding officer if pating in the proceeding, is guilty of made prior to his certification of the unethical or unprofessional conduct, transcript pursuant to § 900.10 or by the the judge may order that such person Secretary if made thereafter. be precluded from further acting as (b) Certification to Secretary. The counsel or representative in such pro- judge may in his discretion submit or ceeding. An appeal to the Secretary certify to the Secretary for decision may be taken from any such order, but any motion, request, objection, or the proceeding shall not be delayed or other question addressed to the judge. suspended pending disposition of the appeal: Provided, That the judge may § 900.8 Conduct of the hearing. suspend the proceeding for a reasonable (a) Time and place. The hearing shall time for the purpose of enabling the be held at the time and place fixed in client to obtain other counsel or other the notice of hearing, unless the judge representative. In case the judge has shall have changed the time or place, ordered that a person be precluded in which event the judge shall file with from further acting as counsel or rep- the hearing clerk a notice of such resentative in the proceeding, the pre- change, which notice shall be given in siding officer, within a reasonable time the same manner as provided in § 900.4 thereafter shall submit to the Sec- (relating to the giving of notice of the retary a report of the facts and cir- hearing): Provided, That, if the change cumstances surrounding such order and in time or place of hearing is made less shall recommend what action the Sec- than 5 days prior to the date previously retary should take respecting the ap- fixed for the hearing, the judge, either pearance of such person as counsel or in addition to or in lieu of causing the representative in other proceedings be- notice of the change to be given, shall fore the Secretary. Thereafter the Sec- announce, or cause to be announced, retary may, after notice and an oppor- the change at the time and place pre- tunity for hearing, issue such order, re- viously fixed for the hearing. specting the appearance of such person (b) Appearances—(1) Right to appear. as counsel or representative in pro- At the hearing, any interested person ceedings before the Secretary, as the shall be given an opportunity to ap- Secretary finds to be appropriate. pear, either in person or through his (3) Failure to appear. If any interested authorized counsel or representative, person fails to appear at the hearing, and to be heard with respect to matters he shall be deemed to have waived the relevant and material to the pro- right to be heard in the proceeding. ceeding. Any interested person who de- (c) Order of procedure. (1) The judge sires to be heard in person at any hear- shall, at the opening of the hearing ing under these rules shall, before pro- prior to the taking of testimony, have ceeding to testify, state his name, ad- noted as part of the record the notice dress, and occupation. If any such per- of hearing as filed with the Office of son is appearing through a counsel or the Federal Register and the affidavit representative, such person or such or certificate of the giving of notice or counsel or representative shall, before the determination provided for in proceeding to testify or otherwise to § 900.4(c). participate in the hearing, state for the (2) Evidence shall then be received record the authority to act as such with respect to the matters specified in

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the notice of the hearing in such order dence and made a part of the record. as the judge shall announce. Such exhibits shall be submitted in (d) Evidence—(1) In general. The hear- quadruplicate and in documentary ing shall be publicly conducted, and form. In case the required number of the testimony given at the hearing copies is not made available, the judge shall be reported verbatim. shall exercise his discretion as to (i) Every witness shall, before pro- whether said exhibits shall, when prac- ceeding to testify, be sworn or make af- ticable, be read in evidence or whether firmation. Cross-examination shall be additional copies shall be required to permitted to the extent required for a be submitted within a time to be speci- full and true disclosure of the facts. fied by the judge. If the testimony of a (ii) When necessary, in order to pre- witness refers to a statute, or to a re- vent undue prolongation of the hear- port or document (including the record ing, the judge may limit the number of of any previous hearing) the judge, times any witness may testify to the after inquiry relating to the identifica- same matter or the amount of corrobo- tion of such statute, report, or docu- rative or cumulative evidence. ment, shall determine whether the (iii) The judge shall, insofar as prac- same shall be produced at the hearing ticable, exclude evidence which is im- and physically be made a part of the material, irrelevant, or unduly repeti- evidence as an exhibit, or whether it tious, or which is not of the sort upon shall be incorporated into the evidence which responsible persons are accus- by reference. If relevant and material tomed to rely. matter offered in evidence is embraced (2) Objections. If a party objects to in a report or document (including the the admission or rejection of any evi- record of any previous hearing) con- dence or to any other ruling of the taining immaterial or irrelevant mat- judge during the hearing, he shall state ter, such immaterial or irrelevant mat- briefly the grounds of such objection, ter shall be excluded and shall be seg- whereupon an automatic exception will regated insofar as practicable, subject follow if the objection is overruled by to the direction of the presiding offi- the judge. The transcript shall not in- cer. clude argument or debate thereon ex- (5) Official notice. Official notice may cept as ordered by the judge. The rul- be taken of such matters as are judi- ing of the judge on any objection shall cially noticed by the courts of the be a part of the transcript. Only objec- United States and of any other matter tions made before the judge may subse- of technical, scientific or commercial quently be relied upon in the pro- fact of established character: Provided, ceeding. That interested persons shall be given (3) Proof and authentication of official adequate notice, at the hearing or sub- records or documents. An official record sequent thereto, of matters so noticed or document, when admissible for any and shall be given adequate oppor- purpose, shall be admissible as evi- tunity to show that such facts are inac- dence without the production of the curate or are erroneously noticed. person who made or prepared the same. (6) Offer of proof. Whenever evidence Such record or document shall, in the is excluded from the record, the party discretion of the judge, be evidenced by offering such evidence may make an an official publication thereof or by a offer of proof, which shall be included copy attested by the person having in the transcript. The offer of proof legal custody thereof and accompanied shall consist of a brief statement de- by a certificate that such person has scribing the evidence to be offered. If the custody. the evidence consists of a brief oral (4) Exhibits. All written statements, statement or of an exhibit, it shall be charts, tabulations, or similar data of- inserted into the transcript in toto. In fered in evidence at the hearing shall, such event, it shall be considered a after identification by the proponent part of the transcript if the Secretary and upon satisfactory showing of the decides that the judge’s ruling in ex- authenticity, relevancy, and materi- cluding the evidence was erroneous. ality of the contents thereof, be num- The judge shall not allow the insertion bered as exhibits and received in evi- of such evidence in toto if the taking of

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such evidence will consume a consider- the testimony and the original and all able length of time at the hearing. In copies of the exhibits not already on the latter event, if the Secretary de- file in the office of the hearing clerk. cides that the judge erred in excluding He shall attach to the original tran- the evidence, and that such error was script of testimony his certificate stat- substantial, the hearing shall be re- ing that, to the best of his knowledge opened to permit the taking of such and belief, the transcript is a true tran- evidence. script of the testimony given at the hearing except in such particulars as [25 FR 5907, June 28, 1960, as amended at 37 FR 1103, Jan. 25, 1972] he shall specify; and that the exhibits transmitted are all the exhibits as in- § 900.9 Oral and written arguments. troduced at the hearing with such ex- (a) Oral argument before judge. Oral ceptions as he shall specify. A copy of argument before the judge shall be in such certificate shall be attached to the discretion of the judge. Such argu- each of the copies of the transcript of ment, when permitted, may be limited testimony. In accordance with such by the judge to any extent that he certificate the hearing clerk shall note finds necessary for the expeditious dis- upon the official record copy, and cause position of the proceeding and shall be to be noted on other copies, of the reduced to writing and made part of transcript each correction detailed the transcript. therein by adding or crossing out (but (b) Briefs, proposed findings and con- without obscuring the text as origi- clusions. The judge shall announce at nally transcribed) at the appropriate the hearing a reasonable period of time place any words necessary to make the within which interested persons may same conform to the correct meaning, file with the hearing clerk proposed as certified by the judge. The hearing findings and conclusions, and written clerk shall obtain and file certifi- arguments or briefs, based upon the cations to the effect that such correc- evidence received at the hearing, cit- tions have been effected in copies other ing, where practicable, the page or than the official record copy. pages of the transcript of the testi- § 900.11 Copies of the transcript. mony where such evidence appears. Factual material other than that ad- (a) During the period in which the duced at the hearing or subject to offi- proceeding has an active status in the cial notice shall not be alluded to Department, a copy of the transcript therein, and, in any case, shall not be and exhibits shall be kept on file in the considered in the formulation of the office of the hearing clerk, where it marketing agreement or marketing shall be available for examination dur- order. If the person filing a brief de- ing official hours of business. There- sires the Secretary to consider any ob- after said transcript and exhibits shall jection made by such person to a ruling be made available by the hearing clerk of the judge, as provided in § 900.8(d), he for examination during official hours shall include in the brief a concise of business after prior request and rea- statement concerning each such objec- sonable notice to the hearing clerk. tion, referring where practicable, to (b) Transcripts of hearings shall be the pertinent pages of the transcript. made available to any person at actual cost of duplication. § 900.10 Certification of the transcript. [25 FR 5907, June 28, 1960, as amended at 67 The judge shall notify the hearing FR 10829, Mar. 11, 2002] clerk of the close of a hearing as soon as possible thereafter and of the time § 900.12 Administrator’s recommended for filing written arguments, briefs, decision. proposed findings and proposed conclu- (a) Preparation. As soon as prac- sions, and shall furnish the hearing ticable following the termination of clerk with such other information as the period allowed for the filing of may be necessary. As soon as possible written arguments or briefs and pro- after the hearing, the judge shall trans- posed findings and conclusions the Ad- mit to the hearing clerk an original ministrator shall file with the hearing and three copies of the transcript of clerk a recommended decision.

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(b) Contents. The Administrator’s rec- § 900.13a Decision by Secretary. ommended decision shall include: (1) A After due consideration of the record, preliminary statement containing a de- the Secretary shall render a decision. scription of the history of the pro- Such decision shall become a part of ceedings, a brief explanation of the ma- the record and shall include: (a) A terial issues of fact, law, or discretion statement of his findings and conclu- presented on the record, and proposed sions, as well as the reasons or basis findings and conclusions with respect therefor, upon all the material issues to such issues as well as the reasons or of fact, law or discretion presented on basis therefor; (2) a ruling upon each the record, (b) a ruling upon each pro- proposed finding or conclusion sub- posed finding and proposed conclusion mitted by interested persons, and (3) an not previously ruled upon in the appropriate proposed marketing agree- record, (c) a ruling upon each exception ment or marketing order effectuating filed by interested persons and (d) ei- his recommendations. ther (1) a denial of the proposal to issue (c) Exceptions to recommended decision. a marketing agreement or marketing Immediately following the filing of his order or (2) a marketing agreement recommended decision, the Adminis- and, if the findings upon the record so trator shall give notice thereof, and op- warrant, a marketing order, the provi- portunity to file exceptions thereto by sions of which shall be set forth di- publication in the FEDERAL REGISTER. rectly or by reference, regulating the Within a period of time specified in handling of the commodity or product such notice any interested person may in the same manner and to the same file with the hearing clerk exceptions extent as such marketing agreement, to the Administrator’s proposed mar- which order shall be complete except keting agreement or marketing order, for its effective date and any deter- or both, as the case may be, and a brief minations to be made under § 900.14(b) in support of such exceptions. Such ex- or § 900.14(c): Provided, That such marketing order shall not be executed, ceptions shall be in writing, shall refer, issued, or made effective until and un- where practicable, to the related pages less the Secretary determines that the of the transcript and may suggest ap- requirements of § 900.14(b) or § 900.14(c) propriate changes in the proposed mar- have been met. keting agreement or marketing order. (d) Omission of recommended decision. § 900.14 Execution and issuance of The procedure provided in this section marketing agreements and mar- may be omitted only if the Secretary keting orders. finds on the basis of the record that (a) Execution and issuance of marketing due and timely execution of his func- agreement. If the Secretary has ap- tions imperatively and unavoidably re- proved a marketing agreement, as pro- quires such omission. vided in § 900.13a, the Administrator shall cause copies thereof to be distrib- § 900.13 Submission to Secretary. uted for execution by the handlers eli- Upon the expiration of the period al- gible to become parties thereto. If and lowed for filing exceptions or upon re- when such number of the handlers as quest of the Secretary, the hearing the Secretary shall deem sufficient clerk shall transmit to the Secretary shall have executed the agreement, the the record of the proceeding. Such Secretary shall execute the agreement. record shall include: All motions and After execution of a marketing agree- requests filed with the hearing clerk ment, such agreement shall be filed and rulings thereon; the certified tran- with the hearing clerk, and notice thereof, together with notice of the ef- script; any proposed findings or conclu- fective date, shall be given by publica- sions or written arguments or briefs tion in the FEDERAL REGISTER. The that may have been filed; the Adminis- marketing agreement shall not become trator’s recommended decision, if any, effective less than 30 days after its pub- and such exceptions as may have been lication in the FEDERAL REGISTER, un- filed. less the Secretary, upon good cause

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found and published with the agree- cation in the FEDERAL REGISTER. (7 ment, fixes an earlier effective date U.S.C. 610(c).) therefor: Provided, That no marketing [25 FR 5907, June 28, 1960, as amended at 53 agreement shall become effective as to FR 15659, May 3, 1988] any person signatory thereto before either (1) it has been filed with the Office § 900.15 Filing; extensions of time; ef- of the Federal Register, or (2) such per- fective date of filing; and computa- son has received actual notice that the tion of time. Secretary has executed the agreement (a) Filing, number of copies. Except as and the effective date of the marketing is provided otherwise in this subpart, agreement. all documents or papers required or au- (b) Issuance of marketing order with thorized by the foregoing provisions of marketing agreement. Whenever, as pro- this subpart to be filed with the hear- vided in paragraph (a) of this section, ing clerk shall be filed in quadru- the Secretary executes a marketing plicate. Any document or paper, so re- agreement, and handlers also have exe- quired or authorized to be filed with cuted the same as provided in section the hearing clerk, shall, during the 8c(8) of the Act, he shall, if he finds course of an oral hearing, be filed with that it will tend to effectuate the pur- the presiding officer. The provisions of poses of the Act, issue and make effec- this subpart concerning filing with the tive the marketing order, if any, which hearing clerk of hearing notices, rec- was filed as a part of his decision pur- ommended and final decisions, mar- suant to § 900.13a: Provided, That the keting agreements and orders, and all issuance of such order shall have been documents described in § 900.17 shall be approved or favored by producers as re- met by filing a true copy thereof with quired by section 8c(8) of the act. the hearing clerk. (c) Issuance of marketing order without (b) Extensions of time. The time for marketing agreement. If, despite the fail- the filing of any document or paper re- ure or refusal of handlers to sign the quired or authorized by the foregoing marketing agreement, as provided in provisions of this subpart to be filed section 8c(8) of the Act, the Secretary may be extended by the judge before makes the determinations required the record is certified by the judge or under section 8c(9) of the Act, the Sec- by the Administrator (after the record retary shall issue and make effective is so certified by the judge but before it the marketing order, if any, which was is transmitted to the Secretary), or by filed as a part of his decision pursuant the Secretary (after the record is to § 900.13a. transmitted to the Secretary) upon re- (d) Effective date of marketing order. quest filed, and if, in the judgment of No marketing order shall become effec- the judge, Administrator, or the Sec- tive less than 30 days after its publica- retary, as the case may be, there is tion in the FEDERAL REGISTER, unless good reason for the extension. All rul- the Secretary, upon good cause found ings made pursuant to this paragraph and published with the order, fixes an shall be filed with the hearing clerk. earlier effective date therefor: Pro- (c) Effective date of filing. Any docu- vided, That no marketing order shall ment or paper required or authorized in become effective as to any person this subpart to be filed shall be deemed sought to be charged thereunder before to be filed at the time it is received by either (1) it has been filed with the Of- the Hearing Clerk. fice of the Federal Register, or (2) such (d) Computation of time. Each day, in- person has received actual notice of the cluding Saturdays, Sundays, and legal issuance and terms of the marketing public holidays, shall be included in order. computing the time allowed for filing (e) Notice of issuance. After issuance any document or paper: Provided, That of a marketing order, such order shall when the time for filing a document or be filed with the hearing clerk, and no- paper expires on a Saturday, Sunday, tice therof, together with notice of the or legal public holiday, the time al- effective date, shall be given by publi- lowed for filing the document or paper

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shall be extended to include the fol- the extent consistent with the interest lowing business day. of justice and the policy of the under- lying statute, take whatever steps are [25 FR 5907, June 28, 1960, as amended at 30 FR 254, Jan. 9, 1965; 67 FR 10829, Mar. 11, 2002] deemed necessary to nullify the effect of such communication. § 900.16 Ex parte communications. (e) For the purposes of this section, (a) At no stage of the proceeding fol- ex parte communication means an oral or lowing the issuance of a notice of hear- written communication not on the pub- ing and prior to the issuance of the lic record with respect to which reason- Secretary’s decision therein shall an able prior notice to all interested par- employee of the Department who is or ties is not given, but which shall not may reasonably be expected to be in- include requests for status reports (involved in the decisional process of the cluding requests on procedural mat- proceeding discuss ex parte the merits ters) on any proceeding. of the proceeding with any person hav- [42 FR 10833, Feb. 24, 1977] ing an interest in the proceeding or with any representative of such person: § 900.17 Additional documents to be Provided, That procedural matters and filed with hearing clerk. status reports shall not be included In addition to the documents or pa- within this limitation; and Provided pers required or authorized by the fore- further, That an employee of the De- going provisions of this subpart to be partment who is or may reasonably be filed with the hearing clerk, the hear- expected to be involved in the ing clerk shall receive for filing and decisional process of the proceeding shall have custody of all papers, re- may discuss the merits of the pro- ports, records, orders, and other docu- ceeding with such a person if all par- ments which relate to the administra- ties known to be interested in the pro- tion of any marketing agreement or ceeding have been given notice and an marketing order and which the Sec- opportunity to participate. A memo- retary is required to issue or to ap- randum of any such discussion shall be prove. included in the record of the proceeding. § 900.18 Hearing before Secretary. (b) No person interested in the proceeding shall make or knowingly cause The Secretary may act in the place to be made to an employee of the De- and stead of a judge in any proceeding partment who is or may reasonably be under this subpart. When he so acts the expected to be involved in the hearing clerk shall transmit the record decisional process of the proceeding an to the Secretary at the expiration of ex parte communication relevant to the period provided for the filing of the merits of the proceeding except as proposed findings of fact, conclusions provided in paragraph (a) of this sec- and orders, and the Secretary shall tion. thereupon, after due consideration of (c) If an employee of the Department the record, issue his final decision in who is or may reasonably be expected the proceeding: Provided, That he may to be involved in the decisional process issue a tentative decision in which of the proceeding receives or makes a event the parties shall be afforded an communication prohibited by this sec- opportunity to file exceptions before tion, the Department shall place on the the issuance of the final decision. public record of the proceeding: (1) All such written communications; Subpart—Supplemental Rules of (2) Memoranda stating the substance Practice Governing Pro- of all such oral communications; and ceedings To Amend Federal (3) All written responses, and memo- Milk Marketing Agreements randa stating the substance of all oral and Marketing Orders responses thereto. (d) Upon receipt of a communication knowingly made or knowingly caused AUTHORITY: 7 U.S.C. 608c(17) and 610. to be made by a party in violation of SOURCE: 73 FR 49088, Aug. 20, 2008, unless this section, the Department may, to otherwise noted.

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§ 900.20 Words in the singular form. deciding whether a hearing will be Words in this subpart in the singular held. If the information requested is form shall be deemed to import the not received within a specified time- plural, and vice versa, as the case may frame, the request shall be denied; or demand. deny the request. Notice of the action plan will be made on the Dairy Pro- § 900.21 Definitions. grams, AMS Web site and through pro- As used in this subpart, the terms as gram releases to interested persons. defined in the Act and in § 900.2 of this part shall apply. § 900.24 Pre-hearing information sessions. § 900.22 Proposal submission require- A pre-hearing information session ments. may be held by the Secretary in re- When a person other than the Sec- sponse to any proposals received under retary makes a proposal to amend a § 900.3 of this part. Any person pro- Federal milk marketing agreement or posing an amendment to a Federal order under § 900.3 of this part, the pro- milk marketing agreement or order posal shall address the following, to may request that a pre-hearing infor- the extent applicable: mation session be held. A person sub- (a) Explain the proposal. What is the mitting a proposal shall have up to 3 disorderly marketing condition that calendar days to modify or withdraw the proposal is intended to address? his or her proposal prior to the publica- (b) What is the purpose of the pro- tion of a notice of hearing. posal? (c) Describe the current Federal § 900.25 Advance submission of testi- order requirements or industry prac- mony. tices relative to the proposal. Any person proposing an amendment (d) Describe the expected impact on to a Federal milk marketing agree- the industry, including on producers ment or order under § 900.3 of this part, and handlers, and on consumers. Ex- when participating as a witness, shall plain/Quantify. make copies of his or her testimony, if (e) What are the expected effects on prepared as an exhibit, and any other small businesses as defined by the Reg- exhibits available to USDA officials be- ulatory Flexibility Act (5 U.S.C. 601– 612)? Explain/Quantify. fore the start of the hearing on the per- (f) How would adoption of the pro- son’s day of appearance. Individual posal increase or decrease costs to pro- dairy farmers shall not be subject to ducers, handlers, others in the mar- this requirement. keting chain, consumers, the Market § 900.26 Requesting USDA data for use Administrator offices and/or the Sec- at an amendatory hearing. retary? Explain/Quantify. (g) Would a pre-hearing information Requests for preparation of USDA session be helpful to explain the pro- data to be used at a Federal milk mar- posal? keting agreement or order amendatory proceeding must be received by USDA § 900.23 Procedures following receipt at least 10 days before the beginning of of a proposal. the hearing. If an amendatory hearing Within 30 days of receipt of a pro- is announced with less than 10 days be- posal to amend a Federal milk mar- fore the start of the hearing, requests keting agreement order under § 900.3 of for data must be submitted within 2 this part, USDA shall either: Issue a days following publication of the no- notice providing an action plan and ex- tice of hearing in the FEDERAL REG- pected timeframes for the different ISTER. steps in the formal rulemaking process for completion of the hearing not more § 900.27 Deadline for filing post-hear- than 120 days after the date of the ing briefs and corrections to tran- issuance of the notice; request addi- script. tional information from the person (a) Under § 900.10 of this part, the pe- submitting the proposal to be used in riod of time for interested persons to

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file corrections to the transcript of tes- the proceeding. Instructions for elec- timony at a Federal milk marketing tronic filing will be provided in the no- agreement or order amendatory pro- tice of action plan referred to in § 900.23 ceeding shall be no more than 30 days of this subpart, at the amendatory after the hearing record is available. hearing, and in each FEDERAL REG- (b) Under § 900.9(b) of this part, the ISTER publication regarding the amend- period of time after the completion of atory proceeding. a Federal milk marketing agreement or order amendatory hearing for inter- § 900.32 Informal rulemaking. ested persons to file proposed findings USDA may elect to use informal and conclusions, and written argu- rulemaking procedures under 553 of ments or briefs, shall be no more than Title 5, United States Code, to amend 60 days after completion of the amend- Federal milk marketing agreements atory hearing. and orders, other than provisions that directly affect milk prices. In making § 900.28 Deadline for issuance of rec- this determination, consideration shall ommended decisions or tentative be given to: final decisions. (a) The nature and complexity of the In a Federal milk marketing agree- proposal; ment or order amendatory proceeding, (b) The potential regulatory and eco- USDA shall issue a recommended deci- nomic impacts on affected entities; and sion under § 900.12 or, when applicable, (c) Any other relevant matters. a tentative final decision, not later than 90 days after the deadline for sub- § 900.33 Industry assessments. mission of proposed findings and con- If the Secretary determines it is nec- clusions, and written arguments or essary to improve or expedite an briefs. amendatory formal rulemaking proceeding to amend a Federal milk mar- § 900.29 Deadline for filing exceptions keting agreement or order, USDA may to recommended decisions. impose an assessment on pooled milk In a Federal milk marketing agree- to supplement appropriated funds for ment or order amendatory proceeding, the procurement of such services, in- exceptions to a recommended decision cluding but not limited to, court re- under § 900.12 shall be filed with the porters, hearing examiners, legal coun- hearing clerk not later than 60 days sel, hearing venue and associated trav- after publication of the recommended el for USDA officials. Only the milk decision in the FEDERAL REGISTER, un- pooled in the particular marketing less otherwise specified in that deci- area that stands to be affected by pro- sion. posals heard at the amendatory proceeding may be assessed. The assess- § 900.30 Deadline for issuance of Sec- ments shall be subject to the provi- retary’s (final) decisions. sions of § 1000.85 (7 CFR 1000.85) con- A Secretary’s (final) decision under cerning assessments for order adminis- § 900.13a to a proposed amendment on tration, including the provision that marketing agreement or order shall be assessments shall not exceed $.005 per issued not later than 60 days after the hundredweight of milk for any given deadline for submission of exceptions month. to the recommended decision. Subpart—Supplemental Rules of § 900.31 Electronic submission of hear- Practice Governing Pro- ing documents. ceedings To Amend Fruit, To the extent practicable, all docu- Vegetable and Nut Marketing ments filed with the hearing clerk in a proceeding to amend a Federal milk Agreements and Marketing marketing agreement or order shall Orders also be submitted electronically to the Dairy Programs, Agricultural Mar- AUTHORITY: 7 U.S.C. 608c(17) and 610. keting Service, USDA. All documents SOURCE: 73 FR 49310, Aug. 21, 2008, unless should reference the docket number of otherwise noted.

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§ 900.36 Words in the singular form. (h) A description of how the proposal would be implemented; and Words in this subpart in the singular form shall be deemed to import the (i) A description, including quan- plural, and vice versa, as the case may tification, of how compliance with the demand. proposal would be effected.

§ 900.37 Definitions. § 900.40 Written testimony and USDA data request requirements. As used in this subpart, the terms as defined in the Act and in § 900.2 of this In addition to the provisions of part shall apply. § 900.8(b)(4), witnesses at an amendatory fruit, vegetable or nut formal § 900.38 Pre-hearing information ses- rulemaking hearing shall make, to the sions. extent practicable, at least 8 copies of A pre-hearing information session their testimony, if prepared as an ex- concerning a proposal to amend a fruit, hibit, and any other exhibits available vegetable or nut marketing agreement to USDA before testimony is given on or order may be held either prior or the day of appearance at the hearing. subsequent to submission of a proposal Industry requests for preparation of under § 900.3 of this part. Such sessions USDA data for a rulemaking hearing may be held by a marketing agreement should be made at least 10 days prior to or order committee or board or by the the beginning of the hearing. Secretary. § 900.41 Electronic document submis- § 900.39 Proposal submission require- sion standards. ments. To the extent practicable, all docu- When a person other than the Sec- ments filed with the hearing clerk in a retary makes a proposal to amend a proceeding to amend a fruit, vegetable fruit, vegetable or nut marketing or nut marketing agreement or order agreement or order under § 900.3 of this shall also be submitted electronically part, the proposal shall address the fol- to the Agricultural Marketing Service, lowing, to the extent applicable: Fruit and Vegetable Programs, USDA. (a) The purpose of the proposal; All documents should reference the (b) The problem the proposal is de- docket number of the proceeding. In- signed to address with explanation and structions for electronic filing shall be quantification; provided at the amendatory formal (c) The current requirements or in- rulemaking hearing and in each FED- dustry practices relative to the pro- ERAL REGISTER publication regarding posal; the amendatory proceeding. (d) The expected impact on the industry, including producers, handlers, and § 900.42 Industry assessments. on consumers; (e) In the case of marketing orders, If the Secretary determines it is nec- an explanation, including supporting essary to improve or expedite an information and data, of how the pro- amendatory fruit, vegetable or nut for- posal would tend to improve returns to mal rulemaking proceeding, costs asso- producers, and in the case of marketing ciated with improving or expediting agreements, how the proposal impacts the proceeding may be charged to the the signatories to the agreement; committees or boards. Such costs shall (f) The expected effects on small be paid with assessments from the han- businesses as defined by the Regu- dlers regulated under the marketing latory Flexibility Act (5 U.S.C. 601–612); order to be amended or on signatories (g) A description and quantification to the marketing agreement subject to of whether the proposal would increase amendment. Such assessments may or decrease costs to producers, han- supplement funds for costs associated dlers, or others in the marketing chain, with, but not limited to, court report- and to consumers, marketing order ers, hearing examiners, legal counsel, committees and boards and/or the Sec- hearing venue and associated travel for retary; USDA officials.

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§ 900.43 Use of informal rulemaking. ployee of the Department to whom au- (a) Notwithstanding the provisions of thority has been delegated or may §§ 900.1 through 900.18, and 900.36 hereafter be delegated to act for the through 900.42 of this part, the Sec- Administrator. retary may determine that informal (f) [Reserved] rulemaking procedures under § 553 of (g) The term FEDERAL REGISTER Title 5, United States Code be used to means the publication provided for by amend fruit, vegetable or nut mar- the act of July 26, 1935 (49 Stat. 500), keting agreements and marketing or- and acts supplementary thereto and ders. In making this determination, amendatory thereof; consideration shall be given to: (h) The term marketing order means (1) The nature and complexity of the any order or any amendment thereto proposal; which may be issued pursuant to sec- (2) The potential regulatory and eco- tion 8c of the act; nomic impacts on affected entities; and (i) The term handler means any per- (3) Any other relevant matters. son who, by the terms of a marketing order, is subject thereto, or to whom a Subpart—Rules of Practice Gov- marketing order is sought to be made erning Proceedings on Peti- applicable; tions To Modify or To Be Ex- (j) The term proceeding means a pro- empted From Marketing Or- ceeding before the Secretary arising under section 8c(15)(A) of the Act. ders (k) The term hearing means that part of the proceeding which involves the AUTHORITY: 7 U.S.C. 608c. submission of evidence; (l) The term party includes the De- § 900.50 Words in the singular form. partment; Words in this subpart in the singular (m) The term hearing clerk means the form shall be deemed to import the hearing clerk, United States Depart- plural, and vice versa, as the case may ment of Agriculture, Washington, D.C.; demand. (n) [Reserved] § 900.51 Definitions. (o) The term decision means the judge’s initial decision in proceedings As used in this subpart, the terms as subject to 5 U.S.C. 556 and 557, and in- defined in the act shall apply with cludes the judge’s (1) findings of fact equal force and effect. In addition, un- and conclusions with respect to all ma- less the context otherwise requires: terial issues of fact, law or discretion (a) The term act means Public Act as well as the reasons or basis thereof, No. 10, 73d Congress, as amended and as (2) order, and (3) rulings on findings, reenacted and amended by the Agricul- conclusions and orders submitted by tural Marketing Agreement Act of 1937, the parties; as amended (7 U.S.C. and Sup. 601); (p) The term petition includes an (b) The term Department means the amended petition. United States Department of Agri- culture; [25 FR 5907, June 28, 1960, as amended at 26 (c) The term Secretary means the Sec- FR 7796, Aug. 22, 1961; 28 FR 579, Jan. 23, 1963; retary of Agriculture of the United 37 FR 8059, Apr. 25, 1972; 38 FR 29798, Oct. 29, States, or any officer or employee of 1973; 67 FR 10829, Mar. 11, 2002] the Department to whom authority has heretofore been delegated, or to whom § 900.52 Institution of proceeding. authority may hereafter be delegated, (a) Filing and service of petition. Any to act for the Secretary; handler desiring to complain that any (d) The term judge means any Admin- marketing order or any provision of istrative Law Judge, appointed pursu- any such order or any obligation im- ant to 5 U.S.C. 3105, and assigned to the posed in connection therewith is not in proceeding involved; accordance with law, shall file with the (e) The term Administrator means the hearing clerk, in quadruplicate, a peti- Administrator of the Agricultural Mar- tion in writing addressed to the Sec- keting Service or any officer or em- retary. Promptly upon receipt of the

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petition, the hearing clerk shall trans- faith, or is filed for purposes of delay, mit a true copy thereof to the Adminis- the Administrator may, within thirty trator and the General Counsel, respec- days after the service of the petition, tively. file with the Hearing Clerk a motion to (b) Contents of petition. A petition dismiss the petition, or any portion shall contain: thereof, on one or more of the grounds (1) The correct name, address, and stated in this paragraph. Such motion principal place of business of the peti- shall specify the grounds of objection tioner. If petitioner is a corporation, to the petition and if based, in whole or such fact shall be stated, together with in part, on an allegation of fact not ap- the name of the State of incorporation, pearing on the face of the petition, the date of incorporation, and the shall be accompanied by appropriate names, addresses, and respective posi- affidavits or documentary evidence tions held by its officers; if an unincor- substantiating such allegations of fact. porated association, the names and ad- The motion may be accompanied by a dresses of its officers, and the respec- memorandum of law. Upon receipt of tive positions held by them; if a part- such motion, the Hearing Clerk shall nership, the name and address of each cause a copy thereof to be served upon partner; the petitioner, together with a notice (2) Reference to the specific terms or stating that all papers to be submitted provisions of the marketing order, or in opposition to such motion including the interpretation or application there- any memorandum of law, must be filed of, which are complained of; by the petitioner with the hearing (3) A full statement of the facts clerk not later than 20 days after the (avoiding a mere repetition of detailed service of such notice upon the peti- evidence) upon which the petition is tioner. Upon the expiration of the time based, and which it is desired that the specified in such notice, or upon re- Secretary consider, setting forth clear- ceipt of such papers from the peti- ly and concisely the nature of the petitioner, the hearing clerk shall transmit tioner’s business and the manner in all papers which have been filed in con- which petitioner claims to be affected nection with the motion to the Judge by the terms or provisions of the mar- for consideration. keting order, or the interpretation or (2) Decision by the Judge. The Judge, application thereof, which are com- after due consideration, shall render a plained of; decision upon the motion stating the (4) A statement of the grounds on reasons for his action. Such decision which the terms or provisions of the shall be in the form of an order and marketing order, or the interpretation shall be filed with the hearing clerk or application thereof, which are com- who shall cause a copy thereof to be plained of, are challenged as not in ac- served upon the petitioner and a copy cordance with law; thereof to be transmitted to the Ad- (5) Prayers for the specific relief ministrator. Any such order shall be which the petitioner desires the Sec- final unless appealed pursuant to retary to grant; § 900.65: Provided, That within 20 days (6) An affidavit by the petitioner, or, following the service upon the peti- if the petitioner is not an individual, tioner of a copy of the order of the by an officer of the petitioner having Judge dismissing the petition, or any knowledge of the facts stated in the pe- portion thereof, on the ground that it tition, verifying the petition and stat- does not substantially comply in form ing that it is filed in good faith and not and content with the act or with para- for purposes of delay. graph (b) of this section, the petitioner (c) Motion to dismiss petition—(1) Fil- shall be permitted to file an amended ing, contents, and responses thereto. If petition. the Administrator is of the opinion (3) Oral argument. Unless a written that the petition, or any portion there- application for oral argument is filed of, does not substantially comply, in by a party with the hearing clerk not form or content, with the act or with later than the time fixed for filing pa- the requirements of paragraph (b) of pers in opposition to the motion, it this section, or is not filed in good shall be considered that the party does

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not desire oral argument. The granting draw. The judge may, in his discretion, of a request to make oral argument thereupon dismiss the petition without shall rest in the discretion of the further procedure: Provided, That, if Judge. the request to withdraw is filed after a hearing has been opened, permission to [25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973; 67 FR 10829, Mar. 11, withdraw shall be granted only in ex- 2002] ceptional circumstances.

§ 900.52a Answer to petition. § 900.54 Docket number. (a) Time of filing. Within 30 days after Each proceeding, immediately fol- the filing of the petition, the Adminis- lowing its institution, shall be assigned trator shall file an answer thereto: Pro- a docket number by the hearing clerk vided, That if a motion to dismiss the and thereafter the proceeding may be petition, in whole or in part, is made referred to by such number. pursuant to § 900.52(c), the answer shall § 900.55 Judges. be filed within 15 days after the service of an order of the judge denying the (a) Assignment. No judge who has any motion or granting the motion with re- pecuniary interest in the outcome of spect to only a portion of the petition. the proceeding, or who has participated The answer shall be filed with the hear- in any investigation preceding the in- ing clerk who shall cause a copy there- stitution of the proceeding, shall serve of to be served promptly upon the peti- as judge in such proceeding. tioner. (b) Conduct. The judge shall conduct (b) Contents. The answer shall specify the proceeding in a fair and impartial which of the material allegations of manner and shall not discuss ex parte fact or of law in the petition are con- the merits of the proceeding with any troverted and which are not con- person who is or who has been con- troverted. The answer also may connected in any manner with the pro- tain affirmative allegations of fact ceeding in an advocative or investiga- constituting separate defenses and tive capacity. statements of objections to the suffi- (c) Powers of judges. Subject to review ciency of the whole or any part of the by the Secretary, as provided elsewhere petition. in this subpart, the judge shall have power to: [25 FR 5907, June 28, 1960, as amended at 38 (1) Rule upon motions and requests; FR 29798, Oct. 29, 1973; 67 FR 10829, Mar. 11, (2) Adjourn the hearing from time to 2002] time, and change the time and place of hearing; § 900.52b Amended pleadings. (3) Administer oaths and affirmations At any time before the close of the and take affidavits; hearing the petition or answer may be (4) Issue subpenas, under the fac- amended, but the hearing shall, at the simile signature of the Secretary, re- request of the adverse party, be ad- quiring the attendance and testimony journed or recessed for such reasonable of witnesses and the production of time as the judge may determine to be books, records, contracts, papers, and necessary to protect the interests of other documentary evidence; the parties. Amendments subsequent to (5) Examine witnesses and receive the first amendment or subsequent to evidence; the filing of an answer may be made (6) Take or order, under the facsimile only with leave of the judge or with the signature of the Secretary, the taking written consent of the adverse party. of depositions; (7) Admit or exclude evidence; § 900.53 Withdrawal of petition. (8) Hear oral argument on facts or If, at any time after the petition is law; filed, the petitioner desires to with- (9) Consolidate hearings upon two or draw the same, he shall file with the more petitions pertaining to the same hearing clerk (or, if filed during the order; course of a hearing, with the judge) a (10) Do all acts and take all measures written request for permission to with- necessary for the maintenance of order

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at the hearing and the efficient con- disposition of the proceeding. No tran- duct of the proceeding. script of such conference shall be (d) Who may act in absence of judge. In made, but the judge shall prepare and case of the absence of the judge or his file for the record a written summary inability to act, the powers and duties of the action taken at the conference, to be performed by him under these which shall incorporate any written rules of practice in connection with a stipulations or agreements made by proceeding may, without abatement of the parties at the conference or as a re- the proceeding unless otherwise or- sult of the conference. If the cir- dered by the Secretary, be assigned to cumstances are such that a conference any other judge. is impracticable, the judge may re- (e) Disqualification of judge. The judge quest the parties to correspond with may at any time withdraw as judge in him for the purpose of accomplishing a proceeding if he deems himself to be any of the objects set forth in this sec- disqualified. Upon the filing by an in- tion. The judge shall forward copies of terested person in good faith of a time- letters and documents to the parties as ly and sufficient affidavit of personal the circumstances require. Correspond- bias or disqualification of a judge, the ence in such negotiations shall not be a Secretary shall determine the matter part of the record, but the judge shall as a part of the record and decision in submit a written summary for the the proceeding, after making such in- record if any action is taken. vestigation or holding such hearings, or both, as he may deem appropriate in § 900.59 Motions and requests. the circumstances. (a) General. (1) All motions and requests shall be filed with the hearing § 900.56 Consolidated hearings. clerk, except that those made during At the discretion of the judge, hear- the course of an oral hearing may be ings upon two or more petitions per- filed with the judge or may be stated taining to the same order may be con- orally and made a part of the tran- solidated, and the evidence taken at script. such consolidated hearing may be em- (2) The judge is authorized to rule bodied in a single record. upon all motions and requests filed or made prior to the transmittal by the § 900.57 Intervention. hearing clerk to the Secretary of the Intervention in proceedings subject record as provided in this subpart. The to this subpart shall not be allowed, ex- Secretary shall rule upon all motions cept that, in the discretion of the Sec- and requests filed after that time. retary or the judge, any person (other (b) Certification of motions. The sub- than the petitioner) showing a substan- mission or certification of any motion, tial interest in the outcome of a pro- request, objection, or other question to ceeding shall be permitted to partici- the Secretary, as provided in this sub- pate in the oral argument and to file a part, shall be in the discretion of the brief. judge. [25 FR 5907, June 28, 1960, as amended at 38 § 900.58 Prehearing conferences. FR 29798, Oct. 29, 1973] In any proceeding in which it appears that such procedure will expedite the § 900.60 Oral hearings before judge. proceeding, the judge, at any time (a) Time and place. The judge shall set prior to the commencement of or dur- a time and place for hearing and shall ing the course of the hearing, may re- file with the hearing clerk a notice quest the parties or their counsel to stating the time and place of hearing. appear at a conference before him to If any change in the time or place of consider (a) the simplification of hearing becomes necessary, it shall be issues; (b) the possibility of obtaining made by the judge, who, in such event, stipulations of fact and of documents shall file with the hearing clerk a no- which will avoid unnecessary proof; (c) tice of the change. Such notice shall be the limitation of the number of expert served upon the parties, unless it is or other witnesses; and (d) such other made during the course of an oral hear- matters as may expedite and aid in the ing and made a part of the transcript.

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(b) Appearances—(1) Representation. In part of such representative of the De- any proceeding under the act, the par- partment to appear at a hearing shall ties may appear in person or by counsel not be deemed to be waiver of the De- or other representative. The Depart- partment’s right to file suggested find- ment, if represented by counsel, shall ings of fact, conclusions and order; to be represented by an attorney assigned be served with a copy of the judge’s ini- by the General Counsel of the Depart- tial decision and to appeal to the Sec- ment, and such attorney shall present retary with respect thereto. or supervise the presentation of the po- (c) Order of proceeding. Except as may sition of the Department. be determined otherwise by the judge, (2) Debarment of counsel or representa- the petitioner shall proceed first at the tive. Whenever, while a proceeding is hearing. pending before him, the judge finds (d) Evidence—(1) In general. The hear- that a person acting as counsel or rep- ing shall be publicly conducted, and resentative for any party to the pro- the testimony given at the hearing ceeding is guilty of unethical or unpro- shall be reported verbatim. fessional conduct, the judge may order (i) The testimony of witnesses at a that such person be precluded from fur- hearing shall be upon oath or affirma- ther acting as counsel or representation and subject to cross-examination. tive in such proceeding. An appeal to (ii) Any witness may, in the discre- the Secretary may be taken from any tion of the judge, be examined sepa- such order, but the proceeding shall rately and apart from all other wit- not be delayed or suspended pending nesses except those who may be parties disposition of the appeal: Provided, to the proceeding. That the judge may suspend the pro- (iii) The judge shall exclude, insofar ceeding for a reasonable time for the as practicable, evidence which is im- purpose of enabling the client to obtain material, irrelevant, or unduly repeti- other counsel or representative. In case tious, or which is not of the sort upon the judge has issued an order pre- which responsible persons are accus- cluding a person from further acting as tomed to rely. counsel or representative in the pro- (2) Objections. If a party objects to ceeding, the judge, within a reasonable the admission or rejection of any evi- time thereafter, shall submit to the dence or to the limitation of the scope Secretary a report of the facts and cir- of any examination or cross-examina- cumstances surrounding the issuance tion, or any other ruling of the judge, of the order and shall recommend what he shall state briefly the grounds of action the Secretary should take re- such objection, whereupon an auto- specting the appearance of such person matic exception will follow which may as counsel or representative in other be pursued in an appeal pursuant to proceedings before the Secretary. § 900.65 by the party adversely affected Thereafter, the Secretary may, after by the judge’s ruling. notice and an opportunity for hearing, (3) Depositions. The deposition of any issue such order respecting the appear- witness shall be admitted, in the man- ance of such person as counsel or rep- ner hereinafter provided in and subject resentative in proceedings before the to the provisions of § 900.61. Secretary as the Secretary finds to be (4) Affidavits. Except as is otherwise appropriate. provided in this subpart, affidavits may (3) Failure to appear. If the petitioner, be admitted only if the evidence is oth- after being duly notified, fails to ap- erwise admissible and the parties agree pear at the hearing, he shall be deemed (which may be determined by their to have authorized the dismissal of the failure to make timely objections) that proceeding, without further procedure, affidavits may be used. and with or without prejudice as the (5) Proof and authentication of official judge may determine. In the event that records or documents. An official record the petitioner appears at the hearing or document, when admissible for any and no representative of the Depart- purpose, shall be admissible in evi- ment appears, the judge shall proceed dence without the production of the ex parte to hear the evidence of the pe- person who made or prepared the same. titioner. Provided, That failure on the Such record or document shall, in the

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discretion of the judge, be evidenced by (8) Offer of proof. Whenever evidence an official publication thereof or by a is excluded from the record, the party copy attested by the person having offering such evidence may make an legal custody thereof and accompanied offer of proof, which shall be included by a certificate that such person has in the transcript. The offer of proof the custody. shall consist of a brief statement de- (6) Exhibits. All written statements, scribing the evidence to be offered. If charts, tabulations, or similar data of- the evidence consists of a brief oral fered in evidence at the hearing shall, statement or of an exhibit, it shall be after identification by the proponent inserted into the transcript in toto. In and upon a satisfactory showing of the such event, it shall be considered a admissibility of the contents thereof, part of the transcript if the Secretary be numbered as exhibits and received decides that the judge’s ruling in ex- in evidence and made a part of the cluding the evidence was erroneous. record. Except where the judge finds The judge shall not allow the insertion that the furnishing of copies is imprac- of such evidence in toto if the taking of ticable, a copy of each exhibit, in addi- such evidence will consume a consider- tion to the original, shall be filed with able length of time at the hearing. In the judge for the use of each other the latter event, if on appeal the Sec- party to the proceeding. The judge retary decides that the judge erred in shall advise the parties as to the exact excluding the evidence, and that such number of copies which will be required error was substantial, the hearing shall to be filed and shall make and have be reopened to permit the taking of noted on the record the proper dis- such evidence. tribution of the copies. If the testi- (e) Transcript. Transcripts of hearings mony of a witness refers to a statute, shall be made available to any person or to a report, document, or transcript, at actual cost of duplication. the judge, after inquiry relating to the [25 FR 5907, June 28, 1960, as amended at 38 identification of such statute, report, FR 29798, Oct. 29, 1973; 67 FR 10829, Mar. 11, document, or transcript, shall deter- 2002] mine whether the same shall be produced at the hearing and physically be § 900.61 Depositions. made a part of the evidence as an ex- (a) Procedure in lieu of deposition. Be- hibit, or whether it shall be incor- fore any party may have testimony porated into the evidence by reference. taken by deposition, said party shall, if If relevant and material matter offered practicable, submit to the other party in evidence is embraced in a report, an affidavit which shall set forth the document, or transcript containing im- facts to which the witness would tes- material or irrelevant matter, such im- tify, if the deposition should be taken. material or irrelevant matter shall be If, after examination of such affidavit, excluded and shall be segregated inso- the other party agrees, or (within 10 far as practicable, subject to the direc- days after submission of the affidavit) tion of the judge. fails to object, that the affidavit may (7) Official notice. Official notice will be used in lieu of the deposition, the be taken of such matters as are judi- judge shall admit the affidavit in evi- cially noticed by the courts of the dence and shall not order the deposi- United States and of any other matter tion to be taken. of technical, scientific, or commercial (b) Application for taking deposition. fact of established character: Provided, Upon the application of a party to the That the parties shall be given ade- proceeding, the judge may, at any time quate notice, at the hearing or by ref- after the filing of the moving paper, erence in the judge’s report or the ten- order, under the facsimile signature of tative order or otherwise, of matters so the Secretary, the taking of testimony noticed, and (except where official no- by deposition. The application shall be tice is taken, for the first time in the in writing and shall be filed with the proceeding, in the final order) shall be hearing clerk and shall set forth: (1) given adequate opportunity to show The name and address of the proposed that such facts are erroneously no- deponent; (2) the name and address of ticed. the person (referred to hereinafter in

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this section as the judge), qualified atories, copies of the interrogatories under the rules in this part to take shall be served upon the other parties depositions, before whom the proposed to the proceeding at least five days examination is to be made; (3) the pro- prior to the date set for the examina- posed time and place of the examination, and the other parties shall be af- tion, which shall be at least 15 days forded an opportunity to file with the after the date of the mailing of the ap- judge cross-interrogatories at any time plication; and (4) the reasons why such prior to the time of the examination. deposition should be taken. (f) Certification by judge. The judge (c) Judge’s order for taking deposition. shall certify on the deposition that the If, after the examination of the appli- deponent was duly sworn by him and cation, the judge is of the opinion that that the deposition is a true record of the deposition should be taken, he the deponent’s testimony. He shall shall order its taking. The order shall then securely seal the deposition, to- be filed with the hearing clerk and gether with two copies thereof, in an shall be served upon the parties and envelope and mail the same by reg- shall state: (1) The time and place of istered mail to the hearing clerk. the examination (which shall not be (g) Use of depositions. A deposition or- less than 10 days after the filing of the dered and taken in accord with the pro- order); (2) the name of the judge before visions of this section may be used in a whom the examination is to be made; proceeding under the act if the judge (3) the name of the deponent. The judge finds that the evidence is otherwise ad- and the time and place need not be the missible and (1) that the witness is same as those suggested in the applica- dead; or (2) that the witness is at a dis- tion. tance greater than 100 miles from the (d) Qualifications of judge. The deposi- place of hearing, unless it appears that tion shall be taken before the judge, or the absence of the witness was pro- before a judge authorized by the law of cured by the party offering the deposi- the United States or by the law of the tion; or (3) that the witness is unable place of the examination to administer to attend or testify because of age, oaths, or before a judge authorized by sickness, infirmity, or imprisonment; the Secretary to administer oaths. or (4) that the party offering the depo- (e) Procedure on examination. (1) The sition has endeavored to procure the deponent shall be examined under oath attendance of the witness by subpena or affirmation and shall be subject to but has been unable to do so; or (5) that cross-examination. The testimony of such exceptional circumstances exist the deponent shall be recorded by the judge or by some person under his di- as to make it desirable, in the interests rection and in his presence. In lieu of of justice, to allow the deposition to be oral examination, parties may trans- used. If a deposition has been taken, mit written interrogatories to the and the party upon whose application judge prior to the examination and the it was taken refuses to offer it in evi- judge shall propound such interrog- dence, the other party may offer the atories to the deponent. deposition, or any part thereof, in evi- (2) The applicant must arrange for dence. the examination of the witness either § 900.62 Subpenas. by oral examination or by written interrogatories. If it is found by the (a) Issuance of subpenas. The attend- judge, upon the protest of a party to ance of witnesses and the production of the proceeding, that such party has his documentary evidence from any place residence and his place of business in the United States on behalf of any more than 100 miles from the place of party to the proceeding may, by sub- the examination and that it would con- pena, be required at any designated stitute an undue hardship upon such place of hearing. Subpenas may be party to be represented at the exam- issued by the Secretary or by the ination, the applicant will be required judge, under the facsimile signature of to conduct the examination by means the Secretary, upon a reasonable show- of interrogatories. When the examina- ing by the applicant of the grounds, ne- tion is conducted by means of interrog- cessity, and reasonable scope thereof.

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(b) Application for subpena duces taken. Witness fees and mileage shall tecum. Subpenas for the production of be paid by the party at whose instance documentary evidence, unless issued by the witnesses appear, and claims there- the judge upon his own motion, shall for, as to witnesses subpenaed on be- be issued only upon a certified written half of the Department, shall be proved application. Such application shall before the person issuing the subpena, specify, as exactly as possible, the doc- and, as to witnesses subpenaed on be- uments desired and shall show their half of any other party, shall be pre- competency, relevancy, and materi- sented to such party. ality and the necessity for their production. § 900.64 The Judge’s decision. (c) Service of subpenas. Subpenas may (a) Corrections to and certification of be served (1) by a United States Mar- transcript. (1) At such time as the judge shal or his deputy, or (2) by any other person who is not less than 18 years of may specify, but not later than the age, or (3) by registering and mailing a time fixed for filing proposed findings copy of the subpena addressed to the of fact, conclusions and order, or briefs, person to be served at his or its last as the case may be, the parties may file known residence or principal place of with the judge proposed corrections to business or residence. Proof of service the transcript. may be made by the return of service (2) As soon as practicable after the on the subpena by the United States filing of proposed findings of fact, con- Marshal or his deputy; or, if served by clusions and order, or briefs, as the an individual other than a United case may be, the judge shall file with States Marshal or his deputy, by an af- the hearing clerk his certificate indi- fidavit of such person stating that he cating any corrections to be made in personally served a copy of the subpena the transcript, and stating that, to the upon the person named therein; or, if best of his knowledge and belief, the service was by registered mail, by an transcript, as corrected, is a true, cor- affidavit made by the person mailing rect, and complete transcript of the the subpena that it was mailed as pro- testimony given at the hearing, and vided in this paragraph and by the that the exhibits are all the exhibits signed return post office receipt: Pro- properly a part of the hearing record. vided, That, if the subpena is issued on The original of such certificate shall be behalf of the Department, the return attached to the original transcript and receipt without an affidavit of mailing a copy of such certificate shall be shall be sufficient proof of service. In served upon each of the parties by the making personal service, the person hearing clerk who shall also enter onto making service shall leave a copy of the transcript (without obscuring the the subpena with the person subpenaed; text) any correction noted in the cer- the original, bearing or accompanied tification. by the required proof of service, shall (b) Proposed findings of fact, conclu- be returned to the official who issued sions, and orders. Within 10 days (unless the same. the judge shall have announced at the [25 FR 5907, June 28, 1960, as amended 67 FR hearing a shorter or longer period of 10829, Mar. 11, 2002] time) after the transcript has been filed with the hearing clerk, as pro- § 900.63 Fees and mileage. vided in paragraph (a) of this section, Witnesses who are subpenaed and each party may file with the hearing who appear in such proceeding, includ- clerk proposed findings of fact, conclu- ing witnesses whose depositions are sions, and order, based solely upon the taken, shall be paid the same fees and evidence of record, and briefs in sup- mileage that are paid witnesses in the port thereof. courts of the United States, and per- (c) Judge’s Decision. The judge, within sons taking depositions shall be enti- a reasonable time after the termi- tled to the same fees as are paid for nation of the period allowed for the fil- like services in the courts of the ing of proposed findings of fact, conclu- United States, to be paid by the party sions,and orders, and briefs in support at whose request the deposition is thereof, shall prepare upon the basis of

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the record, and shall file with the hear- (c) Response. Within 20 days after ing clerk, his initial decision, a copy of service of an appeal brought by a party which shall be served by the hearing to the proceeding, any other party may clerk, upon each of the parties. Such file a response in support of or in oppo- decision shall become final without sition to such appeal. further proceedings 35 days after the (d) Transmittal of record. Whenever an date of service thereof, unless there is appeal is filed by a party to the pro- an appeal to the Secretary by a party ceeding, the hearing clerk shall trans- to the proceeding: Provided, however, mit to the Secretary the record of the That no decision shall be final for the proceeding. Such record shall include: purpose of judicial review except a The pleadings; any motions and re- final decision issued by the Secretary quests filed, and the rulings thereon; pursuant to an appeal by a party to the the transcript of the testimony taken proceeding. at the hearing, as well as the exhibits [25 FR 5907, June 28, 1960, as amended at 38 filed in connection therewith; any FR 29799, Oct. 29, 1973; 67 FR 10830, Mar. 11, statements filed under the shortened 2002] procedure; any documents or papers filed in connection with prehearing § 900.65 Appeals to Secretary: Trans- conferences; such proposed findings of mittal of record. fact, conclusions, and orders, and briefs (a) Filing of appeal. Any party who in support thereof, as may have been disagrees with a judge’s decision or any filed in connection with the hearing; part thereof, may appeal the decision the judge’s initial decision; and the ap- to the Secretary by filing an appeal pe- peal petition; briefs in support thereof, tition with the Hearing Clerk within 30 and responses thereto as may have days after service of said decision upon been filed in the proceeding. said party. Each issue set forth in the appeal, and the arguments thereon, [38 FR 29799, Oct. 29, 1973, as amended at 67 shall be separately numbered; shall be FR 10830, Mar. 11, 2002] plainly and concisely stated; and shall § 900.66 Consideration of appeal by the contain detailed citations of the Secretary and issuance of final record, statutes, regulations and au- order. thorities being relied upon in support thereof. The appeal petition shall be (a) Consideration of appeal. As soon as served upon the other party to the pro- practicable after the receipt of the ceeding by the hearing clerk. record from the hearing clerk, or, in (b) Argument before Secretary—(1) Oral case oral argument was had, as soon as argument. A party bringing an appeal practicable thereafter, the Secretary, may request within the prescribed time upon the basis of and after due consid- period for filing such appeal, an oppor- eration of the record, shall rule on the tunity for oral argument before the appeal. If the Secretary decides that no Secretary. Failure to make such re- change or modification of the judge’s quest in writing, within the prescribed decision is warranted, he may adopt time period, shall be deemed a waiver the Judge’s decision as the final order of oral argument. The Secretary, in his of the Secretary, preserving any right discretion, may grant, refuse or limit of the party bringing the appeal to any request for oral argument on ap- seek judicial review of such decision in peal. the proper forum. At no stage of the (2) Scope of argument. Argument to be proceeding between its institution and heard on appeal, whether oral or in a the issuance of the order shall the Sec- written brief, shall be limited to the retary discuss ex parte the merits of issues raised by the appeal, except that the proceeding with any person who is if the Secretary determines that addi- connected with the proceeding in an tional issues should be argued, the par- advocative or an investigative capac- ties shall be given reasonable notice of ity, or with any representative of such such determination, so as to permit person: Provided, however, That the preparation of adequate arguments on Secretary may discuss the merits of all the issues to be argued. the proceeding with such a person if all

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parties to the proceeding, or their rep- shall notify and serve a copy thereof resentatives, have been given an oppor- upon the other party to the proceeding. tunity to be present. If, notwith- Every such petition shall state specifi- standing the foregoing provisions of cally the grounds relied upon. this section, a memorandum or other (2) Petitions to reopen hearings. A peti- communication from any party, or tion to reopen the hearing for the pur- from any person acting on behalf of pose of taking additional evidence may any party, which relates to the merits be filed at any time prior to the of the proceeding, receives the personal issuance of the final order. Every such attention of the Secretary (or, if an of- petition shall state briefly the nature ficial other than the Secretary is to and purpose of the evidence to be ad- issue the order, then of such other offi- duced, shall show that such evidence is cial) during the pendency of the pro- not merely cumulative, and shall set ceeding, such memorandum or commu- forth a good reason why such evidence nication shall be regarded as argument was not adduced at the hearing. made in the proceeding and shall be (3) Petitions to rehear or reargue pro- filed with the hearing clerk, who shall ceedings, or to reconsider orders. A peti- serve a copy thereof upon the opposite tion to rehear or reargue the pro- party to file a reply thereto. ceeding or to reconsider the final order (b) Issuance of final order. A final shall be filed within 15 days after the order issued by the Secretary shall be date of the service of such order. Every filed with the hearing clerk, who shall such petition shall state specifically serve it upon the parties: Provided, the matters claimed to have been erro- That, if the terms of the order differ neously decided, and alleged errors substantially from those proposed in must be briefly stated. the decision of the judge, the Secretary (b) Procedure for disposition of peti- shall, if he deems it advisable to do so, tions. Within 10 days following the serv- direct that a copy of the order be ice of any petition provided for in this served upon the parties as a tentative section, the other party to the pro- order; and, in such event, opportunity ceeding shall file with the hearing shall be given the parties to file excep- clerk an answer thereto. As soon as tions thereto and written arguments or practicable thereafter, the Secretary briefs in support of such exceptions. In shall announce the decision granting or such case, if exceptions are filed within denying the petition. Unless the Sec- a period of time (to be fixed by the Sec- retary shall determine otherwise, the retary but not to exceed 20 days) fol- issuance or operation of the order shall lowing the service of the tentative not be stayed pending the decision of order, the Secretary shall give consid- the Secretary upon the petition. In the eration, to and shall make such event that any such petition is granted changes in the tentative order as he by the Secretary, the applicable rules deems to be appropriate; otherwise, the of practice, as set out elsewhere in this tentative order shall become final, as subpart, shall be followed. of the day following the date of expira- [25 FR 5907, June 28, 1960, as amended at 67 tion of the period fixed for the filing of FR 10830, Mar. 11, 2002] exceptions. [38 FR 29799, Oct. 29, 1973] § 900.69 Filing; service; extensions of time; effective date of filing; and § 900.68 Petitions for reopening hear- computation of time. ings; for rehearings or rearguments (a) Filing; number of copies. Except as of proceedings; or for reconsider- provided otherwise herein, all docu- ation of orders. ments or papers required or authorized (a) Petition requisite—(1) Filing; serv- in this subpart to be filed with the ice. A petition for reopening the hear- hearing clerk shall be filed in quadru- ing to take further evidence, or for re- plicate: Provided, That, if there are hearing or reargument of the pro- more than two parties to the proceeding, or for reconsideration of the ceeding, a sufficient number of addi- order shall be made by petition ad- tional copies shall be filed so as to pro- dressed to the Secretary and filed with vide for service upon all the parties to the hearing clerk, who immediately the proceeding. Any document or

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paper, required or authorized in this public holidays, shall be included in subpart to be filed with the hearing computing the time allowed for filing clerk, shall, during the course of an any document or paper: Provided, That oral hearing, be filed with the judge. when the time for filing a document or (b) Service; proof of service. Copies of paper expires on a Saturday, Sunday, all such papers shall be served upon the or legal public holiday, the time al- parties by the hearing clerk, by the lowed for filing the document or paper judge, or by some other employee of shall be extended to include the fol- the Department or by a United States lowing business day. Marshal or his deputy. Service shall be made either (1) by delivering a copy of [25 FR 5907, June 28, 1960, as amended at 67 FR 10830, Mar. 11, 2002] the document or paper to the individual to be served or to a member of § 900.70 Applications for interim relief. the partnership to be served or to the president, secretary, or other executive (a) Filing the application. A person officer or any director of the corpora- who has filed a petition pursuant to tion, organization, or association to be § 900.52 may by separate application served, or to the attorney or agent of filed with the hearing clerk apply to record of such individual, partnership, the Secretary for an order postponing corporation, organization, or associa- the effective date of, or suspending the tion; or (2) by leaving a copy of the application of, the marketing order or document or paper at the principal of- any provision thereof, or any obliga- fice or place of business of such indi- tion imposed in connection therewith, vidual, partnership, corporation, orga- pending final determination of the pro- nization, or association, or of his or its ceeding. attorney or agent of record; or (3) by (b) Contents of the application. The ap- registering and mailing a copy of the plication shall contain a statement of document or paper, addressed to such the facts upon which the relief is re- individual, partnership, corporation, quested, including any facts showing organization, or association, or to his irreparable injury. The application or its attorney or agent of record, at must be signed and sworn to by the pe- his or its last known principal office, titioner and any facts alleged therein place of business, or residence. Proof of which are not within his personal service hereunder shall be made by the knowledge shall be supported by affida- affidavit of the person who actually vits of a person or persons having per- made the service. The affidavit con- sonal knowledge of such facts or by templated herein shall be filed with the proper documentary evidence thereof. hearing clerk, and the fact of filing (c) Answer to application. Imme- thereof shall be noted on the docket of diately upon receipt of the application, the proceeding. the hearing clerk shall transmit a copy (c) Extensions of time. The time for thereof, together with all supporting the filing of any documents or papers papers, to the Administrator, who required or authorized in this subpart shall, within 20 days, or such other to be filed may be extended upon (1) a time fixed by the Secretary, after the written stipulation between the par- filing of the application file an answer ties, or (2) upon the request of a party, thereto with the hearing clerk. by the judge before the transmittal of (d) Contents of answer. The answer the record to the Secretary, or by the shall contain a statement of the objec- Secretary at any other time if, in the tions, if any, of the Administrator to judgment of the Secretary or the judge, the application for interim relief, and as the case may be, there is good rea- may be supported by affidavits and son for the extension. documentary evidence. (d) Effective date of filing. Any docu- (e) Transmittal to Secretary. Upon re- ment or paper required or authorized in ceiving the answer of the Adminis- this subpart to be filed shall be deemed trator or upon the expiration of the to be filed at the time it is received by time for filing the answer, the hearing the Hearing Clerk. clerk shall transmit to the Secretary (e) Computation of time. Each day, infor his decision all papers filed in concluding Saturdays, Sundays, and legal nection with the application.

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(f) Hearing and oral argument. The § 900.81 Definitions. Secretary may, in his discretion, per- As used in this subpart, the terms as mit oral argument or the taking of tes- defined in the act shall apply with timony in connection with such appli- equal force and effect. In addition, un- cation. However, unless written re- less the context otherwise requires: quest therefor is filed with the hearing clerk prior to the transmittal of the (a) The term Act means Public Act papers to the Secretary, the parties No. 10, 73 Congress (48 Stat. 31) as shall be deemed to have waived oral ar- amended and as reenacted and amended gument and the taking of testimony. by the Agricultural Marketing Agree- ment Act of 1937 (50 Stat. 246), as (g) Decision by Secretary. The Sec- amended. retary may grant or deny the application. Any action taken by the Sec- (b) The term Department means the retary shall be in the form of an order United States Department of Agri- filed with the hearing clerk and shall culture. contain a brief statement of the rea- (c) The term Secretary means the Sec- sons for the action taken. The hearing retary of Agriculture of the United clerk shall cause copies of the order to States, or any officer or employee of be served upon the parties. the Department to whom authority has heretofore been delegated, or to whom [25 FR 5907, June 28, 1960, as amended at 67 authority may hereafter be delegated, FR 10830, Mar. 11, 2002] to act in his stead. (d) The term Administrator means the § 900.71 Hearing before Secretary. Administrator of the Agricultural Mar- The Secretary may act in the place keting Service, with power to redele- and stead of a judge in any proceeding gate, or any officer or employee of the hereunder. When he so acts the hearing Department to whom authority has clerk shall transmit the record to the been delegated or may hereafter be del- Secretary at the expiration of the pe- egated to act in his stead. riod provided for the filing of proposed (e) The term proceeding means a pro- findings of fact, conclusions and orders, ceeding before the Secretary arising and the Secretary shall thereupon, under sections 8a, 8b(b), 8c(14), 8e, 10(c) after due consideration of the record, and 10(h). issue his final order in the proceeding: (f) The term hearing means that part Provided, That he may issue a tentative of the proceeding which involves the order in which event the parties shall submission of evidence. be afforded an opportunity to file ex- (g) The term marketing agreement ceptions before the issuance of the means any marketing agreement or final order. any amendment thereto which may be entered into pursuant to section 8b of Subpart—Supplemental Rules of the act. Practice for Marketing Orders, (h) The term marketing order means Marketing Agreements, and any order or any amendment thereto Requirements Issued Pursuant which may be issued pursuant to sec- to 7 U.S.C. 608b(b) and 7 tion 8c of the act, and after notice and U.S.C. 608e Covering Fruits, hearing as required by said section. Vegetables, and Nuts (i) The term handler means any person who, by the terms of a marketing order or marketing agreement, is sub- AUTHORITY: 7 U.S.C. 601–674. ject thereto, or to whom a marketing SOURCE: 61 FR 20717, May 8, 1996, unless order or marketing agreement is otherwise noted. sought to be made applicable. (j) The term importer means any per- § 900.80 Words in the singular form. son who, by the terms of section 8e of Words in this subpart in the singular the act, is subject thereto. form shall be deemed to import the (k) The term person means any indi- plural, and vice versa, as the case may vidual, corporation, partnership, asso- demand. ciation, or any other business unit.

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§ 900.82 Stipulation procedures. § 900.101 Definitions. The Administrator, or the Adminis- As used in this subpart, the terms as trator’s representative, may, at any defined in the act shall apply with time before the issuance of a complaint equal force and effect. In addition, un- seeking a civil penalty under the Act, less the context otherwise requires: enter into a stipulation with any han- (a) The term act means section 3 of dler or importer in accordance with the the Agricultural Marketing Agreement following procedures: Act of 1937, as amended (50 Stat. 248, as (a) The Administrator, or the Admin- amended; 7 U.S.C. 671); (b) The term Department means the istrator’s representative, shall give the United States Department of Agri- handler or importer notice of the al- culture; leged violation of the applicable mar- (c) The term Secretary means the Sec- keting order or marketing agreement, retary of Agriculture of the United or the requirements issued pursuant to States, or any officer or employee of 7 U.S.C. 608b(b) and 7 U.S.C. 608e, and the Department to whom authority has an opportunity for a hearing thereon as heretofore been delegated, or to whom provided by the Act; authority may hereafter be delegated, (b) In agreeing to the proposed stipu- to act in his stead; lation, the handler or importer ex- (d) The term General Counsel means pressly waives the opportunity for a the General Counsel of the Depart- hearing and agrees to pay a specified ment; civil penalty within a designated time; (e) The term Administrator means the (c) The Administrator, or the Admin- Administrator of the Agricultural Mar- istrator’s representative, agrees to ac- keting Service, with power to redele- cept the specified civil penalty in set- gate, or any officer or employee of the tlement of the particular matter in- Department to whom authority has volved if it is paid within the des- been delegated or may hereafter be del- ignated time; egated to act in his stead; (d) In cases where the handler or im- (f) The term Service means the Agri- porter does not pay the specified civil cultural Marketing Service; penalty within the designated time, or (g) The term Division means the the handler or importer does not agree Dairy Division of the Service; (h) The term means any to the stipulation, the Administrator cooperative association, incorporated or otherwise, may issue an administrative com- which is in good faith owned or con- plaint; and trolled by producers, or organizations (e) The civil penalty that the Admin- thereof, of milk or its products, and istrator may have proposed in a stipu- which is bona fide engaged in the col- lation agreement shall have no bearing lective processing or preparing for on the civil penalty amount that the market or handling or marketing, in Department may seek in a formal ad- the current of interstate or foreign ministrative proceeding against the commerce, of milk or its products; same handler or importer for the same (i) The term arbitrator means any of- alleged violation. ficer or employee of the Service designated by the Administrator, pursu- Subpart—Procedure Governing ant to the act, to arbitrate a bona fide Meetings To Arbitrate and dispute with reference to the terms and Mediate Disputes Relating to conditions of the sale of milk or its Sales of Milk or Its Products products between a producer cooperative and purchasers, handlers, processors, or distributors of milk or its AUTHORITY: Sec. 3, 50 Stat. 248; 7 U.S.C. 671. products; (j) The term mediator means any offi- § 900.100 Words in the singular form. cer or employee of the Service des- Words in this subpart in the singular ignated by the Administrator, pursu- form shall be deemed to import the ant to the act, to mediate a bona fide plural, and vice versa, as the case may dispute with reference to terms and demand. conditions of the sale of milk or its

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products between a producer coopera- § 900.105 Notification. tive and purchasers, handlers, proc- The Administrator, acting on behalf essors, or distributors of milk or its of the Secretary will notify the appli- products; cant as to whether he considers that (k) The term hearing clerk means the mediation will effectuate the purpose hearing clerk, United States Departent of the act and as to whether he will of Agriculture, Washington, DC. mediate. [25 FR 5907, June 28, 1960, as amended at 26 FR 7797, Aug. 22, 1961; 28 FR 579, Jan. 23, 1963; § 900.106 Assignment of mediator. 37 FR 8059, Apr. 25, 1972] The Director of the Division shall assign a mediator, from the group des- § 900.102 Filing of applications for me- ignated by the Administrator, to act in diation or arbitration. such capacity. All applications for mediation or arbitration, all submissions, and all cor- § 900.107 Meetings. respondence regarding mediation or ar- All meetings held pursuant to bitration shall be addressed to the Sec- §§ 900.103 to 900.109 shall be held with retary, attention of the Division. and under the direction of the mediator. § 900.103 Application for mediation. An application for mediation by a co- § 900.108 Mediator’s report. operative, shall be in writing and shall The mediator, upon the completion include the following information: of mediation proceedings, shall submit (a) Names in full of the parties to the to the Administrator a complete report dispute and their addresses; on such proceedings. (b) Description of the cooperative organization and business, including cop- § 900.109 Mediation agreement. ies of the articles of incorporation or An agreement arrived at by medi- association, by-laws, and membership ation shall not become effective until contract; information regarding the approved by the Secretary, and the number of shares of outstanding stock Secretary will not approve an agree- and the approximate portion owned by ment if there is evidence of fraud, if active producers; a statement of the there is a lack of evidence to support function performed in connection with the agreement, or if the agreement pro- the collective processing, preparing, vides for any unfair trade practice. handling, or marketing of milk or its products; and data relative to the dis- § 900.110 Application for arbitration. tribution of membership by States, the An application for arbitration by a distribution by States of plant facili- cooperative shall be in writing and ties for collecting, processing, or dis- shall contain the following informa- posing of milk or its products, and the tion: business operations for the year last (a) Names in full of the parties to the past, including the total quantity of dispute and their addresses; milk and its products handled by the (b) The same information required applicant and the proportion of that under § 900.103(b); quantity that was sold in States other (c) Concise statement of dispute to be than the States of production; submitted; (c) Suggested time and place for (d) Originals or certified copies of all meeting between parties and mediator. contracts, if any, involved in the dispute, and of correspondence which has § 900.104 Inquiry by the Administrator. passed between the parties and of any Upon receipt of an application for other documents or information relied mediation, the Administrator, through upon; such officers or employees of the Serv- (e) Dates before which it is desired ice as he may designate, may make any that the hearing shall be had and the inquiry which is deemed to be nec- award shall become effective; essary or proper in order to determine (f) Suggested time and place for arbi- whether a bona fide dispute exists. tration hearing.

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The applicant shall send a copy of (viii) Agreement by the parties that the application to each other party to they will consider the award as final the dispute. and will comply therewith; (ix) Stipulation by the parties that § 900.111 Inquiry by the Administrator. arbitration is to take place under rules Upon receipt of an application for ar- and regulations issued by the Sec- bitration, the Administrator, through retary, and that any such rules and such officers or employees of the Serv- regulations pertaining to mediation ice as he may designate, may make any and arbitration shall be considered a inquiry deemed to be necessary or part of the submission; proper in order to determine whether a (x) Stipulation that a stenographic bona fide dispute exists, to assist the report of the proceedings must be parties in reducing the dispute to well- made. defined issues, and to select an arbi- (2) The submission shall be signed by trator who would be satisfactory to all each party before a notary public, and parties. when the signature is that of an agent § 900.112 Notification. of a corporation or cooperative association, the same shall be accompanied by The Administrator, acting on behalf evidence of the authority to sign. of the Secretary, within a reasonable time after the receipt of an applica- (3) A submission may be withdrawn tion, will notify the applicant as to at any time before the award, and any whether he will grant the application. question held by the arbitrator to be a separable question may be withdrawn § 900.113 Submission. before award by agreement of all par- (a)(1) Within a reasonable time after ties. When any question is so with- the receipt of the Administrator’s con- drawn, the parties shall file with the sent to arbitrate, the parties to the dis- arbitrator the agreement on that ques- pute shall file with the Administrator tion reached by the parties, showing all a formal submission, which shall con- the details thereof, and the arbitrator tain the following information: shall include it in the record of the ar- (i) Names in full of the parties; bitration. (ii) Addresses of the parties to whom (b) [Reserved] all notifications and communications concerning the arbitration shall be § 900.114 Designation of arbitrator. sent; The Administrator, after receiving (iii) Description of the organization the submission, will designate one or and businesses of all parties to the dis- more persons to act as arbitrator. pute, including sufficient information to show that the cooperative is a bona § 900.115 Hearing. fide one, and that the parties are en- (a) The arbitrator shall have full dis- gaged in activities in the current of cretion to conduct the hearing in such interstate or foreign commerce; manner as will, in his opinion, enable (iv) Concise statement of the specific him to ascertain all the facts in the questions submitted and a brief outline of the contentions of each party to the case. dispute, and a statement as to the pe- (b) Parties to the dispute may appear riod of time during which the award in person or by duly accredited agents shall be in effect, said period to be not and may be represented by counsel. less than thirty days from the effective (c) All relevant and material evi- date of the award; dence may be presented. The arbitrator (v) Name of arbitrator; shall not be bound by the legal rules of (vi) Time and place of arbitration, in- evidence. cluding street address; (d) The arbitrator, in the presence of (vii) Stipulation by the parties that the parties, may require the production they will produce any books, records, of books and records for examination and correspondence required by the ar- by himself, but not for examination of bitrator as being necessary to a fair de- confidential information by other par- termination of the dispute; ties to the dispute unless the party

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producing the same consents to its ex- evidence of misconduct upon the part amination by the other parties to the of the arbitrator, or lack of evidence to dispute. support the award, or if the award pro- (e) No evidence offered by one party vides for any unfair trade practice. shall be received except in the presence of all parties unless the parties so § 900.118 Costs. agree in a submission specifying the The parties jointly shall pay for the nature of the evidence to be received. stenographic record. A copy of the (f) Final determination as to what record shall be furnished by the parties will be considered confidential infor- to the arbitrator and shall be formation shall be made by the arbi- warded by him to the Administrator, trator. ultimately to be filed in the office of (g) The arbitrator may request the the hearing clerk. The arbitrator shall opinions of economists, marketing spe- not receive compensation for parties to cialists, statisticians, lawyers, ac- the dispute. countants, and other experts. (h) When more than two arbitrators Subpart—Miscellaneous are designated to hear a dispute, and Regulations they disagree, the award of the majority shall be the final award. If the arbitrators are evenly divided, there shall AUTHORITY: Sec. 10, 48 Stat. 37, as amended; 7 U.S.C. 610. be no award. (i) A stenographic record of all the § 900.200 Definitions. proceedings during an arbitration must As used in this subpart, the terms as be made. defined in the Act shall apply with § 900.116 Award. equal force and effect. In addition, unless the context otherwise requires: (a) An award shall be made within (a) The term Act means Public Act ten days after the close of the hearing. No. 10, 73d Congress (48 Stat. 31), as (1) The award shall be in writing and amended and as reenacted and amended shall cover only points of dispute by the Agricultural Marketing Agree- raised in the submission. ment Act of 1937 (50 Stat. 246, 7 U.S.C. (2) The arbitrator, in making the 601), as amended; award, may use his own technical (b) The term Department means the knowledge in addition to the evidence United States Department of Agri- submitted by the parties. culture; (3) The award shall state the period (c) The term Secretary means the Sec- during which it shall be in effect, said retary of Agriculture of the United period to be not less than thirty days States, or any officer or employee of from the effective date thereof; and the Department to whom authority has said period may be extended by agree- heretofore been delegated, or to whom ment among the parties upon notifica- authority may hereafter be delegated, tion thereof to the Administrator, un- to act in his stead; less or until the Administrator with- (d) The term General Counsel means draws his approval. the General Counsel of the Depart- (4) The arbitrator shall sign the ment; award in the presence of a notary pub- (e) The term Administrator means the lic, or, when more than one arbitrator Administrator of the Agricultural Mar- is designated the arbitrator shall sign keting Service, with power to redele- in the presence of each other. gate, or any officer or employee of the (5) Copies of the award shall be deliv- Department to whom authority has ered to the parties by the Division. been delegated or may hereafter be del- (b) [Reserved] egated to act in his stead. (f) [Reserved] § 900.117 Approval of award. (g) The term FEDERAL REGISTER The award shall not become effective means the publication provided for by until approved by the Secretary, and the Act of July 26, 1935 (49 Stat. 500), the Secretary will not approve an and Acts supplementary thereto and award if there is evidence of fraud, or amendatory thereof;

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(h) The term marketing agreement wise expressly provided in said mar- means any marketing agreement or keting agreement or marketing order, any amendment thereto which may be or unless said person authorizes said entered into pursuant to section 8b of official, in writing, to disclose such in- the Act; formation, except that: (i) The term marketing order means (a) Such information may be dis- any order or any amendment thereto closed, divulged, or made public if it which may be issued pursuant to sec- has been obtained from or furnished by tion 8c of the Act; a person who is not the person to whose (j) The term person means any indi- business or property such information vidual, corporation, partnership, asso- relates or an employee of such latter ciation, or any other business unit; person, or if such information is other- (k) The term official means the Sec- wise required by law to be furnished to retary, any officer, employee, or other an official; person employed or appointed by the (b) Such information may be fur- Department, and any agency or agent nished to other officials for use in the appointed by the Secretary to admin- regular course of their official duties; ister a marketing agreement or a marketing order, and any agent or em- (c) Such information may be com- ployee of any such agency or agent; bined and published in the form of gen- (l) The term information means and eral statistical studies or data in which includes reports, books, accounts, the identity of the person furnishing records, and the facts and information such information or from whom it was contained therein and required to be obtained shall not be disclosed; furnished to or acquired by any official (d) Such information may be dis- pursuant to the provisions of any mar- closed upon lawful demand made by the keting agreement or marketing order. President or by either House of Con- gress or any committee thereof, or, if [25 FR 5907, June 28, 1960, as amended at 26 the Secretary determines that such FR 7796, Aug. 22, 1961; 28 FR 579, Jan. 23, 1963; 37 FR 8059, Apr. 25, 1972] disclosure is not contrary to the public interest, such information may be dis- § 900.201 Investigation and disposition closed in response to a subpena by any of alleged violations. court of competent jurisdiction. Whenever the Administrator has rea- (e) Such information may be offered son to believe that any handler has vio- in evidence (whether or not it has been lated, or is violating, the provisions of obtained from or furnished by the per- any marketing order, he may institute son against whom it is offered) by or on such investigation and, after due no- behalf of the Secretary, the United tice to such handler, conduct such States, or the official who obtained it hearing in order to determine the facts or to whom it was furnished, in any ad- as, in his opinion, are warranted. If, in ministrative hearing held pursuant to the opinion of the Administrator and section 8c(15)(A) of the Act or in any the General Counsel, the facts devel- action, suit, or proceeding, civil or oped as a result of such investigation criminal, in which the Secretary or the or hearing warrant such action, the United States or any such official is a General Counsel shall refer the matter party, and: to the Attorney General for appro- (1) Which is instituted (i) for the pur- priate action. pose of enforcing or restraining the violation of any marketing agreement § 900.210 Disclosures of information. or marketing order, or (ii) for the pur- All information in the possession of pose of collecting any penalty or for- any official which relates to the busi- feiture provided for in the Act, or (iii) ness or property of any person, and for the purpose of collecting any mon- which was furnished by, or obtained ies due under a marketing agreement from, such person pursuant to the pro- or marketing order, or visions of any marketing agreement or (2) In which the validity of any mar- marketing order, shall be kept con- keting agreement or marketing order, fidential and shall not be disclosed, di- or any provision of either, is chal- vulged, or made public, unless other- lenged or involved.

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(f) Such information may be fur- procedure for conducting similar nished to the duly constituted authori- referenda (15 FR 5177) issued August 7, ties of any State, pursuant to a written 1950. agreement made under authority of section 10(i) of the Act, to the extent § 900.301 Definitions. that such information is relevant to As used in this subpart and in all sup- transactions within the regulatory ju- plementary instructions, forms, and risdiction of such authorities. documents, unless the context or subject matter otherwise requires, the fol- § 900.211 Penalties. lowing terms shall have the following Any official who shall have violated meanings: the provisions of § 900.210 by wilfully di- (a) Act. Act means Public Act No. 10, vulging, disclosing, or making public 73d Congress (48 Stat. 31), as amended, any information acquired by or fur- and as re-enacted and amended by the nished to or in the possession or cus- Agricultural Marketing Agreement Act tody of such official pursuant to the of 1937 (50 Stat. 246), as amended. provisions of a marketing agreement or (b) Department. Department means the marketing order shall be subject to a United States Department of Agri- penalty of the amount specified at culture. § 3.91(b)(1) (viii) of this title for each of- (c) Secretary. Secretary means the Sec- fense. (The civil penalty provided in retary of Agriculture of the United this section is prescribed under the au- States, or any officer or employee of thority contained in sec. 10(c) of the the Department to whom authority has Act (7 U.S.C. 610(c)); this provision is heretofore been delegated, or to whom not intended to supersede the provision authority may hereafter be delegated, in section 8d(2) of the Act (7 U.S.C. to act in his stead. 608d(2)) for criminal liability and re- (d) Administrator. Administrator means moval from office.) the Administrator of the Agricultural [25 FR 5907, June 28, 1960, as amended at 75 Marketing Service, with power to re- FR 17560, Apr. 7, 2010] delegate, or any officer or employee of the Department to whom authority has Subpart—Procedure for Conduct been delegated or may hereafter be del- of Referenda To Determine egated to act in his stead. Producer Approval of Milk (e) Person. Person includes any indi- Marketing Orders To Be Made vidual, partnership, corporation, asso- Effective Pursuant to Agricul- ciation, and any other business unit. (f) Order. Order means the marketing tural Marketing Agreement order (including an amendatory order) Act of 1937, as Amended with respect to which the Secretary has directed that a referendum be con- AUTHORITY: Secs. 1–19, 48 Stat. 31, as ducted. amended; 7 U.S.C. 601–674. (g) Producer. Producer means any per- SOURCE: 30 FR 15412, Dec. 15, 1965, unless son who is a dairy farmer and who, dur- otherwise noted. ing the representative period, met the requirements of the term producer as § 900.300 General. defined in the order had such order Unless otherwise prescribed, the pro- been in effect during the representative cedure contained in this subpart shall period. be applicable to each producer ref- (h) Handler. Handler means any per- erendum conducted for the purpose of son who, during the representative pe- ascertaining whether the issuance by riod, met the requirements of the term the Secretary of a milk marketing handler as defined in the order had such order is approved or favored, as re- order been in effect during the rep- quired under the applicable provisions resentative period. of the Agricultural Marketing Agree- (i) Referendum agent. Referendum ment Act of 1937, as amended (48 Stat. agent means the person designated by 31, as amended, 7 U.S.C. 601–674). The the Secretary to conduct the ref- procedure in this subpart replaces the erendum.

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(j) Representative period. Representa- tain a certification by the person cast- tive period means the period designated ing the ballot that he is a producer. by the Secretary pursuant to section 8c (b) Except as provided in section of the Act (7 U.S.C. 608c). 8c(5)(B) of the act, as amended, any co- (k) Cooperative association. Cooperative operative association eligible under association means any association of § 900.302 may, if it elects to do so, vote producers that the administrator has and cast one ballot for producers who found to be qualified pursuant to sec- are members of, stockholders in, or tion 608c(12) of the Act. under contract with, such cooperative [30 FR 15412, Dec. 15, 1965, as amended at 37 association. A cooperative association FR 8059, Apr. 25, 1972] shall submit, with its ballot, a certified copy of the resolution authorizing the § 900.302 Associations eligible to vote. casting of the ballot. Each such cooper- (a) Any association of producers, not ative association entitled to vote in a previously determined to be a coopera- referendum casting more than one bal- tive association may file an applica- lot with conflicting votes shall thereby tion for a determination as to whether invalidate all ballots cast by such it is a cooperative association and thus voter in such referendum. eligible to vote in a referendum. Such (c) Voting by proxy or agent, or in application shall be filed with the Ad- any manner, except by the producer or ministrator at least 60 days prior to cooperative association will not be per- the holding of the referendum: Pro- mitted; however, a producer which is vided, however, That the Administrator other than an individual may cast its may permit the filing of an application ballot by a person who is duly author- in less than 60 days when, in the opin- ized and such ballot shall contain a ion of the Administrator, such filing certification by such person that the would not delay the conduct of the ref- person on whose behalf the ballot is erendum. cast is a producer. (b) Within a time fixed by the referendum agent, but not later than 5 § 900.305 Duties of referendum agent. days prior to the final date for bal- The referendum agent shall also: loting, each cooperative association (a) For purposes of mailing, prepare a electing to vote shall, upon the request record of producers which will disclose of the referendum agent, furnish to the name of each such person, his ad- him a certified list showing the name dress, the name of the handler who re- and address of each producer for whom ceived the producer’s milk during the it claims the right to vote and the representative period, and the name of plant at which such person’s milk was the cooperative association, if any, received during the representative pe- which claims the right to vote for the riod. producer. Such record may be compiled from readily available sources, includ- § 900.303 Conduct of referendum. ing the following: The referendum shall be conducted (1) Records of the Department; by mail in the manner prescribed in (2) Producer records supplied by han- this subpart. The referendum agent dlers; may utilize such personnel or agencies (3) Health authority records; of the Department as are deemed nec- (4) Certifications signed by dairy essary by the Administrator. farmers who claim to be producers; (5) Any other reliable sources of in- § 900.304 Who may vote. formation which may be available to (a) Each producer shall be entitled to the referendum agent. only one vote and to cast one ballot in (b) Apply, as a guide, the following each referendum; and no person who criteria in preparing a record of pro- may claim to be a producer shall be re- ducers: fused a ballot. Each producer casting (1) When the order requires approval more than one ballot with conflicting by an appropriate health authority be- votes shall thereby invalidate all bal- fore a person meets the definition of lots cast by such producer in such ref- producer, only those persons having erendum. Each ballot cast shall con- such approval and who otherwise meet

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the definition may be regarded as pro- (3) In determining whether a coopera- ducers. When the definition of producer tive association may vote on behalf of requires the shipment of milk to a han- a producer the following criteria shall dler or a plant as well as health au- be used: thority approval, only those persons (i) The cooperative association may having such approval and whose milk vote for each producer who is a mem- was received by a handler or at a plant ber of, stockholder in, or under con- may be regarded as producers. tract with such cooperative association (2) When the order requries shipment on the date of the order directing that to a handler or to a plant, without re- the referendum be conducted. gard to health authority approval, a (ii) The cooperative association may person may not be regarded as a pro- cast only one ballot for all such producer, except as provided in paragraph ducers. (b)(6) of this section, unless his name (iii) Whenever more than one cooper- appears on the handler’s producer ative association claims the right to records. vote for a producer only the coopera- (3) In the case of a producer that is tive association which furnished evi- other than an individual, the business dence satisfactory to the referendum unit shall be regarded as the producer. agent that such association was in fact marketing the milk of the producer on (4) No person may be included in the the date of the referendum order may record more than once although he vote for such producer. may operate more than one farm, hold more than one health authority ap- § 900.306 Notice of the referendum. proval, or appear on more than one (a) The referendum agent shall at handler’s producer records. least 5 days prior to the final date for (5) In the event the health authority balloting: records are not available, are inac- (1) Mail to each cooperative associa- curate, or are incomplete, the appear- tion which has elected to cast a ballot ance of the producer’s name on a han- on behalf of its producers and to each dler’s records as an approved producer of all other known producers, a notice shall be prima facie evidence of health of the referendum which will include authority approval. instructions for completing the ballot, (6) In the event any handler refuses a statement as to the time within or fails to make his records available which the ballot must be mailed to, to the referendum agent, a certifi- and received by, the referendum agent, cation signed by the producer shall be a copy of the final decision, and a bal- regarded by the referendum agent as lot containing a description of the prima facie evidence that such person terms and conditions of the order. is eligible to vote. (2) Give public notice of the ref- (c) Verify the information supplied erendum: by each cooperative association which (i) By furnishing press releases and wishes to vote on behalf of producers, other information to available media as follows: of public information (including but (1) Examine the records of the coop- not limited to press, radio, and tele- erative association for the purpose of vision facilities) serving the area, an- ascertaining whether each producer nouncing the time within which ballots claimed by the cooperative association must be completed and mailed to and is a member of, stockholder in, or received by the referendum agent, eli- under contract with the cooperative as- gibility requirements, where additional sociation. information may be procured, and (2) Identify the persons ascertained other pertinent information; and to be members of, stockholders in, or (ii) By such other means as said under contract with a cooperative asso- agent may deem advisable. ciation which wishes to vote on behalf (b) [Reserved] of its producers with the names of producers which appear on the record com- § 900.307 Time for voting. piled pursuant to paragraph (a) of this There shall be no voting except with- section. in the time specified by the referendum

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agent as stated in the notice of the ref- lots, and shall transmit to the Admin- erendum. istrator a complete detailed report of all action taken in connection with the § 900.308 Tabulation of ballots. referendum together with all the bal- (a) General. The referendum agent lots cast and all other information fur- shall verify the information supplied nished to or compiled by the ref- with each ballot. If he ascertains that erendum agent. the person who cast the ballot was eli- (d) Announcement of the results of the gible to do so, that the ballot is com- referendum. Announcement of the re- plete and was mailed and received sults of the referendum will be made within the prescribed time, the ballot only at the direction of the Secretary. shall be eligible to be counted. If the The referendum agent, or others who referendum agent ascertains that the assist in the referendum, shall not dis- person who cast the ballot was not eli- close the results of the referendum or gible to do so, or if the producer who the total number of ballots cast. cast the ballot was a member of, stockholder in, or under contract with a co- § 900.309 Confidential information. operative association which cast a The ballots cast, the identity of any valid ballot, or if the ballot is not com- person who voted, or the manner in pleted or cast in accordance with in- which any person voted and all infor- structions, or if the ballot was not mation furnished to, compiled by, or in mailed to or received by the ref- the possession of the referendum agent, erendum agent within the prescribed shall be regarded as confidential. time, the ballot shall be marked ‘‘disqualified’’ with a notation on the ballot § 900.310 Supplementary instructions. as to the reason for the disqualifica- The Administrator is authorized to tion. The total number of ballots cast, issue instructions and to prescribe including the disqualified ballots, shall forms and ballots, not inconsistent be ascertained. The number of eligible with the provisions of this subpart, to ballots cast approving and the number govern the conduct of referenda by ref- of eligible ballots cast disapproving the erendum agents. issuance of the order shall also be ascertained. The ballots marked ‘‘dis- § 900.311 Submittals or requests. qualified’’ shall not be considered as ap- Interested persons may secure infor- proving or disapproving the issuance of mation or make submittals or requests the order, and the persons who cast to the Administrator with respect to such ballots shall not be regarded as the provisions contained in this sub- participating in the referendum. part. (b) Individual-handler pool provisions. Whenever separate approval of the Subpart—Procedure for Deter- pooling provisions of the order is re- mining the Qualification of quired by section 608c(5)(B)(i) of the act, any ballot which approves the Cooperative Milk Marketing issuance of the order and disapproves Associations the pooling provisions, or approves the pooling provisions and disapproves the AUTHORITY: Secs. 1–19, 48 Stat. 31, as issuance of the order, shall be disquali- amended; 7 U.S.C. 601–674. fied; and the referendum agent shall SOURCE: 32 FR 9821, July 6, 1967, unless oth- mark the ballot accordingly. erwise noted. (c) Record of results of the referendum. The referendum agent shall notify the § 900.350 General statement. Administrator of the number of eligi- Cooperative marketing associations ble ballots cast, the count of the votes, apply for qualification by the Sec- the number of disqualified ballots and retary under the Federal milk order the number of producers who were eli- program for certain privileges and ex- gible to cast ballots. The referendum emptions. These privileges and exemp- agent shall seal the ballots, including tions are expressed in the Agricultural those marked ‘‘disqualified’’, the list of Marketing Agreement Act of 1937 (50 eligible voters and tabulation of bal- Stat. 246) as amended, and the milk

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marketing orders issued pursuant to ducers thereof. Qualification for ex- its provisions. emption from deductions for marketing service payments under specific § 900.351 Applications for qualifica- marketing orders and payment for tion. milk of members under specific orders Any association of producers may shall be determined in accordance with apply for determinations as to whether the terms of the respective marketing it is a qualified cooperative association orders. with authority to represent producers in order referendums; has authoriza- § 900.354 Inspection and investigation. tion to collect payment from handlers The Secretary of Agriculture, or his for members’ milk; and is rendering duly authorized representative, shall specified marketing services to pro- have the right, at any time after an ap- ducers. Applicant associations should plication is received, to examine all supply information for these deter- books, documents, papers, records, files minations, using as a guide Application Form DA–25. The application form may and facilities of the association, to be obtained from the Dairy Division, verify any of the information sub- Agricultural Marketing Service, mitted and to procure such other infor- United States Deparment of Agri- mation as may be required to deter- culture, Washington, DC 20250. Deter- mine whether the association is quali- minations required of the Secretary of fied in accordance with its application. Agriculture, or the Administrator of § 900.355 Annual reporting. the Agricultural Marketing Service, by delegation are made by the Director of Determinations of qualification for the Dairy Division. Once issued they privileges and exemptions are subject are valid until amended, suspended or to amendment, termination or suspen- terminated. sion if the association does not currently meet the qualification stand- § 900.352 Confidential information. ards. An association found to be quali- The documents and other informa- fied pursuant to the Act is required to tion submitted by an applicant associa- file an annual report after its annual tion and otherwise obtained by inves- meeting has been held following the tigation, examination of books, docu- close of its fiscal year. Form DA–24 is ments, papers, records, files and facili- used for this purpose. The report form ties, and in reports filed subsequent to is available at the Dairy Division, Ag- initial determinations of qualification, ricultural Marketing Service, U.S. De- shall be regarded as confidential and partment of Agriculture, Washington, shall be governed by § 900.210. DC 20250. The association is required to file a copy of its report with the Dairy § 900.353 Qualification standards. Division at Washington and with the Statutory requirements for qualifica- market administrator of each order tion of coopertive associations are pro- under which it operates. vided in subsections (5) and (12) of section 608c of the Agricultural Marketing § 900.356 Listing of qualified associa- Agreement Act of 1937, as amended (7 tions. U.S.C. 601 et seq.). The association A copy of each determination of qual- must: (a) Be a cooperative marketing ification is furnished to the respective association of producers, qualified association. Copies are also filed in the under the provisions of the Act of Con- Dairy Division, Agricultural Marketing gress of February 18, 1922, as amended, Service, and with the Hearing Clerk, known as the ‘‘Capper-Volstead Act,’’ (7 Office of the Secretary, U.S. Depart- U.S.C. 291, 292); (b) have its entire orga- ment of Agriculture, Washington, DC nization and all of its activities under 20250, where they are available for pub- the control of its members; (c) have lic inspection. A list of qualified asso- full authority in the sale of its mem- ciations engaged in marketing milk bers’ milk; and (d) be engaged in mak- under a particular milk marketing ing collective sales or marketing of order is maintained at the office of the milk or milk products for the pro- market administrator of the order.

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§ 900.357 Denial of application; suspen- (e) Final report. After due consider- sion or revocation of determination ation of all the facts and the excep- of qualification. tions, if any, the Director of the Dairy Any cooperative association whose Division shall issue a final report set- application has been wholly or par- ting forth the action to be taken and tially denied, or whose determination the basis for such action. of qualification has been wholly or partly revoked or suspended, may peti- Subpart—Procedure for the Con- tion the Secretary for a review of such duct of Referenda in Connec- action. Such petition shall state facts tion With Marketing Orders for relevant to the matter for which re- Fruits, Vegetables, and Nuts view is sought. After due notice to such Pursuant to the Agricultural cooperative association, the Director Marketing Agreement Act of of the Dairy Division, or in his absence 1937, as Amended the Acting Director, shall hold, in the manner hereinafter specified, an infor- AUTHORITY: Secs. 1–19, 48 Stat. 31, as mal hearing. amended; 7 U.S.C. 601–674. (a) Notice. Notice shall be given in writing and shall be mailed to the last SOURCE: 30 FR 15414, Dec. 15, 1965, unless otherwise noted. known address of the association, or of an officer thereof, at least 3 days before § 900.400 General. the date set for a hearing. Such notice Referenda for the purpose of shall contain: A statement of the time ascertaining whether the issuance by and place of the hearing, said place to the Secretary of Agriculture of a mar- be as convenient to the association as keting order to regulate the handling can reasonably be arranged, and may of any fruit, vegetable, or nut, or prod- contain a statement of the reason for uct thereof, or the continuance or ter- calling the hearing and the nature of mination of such an order, is approved the questions upon which evidence is or favored by producers or processors desired or upon which argument may shall, unless supplemented or modified be presented. by the Secretary, be conducted in ac- (b) Parties. Hearings are not to be cordance with this subpart. public and are to be attended only by representatives of the association and § 900.401 Definitions. of the Government, and such other per- (a) Act means Public Act No. 10, 73d sons as either the association or the Congress (48 Stat. 31), as amended, and Government desires to have appear for as reenacted and amended by the Agri- purposes of submitting information or cultural Marketing Agreement Act of as counsel. 1937 (50 Stat. 246), as amended (7 U.S.C. (c) Conduct of hearing. The Director 601–674). or Acting Director of the Dairy Divi- (b) Secretary means the Secretary of sion, or a person designated by him, Agriculture of the United States, or shall preside at the hearing. The hear- any officer or employee of the Depart- ing shall be conducted in such manner ment to whom authority has here- as will be most conducive to the proper tofore been delegated, or to whom au- disposition of the matter. Written thority may hereafter be delegated, to statements or briefs may be filed by act in his stead; and Department means the association within the time speci- the United States Department of Agri- fied by the presiding officer. culture. (d) Preliminary report. The presiding (c) Administrator means the Adminis- officer shall prepare a preliminary re- trator of the Agricultural Marketing port setting forth a recommendation as Service, with power to redelegate, or to what action shall be taken and the any officer or employee of the Depart- basis for such action. A copy of said re- ment to whom authority has been dele- port shall be served upon the associa- gated or may hereafter be delegated to tion by mail or in person. The associa- act in his stead. tion may file exceptions to said report (d) Order means the marketing order within 10 days after service thereof. (including an amendatory order) with

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respect to which the Secretary has di- producer shall be entitled to one vote rected that a referendum be conducted. in the referendum; and (2) a coopera- (e) Referendum agent means the indi- tive association of producers, bona fide vidual or individuals designated by the engaged in marketing the commodity Secretary to conduct the referendum. or product thereof proposed to be regu- (f) Representative period means the pe- lated, or in rendering services for or riod designated by the Secretary pursu- advancing the interest of the producers ant to section 8c of the act (7 U.S.C. of such commodity or product, may, if 608c). it elects to do so, vote, both by number (g) Person means any individual, and total volume, for the producers partnership, corporation, association, who are members of, stockholders in, or other business unit. For the purpose or under contract with such associa- of this definition, the term partnership tion. includes (1) a husband and wife who (b) Whenever, as required by the act, have title to, or leasehold interest in, processors vote on the issuance of an land as tenants in common, joint ten- order, each processor who is engaged in ants, tenants by the entirety, or, under canning or freezing within the produc- community property laws, as commu- tion area of the commodity covered by nity property, and (2) so-called joint the order shall be entitled to vote in ventures, wherein one or more parties the referendum the quantity of such to the agreement, informal or other- commodity canned or frozen within the wise, contributed capital and others production area for market by him dur- contribute labor, management, equip- ing the representative period deter- ment, or other services, or any vari- mined by the Secretary. ation of such contributions by two or (c) Proxy voting is not authorized more parties, so that it results in the but an officer or employee of a cor- growing of the commodity for market porate producer, processor or coopera- and the authority to transfer title to tive association, or an administrator, the commodity so produced. executor or trustee of a producing es- (h) Producer means any person de- tate may cast a ballot on behalf of such fined as a producer in the order who: (1) producer, processor, estate, or coopera- Owns and farms land, resulting in his tive association. Any individual so vot- ownership of the commodity produced ing in a referendum shall certify that thereon; (2) Rents and farms land, re- he is an officer or employee of the pro- sulting in his ownership of all or a por- ducer, processor, or cooperative asso- tion of the commodity produced there- ciation, or an administrator, executor, on; or (3) Owns land which he does not or trustee of a producing estate, and farm and, as rental for such land, ob- that he has the authority to take such tains the ownership of a portion of the action. Upon request of the referendum commodity produced thereon. Owner- agent, the individual shall submit ade- ship of, or leasehold interest in, land quate evidence of such authority. and the acquisition, in any manner (d) Each producer, cooperative asso- other than as hereinbefore set forth, of ciation of producers, and processor en- legal title to the commodity grown titled to vote in a referendum shall be thereon shall not be deemed to result entitled to cast one ballot in the ref- in such owners or lessees becoming pro- erendum. Each producer, cooperative ducers. association of producers, and processor [30 FR 15414, Dec. 15, 1965, as amended at 37 casting more than one ballot with con- FR 8059, Apr. 25, 1972] flicting votes shall thereby invalidate all ballots cast by such producer, coop- § 900.402 Voting. erative association of producers, or (a) Each person who is a producer, as processor in such referendum. defined in this subpart, at the time of the referendum and who also was a pro- § 900.403 Instructions. ducer during the representative period, The referendum agent shall conduct shall be entitled to only one vote in the the referendum, in the manner herein referendum, except that: (1) In a land- provided, under supervision of the Ad- lord-tenant relationship, where in each ministrator. The Administrator may of the parties is a producer, each such prescribe additional instructions, not

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inconsistent with the provisions here- ing which each polling place will be of, to govern the procedure to be fol- open, provide the material specified in lowed by the referendum agent. Such paragraph (e) of this section, and pro- agent shall: vide for appropriate custody of ballot (a) Determine the time of commence- forms and delivery to the referendum ment and termination of the period of agent of ballots cast. the referendum, and the time prior to (h) At the conclusion of the ref- which all ballots must be cast. erendum, canvass the ballots, tabulate (b) Determine whether ballots may the results, and, except as otherwise di- be cast by mail, at polling places, at rected, report the outcome to the Ad- meetings of producers or processors, or ministrator and promptly thereafter by any combination of the foregoing. submit the following: (c) Provide ballots and related mate- (1) All ballots received by the agent rial to be used in the referendum. Bal- and appointees, together with a certifi- lot material shall provide for recording cate to the effect that the ballots for- essential information for ascertaining: warded are all of the ballots cast and (1) Whether the person voting, or on received by such persons during the whose behalf the vote is cast, is an eli- referendum period; gible voter, and (2) A list of all challenged ballots (2) The total volume (i) produced for deemed to be invalid; and market during the representative pe- (3) A tabulation of the results of the riod, or (ii) canned or frozen for market referendum and a report thereon, in- during the representative period. cluding a detailed statement explain- (d) Give reasonable advance notice of ing the method used in giving publicity the referendum (1) by utilizing without to the referendum and showing other advertising expense available media of information pertinent to the manner in public information (including, but not which the referendum was conducted. being limited to, press and radio facilities) serving the production area, an- § 900.404 Subagents. nouncing the dates, places, or methods The referendum agent may appoint of voting, eligibility requirements, and any person or persons deemed nec- other pertinent information, and (2) by essary or desirable to assist said agent such other means as said agent may in performing his functions hereunder. deem advisable. Each person so appointed may be au- (e) Make available to producers and thorized by said agent to perform, in the aforesaid cooperative associations accordance with the requirements which indicate to the agent their in- herein set forth, any or all of the fol- tentions to vote, and to processors lowing functions (which, in the absence when required, instructions on voting, of such appointment, shall be per- appropriate ballot and certification formed by said agent): forms, and, except in the case of a ref- (a) Give public notice of the referendum on the termination or con- erendum in the manner specified here- tinuance of an order, the text of the in; proposed order and a summary of its (b) Preside at a meeting where bal- terms and conditions: Provided, That lots are to be cast or as poll officer at no person who claims to be qualified to a polling place; vote shall be refused a ballot. (c) Distribute ballots and the afore- (f) If ballots are to be cast by mail, said texts to producers (and to proc- cause all the material specified in essors when required) and receive any paragraph (e) of this section to be ballots which are cast; and mailed to each producer (and processor (d) Record the name and address of when required) whose name and ad- each person receiving a ballot from, or dress is known to the referendum casting a ballot with, said subagent agent. and inquire into the eligibility of such (g) If ballots are to be cast at polling person to vote in the referendum. places or meetings, determine the necessary number of polling or meeting § 900.405 Ballots. places, designate them, announce the The referendum agent and his ap- time of each meeting or the hours dur- pointees shall accept all ballots cast;

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but, should they, or any of them, deem under § 1.2(a) of this title will be pro- that a ballot should be challenged for vided by AMS during normal informa- any reason, said agent or appointee tion should be made to the Freedom of shall endorse above his signature, on Information Act Officer at the fol- said ballot, a statement to the effect lowing address: that such ballot was challenged, by whom challenged, the reasons therefor, Freedom of Information Act Officer, Agricul- tural Marketing Service, United States De- the results of any investigations made partment of Agriculture, Washington, DC with respect thereto, and the disposi- 20250. tion thereof. Invalid ballots shall not be counted. (b) Copies of such material may be obtained in person or by mail. Applica- § 900.406 Referendum report. ble fees for copies will be charged in ac- Except as otherwise directed, the Ad- cordance with the regulations pre- ministrator shall prepare and submit scribed by the Director, Office of Oper- to the Secretary a report on results of ations and Finance, USDA. the referendum, the manner in which it [44 FR 39151, July 5, 1979] was conducted, the extent and kind of public notice given, and other informa- § 900.502 Indexes. tion pertinent to analysis of the ref- Pursuant to the regulations in § 1.4(b) erendum and its results. of this title, AMS will maintain and make available for public inspection § 900.407 Confidential information. and copying current indexes of all ma- All ballots cast and the contents terial required to be made available in thereof (whether or not relating to the § 1.2(a) of this title. Notice is hereby identity of any person who voted or the given that publication of these indexes manner in which any person voted) and is unnecessary and impractical, since all information furnished to, compiled the material is voluminous and does by, or in possession of, the referendum not change often enough to justify the agent shall be treated as confidential. expense of publication. Subpart—Public Information [44 FR 39151, July 5, 1979] § 900.503 Request for records. AUTHORITY: 5 U.S.C. 301, 552. (a) Requests for records under 5 AVAILABILITY OF PROGRAM INFORMA- U.S.C. 552(a)(3) shall be made in accord- TION, STAFF MANUALS AND INSTRUC- ance with § 1.3(a) of this title. Author- TIONS, AND RELATED MATERIAL ity to make determinations regarding initial requests in accordance with § 900.500 General. § 1.4(c) of this title is delegated to the This subpart is issued in accordance Freedom of Information Act Officer of with the regulations of the Secretary AMS. Requests should be submitted to of Agriculture in part 1, subpart A, of the FOIA Officer at the following ad- subtitle A of this title (7 CFR 1.1 dress: through 1.16), and appendix A thereto, Freedom of Information Act Officer (FOIA implementing the Freedom of Informa- Request). Agricultural Marketing Service, tion Act (5 U.S.C. 552). The Secretary’s United States Department of Agriculture, regulations, as implemented by the Washington, DC 20250. regulations of this subpart, govern the (b) The request shall identify each availability of records of AMS to the record with reasonable specificity as public. prescribed in § 1.3 of this title. [40 FR 20267, May 9, 1975] (c) The FOIA Officer is authorized to receive requests and to exercise the au- § 900.501 Public inspection and copy- thority to (1) make determinations to ing. grant requests or deny initial requests, (a) Facilities for public inspection (2) extend the administrative deadline, and copying of the indexes and mate- (3) make discretinary release of exempt rials required to be made available records, and (4) make determinations

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regarding charges pursuant to the fee Current schedule. 7 CFR part where identified and described OMB control No. [44 FR 39151, July 5, 1979] 948, Colorado Potatoes ...... 0581–0178 953, Southeastern Potatoes ...... 0581–0178 § 900.504 Appeals. 955, Vidalia Onions ...... 0581–0178 Any person whose request under 956, Walla Walla Onions ...... 0581–0178 958, Idaho-Oregon Onions ...... 0581–0178 § 900.503 above is denied shall have the 959, South Texas Onions ...... 0581–0178 right to appeal such denial in accord- 966, Florida Tomatoes ...... 0581–0178 ance with § 1.3(e) of this title. Appeals 979, South Texas Melons ...... 0581–0178 981, California Almonds ...... 0581–0071 shall be addressed to the Adminis- 982, Oregon-Washington Hazelnuts ...... 0581–0178 trator, Agricultural Marketing Serv- 984, California Walnuts ...... 0581–0178 ice, U.S. Department of Agriculture, 985, Spearmint Oil ...... 0581–0065 987, California Dates ...... 0581–0178 Washington, DC 20250. 989, California Raisins ...... 0581–0178 993, California Dried Prunes ...... 0581–0178 [40 FR 20267, May 9, 1975] 997, Domestic Peanuts Not Covered Under the Peanut Marketing Agreement ...... 0581–0163 998, Domestic Peanuts Covered Under the Pea- Subpart—Information Collection nut Marketing Agreement ...... 0581–0067

AUTHORITY: 44 U.S.C. Ch. 35. [63 FR 10492, Mar. 4, 1998] § 900.600 General. This subpart shall contain such re- Subpart—Assessment of quirements as pertain to the informa- Exemptions tion collection provisions under the § 900.700 Exemption from assessments. Paperwork Reduction Act of 1995. (a) This section specifies criteria for [63 FR 10492, Mar. 4, 1998] identifying persons eligible to obtain an assessment exemption for mar- § 900.601 OMB control numbers as- keting promotion, and procedures for signed pursuant to the Paperwork Reduction Act. applying for an exemption under 7 CFR parts 906, 915, 916, 917, 922, 923, 924, 925, (a) Purpose. This section collects and 927, 929, 930, 931, 932, 947, 948, 955, 956, displays the control numbers assigned 958, 959, 966, 979, 981, 982, 984, 985, 987, to information collection requirements 989, 993, and such other parts (included by the Office of Management and Budg- in 7 CFR parts 905 through 998) cov- et contained in 7 CFR parts 905 through ering marketing orders for fruits, vege- 998 under the Paperwork Reduction Act tables, and specialty crops as may be of 1995. established or amended to include mar- (b) Display. ket promotion. For the purposes of this Current section, the term ‘‘assessment period’’ 7 CFR part where identified and described OMB con- means fiscal period, fiscal year, crop trol No. year, or marketing year as defined 905, Florida Oranges, Grapefruit Tangerines, under these parts; the term ‘‘marketing Tangelos ...... 0581–0094 promotion’’ means marketing research 906, Texas Oranges & Grapefruit ...... 0581–0068 911, Florida Limes ...... 0581–0091 and development projects, and mar- 915, Florida Avocados ...... 0581–0078 keting promotion, including paid ad- 916, California Nectarines ...... 0581–0072 vertising, designed to assist, improve, 917, California Pears and Peaches ...... 0581–0080 920, California Kiwifruit ...... 0581–0149 or promote the marketing, distribu- 922, Washington Apricots ...... 0581–0095 tion, and consumption of the applicable 923, Washington Sweet Cherries ...... 0581–0133 commodity. 924, Washington-Oregon Fresh Prunes ...... 0581–0134 925, S.E. California Desert Grapes ...... 0581–0109 (b) Any handler who operates under 927, Oregon-Washington-California Winter an approved National Organic Program Pears ...... 0581–0089 (7 CFR part 205)(NOP) process system 928, Hawaiian Papayas ...... 0581–0102 plan, only handles or markets organic 929, Cranberries Grown in Designated States ... 0581–0103 930, Red Tart Cherries ...... 0581–0177 products that are eligible to be labeled 931, Oregon-Washington Bartlett Pears ...... 0581–0092 100 percent organic under the NOP, and 932, California Olives ...... 0581–0142 are produced on a certified organic 945, Idaho-Eastern Oregon Potatoes ...... 0581–0178 946, Washington Potatoes ...... 0581–0178 farm as defined in § 2103 of the Organic 947, Oregon-California Potatoes ...... 0581–0178 Foods Production Act of 1990 (7 U.S.C.

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6502) and the NOP regulations issued eligible for an assessment exemption, under that Act, is not a split operation, the committee or board will approve and is subject to assessments under a the exemption and notify the appli- part or parts specified in paragraph (a) cant, in writing, within the applicable of this section, shall be exempt from timeframe as follows: For exemption the portion of the assessment applica- requests received on or before August ble to marketing promotion, including 15, 2005, the committee or board will paid advertising. Any handler so ex- have 60 days to approve the exemption empted shall be obligated to pay the request; after August 15, 2005, the com- portion of the assessment for other au- mittee or board will have 30 days to ap- thorized activities under such part or prove the exemption request. If the ap- parts. plication is disapproved, the com- (c) To be exempt from paying assess- mittee or board will notify the appli- ments for these purposes under a part cant, in writing, of the reason(s) for or parts, the handler shall submit an disapproval within the same time- application to the committee or board frames. established under the applicable part (d) The applicable assessment rate or parts prior to or during the assess- for any handler approved for an exemp- ment period. This application, FV–649, tion shall be computed by dividing the ‘‘Certified Organic Handler Application committee’s or board’s estimated non- for Exemption from Market Promotion marketing promotion expenditures by Assessments Paid Under Federal Mar- the committee’s or board’s estimated keting Orders,’’ shall include: The ap- total expenditures approved by the plicable committee or board and Fed- Secretary and applying that percent- eral marketing order number; the date; age to the assessment rate applicable handler’s name; company name and ad- to all persons for the assessment pe- dress; telephone and fax numbers; an riod. The committee’s or board’s esti- optional e-mail address; certification mated non-marketing promotion ex- that the applicant is not a split oper- penditures shall exclude the direct ation, as defined by the Organic Foods costs of marketing promotion and the Production Act of 1990 (OFPA) (7 U.S.C. portion of committee’s or board’s ad- 6502) and the NOP; certification that ministrative and overhead costs (e.g., the applicant only handles and mar- salaries, supplies, printing, equipment, kets organic products eligible to be la- rent, contractual expenses, and other beled 100 percent organic under the applicable costs) to support and admin- NOP, and that the applicant is subject ister the marketing promotion activi- to assessments under the Federal mar- ties. If a committee or board does not keting order program for which the ex- plan to conduct any market promotion emption is requested. The applicant activities in a fiscal year, the com- shall list all commodities handled or mittee or board may submit a certifi- marketed. The applicant shall list the cation to that effect to the Secretary, number of producers for whom they and as long as no assessments for such handle or market. The applicant shall fiscal year are used for marketing pro- attach a copy of their organic handler motion projects, or the administration operation certificate and all applicable of projects funded by a previous fiscal producer certificates provided by a period’s assessments, the committee or USDA-accredited certifying agent board may assess all handlers, regard- under the OFPA and the NOP. The ap- less of their organic status, the full as- plicant shall certify that the handler sessment rate applicable to the assess- meets all of the applicable requirement period. For each assessment pe- ments for an assessment exemption as riod, the Secretary shall review the provided in this section. The handler portion of the assessment rate applica- shall file the application with the com- ble to marketing promotion for persons mittee or board, prior to or during the eligible for an exemption and, if appro- applicable assessment period, and an- priate, approve the assessment rate. nually thereafter, as long as the han- (e) When the requirements of this dler continues to be eligible for the ex- section for exemption no longer apply emption. If the person complies with to a handler, the handler shall inform the requirements of this section and is the committee or board within 30 days

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and pay the full assessment on all re- 905.29 Inability of members to serve. maining assessable product for all com- 905.30 Powers of the committee. mittee or board assessments from the 905.31 Duties of Citrus Administrative Com- date the handler no longer is eligible to mittee. 905.33 Compensation and expenses of com- the end of the assessment period. mittee members. (f) Within 30 days following the appli- 905.34 Procedure of committees. cable assessment period, the com- 905.35 Right of the Secretary. mittee or board shall re-compute the 905.36 Funds. applicable assessment rate for handlers EXPENSES AND ASSESSMENTS exempt under this section based on the actual expenditures incurred during 905.40 Expenses. the applicable assessment period. The 905.41 Assessments. Secretary shall review, and if appro- 905.42 Handler’s accounts. priate, approve any change in the por- REGULATIONS tion of the assessment rate for market 905.50 Marketing policy. promotion applicable to exempt han- 905.51 Recommendations for regulation. dlers, and authorize adjustments for 905.52 Issuance of regulations. any overpayments. 905.53 Inspection and certification. (g) The exemption will apply at the 905.54 Marketing, research and develop- beginning of the next assessable period ment. following notification of approval of HANDLERS’ REPORTS the assessment exemption, in writing, by the committee or board. 905.70 Manifest report. 905.71 Other information. [70 FR 2770, Jan. 14, 2005] MISCELLANEOUS PROVISIONS PART 905—ORANGES, GRAPEFRUIT, 905.80 Fruit not subject to regulation. TANGERINES, AND TANGELOS 905.81 Compliance. 905.82 Effective time. GROWN IN FLORIDA 905.83 Termination. 905.84 Proceedings after termination. Subpart—Order Regulating Handling 905.85 Duration of immunities. 905.86 Agents. DEFINITIONS 905.87 Derogation. Sec. 905.88 Personal liability. 905.1 Secretary. 905.89 Separability. 905.2 Act. 905.3 Person. Subpart—Rules and Regulations 905.4 Fruit. 905.5 Variety. 905.105 Tangerine and grapefruit classifica- 905.6 Producer. tions. 905.7 Handler. 905.114 Redistricting of citrus districts and 905.8 Prepare for market. reapportionment of grower members. 905.9 Handle or ship. 905.120 Nomination procedure. 905.10 Carton or standard packed carton. NON-REGULATED FRUIT 905.11 Fiscal period. 905.12 Committee. 905.140 Gift packages. 905.13 District. 905.141 Minimum exemption. 905.14 Redistricting. 905.142 Animal feed. 905.15 Regulation Area I. 905.145 Certification of certain shipments. 905.16 Regulation Area II. 905.146 Special purpose shipments. 905.17 Production area. 905.147 Certificate of privilege. 905.18 Improved No. 2 grade and Improved 905.148 Reports of special purpose shipments No. 2 Bright grade. under certificates of privilege. 905.149 Procedure for permitting growers to ADMINISTRATIVE BODIES ship tree run citrus fruit. 905.19 Establishment and membership. 905.150 Eligibility requirements for public 905.20 Term of office. member and alternate member. 905.21 Selection of initial members of the 905.153 Procedure for determining handlers’ committee. permitted quantities of red seedless 905.22 Nominations. grapefruit when a portion of sizes 48 and 905.23 Selection. 56 of such variety is restricted. 905.27 Failure to nominate. 905.161 Repacking shipper. 905.28 Acceptance of membership. 905.162 Repacking certificate of privilege.

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905.163 Reports of shipments under repack- (c) Citrus nobilis deliciosa, coming certificate of privilege. monly called ‘‘tangerines’’; (d) Temple oranges; Subpart—Assessment Rates (e) Tangelos; and 905.235 Assessment rate. (f) Honey tangerines. [30 FR 13933, Nov. 4, 1965, as amended at 42 Subpart—Grade and Size Requirements FR 59368, Nov. 17, 1977] 905.306 Orange, Grapefruit, Tangerine and Tangelo Regulation. § 905.5 Variety. 905.350 [Reserved] Variety or varieties means any one or more of the following classifications or Subpart—Interpretative Rule groupings of fruit: 905.400 Interpretation of certain provisions. (a) Early and Midseason oranges and other types commonly called ‘‘round AUTHORITY: 7 U.S.C. 601–674. oranges,’’ except Navel oranges and except Valencia, Lue Gim Gong, and Subpart—Order Regulating similar late maturing oranges of the Handling Valencia type; (b) Valencia, Lue Gim Gong, and SOURCE: 22 FR 10734, Dec. 27, 1957, unless similar late maturing oranges of the otherwise noted. Redesignated at 26 FR 12751, Valencia type; Dec. 30, 1961. (c) Temple oranges; (d) Marsh and other seedless grape- DEFINITIONS fruit, excluding pink grapefruit; (e) Duncan and other seeded grape- § 905.1 Secretary. fruit, excluding pink grapefruit; Secretary means the Secretary of Ag- (f) Pink seedless grapefruit; riculture of the United States, or any (g) Pink seeded grapefruit; officer or employee of the United (h) Tangelos; States Department of Agriculture to (i) Dancy and similar tangerines, ex- whom authority has heretofore been cluding Robinson and Honey tan- delegated, or to whom authority may gerines; hereafter be delegated, to act in his (j) Robinson tangerines; stead. (k) Honey tangerines; (l) Navel oranges; and [42 FR 59368, Nov. 17, 1977] (m) Other varieties of citrus fruits § 905.2 Act. specified in § 905.4 as recommended by the committee and approved by the Act means Public Act No. 10, 73d Con- Secretary. gress (May 12, 1933), as amended and as reenacted and amended by the Agricul- [34 FR 12427, July 30, 1969, as amended at 42 tural Marketing Agreement Act of 1937, FR 59368, Nov. 17, 1977; 42 FR 61853, Dec. 7, as amended. (48 Stat. 31, as amended; 7 1977] U.S.C. 601 et seq.; 68 Stat. 906, 1047.) § 905.6 Producer. § 905.3 Person. Producer is synonymous with grower Person means an individual, partner- and means any person who is engaged ship, corporation, association, business in the production for market of fruit in trust, legal representative, or any or- the production area and who has a pro- ganized group of individuals. prietary interest in the fruit so produced. § 905.4 Fruit. [42 FR 59368, Nov. 17, 1977] Fruit means any or all varieties of the following types of citrus fruits § 905.7 Handler. grown in the production area: Handler is synonymous with shipper (a) Citrus sinensis, Osbeck, com- and means any person (except a commonly called ‘‘oranges’’; mon or contract carrier transporting (b) Citrus paradisi, MacFadyen, com- fruit for another person) who, as owner, monly called ‘‘grapefruit’’; agent, or otherwise, handles fruit in 49

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fresh form, or causes fruit to be han- County Commissioner, Districts One, dled. Two, and Three of Volusia County, and that part of the Counties of Indian § 905.8 Prepare for market. River and Brevard not included in Reg- Prepare for market means to wash, ulation Area II. grade, size, or place fruit (whether or (c) Citrus District Three shall include not wrapped) into any container what- the County of St. Lucie and that part soever; but such term shall not include of the Counties of Brevard, Indian the harvesting of fruit. River, Martin, and Palm Beach described as lying within Regulation § 905.9 Handle or ship. Area II, and County Commissioner’s Handle or ship means: Districts Four and Five of Volusia (a) To sell, consign, deliver, or trans- County. (d) shall include port fruit, or in any other way to place Citrus District Four the Counties of Manatee, Sarasota, fruit in the current of commerce be- Hardee, Highlands, Okeechobee, tween the production area and any Glades, De Sota, Charlotte, Lee, point outside thereof in the 48 contig- Hendry, Collier, Monroe, Dade, uous States and the District of Colum- Broward, and that part of the Counties bia of the United States; and of Palm Beach and Martin not included (b) To export fruit from any point in in Regulation Area II. the 48 contiguous States and the Dis- (e) Citrus District Five shall include trict of Columbia of the United States the County of Polk. to any destination. [42 FR 59368, Nov. 17, 1977] [54 FR 37292, Sept. 8, 1989] § 905.14 Redistricting. § 905.10 Carton or standard packed carton. The committee may with the approval of the Secretary, redefine the Carton or standard packed carton districts into which the production means a unit of measure equivalent to area is divided or reapportion or other- 4 four-fifths ( ⁄5) of a United States bush- wise change the grower membership of el of fruit, whether in bulk or in any districts, or both: Provided, That the container. membership shall consist of at least [42 FR 59368, Nov. 17, 1977] eight but not more than nine grower members, and any such change shall be § 905.11 Fiscal period. based, so far as practicable, upon the Fiscal period means the period of time respective averages for the imme- from August 1 of any year until July 31 diately preceding five fiscal periods of of the following year, both dates inclu- (1) the volume of fruit shipped from sive. each district; (2) the volume of fruit produced in each district; and (3) the § 905.12 Committee. total number of acres of citrus in each Committee means the Citrus Adminis- district. The committee shall consider trative Committee established pursu- such redistricting and reapportionment ant to § 905.19. during the 1980–81 fiscal period, and only in each fifth fiscal period there- [42 FR 59368, Nov. 17, 1977] after, and each such redistricting or reapportionment shall be announced on § 905.13 District. or before March 1 of the then current (a) Citrus District One shall include fiscal period. the Counties of Hillsborough, Pinellas, [42 FR 59368, Nov. 17, 1977] Pasco, Hernando, Citrus, Sumter, and Lake. § 905.15 Regulation Area I. (b) Citrus District Two shall include the Counties of Osceola, Orange, Semi- Regulation Area I is defined as the nole, Alachua, Putnam, St. Johns, ‘‘Interior District’’, and shall include all Flagler, Marion, Levy, Duval, Nassau, that part of the production area not in- Baker, Union, Bradford, Columbia, cluded in Regulation Area II. Clay, Gilchrist, and Suwannee, and [54 FR 37292, Sept. 8, 1989]

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§ 905.16 Regulation Area II. of the U.S. No. 1 grade relating to Regulation Area II is defined as the shape (form) and color, as such require- ‘‘Indian River District’’, and shall in- ments are set forth in the U.S. Stand- clude that part of the State of Florida ards for Grades of Florida Grapefruit particularly described as follows: (§§ 51.750–51.783 of this title) or as such standards may hereafter be amended. Beginning at a point on the shore of the Atlantic Ocean where the line between [31 FR 15060, Dec. 1, 1966. Redesignated at 42 Flagler and Volusia Counties intersects said FR 59368, Nov. 17, 1977] shore, thence follow the line between said two counties to the Southwest corner of Sec- ADMINISTRATIVE BODIES tion 23, Township 14 South, Range 31 East; thence continue South to the Southwest cor- § 905.19 Establishment and member- ner of Section 35, Township 14 South, Range ship. 31 East; thence East to the Northwest corner of Township 15 South, Range 32 East; thence (a) There is hereby established a Cit- South to the Southwest corner of Township rus Administrative Committee con- 17 South, Range 32 East; thence East to the sisting of at least eight but not more Northwest corner of Township 18 South, Range 33 East; thence South to the St. Johns than nine grower members, and eight River; thence along the main channel of the shipper members. Grower members St. Johns River and through Lake Harney, shall be persons who are not shippers Lake Poinsett, Lake Winder, Lake Wash- or employees of shippers: Provided, ington, Sawgrass Lake, and Lake Helen that the committee, with the approval Blazes to the range line between Ranges 35 East and 36 East; thence South to the South of the Secretary, may establish alter- line of Brevard County; thence East to the native qualifications for such grower line between Ranges 36 East and 37 East; members. Shipper members shall be thence South to the Southwest corner of St. shippers or employees of shippers. The Lucie County; thence East to the line be- committee may be increased by one tween Ranges 39 East and 40 East; thence non-industry member nominated by South to the South line of Martin County; thence East to the line between Ranges 40 the committee and selected by the Sec- East and 41 East; thence South to the West retary. The committee, with approval Palm Beach Canal (also known as the Okee- of the Secretary, shall prescribe quali- chobee Canal); thence follow said canal east- fications, term of office, and the proce- ward to the mouth thereof; thence East to dure for nominating the non-industry the shore of the Atlantic Ocean; thence Northerly along the shore of the Atlantic member. Ocean to the point of beginning. (b) Each member shall have an alternate who shall have the same qualifica- [22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961, and further redesig- tions as the member for whom this per- nated at 42 FR 59368, Nov. 17, 1977, as amend- son is an alternate. ed at 42 FR 59370, Nov. 17, 1977; 54 FR 37292, [54 FR 37293, Sept. 8, 1989] Sept. 8, 1989]

§ 905.17 Production area. § 905.20 Term of office. Production area means that portion of The term of office of members and al- the State of Florida which is bounded ternate members shall begin on the by the Suwannee River, the Georgia first day of August and continue for border, the Atlantic Ocean, and the one year and until their successors are Gulf of Mexico. selected and have qualified. The con- [22 FR 10734, Dec. 27, 1957. Redesignated at 26 secutive terms of office of a member FR 12751, Dec. 30, 1961, and further redesig- shall be limited to three terms. The nated at 42 FR 59368, Nov. 17, 1977] terms of office of alternate members shall not be so limited. Members, their § 905.18 Improved No. 2 grade and Im- alternates, and their respective succes- proved No. 2 Bright grade. sors shall be nominated and selected by Improved No. 2 grade and Improved No. the Secretary as provided in §§ 905.22 2 Bright grade means grapefruit meet- and 905.23. ing all of the respective requirements of the U.S. No. 2 grade and the U.S. No. [42 FR 59369, Nov. 17, 1977] 2 Bright grade and those requirements

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§ 905.21 Selection of initial members of the Secretary, shall prescribe uniform the committee. rules to govern each such meeting and The initial members of the Citrus Ad- balloting thereat. The chairman of ministrative Committee and their re- each such meeting shall publicly an- spective alternates shall be the mem- nounce at the meeting the names of bers and alternates of the Growers Ad- the persons nominated and the chair- ministrative Committee and the Ship- man and secretary of each such meet- pers Advisory Committee serving on ing shall transmit to the Secretary the effective date of his amendment. their certification as to the number of Each member and alternate shall serve votes cast, the weight by volume of until completion of the term for which those shipments voted, and such other he was selected and until his successor information as the Secretary may re- has been selected and qualified. quest. All nominations shall be sub- [42 FR 59369, Nov. 17, 1977] mitted to the Secretary on or before the 20th day of July. § 905.22 Nominations. (2) Nomination of at least two mem- (a) Grower member. (1) The committee bers and their alternates shall be made shall give public notice of a meeting of by bona fide cooperative marketing or- producers in each district to be held ganizations which are handlers. Nomi- not later than July 10 of each year, for nations for not more than six members the purpose of making nominations for and their alternates shall be made by grower members and alternate grower handlers who are not so affiliated. In members. The committee, with the ap- voting for nominees, each handler or proval of the Secretary, shall prescribe his or her authorized representative uniform rules to govern such meetings shall be entitled to cast one vote, and the balloting thereat. The chair- which shall be weighted by the volume man of each meeting shall publicly an- of fruit by such handler during the nounce at such meeting the names of then current fiscal period. the persons nominated, and the chair- [42 FR 59369, Nov. 17, 1977, as amended at 74 man and secretary of each such meet- FR 46306, Sept. 9, 2009] ing shall transmit to the Secretary their certification as to the number of § 905.23 Selection. votes so cast, the names of the persons nominated, and such other information (a) From the nominations made pur- as the Secretary may request. All suant to § 905.22(a) or from other quali- nominations shall be submitted to the fied persons, the Secretary shall select Secretary on or before the 20th day of one member and one alternate member July. to represent District 2 and two mem- (2) Each nominee shall be a producer bers and two alternate members each in the district from which he or she is to represent Districts 1, 3, 4, and 5 or nominated. In voting for nominees, such other number of members and al- each producer shall be entitled to cast ternate members from each district as one vote for each nominee in each of may be prescribed pursuant to § 905.14. the districts in which he or she is a At least two such members and their producer. At least two of the nominees alternates shall be affiliated with bona and their alternates so nominated shall fide cooperative marketing organiza- be affiliated with a bona fide coopera- tions. tive marketing organization. (b) From the nominations made pur- (b) Shipper members. (1) the Com- suant to § 905.22(b) or from other quali- mittee shall give public notice of a fied persons, the Secretary shall select meeting for bona fide cooperative mar- at least two members and their alter- keting organizations which are han- nates to represent bona fide coopera- dlers, and a meeting for other handlers tive marketing organizations which are who are not so affiliated, to be held not handlers, and the remaining members later than July 10 of each year, for the and their alternates to represent han- purpose of making nominations for dlers who are not so affiliated. shipper members and their alternates. The committee, with the approval of [74 FR 46306, Sept. 9, 2009]

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§ 905.27 Failure to nominate. § 905.30 Powers of the committee. In the event nominations for a mem- The committee, in addition to the ber or alternate member of the com- power to administer the terms and pro- mittee are not made pursuant to the visions of this subpart, as herein spe- provisions of §§ 905.22 and 905.25, the cifically provided, shall have power (a) Secretary may select such member or to make, only to the extent specifi- alternate member without regard to cally permitted by the provisions con- nominations. tained in this subpart, administrative rules and regulations; (b) to receive, in- [22 FR 10734, Dec. 27, 1957. Redesignated at 26 vestigate and report to the Secretary FR 12751, Dec. 30, 1961, as amended at 42 FR complaints of violations of this sub- 59370, Nov. 17, 1977] part; and (c) to recommend to the Sec- retary amendments to this subpart. § 905.28 Acceptance of membership. [22 FR 10734, Dec. 27, 1957. Redesignated at 26 Any person selected by the Secretary FR 12751, Dec. 30, 1961, as amended at 42 FR as a member or alternate member of 59370, Nov. 17, 1977] the committee shall qualify by filing a written acceptance with the Secretary § 905.31 Duties of Citrus Administra- within 10 days after being notified of tive Committee. such selection. It shall be the duty of the Citrus Ad- ministrative Committee: [22 FR 10734, Dec. 27, 1957. Redesignated at 26 (a) To select a chairman from its FR 12751, Dec. 30, 1961, as amended at 42 FR 59370, Nov. 17, 1977] membership, and to select such other officers and adopt such rules and regu- § 905.29 Inability of members to serve. lations for the conduct of its business as it may deem advisable; (a) An alternate for a member of the (b) To keep minutes, books, and committee shall act in the place and records which will clearly reflect all of stead of such member (1) in his ab- its acts and transactions, which min- sence, or (2) in the event of his re- utes, books, and records shall at all moval, resignation, disqualification, or times be subject to the examination of death, and until a successor for his un- the Secretary; expired term has been selected. (c) To act as intermediary between (b) If both a member and his or her the Secretary and the producers and respective alternate are unable to at- handlers; tend a committee meeting, such mem- (d) To furnish the Secretary with ber may designate another alternate to such available information as he may act in his or her place in order to ob- request; tain a quorum: Provided, That such al- (e) To appoint such employees as it ternate member represents the same may deem necessary and to determine group affiliation as the absent member. the salaries and define the duties of If the member is unable to designate such employees; such an alternate, the committee (f) To cause its books to be audited members present may designate such by one or more certified or registered alternate. public accountants at least once for each fiscal period, and at such other (c) In the event of the death, re- times as it deems necessary or as the moval, resignation, or disqualification Secretary may request, and to file with of any person selected by the Secretary the Secretary copies of all audit re- as a member or an alternate member of ports; the committee, a successor for the un- (g) To prepare and publicly issue a expired term of such person shall be se- monthly statement of financial oper- lected by the Secretary. Such selection ations of the committee; may be made without regard to the (h) To provide an adequate system provisions of this subpart as to nomi- for determining the total crop of each nations. variety of fruit, and to make such de- [22 FR 10734, Dec. 27, 1957. Redesignated at 26 terminations, including determina- FR 12751, Dec. 30, 1961, as amended at 42 FR tions by grade and size, as it may deem 59370, Nov. 17, 1977; 74 FR 46306, Sept. 9, 2009] necessary, or as may be prescribed by

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the Secretary, in connection with the meeting is held each member must administration of this subpart; vote in person. (i) To perform such duties in connec- (c) The committee may provide for tion with the administration of section meeting by telephone, telegraph, or 32 of the act to amend the Agricultural other means of communication, and Adjustment Act and for other purposes, any vote cast at such a meeting shall Public Act No. 320, 74th Congress, as be promptly confirmed in writing: Pro- amended, as may from time to time be vided, That if any assembled meeting is assigned to it by the Secretary; held, all votes shall be cast in person. [22 FR 10734, Dec. 27, 1957. Redesignated at 26 (d) The committee shall give the Sec- FR 12751, Dec. 30, 1961, as amended at 30 FR retary the same notice of meetings as 13934, Nov. 4, 1965; 42 FR 59369, Nov. 17, 1977] is given to the members thereof.

§ 905.33 Compensation and expenses of [42 FR 59369, Nov. 17, 1977, as amended at 74 committee members. FR 46306, Sept. 9, 2009] The members and alternate members § 905.35 Right of the Secretary. of the Committee shall serve without compensation but may be reimbursed The members of the committee (infor expenses necessarily incurred by cluding successors and alternates), and them in attending committee meetings any agent or employee appointed or and in the performance of their duties employed by the committee, shall be under this part. subject to removal or suspension by the Secretary at any time. Each and [42 FR 59369, Nov. 17, 1977] every order, regulation, decision, determination, or other act of the com- § 905.34 Procedure of committees. mittee shall be subject to the con- (a) Ten members of the committee tinuing right of the Secretary to dis- shall constitute a quorum. approve of the same at any time and (b) For any decision or recommenda- upon his disapproval shall be deemed tion of the committee to be valid, ten null and void, except as to acts done in concurring votes, five of which must be reliance thereon or in compliance grower votes, shall be necessary: Pro- therewith. vided, That the committee may recommend a regulation restricting the [22 FR 10734, Dec. 27, 1957. Redesignated at 26 shipment of grapefruit grown in Regu- FR 12751, Dec. 30, 1961, as amended at 42 FR 59370, Nov. 17, 1977] lation Area I or Regulation Area II which meets the requirements of the § 905.36 Funds. Improved No. 2 grade or the Improved No. 2 Bright grade only upon the af- (a) All funds received by the com- firmative vote of a majority of its mittee pursuant to any provision of members present from the regulation this subpart shall be used solely for the area in which such restriction would purposes herein specified and shall be apply; and whenever a meeting to con- accounted for in the manner provided sider a recommendation for release of in this subpart. such grade is requested by a majority (b) The Secretary may, at any time, of the members from the affected area, require the committee and its members the committee shall hold a meeting to account for all receipts and dis- within a reasonable length of time for bursements. the purpose of considering such a rec- (c) Upon the removal or expiration of ommendation. If after such consider- the term of office of any member of the ation the requesting area majority committee, such member shall account present continues to favor such release for all receipts and disbursements and for their area, the request shall be con- deliver all property and funds, together sidered a valid recommendation and with all books and records, in his pos- transmitted to the Secretary. The session, to his successor in office, and votes of each member cast for or shall execute such assignments and against any recommendation made other instruments as may be necessary pursuant to this subpart shall be duly or appropriate to vest in such successor recorded. Whenever an assembled full title to all of the property, funds,

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and claims vested in such member pur- tablished under § 905.19, handlers may suant to this subpart. make advance payment of assessments. [22 FR 10734, Dec. 27, 1957. Redesignated at 26 (c) In the case of an extreme emer- FR 12751, Dec. 30, 1961, as amended at 42 FR gency, the committee may borrow 59370, Nov. 17, 1977] money on a short term basis to provide funds for the administration of this EXPENSES AND ASSESSMENTS part. Any such borrowed money shall § 905.40 Expenses. only be used to meet the committee’s current financial obligations, and the The committee is authorized to incur committee shall repay all such bor- such expenses as the Secretary finds rowed money by the end of the next fis- are reasonable and likely to be incurred to carry out the functions of the cal period from assessment income. committee under this subpart during [22 FR 10734, Dec. 27, 1957. Redesignated at 26 each fiscal period. The funds to cover FR 12751, Dec. 30, 1961, as amended at 42 FR such expenses shall be acquired by the 59370, Nov. 17, 1977; 54 FR 37293, Sept. 8, 1989] levying of assessments upon handlers as provided in § 905.41. § 905.42 Handler’s accounts. [22 FR 10734, Dec. 27, 1957. Redesignated at 26 (a) If, at the end of a fiscal period, FR 12751, Dec. 30, 1961, as amended at 42 FR the assessments collected are in excess 59370, Nov. 17, 1977] of expenses incurred, the committee, with the approval of the Secretary, § 905.41 Assessments. may carry over such excess into subse- (a) Each handler who first handles quent fiscal periods as a reserve: Pro- fruit shall pay to committee, upon de- vided, That funds already in the reserve mand, such handler’s pro rata share of do not exceed approximately one-half the expenses which the Secretary finds of one fiscal period’s expenses. Such re- will be incurred by the committee for serve funds may be used (1) to cover the maintenance and functioning, during each fiscal period, of the com- any expenses authorized by this part mittee established under this subpart. and (2) to cover necessary expenses of Each such handler’s share of such ex- liquidation in the event of termination penses shall be that proportion thereof of this part. If any such excess is not which the total quantity of fruit retained in a reserve, each handler en- shipped by such handler as the first titled to a proportionate refund shall handler thereof during the applicable be credited with such refund against fiscal period is of the total quantity of the operations of the following fiscal fruit so shipped by all handlers during period unless he demands payment of the same fiscal period. The Secretary the sum due him, in which case such shall fix the rate of assessment per sum shall be paid to him. Upon termi- standard packed carton of fruit to be nation of this part, any funds not re- paid by each such handler. The pay- quired to defray the necessary expenses ment of assessments for the mainte- of liquidation shall be disposed of in nance and functioning of the com- such manner as the Secretary may de- mittee may be required under this part termine to be appropriate: Provided, throughout the period it is in effect ir- That to the extent practical, such respective of whether particular provi- funds shall be returned pro rata to the sions thereof are suspended or become persons from whom such funds were inoperative. collected. (b) At any time during or after the (b) The committee may, with the ap- fiscal period, the Secretary may in- proval of the Secretary, maintain in its crease the rate of assessment so that own name or in the name of its mem- the sum of money collected pursuant to the provisions of this section shall bers a suit against any handler for the be adequate to cover the said expenses. collection of such handler’s pro rata Such increase shall be applicable to all share of the said expense. fruit shipped during the given fiscal pe- [22 FR 10734, Dec. 27, 1957. Redesignated at 26 riod. In order to provide funds to carry FR 12751, Dec. 30, 1961, as amended at 34 FR out the functions of the committee es- 12427, July 30, 1969; 42 FR 59371, Nov. 17, 1977]

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REGULATIONS (d) The committee shall transmit a copy of each marketing policy report § 905.50 Marketing policy. or revision thereof to the Secretary (a) Before making any recommenda- and to each producer and handler who tions pursuant to § 905.51 for any vari- files a request therefor. Copies of all ety of fruit, the committee shall, with such reports shall be maintained in the respect to the regulations permitted by office of the committee where they § 905.52, submit to the Secretary a de- shall be available for examination by tailed report setting forth an advisable producers and handlers. marketing policy for such variety for [22 FR 10734, Dec. 27, 1957. Redesignated at 26 the then current shipping season. Such FR 12751, Dec. 30, 1961, as amended at 30 FR report shall set forth the proportion of 13934, Nov. 4, 1965; 42 FR 59371, Nov. 17, 1977] the remainder of the total crop of such variety of fruit (determined by the § 905.51 Recommendations for regula- committee to be available for shipment tion. during the remainder of the shipping (a) Whenever the committee deems it season of such variety) deemed advis- advisable to regulate any variety in able by the committee to be shipped the manner provided in § 905.52, it shall during such season. give due consideration to the following (b) In determining each such mar- factors relating to the citrus fruit pro- keting policy and advisable proportion, duced in Florida and in other States: the committee shall give due consider- (1) Market prices, including prices by ation to the following factors relating grades and sizes of the fruit for which to citrus fruit produced in Florida and regulation is recommended; (2) matu- in other States: rity, condition, and available supply, (1) The available crop of each variety including the grade and size thereof in of citrus fruit in Florida, and in other the producing areas; (3) other pertinent States, including the grades and sizes market information; and (4) the level thereof, which grades and sizes in Flor- and trend in consumer income. The ida shall be determined by the com- committee shall submit to the Sec- mittee pursuant to § 905.31; retary its recommendations and sup- (2) The probable shipments of citrus porting information respecting the fac- fruit from other States; tors enumerated in this section. (3) The level and trend in consumer (b) The committee shall give notice income; of any meeting to consider the recommendation of regulations pursuant (4) The prospective supplies of com- to § 905.52 by mailing a notice of meet- petitive commodities; and ing to each handler who has filed his (5) Other pertinent factors bearing on address with committee for this pur- the marketing of fruit. pose. The committee shall give the (c) In addition to the foregoing, the same notice of any such recommenda- committees shall set forth a schedule tion before the time it is recommended of proposed regulations for the remain- that such regulation become effective. der of the shipping season for each variety of fruit for which recommenda- [42 FR 59370, Nov. 17, 1977] tions to the Secretary pursuant to § 905.51 are contemplated. Such sched- § 905.52 Issuance of regulations. ules shall recognize the practical oper- (a) Whenever the Secretary shall find ations of harvesting and preparation from the recommendations and reports for market of each variety and the of the committee, or from other avail- change in grades and sizes thereof as able information, that to limit the the respective seasons advance. In the shipment of any variety would tend to event it is deemed advisable to alter effectuate the declared policy of the such marketing policy or advisable act, he shall so limit the shipment of proportion as the shipping season pro- such variety during a specified period gresses, in view of changed demand and or periods. Such regulations may: supply conditions with respect to fruit, (1) Limit the shipments of any grade the said committee shall submit to the or size, or both, of any variety, in any Secretary a report thereon. manner as may be prescribed, and any

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such limitation may provide that ship- all handlers by mailing a copy thereof ments of any variety grown in Regula- to each handler who has filed his ad- tion Area II shall be limited to grades dress with said committee for this pur- and sizes different from the grade and pose. size limitations applicable to ship- (c) Whenever the Secretary finds ments of the same varieties grown in from the recommendations and reports Regulation Area I: Provided, That of the committee, or from other avail- whenever any such grade or size limita- able information, that a regulation tion restricts the shipment of a portion should be modified, suspended, or ter- of a specified grade or size of a variety minated with respect to any or all the quantity of such grade or size that shipments of fruit in order to effec- may be shipped by a handler during a tuate the declared policy of the act, he particular week shall be established as shall so modify, suspend, or terminate a percentage of the total shipments of such regulation. If the Secretary finds such variety by such handler in such that a regulation obstructs or does not prior period established by the com- tend to effectuate the declared policy mittee with the approval of the Sec- of the act, he shall suspend or termi- retary, in which he shipped such vari- nate such regulation. On the same ety. basis, and in like manner, the Sec- (2) Limit the shipment of any variety retary may terminate any such modi- by establishing and maintaining, only fication or suspension. in terms of grades or sizes, or both, (d) Whenever any variety is regulated minimum standards of quality and ma- pursuant to paragraph (a)(3) of this sec- turity; tion, no such regulation shall be (3) Limit the shipment of the total deemed to limit the right of any person quantity of any variety by prohibiting to sell, contract to sell, or export such the shipment thereof: Provided, that variety but no handler shall otherwise no such prohibition shall apply to ex- ship any fruit of such variety which ports or be effective during any fiscal was prepared for market during the ef- period with respect to any variety fective period of such regulation. other than for one period not exceeding five days during the week in which [22 FR 10734, Dec. 27, 1957. Redesignated at 26 Thanksgiving Day occurs, and for not FR 12751, Dec. 30, 1961, as amended at 34 FR more than two periods not exceeding a 12427, July 30, 1969; 42 FR 59370, Nov. 17, 1977; total of 14 days during the period De- 54 FR 37292, Sept. 8, 1989] cember 20 to January 20, both dates inclusive. § 905.53 Inspection and certification. (4) Provide that exports of any vari- (a) Whenever the handling of a variety shall be limited to grades and sizes ety of a type of fruit is regulated pur- different from the grade and size limi- suant to § 905.52, each handler who han- tations applicable to shipments of such dles any variety of such type of fruit variety in the 48 contiguous States and shall, prior to the handling of any lot the District of Columbia of the United of such variety, cause such lot to be in- States, and specify condition require- spected by the Federal-State Inspec- ments for such variety; and tion Service and certified by it as (5) Fix the size, capacity, weight, di- meeting all applicable requirements of mensions, marking, or pack of the con- such regulation: Provided, That such tainer or containers which may be used inspection and certification shall not in the shipment of fruit for export: be required if the particular lot of fruit Provided, that such regulation shall previously had been so inspected and not authorize the use of any container certified unless such prior inspection which is prohibited for use for fruit was not performed within such time under the provisions of Chapter 601 of limitations as may be prescribed pursu- the Florida Statutes and regulations ant to paragraph (b) of this section. effective thereunder. Each handler shall promptly submit, or (b) Prior to the beginning of any such cause to be submitted, to the com- regulations, the Secretary shall notify mittee a copy of each certificate of in- the committee of the regulation issued spection issued to him covering vari- by him, and the committee shall notify eties so handled.

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(b) With respect to any variety regu- § 905.71 Other information. lated pursuant to § 905.52(a)(4), the com- Upon request of the committee, made mittee may prescribe, with the ap- with the approval of the Secretary, proval of the Secretary, such requirements with respect to time of inspec- every handler shall furnish the com- tion as it may deem necessary to in- mittee, in such manner and at such sure satisfactory condition of the fruit times as it prescribes, such other infor- at time of export. mation as will enable it to perform its duties under this subpart. [22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 42 FR [22 FR 10734, Dec. 27, 1957. Redesignated at 26 59371, Nov. 17, 1977] FR 12751, Dec. 30, 1961, as amended at 42 FR 59371, Nov. 17, 1977] § 905.54 Marketing, research and development. MISCELLANEOUS PROVISIONS The committee may, with the ap- § 905.80 Fruit not subject to regula- proval of the Secretary, establish, or tion. provide for the establishment of, projects including production research, Except as otherwise provided in this marketing research and development section, any person may, without re- projects, and marketing promotion in- gard to the provisions of §§ 905.52 and cluding paid advertising, designed to 905.53 and the regulations issued there- assist, improve, or promote the mar- under, ship any variety for the fol- keting, distribution, and consumption lowing purposes: (a) To a charitable in- or efficient production of fruit. The ex- stitution for consumption by such in- penses of such projects shall be paid by stitution; (b) to a relief agency for dis- funds collected pursuant to § 905.41. tribution by such agency; (c) to a com- Upon conclusion of each project, but at mercial processor for conversion by least annually, the committee shall such processor into canned or frozen summarize the program status and ac- products or into a beverage base; (d) by complishments to its members and the parcel post; or (e) in such minimum Secretary. A similar report to the com- quantities, types of shipments, or for mittee shall be required of any con- such purposes as the committee with tracting party on any project carried the approval of the Secretary may out under this section. Also, for each specify. No assessment shall be levied project, the contracting party shall be on fruit so shipped. The committee required to maintain records of money shall, with the approval of the Sec- received and expenditures, and such retary, prescribe such rules, regula- shall be available to the committee tions, or safeguards as it may deem and the Secretary. necessary to prevent varieties handled [74 FR 46306, Sept. 9, 2009] under the provisions of this section from entering channels of trade for HANDLERS’ REPORTS other than the purposes authorized by this section. Such rules, regulations, § 905.70 Manifest report. and safeguards may include the re- The committee may request informa- quirements that handlers shall file ap- tion from each handler regarding the plications with the committee for au- variety, grade, and size of each stand- thorization to handle a variety pursu- ard packed carton of fruit shipped by ant to this section, and that such ap- him and may require such information plications be accompanied by a certifi- to be mailed or delivered to the com- cation by the intended purchaser or re- mittee or its duly authorized rep- ceiver that the variety will not be used resentative, within 24 hours after such for any purpose not authorized by this shipment is made, in a manner or by section. such method as the said committee may prescribe, and upon such forms as [22 FR 10734, Dec. 27, 1957. Redesignated at 26 may be prepared by it. FR 12751, Dec. 30, 1961, as amended at 42 FR 59371, Nov. 17, 1977] [42 FR 59371, Nov. 17, 1977]

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§ 905.81 Compliance. § 905.84 Proceedings after termination. Except as provided in this part, no (a) Upon the termination of the pro- person shall ship fruit the shipment of visions of this part, the then func- which has been prohibited by the Sec- tioning members of the committee retary in accordance with the provi- shall continue as joint trustees, for the sions of this part. purpose of liquidating the affairs of the committee, of all the funds and prop- § 905.82 Effective time. erty then in the possession of or under The provisions of this subpart shall control of committee, including claims become effective on and after 12:01 for any funds unpaid or property not a.m., e.s.t., September 1, 1946, and shall delivered at the time of such termi- continue in force until terminated in nation. one of the ways specified in § 905.83. (b) The said trustees (1) shall continue in such capacity until discharged § 905.83 Termination. by the Secretary, (2) shall, from time (a) The Secretary may at any time to time, account for all receipts and terminate the provisions of this part disbursements or deliver all property by giving at least one day’s notice by on hand, together with all books and means of a press release or in any other records of the committee and of the manner which he may determine. joint trustees, to such person as the (b) The Secretary shall terminate the Secretary may direct; and (3) shall, provisions of this part at the end of upon the request of the Secretary, exe- any fiscal period whenever he finds cute such assignments or other instru- that such termination is favored by a ments necessary or appropriate to vest majority of producers who, during the in such person full title and right to all preceding fiscal period, have been en- of the funds, property, and claims vest- gaged in the production for market of ed in the committee, or the joint trust- fruit: Provided, That such majority ees pursuant to this part. have, during such period, produced for (c) Any funds collected pursuant to market more than 50 percent of the § 905.41, over and above the amounts volume of such fruit produced for mar- necessary to meet outstanding obliga- ket, but such termination shall be ef- tions and expenses necessarily incurred fective only if announced on or before during the operation of this part and July 31 of the then current fiscal pe- during the liquidation period, shall be riod. returned to handlers as soon as prac- (c) The Secretary shall conduct a ref- ticable after the termination of this erendum six years after the effective part. The refund to each handler shall date of this paragraph and every sixth be represented by the excess of the year thereafter to ascertain whether amount paid by him over and above his continuance of this part is favored by pro rata share of the expenses. producers. The Secretary may termi- (d) Any person to whom funds, prop- nate the provisions of this part at the erty, or claims have been transferred end of any fiscal period in which the or delivered by the committee or its Secretary has found that continuance members, pursuant to this section, of this part is not favored by producers who during a representative period, de- shall be subject to the same obligations termined by the Secretary, have been imposed upon the members of the com- engaged in the production for market mittee and upon the said joint trust- of the fruit in the production area. ees. Such termination shall be announced [22 FR 10734, Dec. 27, 1957. Redesignated at 26 on or before July 31 of the fiscal period. FR 12751, Dec. 30, 1961, as amended at 42 FR (d) The provisions of this part shall, 59371, Nov. 17, 1977] in any event, terminate whenever the provisions of the act authorizing it § 905.85 Duration of immunities. cease to be in effect. The benefits, privileges, and immuni- [22 FR 10734, Dec. 27, 1957. Redesignated at 26 ties conferred upon any person by vir- FR 12751, Dec. 30, 1961, as amended at 54 FR tue of this part shall cease upon its ter- 37293, Sept. 8, 1989] mination, except with respect to acts

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done under and during the existence of § 905.105 Tangerine and grapefruit this part. classifications. (a) Pursuant to § 905.5(m), the fol- § 905.86 Agents. lowing classifications of grapefruit are The Secretary may, by designation in renamed as follows: writing, name any person, including (1) Marsh and other seedless grape- any officer or employee of the Govern- fruit, excluding pink grapefruit, are re- ment, or name any bureau or division named as Marsh and other seedless in the United States Department of Ag- grapefruit, excluding red grapefruit; riculture, to act as his agent or rep- (2) Duncan and other seeded grape- resentative in connection with any of fruit, excluding pink grapefruit, are renamed as Duncan and other seeded the provisions of this part. grapefruit, excluding red grapefruit; § 905.87 Derogation. (3) Pink seedless grapefruit is renamed as Red seedless grapefruit; Nothing contained in this part is, or (4) Pink seeded grapefruit is renamed shall be construed to be in derogation as Red seeded grapefruit. or in modification of the rights of the (b) Pursuant to § 905.5(m), the term Secretary or of the United States (a) to variety or varieties includes Sunburst exercise any powers granted by the act and Fallglo tangerines. or otherwise, or (b) in accordance with [56 FR 49132, Sept. 27, 1991, as amended at 63 such powers, to act in the premises FR 55500, Oct. 16, 1998] whenever such action is deemed advisable. § 905.114 Redistricting of citrus districts and reapportionment of grow- § 905.88 Personal liability. er members. No member or alternate of the com- Pursuant to § 905.14, the citrus districts and membership allotted each mittee nor any employee or agent district shall be as follows: thereof, shall be held personally re- (a) Citrus District One shall include sponsible, either individually or jointly the Counties of Hillsborough, Pinellas, with others, in any way whatsoever, to Pasco, Hernando, Citrus, Sumter, any handler or to any other person for Lake, Orange, Seminole, Alachua, Put- errors in judgment, mistakes, or other nam, St. Johns, Flagler, Marion, Levy, acts, either of commission or omission, Duval, Nassau, Baker, Union, Bradford, as such member, alternate, or em- Columbia, Clay, Gilchrist, and Suwan- ployee, except for acts of dishonesty. nee and County Commissioner’s Dis- tricts One, Two, and Three of Volusia [22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 42 FR County, and that part of the Counties 59371, Nov. 17, 1977] of Indian River and Brevard not included in Regulation Area II. This dis- § 905.89 Separability. trict shall have one grower member and alternate. If any provision of this part is de- (b) Citrus District Two shall include clared invalid, or the applicability the Counties of Polk and Osceola. This thereof to any person, circumstance, or district shall have two grower members thing is held invalid, the validity of the and alternates. remainder of this part or the applica- (c) Citrus District Three shall include bility thereof to any other person, cir- the Counties of Manatee, Sarasota, cumstance, or thing shall not be af- Hardee, Highlands, Okeechobee, fected thereby. Glades, De Soto, Charlotte, Lee, Hendry, Collier, Monroe, Dade, Subpart—Rules and Regulations Broward, and that part of the Counties of Palm Beach and Martin not included in Regulation Area II. This district SOURCE: 42 FR 59371, Nov. 17, 1977, unless shall have three grower members and otherwise noted. alternates. (d) Citrus District Four shall include the County of St. Lucie and that part

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of the Counties of Brevard, Indian voted for each nominee for shipper River, Martin, and Palm Beach de- member and alternate. scribed as lying within Regulation [43 FR 9455, Mar. 8, 1979] Area II, and County Commissioner’s Districts Four and Five of Volusia NON-REGULATED FRUIT County. This district shall have three grower members and alternates. § 905.140 Gift packages. [56 FR 8685, Mar. 1, 1991, as amended at 56 FR Any handler may, without regard to 24678, May 31, 1991] the provisions of §§ 905.52 and 905.53 and the regulations issued thereunder, ship § 905.120 Nomination procedure. any varieties for the following purpose Meetings shall be called by the com- and types of shipment: mittee in accordance with the provi- (a) To any person gift packages con- sions of § 905.22, for the purpose of mak- taining such varieties: Provided, That ing nominations for members and al- such packages are individually ad- ternate members of the Citrus Admin- dressed to such person, and shipped di- istrative Committee. The manner of rectly to the addressee for use by such nominating members and alternate person other than for resale; or members of said committee shall be as (b) to any individual gift package dis- follows: tributor of such varieties to be handled (a) At each such meeting the com- by such distributor: Provided, That mittee’s representative shall announce such person is the original purchaser the requirements as to eligibility for and the gift packages are individually voting for nominees and the procedure addressed or marked ‘‘not for resale’’. for voting, and shall explain the duties This exemption does not apply to of the committee. ‘‘commercially handled’’ shipments for (b) A chairman and a secretary of resale. each meeting shall be selected. (c) At each meeting there shall be [58 FR 65539, Dec. 15, 1993] presented for nomination and there § 905.141 Minimum exemption. shall be nominated not less than the number of nominees required under the Any shipment of fruit which meets provisions of § 905.19, all of whom shall each of the following requirements have the qualifications as specified in may be transported from the produc- § 905.22. tion area during any one day by any (d) At the meetings of handlers, any person or by the occupants of one vehi- person authorized to represent a han- cle exempt from the requirements of dler may cast a ballot for such handler. §§ 905.52 and 905.53 and regulations (e) At each meeting each eligible per- issued thereunder: son may cast one vote for each of the (a) The shipment does not exceed a persons to be nominated to represent total of 15 standard packed cartons (12 the district or group, as the case may bushels) of fruit, either a single fruit or be. a combination of two or more fruits; (f) Voting may be by written ballot. (b) The shipment consists of fruit not If written ballots are used, all ballots for resale; and shall be delivered by the chairman or (c) Such exempted quantity is not in- the secretary of the meeting to the cluded as a part of a shipment exceed- agent of the Secretary. If ballots are ing 15 standard packed cartons (12 not used, the committee’s representa- bushels) of fruit. tive shall deliver to the Secretary’s agent a listing of each person nomi- § 905.142 Animal feed. nated and a count of the number of (a) The handling of citrus for animal votes cast for each nominee for grower feed shall be exempt from the provi- member and alternate. Said represent- sions of §§ 905.52 and 905.53 and the regu- ative shall also provide the agent the lations issued thereunder under the fol- register of eligible voters present at lowing conditions: each meeting, a listing of each person (1) The handler notifies the com- nominated, the number of votes cast, mittee each fiscal period, prior to such and the weight by volume of shipments handling of his/her intention to handle

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such fruit, the quantity he/she antici- agree to other requirements as set pates handling and the destination forth in §§ 905.147 and 905.148 inclusive, point of each lot of fruit and receives with respect to such shipments. The from the committee a special shipping shipper shall certify that no claims permit for the shipment; will be made, written or verbal, con- (2) The fruit is used for animal feed cerning any alleged advantages of and is not offered for resale, disposed using, or any alleged superiority of, of, or in any way handled so as to enter fruit shipped under a Certificate of fresh fruit channels; Privilege, compared to other Florida (3) The quantity does not exceed 1,000 produced citrus. 4⁄5 bushel cartons per fiscal period or (c) Citrus meeting all other applica- such other quantity as may be speci- ble requirements may be handled with- fied by the committee; out regard to grade regulations issued (4) The fruit is placed in containers of under § 905.52 under the following con- uniform capacity; and ditions: (5) Each shipment is certified by the (1) Such fruit meets the requirements Federal-State Inspection Service as to of U. S. No. 2 Russet grade and those the quantity shipped. requirements of U. S. No. 1 grade relat- (b) [Reserved] ing to shape (form), as such require- [46 FR 47056, Sept. 24, 1981] ments are set forth in the revised U. S. Standards for Grades of Florida Or- § 905.145 Certification of certain ship- anges and Tangelos (7 CFR 51.1140 ments. through 51.1179), the revised Standards Whenever a regulation pursuant to for Florida Tangerines (7 CFR 51.1810 § 905.52 restricts the shipment of a por- through 51.1837), or the revised U. S. tion of a specified grade or size of a va- Standards for Grades of Florida Grape- riety, each handler shipping such vari- fruit (7 CFR 51.750 through 51.784). Such ety during the regulation period shall, fruit also meets applicable minimum with respect to each such shipment, size requirements in effect for domestic certify to the U.S. Department of Agri- shipments of citrus fruits. culture and the committee the quan- (2) All such citrus shall be inspected tity of the partially restricted grade or as required by § 905.53 by the Federal or size, or both, contained in such ship- Federal-state Inspection Service prior ment. Such certification shall accom- to the time such citrus is shipped from pany the manifest of such shipment the packing facility, and certified as which the handler furnishes to the Fed- meeting the applicable requirements. eral-State Inspection Service. (3) Be reported as required in § 905.148. [59 FR 26928, May 25, 1994, as amended at 66 § 905.146 Special purpose shipments. FR 229, Jan. 3, 2001] (a) A Special Purpose Shipper is one who handles Florida citrus fruit that is § 905.147 Certificate of privilege. certified by a Florida Department of (a) Application. Application for Cer- Agriculture and Consumer Services li- tificate of Privilege by a Special Pur- censed certifying agent as organically pose Shipper shall be made on forms grown under Florida law. In addition, furnished by the committee. Each ap- the shipper shall certify that ship- plication may contain, but need not be ments will be limited to outlets han- limited to, the name and address of dling organically grown fruits. Any each handler; a list of certified organic such shipments shall be subject to a citrus fruit growers, including address- Certificate of Privilege issued by the es; a list of receivers; the quantity and committee. variety of citrus to be shipped; a cer- (b) To qualify for a Certificate of tification to the Secretary of Agri- Privilege, each such shipper must no- culture and to the committee as to the tify the committee prior to the first truthfulness of the information shown shipment of certified organically thereon; and any other appropriate in- grown Florida citrus fruit in the fiscal formation or documents deemed nec- period of the shipper’s intent to ship essary by the committee or its duly au- such citrus, submit an application on thorized agents for the purposes stated forms supplied by the committee, and in § 905.146.

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(b) Approval. The committee or its § 905.148 Reports of special purpose duly authorized agents shall give shipments under certificates of prompt consideration to each applica- privilege. tion for a Certificate of Privilege. Ap- (a) Each handler of citrus shipping proval of an application based upon a under Certificates of Privilege shall determination as to whether the infor- supply the committee with reports on mation contained therein and other in- each shipment as requested by the formation available to the committee committee, on forms supplied by the supports approval, shall be evidenced committee, showing the name and ad- by the issuance of a Certificate of dress of the shipper or shippers; name Privilege to the applicant. Each certifi- and address of the certified organic cate shall expire at the end of the fiscal Florida citrus fruit grower or growers supplying fruit for such shipment; period. truck or other conveyance identifica- (c) Suspension or Denial of Certificate tion; the loading point; destination, of Privilege. The committee may inves- consignee; the inspection certificate tigate the handling of special purpose number; and any other information shipments under Certificates of Privi- deemed necessary by the committee. lege to determine whether Special Pur- (b) One copy of the report on each pose Shippers are complying with the shipment shall be forwarded by the requirements and regulations applica- shipper to the committee within 10 ble to such certificates. Whenever the days after such shipment, and two cop- committee finds that a Special Purpose ies of the report shall accompany each Shipper or consignee is failing to com- shipment to the receiver. Upon the reply with the requirements and regula- ceipt of each shipment, the receiver tions applicable to such certificates, shall complete the applicable portion the Certificate of Privilege issued to of the form and return one copy to the such Special Purpose Shipper may be committee within 10 days and one copy suspended or, in the case of an applica- shall be retained by the shipper. Such tion for the issuance of an initial Cer- completion shall contain a certification to the Secretary and the com- tificate of Privilege, may be denied. mittee that the citrus described shall Such suspension of a certificate shall be distributed in the outlets described. be for a reasonable period of time as Failure to complete and return such determined by the committee, but in forms will be cause to remove that re- no event shall it extend beyond the end ceiver’s name from the committee’s of the current fiscal period. In the case list of eligible receivers. of the denial of an application for the issuance of an initial certificate, such [43 FR 9456, Mar. 8, 1978, as amended at 59 FR 26929, May 25, 1994] certificate shall be denied until the applicant comes into compliance with the § 905.149 Procedure for permitting requirements and regulations applica- growers to ship tree run citrus ble to such certificates. Prior to sus- fruit. pending or denying an application for a (a) Tree run citrus fruit. Tree run cit- Certificate of Privilege, the committee rus fruit as referenced in this section is shall give the shipper or applicant rea- defined in the Florida Department of sonable advance notice in writing of its Citrus (FDOC) regulation 20–35.006, intention and the facts and reasons which specifies that ‘‘Tree run grade is therefor, and afford the shipper or ap- that grade of naturally occurring plicant an opportunity, either orally or sound and wholesome citrus fruit in writing, to present opposing facts which has not been separated either as and reasons. The shipper or applicant to grade or size after severance from shall be informed of the committee’s the tree.’’ Wholesomeness is as defined determination in writing and in a time- in FDOC regulation 20–62.002. The tree ly manner. run citrus fruit shipped under this provision also must be from the applying [43 FR 9456, Mar. 8, 1978, as amended at 59 FR grower’s own grove. 26929, May 25, 1994] (b) Application. A grower shall apply to ship tree run fruit using a Grower

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Tree Run Certificate Application, fur- pending or denying an application for a nished by the committee. Such applica- Grower Tree Run Certificate, the com- tion shall contain, but not be limited mittee shall give the grower reasonable to: the name, address, and phone num- advance notice in writing of its inten- ber of the grower; legal description of tion and the facts and reasons therefor, the grove(s) from which citrus will be and afford the grower an opportunity, shipped; variety of citrus produced on either orally or in writing, to present the identified grove(s); approximate opposing facts and reasons. The grower number of boxes produced on the iden- shall be informed of the committee’s tified grove(s); and a certification to determination in writing and in a time- the U.S. Department of Agriculture ly manner. and to the committee as to the truth- (e) To qualify for a Grower Tree Run fulness of the information shown there- Certificate, each such grower must noon; and any other appropriate informa- tify the committee prior to the first tion or documents deemed necessary by shipment of tree run Florida citrus the committee or its duly authorized agents. fruit of the grower’s intent to ship such (c) Approval. The committee or its citrus, submit an application on forms duly authorized agents shall give supplied by the committee, and agree prompt consideration to each applica- to other requirements as set forth in tion for a Grower Tree Run Certificate. this section with respect to such ship- Approval of an application will be ments. based upon a determination as to (f) The handling of tree run citrus whether the information contained under a Grower Tree Run Certificate therein and on whether other informa- shall be exempt from the provisions of tion available to the committee sup- §§ 905.52 and 905.53 and the regulations ports an application’s approval. Ap- issued thereunder, under the following proval of an application shall be evi- conditions: denced by the issuance of a Grower (1) A grower may only ship up to 150 Tree Run Certificate to the applicant. 13⁄5 bushel boxes per variety, per ship- Each certificate shall expire at the end ment. of the fiscal period. (2) A grower may only ship up to 3,000 (d) Suspension or denial of a Grower boxes per variety per season. Tree Run Certificate. The committee (3) Each grower shall apply to the may investigate the handling of tree Citrus Administrative Committee and run shipments under a Grower Tree receive a Grower Tree Run Certificate Run Certificate to determine whether prior to shipping their own tree run growers are complying with the re- Florida citrus fruit. quirements and regulations applicable to such certificates. Whenever the (4) Each grower of citrus shipping committee finds that a grower is fail- under a Grower Tree Run Certificate ing to comply with the requirements shall supply the committee with re- and regulations applicable to such cer- ports on each shipment as requested by tificates, the Grower Tree Run Certifi- the committee, on forms supplied by cate issued to such grower may be sus- the committee, providing the following pended or, in the case of an application information: The name and address of for the issuance of an initial Grower the grower, along with the grower’s Tree Run Certificate, may be denied. Grower Tree Run Certificate number; Such suspension of a certificate shall the legal description of the grove; the be for a reasonable period of time as variety and amount of citrus shipped; determined by the committee, but in the date the fruit was shipped; and the no event shall it extend beyond the end truck/trailer license number. A copy of of the fiscal period. In the case of the the form will be completed for each denial of an application for the shipment. One copy of the report will issuance of an initial certificate, such be forwarded by the grower to the com- certificate shall be denied until the ap- mittee office within 10 days after such plicant comes into compliance with the shipment, and one copy of the report requirements and regulations applica- will accompany each shipment and be ble to such certificates. Prior to sus- given to the Road Guard Station.

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(5) Each container of tree run fruit of calculating an average week. New shipped under a Grower Tree Run Cer- handlers with no record of shipments tificate shall be labeled with or contain could ship size 48 and 56 red seedless the name and address of the grower grapefruit as a percentage of total shipping under the Grower Tree Run shipments equal to the percentage ap- Certificate. plied to other handlers’ average week; [67 FR 62313, Oct. 7, 2002, as amended at 68 FR once such handlers have recorded ship- 52329, Sept. 3, 2003; 69 FR 50269, Aug. 16, 2004] ments, their average week shall be calculated as an average of total ship- § 905.150 Eligibility requirements for ments for the weeks they have shipped public member and alternate mem- red seedless grapefruit during the cur- ber. rent season. When used in the regula- (a) The public member shall be nei- tion of red seedless grapefruit, the ther a producer nor a handler of Flor- term season means the weeks begin- ida citrus fruit and shall have no direct ning the third Monday in September financial interest in the production or and ending the first Sunday in the fol- marketing of citrus fruit (except as a lowing May. The term regulation period consumer of agricultural products). means the 22-week period beginning (b) The public member should be able the third Monday in September of the to devote sufficient time and express a current season. willingness to attend Committee ac- (b) When a size limitation restricts tivities regularly and become familiar the shipment of a portion of sizes 48 with the background and economics of and 56 red seedless grapefruit during a the industry. particular week as provided in § 905.52, (c) The public member must be a the committee shall compute the quan- resident of the production area. tity of sizes 48 and 56 red seedless (d) The public member should be grapefruit that may be shipped by each nominated by the Citrus Administra- tive Committee and should serve a 1- handler by multiplying the handler’s year term which coincides with the calculated average week shipments of term of office of producer and handler such grapefruit by the percentage es- members of the Committee. tablished by regulation for red seedless grapefruit for that week. Such set per- [43 FR 32397, July 27, 1978] centage may vary from week to week but shall not be less than 25 percent in § 905.153 Procedure for determining any week. handlers’ permitted quantities of red seedless grapefruit when a por- (c) The committee shall notify each tion of sizes 48 and 56 of such vari- handler of the quantity of size 48 and 56 ety is restricted. red seedless grapefruit such handler (a) For the purposes of this section, may handle during a particular week. the prior period specified in § 905.52 is (d) During any regulation week for hereby established as an average week which the Secretary has fixed the per- within the immediately preceding centage of sizes 48 and 56 red seedless three seasons. Each handler’s average grapefruit, any person who has re- week shall be computed by adding the ceived an allotment may handle, in ad- total volume of red seedless grapefruit dition to their total allotment avail- handled in the immediately preceding able, an amount of size 48 and 56 red three seasons and dividing the total by seedless grapefruit up to 10 percent 99. The average week for handlers with greater than their allotment. The less than three previous seasons of quantity of the overshipment shall be shipments shall be calculated by add- deducted from the handler’s allotment ing the total volume of shipments for for the following week. Overshipments the seasons they did ship red seedless will not be allowed during the last grapefruit, divide by the number of sea- week of regulation. If the handler fails sons, divide further by 33. If crop condi- to use his or her entire allotment, the tions limit shipments from any or all undershipment is not carried forward of the immediately preceding three to the following week. Each handler season(s), the committee may use a shipping size 48 and/or 56 red seedless prior season or seasons for the purposes grapefruit during the regulation period

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shall complete and submit to the com- must notify the committee 10 days mittee, no later than 2 p.m. of the busi- prior to his or her first shipment of re- ness day following the shipment, a repacked citrus fruit during a particular port of red seedless grapefruit ship- fiscal period of his or her intent to ship ments by day for each regulation week. such citrus fruit, submit an Applica- (e) Any handler may transfer or loan tion for a Repacking Certificate of any or all of their shipping allotment Privilege form supplied by the com- (excluding the overshipment allow- mittee, and agree to other require- ance) of size 48 and 56 red seedless ments as set forth in §§ 905.162 and grapefruit to any other handler. Each 905.163 inclusive, with respect to such handler party to such transfer or loan shipments. The repacking shipper shall shall no later than noon on the certify that he or she will only handle Wednesday following the regulation previously inspected and certified cit- week notify the committee so the prop- rus fruit. er adjustment of records may be made. (c) Any repacking shipper who han- In each case, the committee shall con- dles citrus fruit shipped under a re- firm in writing all such transactions, packing certificate of privilege must, prior to the following week, to the han- other order provisions not with- dlers involved. The committee may act standing, meet the following require- on behalf of handlers wanting to ar- ments: range allotment loans or participate in (1) All such citrus fruit must be posi- the transfer of allotments. tive lot identified by the Federal or (f) New handlers with no record of Federal/State Inspection Service and shipments planning to ship red seedless certified as meeting the applicable re- grapefruit covered by any percentage quirements for citrus fruit shipped to size regulation shall register with the the domestic market (fruit shipped committee prior to the regulation pe- from the production area to any point riod so their allotments can be prop- outside thereof in the 48 contiguous erly calculated. Each new handler shall States and the District of Columbia of provide on a form furnished by the the United States), prior to being re- committee their Florida citrus fruit packed and shipped by the repacking dealer’s license number, their Florida shipper. Each such citrus fruit ship- Department of Agriculture and Con- ment shall be accompanied by a Fed- sumer Services’ Fruit and Vegetable eral-State manifest that certifies the Division packinghouse registration grade and amount of each load of citrus number, and the physical location of fruit received, which shall be retained the packinghouse where the red seed- by the repacking shipper. less grapefruit is to be prepared for (2) Be reported as required in § 905.163. market. The committee shall notify (3) The repacking facility used to re- any new handlers of their allotments pack previously inspected and certified prior to the regulation period. citrus fruit by the repacking shipper shall not have operable equipment to [61 FR 69015, Dec. 31, 1996, as amended at 62 wash, brush, wax, or dry citrus fruit. FR 52011, Oct. 6, 1997; 64 FR 51892, Sept. 27, (4) All citrus fruit handled by a re- 1999; 67 FR 809, Jan. 8, 2002; 69 FR 50278, Aug. 16, 2004; 70 FR 54242, Sept. 14, 2005] packing shipper shall be packed in approved Florida Department of Citrus § 905.161 Repacking shipper. fruit containers. (a) A repacking shipper is a person (5) Each container shipped with such who repacks and ships citrus fruit citrus fruit shall be marked with the grown in the production area in Flor- repacking shipper’s repacking certifi- ida which has been previously in- cate of privilege number. spected and certified as meeting the re- [59 FR 48782, Sept. 23, 1994] quirements specified under § 905.52 of the order, and who has obtained a cur- § 905.162 Repacking certificate of rently valid repacking certificate of privilege. privilege issued to him or her by the (a) Application. Application for a re- committee as specified in § 905.162. packing certificate of privilege by a re- (b) Each repacking shipper, to qualify packing shipper shall be made on an for a repacking certificate of privilege, Application for a Repacking Certificate

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of Privilege form supplied by the com- pending or denying an application for a mittee. Each such application shall certificate of privilege, the committee contain, but need not be limited to, the shall give the shipper or applicant an name, address and Florida citrus fruit opportunity, either orally or in writ- dealer license number of the applicant; ing, to present opposing facts and rea- approximate number of boxes to be sons. The shipper or applicant shall be handled during the season; the various informed of the committee’s deter- types of containers to be used to ship mination in writing and in a timely the repacked citrus fruit; a certifi- manner. cation to the Secretary of Agriculture and to the committee as to the truth- [59 FR 48783, Sept. 23, 1994] fulness of the information shown thereon; and any other appropriate informa- § 905.163 Reports of shipments under repacking certificate of privilege. tion or documents deemed necessary by the committee or duly authorized (a) Each repacking shipper who han- agents for the purposes stated in dles citrus fruit under a repacking cer- § 905.161. tificate of privilege shall supply the (b) Approval. The committee or its committee with reports on each ship- duly authorized agents shall give ment as requested by the committee, prompt consideration to each applica- on a Report of Shipments Under Cer- tion for a repacking certificate of tificate of Privilege form supplied by privilege. Approval of an application the committee, showing the name and based upon a determination as to address of the repacking shipper; name whether the information contained and address of the handler supplying therein and other information avail- the inspected and certified citrus fruit able to the committee supports ap- for such shipment; number of packages; proval, shall be evidenced by the size and containers; brand; grade; cer- issuance of a repacking certificate of tificate number; and any other infor- privilege to the applicant. Each such mation deemed necessary by the com- certificate shall expire at the end of mittee. Each repacking shipper of cit- the fiscal period. rus fruit shall maintain on file a copy (c) Suspension or denial of certificate of of the Federal-State manifest that cer- privilege. The committee may inves- tifies the grade and amount of each tigate the handling of repacked fresh load of citrus fruit received. These citrus fruit shipments under certifi- manifests shall be readily available to cates of privilege to determine whether the committee upon request. repacking shippers are complying with (b) One copy of the Report of Ship- the requirements and regulations ap- ments Under Certificate of Privilege plicable to such certificates. Whenever form on each shipment shall be for- the committee finds that a repacking warded to the committee promptly, shipper is failing to comply with the one copy of such form shall be retained requirements and regulations applica- by the repacking shipper, and one copy ble to such certificates, the certificate of such form shall accompany the ship- of privilege issued to such repacking ment. Failure to complete and return shipper may be suspended or, in the such form shall be cause for suspension case of an application for the issuance of the repacking shippers repacking of an initial certificate of privilege, certificate of privilege. may be denied. Such suspension of a certificate shall be for a reasonable pe- [59 FR 48783, Sept. 23, 1994] riod of time as determined by the committee, but in no event shall it extend Subpart—Assessment Rates beyond the end of the then current fiscal period. In the case of the denial of § 905.235 Assessment rate. an application for the issuance of an On and after August 1, 2007, an as- initial certificate, such certificate sessment rate of $0.0072 per 4/5 bushel shall be denied until the applicant carton or equivalent is established for comes into compliance with the re- Florida citrus covered under the order. quirements and regulations applicable to such certificates. Prior to sus- [72 FR 41425, July 31, 2007]

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Subpart—Grade and Size Columbia of the United States, any va- Requirements riety of fruit listed in column (1) of Table I unless such variety meets the § 905.306 Orange, Grapefruit, Tan- applicable minimum grade and size gerine and Tangelo Regulation. (with tolerances for size as specified in paragraph (c) of this section) specified (a) During the period specified in col- for such variety in columns (3) and (4) umn (2) of Table I, no handler shall of table I: Provided, That all grapefruit ship between the production area and meet the minimum maturity require- any point outside thereof, in the 48 ments specified in paragraph (e) of this contiguous States and the District of section.

TABLE I

Minimum di- Variety Regulation period Minimum grade ameter (inches)

(1) (2) (3) (4) ORANGES Early and midseason ...... 01/29/90–08/19/90 ...... U.S. No. 1 Golden ...... 24⁄16 ...... On and after 08/20/90 ...... U.S. No. 1 ...... 28⁄16 Navel ...... On and after 12/7/81 ...... U.S. No. 1 Golden ...... 28⁄16 Temple ...... On and after 12/7/81 ...... U.S. No. 1 ...... 28⁄16 Valencia and other late type ...... August 1 June 14 ...... U.S. No. 1 ...... 28⁄16 June 15 July 31 ...... U.S. No. 2, External ...... 28⁄16 U.S. No. 1, Internal ...... GRAPEFRUIT Seedless, red ...... On and after 11/13/00 ...... U.S. No. 1 ...... 35⁄16 Seedless, except red ...... On and after 9/01/94 ...... U.S. No. 1 ...... 35⁄16 TANGERINES Fallglo ...... On and after October 19, 1998 ...... U.S. No. 1 ...... 26⁄16 Honey ...... March 23, 1992–08/23/92 ...... Florida No. 1 Golden ...... 26⁄16 ...... On and after 8/24/92 ...... Florida No. 1 ...... 26⁄16 Sunburst ...... On and after September 26, 2000 .. U.S. No. 1 ...... 26⁄16 TANGELOS Tangelos ...... On and After 12/7/81 ...... U.S. No. 1 ...... 28⁄16

(b) During the period specified in col- (with tolerances for size as specified in umn (2) of Table II, no handler shall paragraph (c) of this section) specified ship to any destination outside the 48 for such variety in columns (3) and (4) contiguous States and the District of of Table II: Provided, That all grape- Columbia of the United States any va- fruit meet the minimum maturity re- riety of fruit listed in column (1) of quirements specified in paragraph (e) Table II unless such variety meets the of this section. applicable minimum grade and size

TABLE II

Minimum di- Variety Regulation period Minimum grade ameter (inches)

(1) (2) (3) (4) ORANGES Early and midseason ...... 01/29/90–08/19/90 ...... U.S. No. 1 Golden ...... 24⁄16 ...... On and after 08/20/90 ...... U.S. No. 1 ...... 28⁄16 Navel ...... On and after 11/24/89 ...... U.S. No. 1 Golden ...... 28⁄16 Temple ...... On and after 11/24/89 ...... U.S. No. 1 ...... 28⁄16 Valencia and other late type: ...... March 23, 1992–9/27/92 ...... U.S. No. 1 ...... 24⁄16 ...... On and after 9/28/92 ...... U.S. No. 1 ...... 28⁄16 GRAPEFRUIT Seedless, except red ...... On and after 09/01/94 ...... U.S. No. 1 ...... 35⁄16 Seedless, red ...... On and after 09/01/94 ...... U.S. No. 1 ...... 35⁄16 TANGERINES Fallglo ...... On and after October 19, 1998 ...... U.S. No. 1 ...... 26⁄16 Honey ...... March 23, 1992–08/23/92 ...... Florida No. 1 Golden ...... 26⁄16 ...... On and after 08/24/92 ...... Florida No. 1 ...... 26⁄16 Sunburst ...... On and after September 26, 2000 .. U.S. No. 1 ...... 26⁄16

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TABLE II—Continued

Minimum di- Variety Regulation period Minimum grade ameter (inches)

(1) (2) (3) (4) TANGELOS Tangelos ...... On and After 11/24/89 ...... U.S. No. 1 ...... 28⁄16 1 Florida No. 1 Golden grade for Honey tangerines means the same as provided in Rule No. 20–35.03 of the Regulation of the Florida Department of Citrus.

(c) Size tolerances. To allow for vari- (2) Notwithstanding the provision of ations incident to proper sizing in the paragraph (e)(1) of this section, for the determination of minimum diameters period December 23, 2004 to July 31, as prescribed in Tables I and II, not 2005, all grapefruit shipped under the more than 10 percent, by count, of the order shall meet minimum maturity fruit in any lot of containers may fail requirements of 7.5 percent soluble sol- to meet the minimum diameter size re- ids (sugars) and 7.5 to 1 solids to acid quirements, and not more than 15 per- ratio or shall comply with one of the cent, by count, in any individual sam- alternate equivalent soluble solids and ple may fail to meet the minimum di- solids to acid ratio combinations set ameter size requirements specified: forth in Table III: Provided, That the Provided, That such tolerances for other than Navel and Temple oranges minimum ratio shall not drop below 7.2 shall be based only on the oranges in even if the soluble solids (sugars) reaches a level higher than 9.6. the lot measuring 214⁄16 inches or smaller in diameter. (d) Terms used in the marketing TABLE III order including Improved No. 2 grade Minimum total solids (sugars), for grapefruit, when used herein, mean % Solids to acid minimum ratio the same as is given to the terms in the order; Florida No. 1 grade for Honey 8.0 to (not including) 9.1 7.50 to 1 9.1 to (not including) 9.2 7.45 to 1 tangerines means the same as provided 9.2 to (not including) 9.3 7.40 to 1 in Rule No. 20–35.03 of the Regulations 9.3 to (not including) 9.4 7.35 to 1 of the Florida Department of Citrus, 9.4 to (not including) 9.5 7.30 to 1 and terms relating to grade, except Im- 9.5 to (not including) 9.6 7.25 to 1 proved No. 2 grade for grapefruit and 9.6 and greater 7.20 to 1 diameter, shall mean the same as is given to the terms in the revised U. S. [46 FR 60171, Dec. 8, 1981] Standards for Grades of Florida Or- anges and Tangelos (7 CFR 51.1140 EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 905.306, see the List of CFR through 51.1179), the revised U. S. Sections Affected, which appears in the Standards for Florida Tangerines (7 Finding Aids section of the printed volume CFR 51.1810 through 51.1837), or the re- and at www.fdsys.gov. vised U. S. Standards for Grades of Florida Grapefruit (7 CFR 51.750 EDITORIAL NOTE: After January 1, 1979, through 51.784). ‘‘Budget of Expenses and Rate of Assessment’’ (e)(1) All grapefruit shipped under the regulations (e.g. sections .200 through .299) order shall meet minimum maturity and ‘‘Handling’’ regulations (e.g. sections .300 through .399) which are in effect for a year or requirements of 8.0 percent soluble sol- less, will not be carried in the Code of Fed- ids (sugars) and 7.5 to 1 solids to acid eral Regulations. For FEDERAL REGISTER ci- ratio or shall comply with one of the tations affecting these regulations, see the alternate equivalent soluble solids and List of CFR Sections Affected, which appears solids to acid ratio combinations set in the Finding Aids section of the printed forth in Table III: Provided, That the volume and at www.fdsys.gov. minimum ratio shall not drop below 7.2 even if the soluble solids (sugars) reaches a level higher than 9.6.

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§ 905.350 [Reserved] 906.24 Failure to nominate. 906.25 Acceptance. 906.26 Vacancies. Subpart—Interpretative Rule 906.27 Alternate members. 906.28 Procedure. § 905.400 Interpretation of certain pro- 906.29 Expenses and compensation. visions. 906.30 Powers. (a) In interpreting the provisions of 906.31 Duties. paragraph (d) of § 905.52, the limitation EXPENSES AND ASSESSMENTS on shipment of any variety of fruit reg- 906.32 Expenses. ulated pursuant to paragraph (a)(3) of 906.33 Budget. that section, which was prepared for 906.34 Assessments. market during the effective period of 906.35 Accounting. such regulation, shall not be deemed to apply to shipment of such variety RESEARCH AND DEVELOPMENT which was prepared for market inciden- 906.37 Research and development. tally as part of a lot packed for export REGULATION and shipped following the period of regulation. 906.38 Marketing policy. (b) Prior to shipment of any variety 906.39 Recommendations for regulations. of fruit so prepared, the handler shall 906.40 Issuance of regulations. 906.41 Gift fruit shipments. provide the Citrus Administrative 906.42 Shipments for special purposes. Committee or its designated agent a 906.43 Notification of regulations. copy of the shipping manifest applica- 906.44 Safeguards. ble to such shipment with a notation thereon that the fruit was packed inci- INSPECTION dentally as part of a lot packed for ex- 906.45 Inspection and certification. port. REPORTS [54 FR 46597, Nov. 6, 1989] 906.51 Reports. PART 906—ORANGES AND GRAPE- MISCELLANEOUS PROVISIONS FRUIT GROWN IN LOWER RIO 906.52 Compliance. 906.53 Right of the Secretary. GRANDE VALLEY IN TEXAS 906.54 Effective time. 906.55 Termination. Subpart—Order Regulating Handling 906.56 Proceedings after termination. 906.57 Effect of termination or amendment. DEFINITIONS 906.58 Duration of immunities. Sec. 906.59 Agents. 906.1 Secretary. 906.60 Derogation. 906.2 Act. 906.61 Personal liability. 906.3 Person. 906.62 Separability. 906.4 Production area. 906.5 Fruit. Subpart—Rules and Regulations 906.6 Handler. 906.7 Handle. 906.120 Fruit exempt from regulations. 906.8 Producer. 906.121 Reestablishment of districts. 906.9 Grade and size. 906.122 [Reserved] 906.10 Pack. 906.123 Fruit for processing. 906.11 Maturity. 906.137 Handlers use of identifying marks 906.12 Container. utilized by the committee in pro- 906.13 Variety or varieties. motional and advertising projects. 906.14 Committee. 906.151 Reports. 906.15 Fiscal period. 906.235 Assessment rate. 906.16 District. Subpart—Container and Pack COMMITTEE Requirements 906.18 Establishment and membership. 906.340 Container, pack, and container 906.19 Term of office. marking regulations. 906.20 Districts. 906.365 Texas Orange and Grapefruit Regu- 906.21 Redistricting. lation 34. 906.22 Selection. 906.23 Nominations. AUTHORITY: 7 U.S.C. 601–674.

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Subpart—Order Regulating fruit, in the current of commerce be- Handling tween the production area and any point outside thereof in the United States, Canada, or Mexico. SOURCE: 25 FR 9093, Sept. 22, 1960, unless otherwise noted. Redesignated at 26 FR 12751, § 906.8 Producer. Dec. 30, 1961. Producer means any person engaged DEFINITIONS in a proprietary capacity in the production of fruit for market. § 906.1 Secretary. (a) Independent producer. Independent Secretary means the Secretary of Ag- producer means any producer who does riculture of the United States, or any not market his fruit through a handler employee of the Department to whom that is a cooperative marketing organi- authority has heretofore been dele- zation. gated, or to whom authority may here- (b) [Reserved] after be delegated, to act in his stead. § 906.9 Grade and size. § 906.2 Act. Grade means any one of the estab- Act means Public Act No. 10, 73d Con- lished grades of fruit and size means gress, as amended and as re-enacted any one of the established sizes of fruit as defined and set forth in the applica- and amended by the Agricultural Mar- ble U.S. Standards for fruit (§§ 51.680 keting Agreement Act of 1937, as through 51.714 and §§ 51.620 through amended (sections 1–19, 48 Stat. 31, as 51.653) issued by the United States De- amended; 7 U.S.C. 601–674). partment of Agriculture, or amend- § 906.3 Person. ments thereto, or modifications thereof, or variations based thereon rec- Person means an individual, partner- ommended by the committee and ap- ship, corporation, association, or any proved by the Secretary. other business unit. § 906.10 Pack. § 906.4 Production area. Pack means the specific grade, qual- Production area means all territory in ity, size, or arrangement of fruit in a the counties of Cameron, Hidalgo, and particular container or containers. Willacy in the State of Texas. § 906.11 Maturity. § 906.5 Fruit. Maturity means various degrees of Fruit means either or both of the fol- ripeness for fruit as established by the lowing citrus fruits grown in the pro- committee with approval of the Sec- duction area: (a) Citrus grandis, retary. Osbeck, commonly called grapefruit, and (b) Citrus sinensis, Osbeck, com- § 906.12 Container. monly called oranges. Container means any box, bag, crate, hamper, basket, package, bulk carton, § 906.6 Handler. or any other type of receptacle used in Handler is synonymous with shipper the packaging, transportation, sale, or and means any person (except a com- other handling of fruit. mon or contract carrier of fruit owned by another person) who handles fruit or § 906.13 Variety or varieties. causes fruit to be handled. Variety or varieties means any one or (a) Independent handler. Independent more of the following groupings or handler means any handler other than classifications of fruit: (a) Navel or- a handler that is a cooperative mar- anges; (b) Early and Midseason or- keting organization. anges, except Navel oranges; (c) Valen- (b) [Reserved] cia and similar late type oranges; (d) white seeded grapefruit; (e) white seed- § 906.7 Handle. less grapefruit; (f) pink and red seeded Handle or ship means to transport or grapefruit; and (g) pink and red seed- sell fruit, or in any other way to place less grapefruit.

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§ 906.14 Committee. ternates and one-third of the initial Committee means the Texas Valley handler members and alternates shall Citrus Committee, established pursu- end July 31, 1961, and the term of office ant to § 906.18. of an identical number of such committee members and alternates shall § 906.15 Fiscal period. end July 31, 1962. No member or alternate member shall succeed himself. Fiscal period means the period begin- (b) Members and alternates shall ning August 1 and ending July 31 fol- serve in that capacity during the por- lowing; or such annual beginning and tion of the term of office for which ending dates as may be approved by the they are selected and have qualified, Secretary pursuant to recommenda- and until their respective successors tions of the committee. are selected and have qualified. Should § 906.16 District. a producer member or alternate member change his marketing affiliation District means any of the geographic during his term of office, he may con- divisions of the production area ini- tinue to serve in such capacity during tially established pursuant to § 906.20 or the remainder of such term. as re-established pursuant to § 906.21. [25 FR 9093, Sept. 22, 1960. Redesignated at 26 COMMITTEE FR 12751, Dec. 30, 1961, as amended at 31 FR 10462, Aug. 4, 1966] § 906.18 Establishment and membership. § 906.20 Districts. (a) The Texas Valley Citrus Com- For the purpose of determining the mittee, consisting of fifteen (15) mem- basis for selecting producer committee bers is hereby established. For each members the following districts of the member of the committee there shall production area are hereby initially es- be an alternate who shall have the tablished: same qualifications as the member. District No. 1: The county of Cameron in the (b) Nine members shall be producers State of Texas; who produce fruit in the district which District No. 2: The county of Hidalgo in the they represent and are residents of the State of Texas; and production area. Two of the producer District No. 3 The county of Willacy in the members shall be producers who mar- State of Texas. ket their fruit through cooperative marketing organizations, and seven of § 906.21 Redistricting. the producer members shall be inde- The committee may recommend, and pendent producers. Producer members pursuant thereto the Secretary may shall not have a proprietary interest in approve, the reapportionment of mem- or be employees of a handler organiza- bers among districts, the reapportion- tion: Provided, That members of a coop- ment of members between grower and erative marketing organization shall handler members representing coopera- not be considered as having a propri- tive marketing organizations and inde- etary interest in a handler organiza- pendent grower and independent han- tion because of such membership. dler members, and the re-establish- (c) Six members shall be handlers ment of districts within the production who are residents of the production area. In recommending such changes, area. One handler member shall rep- the committee shall give consideration resent cooperative marketing organiza- to: (a) Shifts in production; (b) the im- tions; five handler members shall rep- portance of new production in its rela- resent independent handlers. tion to existing districts; (c) the equitable relationship of committee mem- § 906.19 Term of office. bership and districts; (d) changes in (a) The term of office of committee amount of fruit handled by cooperative members and their respective alter- marketing organizations in relation to nates shall be for three years beginning fruit handled by independent handlers; August 1 and ending July 31: Provided, and (e) other relevant factors. No That the term of office of one-third of changes in districting or in apportion- the initial producer members and al- ment of members may become effective

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in less than 30 days prior to the date on the committee shall hold such meet- which terms of office begin each year ings or cause them to be held prior to and no recommendations for such re- June 15 of each year, after the effective districting or reapportionment may be date of this subpart. made less than six months prior to (b) At each such meeting at least one such date. nomination shall be designated for each position as member and alternate. § 906.22 Selection. (c) Nominations for committee mem- (a) From District No. 1 the Secretary bers and alternates following the ini- shall select initially two producer tial committee shall be supplied to the members and their alternates rep- Secretary not later than July 1 each resenting independent producers. From year. District No. 2 the Secretary shall se- (d) In districts having both coopera- lect initially two producer members tive and independent producer mem- and their respective alternates rep- bers, only producers who market their resenting producers who market their fruit through cooperative marketing fruit through cooperative marketing organizations may participate in desig- organizations, and four producer mem- nating nominees for members and al- bers and their respective alternates ternates representing cooperative pro- representing independent producers. ducers; and only independent producers From District No. 3 the Secretary shall may participate in designating nomi- select initially one producer member nees for members and alternates rep- and his alternate representing inde- resenting independent producers. In all pendent producers. other districts, all producers may par- (b) From the production area the ticipate in designating the nominees Secretary shall select initially six handler members and their respective al- for producer members and alternates. ternates. One handler member shall Only handlers representing cooperative represent cooperative marketing orga- marketing organizations may partici- nizations and five handler members pate in designating nominees for mem- shall represent independent handlers. bers and alternates representing cooperative handlers; and only independent § 906.23 Nominations. handlers may participate in desig- The Secretary may select the mem- nating nominees for members and al- bers of the committee and alternates ternates representing independent han- from nominations which may be made dlers. In the event that a person is en- in the following manner: gaged in producing fruit in more than (a) A meeting of producers who are one district such person shall elect the members of cooperative marketing or- district within which he may partici- ganizations and a meeting of inde- pate, as aforesaid, in designating nomi- pendent producers shall be held for nees. each district having both cooperative (e) Regardless of the amount of fruit and independent producer members and handled by a handler or the number of alternates to elect nominees for such districts in which a person produces positions. For all other districts, meet- fruit, each person is entitled to cast ings of all producers shall be held for only one vote on behalf of himself, his such purpose. A meeting of handlers agents, subsidiaries, affiliates, and rep- representing cooperative marketing or- resentatives in designating nominees ganizations and a meeting of inde- for committee members and alternates. pendent handlers shall be held in the An eligible voter’s privilege of casting production area to elect nominees for only one vote shall be construed to per- handler members and alternates. For mit a voter to cast one vote for each nominations to the initial committee, position to be filled. Votes must be the meetings may be sponsored by the cast in person at all nomination meet- United States Department of Agri- ings. culture or by any agency or group requested to do so by such Department. § 906.24 Failure to nominate. For nominations for succeeding mem- If nominations are not made within bers and alternates on the committee, the time and in the manner specified in

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§ 906.23, the Secretary may, without required to pass any motion or approve gard to nominations, select the com- any committee action. All votes shall mittee members and alternates, which be cast in person. selection shall be on the basis of the representation provided for in §§ 906.20 § 906.29 Expenses and compensation. through 906.22, inclusive. The members of the committee, and alternates, shall serve without com- § 906.25 Acceptance. pensation; but they may be reimbursed Any person selected as a committee for expenses necessarily incurred by member or alternate shall qualify by them in the performance of their duties filing a written acceptance with the and in the exercise of their powers Secretary within ten days after being under this subpart. notified of such selection. § 906.30 Powers. § 906.26 Vacancies. The committee shall have the fol- To fill committee vacancies, the Sec- lowing powers: retary may select such members or al- (a) To administer the provisions of ternates from unselected nominees on this part in accordance with its terms; the current nominee list from the dis- (b) To make rules and regulations to trict and group involved, or from nomi- effectuate the terms and provisions of nations made in the manner specified this part; in § 906.23. If the names of nominees to (c) To receive, investigate, and report fill any such vacancy are not made to the Secretary complaints of viola- available to the Secretary within 30 tion of the provisions of this part; and days after such vacancy occurs, such (d) To recommend to the Secretary vacancy may be filled without regard amendments to this part. to nominations, which selection shall be made on the basis of representation § 906.31 Duties. provided for in §§ 906.20 through 906.22, It shall be, among other things, the inclusive. duty of the committee: (a) At the beginning of each term of § 906.27 Alternate members. office, to meet and organize, to select a An alternate member of the com- chairman and such other officers as mittee shall act in the place and stead may be necessary, to select sub-com- of the member for whom he is an alter- mittees, and to adopt such rules and nate, during such member’s absence or regulations for the conduct of its busi- when designated to do so by the mem- ness as it may deem advisable; ber for whom he is an alternate. In the (b) To act as intermediary between event both a member and his alternate the Secretary and any producer or han- are unable to attend a committee dler; meeting, the committee members (c) To furnish to the Secretary such present may designate another alter- available information as he may re- nate of the same classification (handler quest; or producer, and to the extent prac- (d) To appoint such employees, tical, independent, or co-op) to serve in agents, and representatives as it may such member’s place and stead. In the deem necessary and to determine the event of the death, removal, resigna- salaries and define the duties of each tion, or disqualification of a member, such person; his alternate shall act for him until a (e) To require adequate fidelity bonds successor of such member is selected for all persons handling funds; and has qualified. (f) To investigate from time to time and to assemble data on the growing, [31 FR 10462, Aug. 4, 1966] harvesting, shipping, and marketing conditions with respect to fruit; § 906.28 Procedure. (g) To prepare a marketing policy; Ten members of the committee shall (h) To recommend marketing regula- be necessary to constitute a quorum, tions to the Secretary; six of whom shall be producer mem- (i) To recommend rules and proce- bers. Ten affirmative votes shall be re- dures for, and to make determinations

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in connection with, issuance of certifi- the committee shall prepare an esti- cates of privilege; mated budget of income and expendi- (j) To keep minutes, books, and tures necessary for the administration records which clearly reflect all of the of this part. The committee shall rec- acts and transactions of the com- ommend the rate of assessment cal- mittee; and such minutes, books, and culated to provide adequate funds to records shall be subject to examination defray its proposed expenditures. The at any time by the Secretary or his au- committee shall present such budget to thorized agent or representative; and the Secretary with an accompanying minutes of each committee meeting report showing the basis for its esti- shall be promptly submitted to the mates and recommendations. Secretary; (k) At the beginning of each fiscal pe- § 906.34 Assessments. riod, to prepare a budget of its ex- (a) The funds to cover the commit- penses for such fiscal period, together tee’s expenses shall be acquired by the with a report thereon; levying of assessments upon handlers (l) To cause the books of the com- as provided in this subpart. Each han- mittee to be audited by a competent dler who first handles fruit shall, with accountant at least once each fiscal pe- respect to the fruit so handled by him, riod, and at such other time as the pay assessments to the committee committee may deem necessary or as upon demand, which assessments shall the Secretary may request (the report be in payment of such handler’s pro of each such audit shall show the re- rata share of the committee’s expenses. ceipt and expenditure of funds col- (b) Assessments shall be levied upon lected pursuant to this part; a copy of handlers at rates established by the each such report shall be furnished to Secretary. Such rates may be estab- the Secretary and a copy of each report lished upon the basis of the commit- shall be made available at the principal tee’s recommendations and other avail- office of the committee for inspection able information. Such rates may be by producers and handlers); and applied to specified containers used in (m) To consult, cooperate, and ex- the production area. change information with other mar- (c) The rate of assessment may be in- keting agreement committees and creased at any time by the Secretary if other individuals or agencies in con- he finds such increase is necessary in nection with all proper committee ac- order that the money collected shall be tivities and objectives under this part. adequate to cover the committee’s ex- EXPENSES AND ASSESSMENTS penses during a given fiscal period. Such increase shall be applicable to all § 906.32 Expenses. fruit handled during such fiscal period. The committee is authorized to incur (d) The payment of assessments for such expenses as the Secretary may the maintenance and functining of the find are reasonable and likely to be in- committee may be required under this curred during each fiscal period for its part throughout the period it is in ef- maintenance and functioning, and for fect irrespective of whether particular such purposes as the Secretary, pursu- provisions of this part are suspended or ant to this subpart, determines to be become inoperative. appropriate. Each handler’s share of such expense shall be proportionate to § 906.35 Accounting. the ratio between the total quantity of (a) If, at the end of a fiscal period, fruit handled by him as the first han- the assessments collected are in excess dler thereof during a fiscal period and of expenses incurred, such excess shall the total quantity of fruit handled by be accounted for in accordance with all handlers as first handlers thereof one of the following: during such fiscal period. (1) If such excess is not retained in a reserve, as provided in paragraph (a)(2) § 906.33 Budget. of this section, it shall be refunded pro- At the beginning of each fiscal period portionately to the persons from whom and as may be necessary thereafter, collected.

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(2) The committee, with the approval RESEARCH AND DEVELOPMENT of the Secretary may carry over such excess into subsequent fiscal periods as § 906.37 Research and development. a reserve: Provided, That funds already The committee, with the approval of in the reserve do not equal approxi- the Secretary, may establish or provide mately 1 fiscal period’s expenses. Such for the establishment of marketing re- reserve funds may be used for any ex- search and development projects, in- penses authorized pursuant to § 906.32 cluding paid advertising, designed to and for necessary expenses of liquida- assist, improve, or promote the mar- tion in the event of termination of this keting, distribution, and consumption of fruit. Any such project for the pro- part. Upon such termination, any funds motion and advertising of fruit may not required to defray the necessary utilize an identifying mark which shall expenses of liquidation shall be dis- be made available for use by all han- posed of in such manner as the Sec- dlers in accordance with such terms retary may determine to be appro- and conditions as the committee, with priate. To the extent practical, such the approval of the Secretary, may pre- funds shall be returned pro rata to the scribe. The expenses of such projects persons from whom such funds were shall be paid from funds collected pur- collected. suant to § 906.34. (b) All funds received by the com- [31 FR 10462, Aug. 4, 1966] mittee pursuant to the provisions of this part shall be used solely for the REGULATION purpose specified in this part and shall be accounted for in the manner pro- § 906.38 Marketing policy. vided in this part. The Secretary may Prior to or at the same time as ini- at any time require the committee and tial recommendations are made pursu- its members to account for all receipts ant to § 906.39, the committee shall sub- and disbursements. mit to the Secretary a report setting (c) Upon the removal or expiration of forth the marketing policy it deems de- the terms of office of any member of sirable for the industry to follow in the committee, such member shall ac- shipping fruit from the production area count for all receipts and disburse- during the ensuing season. Additional ments and deliver all property and reports shall be submitted from time to time if it is deemed advisable by the funds in his possession to the com- committee to adopt a new or modified mittee, and shall execute such assign- marketing policy because of changes in ments and other instruments as may the demand and supply situation with be necessary or appropriate to vest in respect to fruit. The committee shall the committee full title to all of the publicly announce the submission of property, funds, and claims vested in each marketing policy report and cop- such member pursuant to this part. ies thereof shall be available at the (d) The committee may make rec- committee’s office for inspection by ommendations to the Secretary for one any producer or handler. In deter- or more of the members thereof, or any mining each such marketing policy the other person, to act as a trustee for committee shall give due consideration holding records, funds, or any other to the following: committee property during periods of (a) Market prices of fruit, including suspension of this subpart, or during prices by grade, size, and quality in dif- any period or periods when regulations ferent packs, and such prices by foreign are not in effect, and if the Secretary competing areas; determines such action appropriate, he (b) Supply of fruit, by grade, size, and may direct that such person or persons quality in the production area, and in shall act as trustee or trustees for the other production areas, including for- committee. eign production areas; (c) Trend and level of consumer in- [25 FR 9093, Sept. 22, 1960. Redesignated at 26 come; FR 12751, Dec. 30, 1961, as amended at 31 FR (d) Marketing conditions affecting 10462, Aug. 4, 1966] fruit prices; and

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(e) Other relevant factors. plying Texas origin, except that the committee may recommend and the § 906.39 Recommendations for regula- Secretary establish a tolerance for tions. grapefruit in any container or lot not The committee, upon complying with so marked; and (3) of any container the requirements of § 906.38, may rec- fruit which is misbranded as to variety. ommend regulations to the Secretary (f) No regulations may be issued whenever it finds that such regula- under the provisions of this subpart tions, as are provided for in this sub- which allots to individual handlers the part, will tend to effectuate the de- quantity of fruit which each handler clared policy of the act. The committee may ship during any regulation period. shall give notice to handlers of any such recommendation at the same time § 906.41 Gift fruit shipments. such recommendation is submitted to The handling to any person of gift the Secretary. packages of fruit individually addressed to such person, in quantities § 906.40 Issuance of regulations. aggregating not more than 500 pounds The Secretary shall limit the han- and not for resale, are exempt from the dling of fruit whenever he finds from provisions of §§ 906.34, 906.40, and 906.45, the recommendation and information and the regulations issued thereunder, submitted by the committee, or from but shall conform to such safeguards as other available information, that such may be established pursuant to § 906.43. rgulation would tend to effectuate the declared policy of the act. Such regula- § 906.42 Shipments for special pur- tions may: poses. (a) Limit the handling of particular Upon the basis of recommendations grades, sizes, qualities, maturities, or and information submitted by the com- packs of any or all varieties of fruit mittee, or other available information, during a specified period or periods: the Secretary, whenever he finds that Provided, That specific maturity re- it will tend to effectuate the declared quirements applicable to the handling policy of the act, shall modify, sus- of any variety may be prescribed under pend, or terminate regulations issued this section only in the event that ap- pursuant to §§ 906.34, 906.40, 906.45, or propriate maturity requirements for any combination thereof, in order to such variety are not in effect under facilitate the handling of fruit: State authority. (a) For relief or for charity; (b) Limit the handling of particular (b) For processing or for manufacture grades, sizes, qualities, or packs of or conversion into specified products; fruit differently for different varieties, and for different containers, for different (c) In such minimum quantities and purposes specified in § 906.42, or any for such other purposes as may be spec- combination of the foregoing, during ified by the committee with the ap- any period. proval of the Secretary. (c) Limit the handling of fruit by establishing, in terms of grades, sizes, or § 906.43 Notification of regulations. both, minimum standards of quality and maturity. The Secretary shall notify the com- (d) Fix the size, weight, capacity, di- mittee of any regulations issued or of mensions, or pack of the container or any modification, suspension, or termi- containers which may be used in the nation thereof. The committee shall packaging, transportation, sale, ship- give reasonable notice thereof to han- ment, or other handling of fruit. dlers. (e) Prohibit the handling (1) of any fruit which does not have marked on § 906.44 Safeguards. each container the grade or the reg- (a) The committee, with the approval istered grade label of the fruit con- of the Secretary, may prescribe ade- tained therein; (2) of any grapefruit quate safeguards to prevent the han- which does not have marked on each dling of fruit pursuant to § 906.41 or fruit the word Texas or other words im- § 906.42 from entering channels of trade

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for other than the specific purpose au- (b) Regrading, resorting, or repack- thorized therefor, and rules governing ing any lot of fruit shall invalidate any the issuance and the contents of cer- prior inspection insofar as the require- tificates of privilege if such certificates ments of this section are concerned. No are prescribed as safeguards by the handler shall handle fruit after it has committee. Such safeguards may in- been regraded, resorted, repacked, or in clude requirements that: any other way prepared for market, un- (1) Handlers shall file applications less each lot of fruit is inspected by an with the committee to ship fruit pursu- authorized representative of the Fed- ant to §§ 906.41 and 906.42. eral or Federal-State Inspection Serv- (2) Handlers shall obtain inspection ice: Provided, That the committee, with provided by § 906.45, or pay the assess- the approval of the Secretary, may pro- ment levied pursuant to § 906.34, or vide for waiving inspection require- both, in connection with shipments ments on any fruit in circumstances made under § 906.42: Provided, That such inspection and assessment require- where it appears reasonably certain ments shall not apply to fruit handled that, after regrading, resorting, or re- for canning or freezing. packing, such fruit meets the applica- (3) Handlers shall obtain certificates ble quality and other standards then in of privilege from the committee to effect; handle fruit affected or to be affected (c) Insofar as the requirements of under the provisions of §§ 906.41 and this section are concerned, the length 906.42. of time for which an inspection certifi- (b) The committee may rescind or cate is valid may be established by the deny certificates of privilege to any committee with the approval of the handler if proof is obtained that fruit Secretary; handled by him for the purposes stated (d) When fruit is inspected in accord- in §§ 906.41 and 906.42 was handled con- ance with the requirements of this sec- trary to the provisions of this part. tion a copy of each inspection certifi- (c) The Secretary shall have the right cate issued shall be made available to to modify, change, alter, or rescind any the committee by the inspection serv- safeguards prescribed and any certifi- ice; cates issued by the committee pursu- (e) The committee may recommend ant to the provisions of this section. and the Secretary may require that (d) The committee shall make re- any fruit handled or transported by ports to the Secretary, as requested, showing the number of applications for motor vehicle shall be accompanied by such certificates, the quantity of fruit a copy of the inspection certificate covered by such applications, the num- issued thereon, which certificate shall ber of such applications denied and cer- be surrendered to such authority as tificates granted, the quantity of fruit may be designated. handled under duly issued certificates, and such other information as may be REPORTS requested. § 906.51 Reports. INSPECTION Upon request of the committee, made with the approval of the Secretary, § 906.45 Inspection and certification. each handler shall furnish to the com- (a) During any period in which han- mittee, in such manner and at such dling of a variety of a type of fruit is time as it may prescribe, such reports regulated pursuant to §§ 906.34, 906.40, and other information as may be nec- 906.42, or any combination thereof, no essary for the committee to perform its handler shall handle any variety of duties under this part. such type of fruit which has not been (a) Such reports may include, but are inspected by an authorized representa- not necessarily limited to, the fol- tive of the Federal or Federal-State In- lowing: spection Service, unless such handling (1) The quantities of fruit received by is relieved from such requirements pursuant to § 906.41 or § 906.42, or both; a handler;

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(2) The quantities disposed of by him, approval, the disapproved action of the segregated as to the respective quan- said committee shall be deemed null tities subject to regulation and not and void, except as to acts done in reli- subject to regulation; ance thereon or in compliance there- (3) The date of each such disposition with prior to such disapproval by the and the identification of the carrier Secretary. transporting such fruit; (4) Identification of the inspection § 906.54 Effective time. certificates, and the certificates of The provisions of this subpart, or any privilege, if any, pursuant to which the amendment thereto, shall become ef- fruit was handled, together with the fective at such time as the Secretary destination of each lot of fruit handled may declare and shall continue in force pursuant to § 906.41. until terminated in one of the ways (b) All such reports shall be held specified in this subpart. under appropriate protective classification and custody of the committee, or § 906.55 Termination. duly appointed employees thereof, so (a) The Secretary may, at any time, that the information contained therein terminate the provisions of this sub- which may adversely affect the com- part by giving at least one day’s notice petitive position of any handler in rela- by means of a press release or in any tion to other handlers will not be dis- other manner he may determine. closed. Compilations of general reports (b) The Secretary may terminate or from data submitted by handlers is au- suspend the operation of any or all of thorized, subject to prohibition of dis- the provisions of this subpart whenever closure of individual handlers identi- he finds that such provisions do not ties or operations. tend to effectuate the declared policy. (c) Each handler shall maintain for (c) The Secretary shall terminate the at least two succeeding years such provisions of this subpart at the end of records of the fruit received and dis- any fiscal period whenever he finds posed of by such handler as may be that such termination is favored by a necessary to verify the reports he sub- majority of producers who, during a mits to the committee pursuant to this representative period, have been en- section. gaged in the production of fruit for market: Provided, That such majority MISCELLANEOUS PROVISIONS has, during such representative period, produced for market more than fifty § 906.52 Compliance. percent of the volume of such fruit pro- Except as provided in this subpart, duced for market. no handler shall handle fruit, the han- (d) The provisions of this subpart dling of which has been prohibited by shall, in any event, terminate when- the Secretary in accordance with pro- ever the provisions of the act author- visions of this subpart, or the rules and izing them cease to be in effect. regulations issued thereunder, and no handler shall handle fruit except in § 906.56 Proceedings after termination. conformity to the provisions of this (a) Upon the termination of the pro- part. visions of this subpart the then functioning members of the committee § 906.53 Right of the Secretary. shall, for the purpose of liquidating the The members of the committee (in- affairs of the committee continue as cluding successors and alternates), and joint trustees of all the funds and prop- any agent or employee appointed or erty then in the possession of or under employed by the committee, shall be control of the committee, including subject to removal or suspension by claims for any funds unpaid or prop- the Secretary at any time. Each and erty not delivered at the time of such every order, regulation, decision, deter- termination. Action by said trustee- mination or other act of the committee ship shall require the concurrence of a shall be subject to the continuing right majority of the said trustees. of the Secretary to disapprove of the (b) The said trustees shall continue same at any time. Upon such dis- in such capacity until discharged by

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the Secretary; shall, from time to resentative in connection with any of time, account for all receipts and dis- the provisions of this subpart. bursements and deliver all property on hand, together with all books and § 906.60 Derogation. records of the committee and of the Nothing contained in this subpart is, trustees, to such person as the Sec- or shall be construed to be, in deroga- retary may direct; and shall, upon the tion or in modification of the rights of request of the Secretary, execute such the Secretary or of the United States assignments or other instruments nec- to exercise any powers granted by the essary or appropriate to vest in such act or otherwise, or in accordance with person full title and right to all funds, such powers, to act in the premises property, and claims vested in the com- whenever such action is deemed advis- mittee or the trustees pursuant to this able. subpart. (c) Any person to whom funds, prop- § 906.61 Personal liability. erty, or claims have been transferred or delivered by the committee or its No member or alternate of the com- members pursuant to this section, mittee or any employee or agent there- shall be subject to the same obligations of, shall be held personally responsible, imposed upon the members of the com- either individually or jointly with oth- mittee and upon the said trustees. ers, in any way whatsoever, to any handler or to any person for errors in § 906.57 Effect of termination or judgment, mistakes, or other acts, ei- amendment. ther of commission or omission, as Unless otherwise expressly provided such member, alternate, agent, or em- by the Secretary, the termination of ployee, except for act of dishonesty, this subpart or of any regulation issued willful misconduct, or gross neg- pursuant to this subpart, or the ligence. issuance of any amendments to either thereof, shall not (a) affect or waive § 906.62 Separability. any right, duty, obligation, or liability If any provision of this subpart is de- which shall have arisen or which may clared invalid, or the applicability thereafter arise in connection with any thereof to any person, circumstance, or provision of this subpart or any regula- thing is held invalid, the validity of the tion issued under this subpart, or (b) remainder of this subpart, or the appli- release or extinguish any violation of cability thereof to any other person, this subpart or of any regulations circumstance, or things, shall not be issued under this subpart, or (c) affect affected thereby. or impair any rights or remedies of the Secretary or of any other person with respect to any such violations. Subpart—Rules and Regulations

§ 906.58 Duration of immunities. § 906.120 Fruit exempt from regulations. The benefits, privileges, and immunities conferred upon any person by vir- (a) Minimum quantity. Any person or tue of this subpart shall cease upon the the occupants of any one vehicle may termination of this subpart, except ship fruit from the production area with respect to acts done under and during any one day exempt from the during the existence of this subpart. requirements of §§ 906.34, 906.40, and 906.45, and regulations issued there- § 906.59 Agents. under: Provided, That the shipment The Secretary may, by designation in does not exceed 400 pounds of fruit (ei- writing, name any person, including ther oranges or grapefruit or a com- any officer or employee of the United bination of both), it consists solely of States, or name any agency in the fruit not for resale, and it is not part of United States Department of Agri- a shipment of fruit exceeding 400 culture, to act as his agent or rep- pounds.

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(b) Processing. The term processing as tainers authorized under § 906.340, pro- used in § 906.42(b) means the manufac- vided they are stamped or marked spe- ture of any orange or grapefruit prod- cial purpose shipment. uct which has been converted into sec- (iv) Each handler shall file a report tioned fruit or into fresh juice, or pre- with the committee within 1 business served by any commercial process, in- day after each shipment handled pursu- cluding canning, freezing, dehydrating, ant to paragraph (c)(3). Such report drying, and the addition of chemical shall contain the name and address of substances, or by fermentation. Fruit the handler; date fruit is handled; the so processed, if handled in accordance number and type of containers and with § 906.123, shall be exempt from the packs in such shipment; the inspection provisions of §§ 906.34 and 906.40. certificate numbers applicable to such (c) Special purpose shipments and safeguards. (1) Fruit may be handled for reshipment; name and address of the pur- lief or charity exempt from the re- chaser; and the license number of the quirements of §§ 906.34, 906.40, and 906.45 truck, trailer, or automobile, as the and the regulations issued thereunder: case may be, in which the shipment Provided, That the fruit shall not be of- was loaded. fered for resale, and the handler sub- (4) Oranges and grapefruit grown in mits, prior to any such handling, an the production area may be handled ex- application to the committee on forms empt from container and pack regula- provided by the committee. The appli- tions issued pursuant to § 906.40(d), cation shall contain the name and ad- under the following conditions: dress of the handler and such other in- (i) Such oranges and/or grapefruit formation that the committee may re- grown in the production area are mixed quire including, but not limited to, the with other types of fruit; quantity of fruit involved, license num- (ii) Such oranges and/or grapefruit ber of the conveyance, and supporting grown in the production area con- documentation. Approval of the appli- stitute at least one-third by volume of cation by the committee shall be evi- the contents of any container, and any denced by the issuance of a certificate such container is not larger than a 7⁄10 of privilege to the applicant in accord- bushel carton. ance with paragraph (d) of this section. (2) Gift packages of fruit handled pur- (iii) Such grapefruit grown in the suant to § 906.41 shall be in containers production area grade at least U.S. No. stamped or marked with the handler’s 1, and such oranges grown in the pro- name and address. duction area grade at least U.S. Com- (3) Fruit may be handled exempt bination (with not less than 60 percent, from regulations issued pursuant to by count, of the oranges in any lot § 906.40(d), if the following conditions grading at least U.S. No.1). are met: (d) The committee or its duly author- (i) Each fiscal period the handler sub- ized agents, shall approve or deny each mits prior to such handling a written handler’s request to handle fruit under application to the committee on forms paragraphs (c)(1) and (c)(3) of this sec- provided by the committee. The appli- tion and promptly notify such handler cation shall contain the name and ad- in writing of its decision: Provided, dress of the handler, and a description That if it approves a handler’s request, of the container or containers in which it shall issue a certificate of privilege such fruit would be handled. as provided in § 906.44, but if it denies a (ii) The fruit grades at least U.S. No. request it shall advise the handler why 1. the application was denied. The com- (iii) The fruit is handled in closed mittee may rescind a certificate of fully telescopic fiberboard cartons with privilege issued to a handler, or deny a inside dimensions of 161⁄2×103⁄4×101⁄2 certificate of privilege to a handler inches, and the cover and bottom section have a Mullen or Cady test of at upon proof satisfactory to the com- least 250 pounds; in six-packs; in 12- mittee that such handler has shipped packs; in baskets of a capacity of 1 fruit contrary to the provisions of this bushel or less; or in any of the con- part. Such action denying a certificate

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of privilege shall apply to and not ex- contain, but not be limited to, the fol- ceed a reasonable period of time as de- lowing information: termined by the committee. Any han- (1) Name and address of applicant; dler who has had a certificate of privi- (2) Location of plant or plants where lege rescinded or denied may file a manufacturing is to take place; written appeal with the committee for (3) Approximate quantity of fruit reconsideration. used each month; (e) Terms. The term bushel means a (4) A statement that the fruit ob- unit of measure equivalent to 2,150.42 tained exempt from fresh fruit regula- cubic inches; the term six-pack means tions will not be resold or transferred any container with a capacity of one- for resale, directly or indirectly, but fourth of a bushel, the term basket will be used only for processing; means any container made of inter- (5) A statement agreeing to hold a li- woven material; the term closed means cense issued under the Perishable Agri- closed in accordance with good com- cultural Commodities Act, 1930 (7 mercial practices; and terms relating U.S.C. 499r), and regulations issued to grade mean the same as in the U.S. thereunder (7 CFR part 46) when buying Standards for Grades of Grapefruit Texas oranges and grapefruit for proc- (Texas and States other than Florida, essing; California, and Arizona) (7 CFR 51.620 (6) A statement agreeing to undergo through 51.653), or in the U.S. Stand- random inspection by the committee; ards for Grades of Oranges (Texas and (7) A statement that the requesting States other than Florida, California, processor has no facilities, equipment, and Arizona) (7 CFR 51.680 through or outlet to repack or sell fruit in fresh 51.714). form; [25 FR 9757, Oct. 12, 1960. Redesignated at 26 (8) A statement agreeing to submit FR 12751, Dec. 30, 1961, as amended at 39 FR such reports as are required by the 44736, Dec. 27, 1974; 40 FR 3286, Jan. 21, 1975; committee. 44 FR 75103, Dec. 19, 1979; 48 FR 50502, Nov. 2, 1983; 49 FR 3173, Jan. 26, 1984; 54 FR 18095, Such application shall be investigated Apr. 27, 1989; 59 FR 50826, Oct. 6, 1994; 59 FR by the committee staff. After such in- 63693, Dec. 9, 1994; 60 FR 13892, Mar. 15, 1995; vestigation, the staff shall report its 70 FR 51578, Aug. 31, 2005] findings to the committee at its next meeting or to its delegated sub- § 906.121 Reestablishment of districts. committee. Based upon the staff’s re- The three districts of the production port and other reliable information, area specified in § 906.20 Districts are re- the committee or delegated sub- established as a single district com- committee shall approve or disapprove prising the entire production area. the application and notify the applicant accordingly. If the application is [34 FR 6651, Apr. 18, 1969] approved, the applicant’s name shall be placed upon the list of approved proc- § 906.122 [Reserved] essors. (c) Certificate by processors. Upon re- § 906.123 Fruit for processing. quest by the committee each approved (a) No person shall be granted exemp- processor shall submit to the com- tion from regulation to handle oranges mittee on or before the 10th day of and grapefruit for processing unless each month a report of the oranges and such fruit is shipped to an approved grapefruit used during the preceding processor. All such shipments to an ap- calendar month. Each report shall con- proved processor shall be reported to tain a certificate to the United States the committee on a form approved by Department of Agriculture and to the it. committee as to the truthfulness of the (b) Approved processor. Any person information shown therein. who desires to acquire, as an approved (d) Diversion report. Each handler who processor, fruit for processing, as set ships fruit to processors for processing forth in § 906.120(b), shall, prior thereto, shall report to the committee on a file an application with the committee form approved by it the following in- on a form approved by it, which shall formation:

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(1) Name and address of the proc- grapefruit, in the aggregate, affected essor’s place of business where the fruit by discoloration. was shipped; (4) The identifying marks (2) The net weight of oranges or ‘‘Texasweet’’ and ‘‘Sweeter by Nature’’ grapefruit; may severally or jointly be affixed only (3) Truck license number or rail car to containers of oranges or to indi- initial and number; vidual oranges comprising a lot which (4) Inspection certificate number; and grades at least U.S. Combination, with (5) Such other information as the not less than 60 percent, by count, of committee may require. the oranges in each container thereof grading at least U.S. No. 1 and the re- The handler shall prepare 4 copies of mainder U.S. No. 2. the report and sign them. The original (5) The identifying mark ‘‘Texas copy shall be submitted to the com- Choice’’ may be affixed only to con- mittee within 7 days. One copy shall be tainers of oranges or to individual or- retained by the handler. One copy shall anges comprising a lot which grades at be given to the party transporting the least U.S. No. 2, except that in deter- fruit who, upon arrival at the proc- mining whether the fruit is reasonably essor’s place of business, shall turn it well colored the yellow or orange color over to the party receiving the fruit must predominate over the green color with the understanding that the proc- on at least 75 percent of the fruit sur- essor will record thereon the actual net face in the aggregate which is not dis- weight of the fruit received and for- colored. ward such copy to the committee of- (b) When used herein, terms relating fice. One copy shall be submitted to the to grade shall have the same meaning processor along with the invoice. as is given to the respective term in [39 FR 44736, Dec. 27, 1974, as amended at 54 the U.S. Standards for Grapefruit FR 18095, Apr. 27, 1989] (Texas and States other than Florida, California, and Arizona) (7 CFR 51.620 § 906.137 Handlers use of identifying through 51.653) and in the U.S. Stand- marks utilized by the committee in ards for Oranges (Texas and States promotional and advertising other than Florida, California, and Ari- projects. zona) (7 CFR 51.680 through 51.714). (a) Pursuant to § 906.37, the identi- [33 FR 14069, Sept. 17, 1968, as amended at 53 fying marks ‘‘Texasweet’’, ‘‘Sweeter By FR 40398, Oct. 17, 1988; 53 FR 50916, Dec. 19, Nature’’, ‘‘Texas Fancy’’, and ‘‘Texas 1988; 70 FR 51578, Aug. 31, 2005] Choice’’ shall be available to handlers only under the following terms and § 906.151 Reports. conditions: (a) During each fiscal period, each (1) The identifying marks handler shall upon request by the com- ‘‘Texasweet’’ and ‘‘Sweeter by Nature’’ mittee file with the committee within may severally or jointly be affixed only the time specified in the request an ac- to containers of grapefruit or to indi- curate report showing the total quan- vidual grapefruit comprising a lot tity or oranges and the total quantity which grades at least U.S. No. 1. of grapefruit received by him during (2) The identifying mark ‘‘Texas such fiscal period or the preceding fis- Fancy’’ may be affixed only to con- cal period, as requested. tainers of grapefruit or to individual (b) Each handler who sells over 400 grapefruit comprising a lot which pounds of oranges or grapefruit or a grades at least U.S. No. 1 with no more combination of both for resale inside than 40 percent of the surface of the the production area shall, for each grapefruit, in the aggregate, affected transaction, report to the committee by discoloration. on a form approved by it the following (3) The identifying mark ‘‘Texas information: Choice’’ may be affixed only to con- (1) Name and address of seller; tainers of grapefruit or to individual (2) Name and address of buyer; grapefruit comprising a lot which (3) Description and quantity of or- grades at least U.S. No. 2, with no more anges or grapefruit sold; than 60 percent of the surface of the (4) Destination of fruit;

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(5) A statement that the buyer cer- (iii) Closed fiberboard carton with in- tifies that fruit that is subsequently side dimensions of 20 × 131⁄4 inches and taken outside the production area for a depth from 93⁄4 to 13 inches: Provided, resale will be inspected; and That the container has a Mullen or (6) Such other pertinent information Cady test of at least 250 pounds: And as the committee may require. Provided further, That the container (c) The handler shall prepare the re- may be used to pack any poly or mesh port in triplicate. The buyer shall sign bags authorized in this section; the certification statement. The pink (iv) Poly or mesh bags having a ca- copy shall be submitted to the com- pacity of four, five, eight, ten, or 18 mittee within 7 days. The white copy pounds of fruit: Provided, That only or- shall be retained by the handler and anges are to be packed in the four- the canary copy shall be given to the pound bag. buyer. Such form shall be reviewed by (v) Rectangular or octagonal bulk fi- the committee staff and the informa- berboard crib with approximate dimen- tion compiled for the committee’s use. sions of 46 to 471⁄2 inches in length, 37 to [34 FR 6651, Apr. 18, 1969, as amended at 61 38 inches in width, and 36 inches in FR 64255, Dec. 4, 1996; 62 FR 3603, Jan. 24, height: Provided, That this container 1997] has a Mullen or Cady test of at least 1,300 pounds, and that it is used only EDITORIAL NOTE: After January 1, 1979, ‘‘Budget of Expenses and Rate of Assessment’’ once for the shipment of citrus fruit: regulations (e.g. sections .200 through .299) And Provided further, That the con- and ‘‘Handling’’ regulations (e.g. sections .366 tainer may be used to pack any poly or through .399) which are in effect for a year or mesh bags authorized in this section, less, will not be carried in the Code of Fed- or bulk fruit. eral Regulations. For FEDERAL REGISTER ci- (vi) Rectangular or octagonal 2⁄3 fi- tations affecting these regulations, see the List of Sections Affected, which appears in berboard crib with approximate dimen- 1 the Finding Aids section of the printed vol- sions of 46 to 47 ⁄2 inches in length, 37 to ume and at www.fdsys.gov. 38 inches in width, and 24 inches in height: Provided, That the crib has a § 906.235 Assessment rate. Mullen or Cady test of at least 1,300 On and after August 1, 2004, an as- pounds, and that it is used only once 7 for the shipment of citrus fruit: And sessment rate of $0.12 per ⁄10-bushel carton or equivalent is established for Provided further, That the container oranges and grapefruit grown in the may be used to pack any poly or mesh Lower Rio Grande Valley in Texas. bags authorized in this section, or bulk fruit. [69 FR 45233, July 29, 2004] (vii) Octagonal fiberboard crib with approximate dimensions of 46 to 471⁄2 Subpart—Container and Pack inches in width, 37 to 38 inches in Requirements depth, and 26 to 261⁄2 inches in height: Provided, That the crib has a Mullen or § 906.340 Container, pack, and con- Cady test of at least 1,300 pounds, and tainer marking regulations. that it is used only once for the ship- (a) No handler shall handle any vari- ment of citrus fruit: And Provided fur- ety of oranges or grapefruit grown in ther, That the crib may be used to pack the production area unless such fruit is any poly or mesh bags authorized in in one of the following containers, and this section, or bulk fruit. the fruit is packed and the containers (viii) Fiberboard box holding two lay- are marked as specified in this section: ers of fruit, with approximate dimen- (1) Containers. (i) Closed fiberboard sions of 23 inches in length, 151⁄2 inches carton with inside dimensions of 131⁄4× in width, and 7 inches in depth; 101⁄2 × 71⁄4 inches: Provided, That the (ix) Fiberboard box with approximate container has a Mullen or Cady test of dimensions of 15 inches in length, 11 at least 200 pounds; inches in width, and 71⁄2 inches in (ii) Closed fully telescopic fiberboard depth; carton with inside dimensions of 161⁄2 × (x) Fiberboard box with approximate 103⁄4 × 91⁄2 inches; dimensions of 253⁄4 inches in length, 15

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inches in width, and 83⁄8 to 101⁄2 inches TABLE I—ORANGES

in depth; [7⁄10 bushel carton] (xi) Reusable collapsible plastic con- Diameter in inches tainer with approximate dimensions of Pack size/Number of oranges 23 inches in length, 15 inches in width, Minimum Maximum

and 7 to 11 inches in depth; 24 ...... 312⁄16 51⁄16 (xii) Reusable collapsible plastic con- 32 ...... 36⁄16 49⁄16 36 ...... 34⁄16 46⁄16 tainer with approximate dimensions of 40 ...... 32⁄16 44⁄16 1 3 3 15 14 ⁄4 × 10 ⁄4 × 6 ⁄4 inches; 48 ...... 2 ⁄16 4 (xiii) Reusable collapsible plastic bin 56 ...... 213⁄16 313⁄16 64 ...... 211⁄16 310⁄16 3 with approximate dimensions of 36 ⁄4 × 72 ...... 29⁄16 38⁄16 8 4 443⁄4 × 27 inches; 88 ...... 2 ⁄16 3⁄16 113 ...... 27⁄16 3 (xiv) Octagonal bulk triple wall fiber- 138 ...... 26⁄16 212⁄16 board crib with approximate dimensions of 373⁄4 inches in length, 25 inches (B) If 7⁄10 bushel containers of oranges in width, and 25 inches in height: Pro- are marked, the count of fruit in each vided, That the container has a Mullen container shall not be less than the or Cady test of at least 1,100 pounds: count marked on the container, but And Provided further, That the con- may exceed the count marked on the tainer may be used to pack any poly or container by not more than 8 percent. mesh bags authorized in this section, When packed in marked containers 7 or bulk fruit; other than ⁄10 bushel, the pack sizes applicable to 7⁄10 bushel containers (xv) Closed fiberboard carton with ap- 1 shall also apply to such containers. proximate dimensions of 16 ⁄2 inches in (ii) Grapefruit. (A) Grapefruit, when 3 15 length, 10 ⁄4 inches in width, and 6 ⁄16 packed in any carton, bag, or other inches in height: Provided, That the container, shall be sized in accordance container has a Mullen or Cady test of with the sizes in the following Table II, at least 200 pounds; except as otherwise provided in the (xvi) Such types and sizes of con- regulations issued pursuant to this tainers as may be approved by the com- part, and meet the requirements of mittee for testing in connection with a standard pack; and, when in containers research project conducted by or in co- not packed according to a definite pat- operation with the committee: Pro- tern, shall be sized in accordance with vided, That the handling of each lot of the sizes in Table II: Provided, That the fruit in such test containers shall be packing tolerances in the U.S. Stand- subject to prior approval and under the ards for Grades of Grapefruit (Texas supervision of the committee. and States other than Florida, Cali- (2) Pack regulation. (i) Oranges. (A) fornia, and Arizona), shall apply to Oranges, when packed in any carton, fruit so packed: bag, or other container, shall be sized TABLE II—GRAPEFRUIT in accordance with the sizes in the fol- [7⁄10 bushel carton] lowing Table I, and meet the requirements of standard pack; and, when in Diameter in inches Pack size/Number of grapefruit containers not packed according to a Minimum Maximum definite pattern, shall be sized in ac- 18 ...... 415⁄16 59⁄16 cordance with the sizes in Table I and 23 ...... 45⁄16 5 otherwise meet the requirements of 27 ...... 42⁄16 412⁄16 standard sizing: Provided, That the 32 ...... 315⁄16 48⁄16 36 ...... 313⁄16 45⁄16 packing tolerances in the U.S. Stand- 40 ...... 310⁄16 42⁄16 ards for Grades of Oranges (Texas and 48 ...... 39⁄16 314⁄16 5 10 States other than Florida, California, 56 ...... 3 ⁄16 3⁄16 and Arizona), shall apply to fruit so (B) If 7⁄10 bushel containers of grape- packed: fruit are marked, the count of fruit in the container shall not be less than the count marked on the container, but may exceed the count marked on the

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container by not more than 8 percent. No. 1 Bronze, or meet the quality re- When packed in marked containers quirements of ‘‘Texas Fancy’’ or ‘‘Texas other than 7⁄10 bushel, the pack sizes Choice’’ as defined in § 906.137 of this applicable to 7⁄10 bushel containers part; shall also apply to such containers. (4) Such grapefruit are at least pack (3) Container grade markings. Except size 48 with a minimum diameter limit when the identifying marks ‘‘Texas of 39⁄16: Provided, That any handler may Choice’’ or ‘‘Texas Fancy’’ are used by handle grapefruit smaller than pack handlers pursuant to § 906.137, any con- size 48, if such grapefruit grade at least tainer of U.S. No. 2 grade fruit shall be U.S. No. 1 and they are at least pack marked to indicate the grade of the size 56 with a minimum diameter limit fruit in letters and numbers at least of 35⁄16 inches. three-fourths inch in height: Provided, (5) An appropriate inspection certifi- That bags containing five or eight cate has been issued for such fruit pounds of fruit shall be so marked with within 48 hours prior to the time of letters and numbers at least one-fourth shipment. No handler may transport by inch in height prominently displayed motor vehicle or cause the transpor- on the front panel of the bag. The re- tation of any shipment of fruit for quirements of this paragraph (a)(3) will which an inspection certificate is re- not be effective until February 16, 1992. quired unless each such shipment is ac- (b) Nonapplicability. The provisions of companied by a copy of the inspection this section shall not apply to gift certificate applicable thereto, and a packages of fruit. copy of such inspection certificate is (c) As used herein, terms relating to surrendered upon request to Texas De- grade, pack, standard pack, and diame- partment of Agriculture personnel des- ter mean the same as defined in the ignated by the committee. United States Standards for Grades of (6) The fruit meets all the applicable Oranges (Texas and States other than container and pack requirements effec- Florida, California, and Arizona), (7 tive under this marketing order. CFR 51.680 through 51.714), or in the (7) Beginning in 1995, this paragraph United States Standards for Grades of (a) is suspended each year from July 1 Grapefruit (Texas and States other through August 31 of each year. than Florida, California, and Arizona), (b) Terms relating to grade, pack (7 CFR 51.620 through 51.653); and closed size, and diameter shall mean the same means closed in accordance with good as in the U.S. Standards for Grades of commercial practices. Oranges (Texas and States other than Florida, California, and Arizona) (7 [33 FR 11542, Aug. 14, 1968] CFR 51.680 through 51.714) or in the EDITORIAL NOTE: For FEDERAL REGISTER ci- U.S. Standards for Grades of Grapefruit tations affecting § 906.340, see the List of CFR (Texas and States other than Florida, Sections Affected, which appears in the California and Arizona) (7 CFR 51.620 Finding Aids section of the printed volume through 51.653). and at www.fdsys.gov. [47 FR 1266, Jan. 12, 1982, as amended at 51 § 906.365 Texas Orange and Grapefruit FR 41070, Nov. 13, 1986; 54 FR 3421, Jan. 24, Regulation 34. 1989; 54 FR 41584, Oct. 11, 1989; 56 FR 55983, Oct. 31, 1991; 58 FR 52401, Oct. 8, 1993; 58 FR (a) No handler shall handle any vari- 54926, Oct. 25, 1993; 59 FR 56383, Nov. 14, 1994; ety of oranges or grapefruit grown in 60 FR 33679, June 29, 1995; 60 FR 54292, Oct. 23, the production area unless: 1995; 61 FR 43141, Aug. 21, 1996; 64 FR 47358, (1) Such oranges grade U.S. Fancy, Aug. 31, 1999] U.S. No. 1, U.S. No. 1 Bright, U.S. No. 1 Bronze, U.S. Combination (with not PART 915—AVOCADOS GROWN IN less than 60 percent, by count, of the SOUTH FLORIDA oranges in any lot thereof grading at least U.S. No. 1), or U.S. No. 2; Subpart—Order Regulating Handling (2) Such oranges are at least pack size 138 with a minimum diameter DEFINITIONS 6 limit of 2 ⁄16 inches; Sec. (3) Such grapefruit grade U.S. Fancy, 915.1 Secretary. U.S. No. 1, U.S. No. 1 Bright, or U.S. 915.2 Act.

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915.3 Person. 915.141 Handling avocados for commercial 915.4 Production area. processing into products. 915.5 Avocados. 915.142 Reserve fund. 915.6 Fiscal year. 915.150 Reports. 915.7 Committee. 915.155 Delinquent assessments. 915.8 Grower. 915.160 Public member eligibility require- 915.9 Handler. ments and nomination procedures. 915.10 Handle. 915.11 District. Subpart—Assessment Rates 915.12 Export. 915.235 Assessment rate. ADMINISTRATIVE BODY Subpart—Container and Pack Regulations 915.20 Establishment and membership. 915.21 Term of office. 915.305 Florida Avocado Container Regula- 915.22 Nomination. tion 5. 915.23 Selection. 915.306 Florida avocado grade, pack, and 915.24 Failure to nominate. container marking regulation. 915.25 Acceptance. 915.332 Florida avocado maturity regula- 915.26 Vacancies. tion. 915.27 Alternate members. 915.28 Powers. AUTHORITY: 7 U.S.C. 601–674. 915.29 Duties. SOURCE: 19 FR 3439, June 11, 1954, unless 915.30 Procedure. otherwise noted. Redesignated at 26 FR 12751, 915.31 Expenses. Dec. 30, 1961. 915.32 Annual report.

EXPENSES AND ASSESSMENTS Subpart—Order Regulating 915.40 Expenses. Handling 915.41 Assessments. 915.42 Accounting. DEFINITIONS 915.43 Contributions. § 915.1 Secretary. RESEARCH AND DEVELOPMENT Secretary means the Secretary of Ag- 915.45 Production research, marketing re- riculture of the United States or any search and development. officer or employee of the United 915.49 Marketing policy. States Department of Agriculture who REGULATIONS is, or may hereafter be, authorized to exercise the powers and perform the 915.50 Recommendations for regulation. duties of the Secretary of Agriculture 915.51 Issuance of regulations. 915.52 Modification, suspension, or termi- of the United States. nation of regulations. 915.53 Exemption certificates. § 915.2 Act. 915.54 Inspection and certification. Act means Public Act No. 10, 73d Con- 915.55 Avocados not subject to regulations. gress (May 12, 1933), as amended and as 915.60 Reports. reenacted and amended by the Agricul- MISCELLANEOUS PROVISIONS tural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended, 68 915.61 Compliance. Stat. 906, 1047; 7 U.S.C. 601 et seq.). 915.62 Right of the Secretary. 915.63 Effective time. [19 FR 3439, June 11, 1954, as amended at 20 915.64 Termination. FR 4177, June 15, 1955. Redesignated at 26 FR 915.65 Proceedings after termination. 12751, Dec. 30, 1961] 915.66 Effect of termination or amendment. 915.67 Duration of immunities. § 915.3 Person. 915.68 Agents. 915.69 Derogation. Person means an individual, partner- 915.70 Personal liability. ship, corporation, association or any 915.71 Separability. other business unit.

Subpart—Rules and Regulations § 915.4 Production area. 915.110 Exemption certificates. Production area means the counties of 915.115 Nomination procedure. Brevard, Orange, Lake, Polk, 915.120 Handler registration. Hillsborough, and Pinellas in the State 915.140 Avocados not subject to regulation. of Florida, and all of the counties of

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that State situated south of such coun- packing facilities within the produc- ties. tion area for the purpose of having such avocados prepared for market. In [20 FR 4177, June 15, 1955. Redesignated at 26 FR 12751, Dec. 30, 1961] the event a grower sells his avocados to a handler who is not so registered with § 915.5 Avocados. the committee, such grower shall be Avocados means all varieties of avo- the first handler of such avocados. cados grown in the production area. [19 FR 3439, June 11, 1954, as amended at 20 FR 4177, June 15, 1955. Redesignated at 26 FR § 915.6 Fiscal year. 12751, Dec. 30, 1961] Fiscal year means the twelve-month period ending March 31 of each year. § 915.11 District. District means the applicable one of § 915.7 Committee. the following described subdivisions of Committee means the Avocado Admin- the production area: istrative Committee established pursu- (a) District 1 shall include Miami- ant to § 915.20. Dade County. (b) District 2 shall include all of the § 915.8 Grower. production area except Miami-Dade Grower is synonymous with producer County. and means any person who produces [19 FR 3439, June 11, 1954, unless otherwise avocados for market and who has a noted. Redesignated at 26 FR 12751, Dec. 30, proprietary interest therein: Provided, 1961 as amended at 73 FR 6837, Feb. 6, 2008] That as used in § 915.22 the term grower shall include only those who have a § 915.12 Export. proprietary interest in the production Export means to ship avocados to any of 10 or more bearing avocado trees. destination which is not within the 48 [19 FR 3439, June 11, 1954, as amended at 22 contiguous States of the District of Co- FR 3513, May 21, 1957. Redesignated at 26 FR lumbia of the United States or Canada. 12751, Dec. 30, 1961] [43 FR 39322, Sept. 5, 1978]

§ 915.9 Handler. ADMINISTRATIVE BODY Handler is synonymous with shipper and means any person (except a com- § 915.20 Establishment and member- mon or contract carrier transporting ship. avocados owned by another person) (a) There is hereby established an who handles avocados or causes avoca- Avocado Administrative Committee dos to be handled. consisting of nine members, each of whom shall have an alternate who § 915.10 Handle. shall have the same qualifications as Handle means to sell, consign, de- the member for whom he is an alter- liver, or transport avocados within the nate. Five of the members and their re- production area or between the produc- spective alternates shall be growers tion area and any point outside there- who shall not be handlers of avocados of: Provided, That such term shall not produced by others or employees of include: (a) The sale or delivery of avo- such handlers. Four of the members cados to a handler, registered as such and their respective alternates shall be with the committee in accordance with handlers or employees of handlers. The such rules and regulations as it may five members of the committee who prescribe with the approval of the Sec- shall be growers who shall not be han- retary, who has facilities within the dlers of avocados produced by others or production area for preparing avocados employees of such handlers are referred for market; (b) the delivery of avocados to as ‘‘grower’’ members of the com- to such a handler solely for the purpose mittee; and the four members who of having such avocados prepared for shall be handlers or employees of han- market; or (c) the transportation of av- dlers are referred to as ‘‘handler’’ mem- ocados by a handler, so registered with bers of the committee. Four of the five the committee, from the grove to his grower members shall be producers of

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avocados in District 1, and one grower no later than ten calendar days prior member shall be a producer of avoca- to the effective date hereof. In the dos in District 2. Three of the four han- event nominations for initial members dler members shall be handlers, or em- and alternate members of the com- ployees of handlers, of avocados in Dis- mittee; or the filed pursuant to, and trict 1, and one handler member shall within the time specified in, this sec- be a handler, or an employee of a han- tion, the Secretary may select such dler, of avocados in District 2. No han- initial members and alternate mem- dler or handler organization shall be bers without regard to nominations, permitted to have more than one han- but selections shall be on the basis of dler member and alternate on the com- the representation provided for in mittee from each district: Provided, § 915.20. That this requirement may be waived by the Secretary in the event that (b) Successor members. (1) The com- there are not enough persons available mittee shall hold or cause to be held a to be nominated and selected to serve meeting or meetings of growers and on the committee. handlers in each district to designate (b) The committee may be increased nominees for successor members and by one public member and an alter- alternate members of the committee; nate. Persons for the public member or the committee may conduct nomi- positions would be nominated by the nations in Districts 1 and 2 by mail in committee and selected by the Sec- a manner recommended by the com- retary. The committee, with the ap- mittee and approved by the Secretary. proval of the Secretary, shall prescribe Such nominations shall be submitted qualifications, term of office and the to the Secretary by the committee not procedure for nominating the public later than March 1 of each year. The member and alternate. committee shall prescribe procedural [19 FR 3439, June 11, 1954. Redesignated at 26 rules, not inconsistent with the provi- FR 12751, Dec. 30, 1961, as amended at 30 FR sions of this section, for the conduct of 917, Jan. 29, 1965; 43 FR 39322, Sept. 5, 1978; 52 nomination. FR 7118, Mar. 9, 1987] (2) Only growers may participate in the nomination and election of nomi- § 915.21 Term of office. nees for grower members and their al- The term of office of each member ternates. Each grower shall be entitled and alternate member of the com- to cast only one vote for each nominee mittee shall begin April 1, and shall to be elected in the district in which he terminate March 31 of the following produced avocados. No grower shall year. Members and alternate members participate in the election of nominees shall serve in such capacities for the in more than one district in any one portion of the term of office for which fiscal year. they are selected and qualify and until their respective successors are selected (3) Only handlers may participate in and have qualified. The consecutive the nomination and election of nomi- terms of office of members shall be nees for handler members and their al- limited to three terms. ternates. Each handler shall be entitled to cast only one vote for each nominee § 915.22 Nomination. to be elected in the district in which (a) Initial members. Nominations for such handler handles avocados. Each each of the five initial grower members vote shall be weighted by the volume of and four initial handler members of the avocados shipped by such handler dur- committee, together with nominations ing the immediately preceding twelve- for the initial alternate members for month period, January through Decem- each position, may be submitted to the ber. Secretary by individual growers and [19 FR 3439, June 11, 1954, as amended at 22 handlers. Such nominations may be FR 3513, May 21, 1957. Redesignated at 26 FR made by means of group meetings of 12751, Dec. 30, 1961, as amended at 40 FR the growers and handlers concerned in 52605, Nov. 11, 1975; 40 FR 59719, Dec. 30, 1975; each district. Such nominations, if 52 FR 7118, Mar. 9, 1987; 73 FR 6837, Feb. 6, made, shall be filed with the Secretary 2008]

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§ 915.23 Selection. qualified. In the event both a member and his alternate are unable to attend From the nominations made pursu- a committee meeting, the chairman ant to § 915.22, or from other qualified may designate any alternate who is persons, the Secretary shall select the present and who is not serving for any five grower members of the committee, member to serve in such absent mem- the four handler members of the com- ber’s place and stead: Provided, That mittee, and an alternate for each such only grower alternate members may be member. so designated to serve for grower mem- § 915.24 Failure to nominate. bers and only handler alternate members may be so designated to serve only If nominations are not made within for handler members. the time and in the manner prescribed in § 915.22, the Secretary may, without [19 FR 3439, June 11, 1954. Redesignated at 26 regard to nominations, select the mem- FR 12751, Dec. 30, 1961, as amended at 35 FR 16627, Oct. 27, 1970] bers and alternate members of the committee on the basis of the represen- § 915.28 Powers. tation provided for in § 915.20. The committee shall have the fol- § 915.25 Acceptance. lowing powers: (a) To administer the provisions of Any person selected by the Secretary this part in accordance with its terms; as a member or as an alternate member (b) To receive, investigate, and report of the committee shall qualify by filing to the Secretary complaints of viola- a written acceptance with the Sec- tions of the provisions of this part; retary within ten days after being noti- (c) To make and adopt rules and reg- fied of such selection. ulations to effectuate the terms and provisions of this part; and § 915.26 Vacancies. (d) To recommend to the Secretary To fill any vacancy occasioned by the amendments to this part. failure of any person selected as a member or as an alternate member of § 915.29 Duties. the committee to qualify, or in the The committee shall have, among event of the death, removal, resigna- others, the following duties: tion, or disqualification of any member (a) To select a chairman and such or alternate member of the committee, other officers as may be necessary, and a successor for the unexpired term of to define the duties of such officers; such member or alternate member of (b) To appoint such employees, the committee shall be nominated and agents, and representatives as it may selected in the manner specified in deem necessary, and to determine the §§ 915.22 and 915.23. If the names of compensation and to define the duties nominees to fill any such vacancy are of each; not made available to the Secretary (c) To submit to the Secretary as within fifteen days after such vacancy soon as practicable after the beginning occurs, the Secretary may fill such va- of each fiscal year a budget for such cancy without regard to nominations, fiscal year, including a report in expla- which selection shall be made on the nation of the items appearing therein basis of representation provided for in and a recommendation as to the rate of § 915.20. assessment for such fiscal year; (d) To keep minutes, books, and § 915.27 Alternate members. records which will reflect all of the An alternate member of the com- acts and transactions of the committee mittee, during the absence or at the re- and which shall be subject to examina- quest of the member for whom he is an tion by the Secretary; alternate, shall act in the place and (e) To prepare periodic statements of stead of such member. In the event of the financial operations of the com- the death, removal, resignation, or dis- mittee and to make copies of each such qualification of a member, his alter- statement available to growers and nate shall act for him until a successor handlers for examination at the office for such member is selected and has of the committee;

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(f) To cause its books to be audited designated places: Provided, That such by a certified public accountant at meetings shall be subject to the estab- least once each fiscal year, and at such lishment of telephone communication other times as the Secretary may re- between all such groups and the avail- quest; ability of loud speaker receivers for (g) To act as intermediary between each group so that each member may the Secretary and any grower or han- participate in the discussions and other dler; actions the same as if the committee (h) To investigate growing and matu- were assembled in one place. rity conditions of avocados, and to as- (c) For any recommendation of the semble data in connection therewith; committee for an assessment rate (i) To engage in such research relat- change, a quorum of seven committee ing to the determination of maturity members and a two-thirds majority and grade standards for avocados as vote of approval of those in attendance may be approved by the Secretary; is required. (j) To submit to the Secretary such [19 FR 3439, June 11, 1954, as amended at 22 available information as he may re- FR 3513, May 21, 1957. Redesignated at 26 FR quest; 12751, Dec. 30, 1961, as amended at 43 FR (k) To notify, as provided in this 39322, Sept. 5, 1978; 73 FR 6837, Feb. 6, 2008] part, producers and handlers of all meetings of the committee to consider § 915.31 Expenses. recommendations for regulation; The members of the commmittee and (l) To give the Secretary the same their respective alternates when per- notice of meetings of the committee as forming duties at the direction of the is given to its members; committee, shall be reimbursed for ex- (m) To consult with such representa- penses necessarily incurred by them in tives of growers or groups of growers as the performance of their duties under may be deemed necessary and to pay this part. the travel expenses incurred by such representatives in attending com- [43 FR 39323, Sept. 5, 1978] mittee meetings at the request of the committee: Provided, That the com- § 915.32 Annual report. mittee shall not pay the travel ex- The committee shall, as soon as prac- penses of more than three such rep- ticable after the close of each fiscal resentatives in connection with any year, prepare and mail an annual re- one meeting of the committee; and port to the Secretary, and to each han- (n) To investigate compliance with dler and grower who requests a copy of the provisions of this part. the report. This annual report shall contain at least: (a) A complete review, § 915.30 Procedure. by districts, of the regulatory oper- (a) Except as provided in paragraph ations during the fiscal year; (b) an ap- (c) of this section, six members of the praisal of the effect of such regulatory committee, including alternates acting operations upon the avocado industry; for members, shall constitute a quorum and (c) any recommendations for and any decision, recommendation or changes in the program. other action of the committee shall re- [19 FR 3439, June 11, 1954, as amended at 22 quire not less than five concurring FR 3513, May 21, 1957. Redesignated at 26 FR votes including one by a handler, or an 12751, Dec. 30, 1961] alternate acting as such: Provided, That if the committee is increased by EXPENSES AND ASSESSMENTS one, the quorum requirement shall be increased to seven and any decision, § 915.40 Expenses. recommendation or other action of the The committee is authorized to incur committee shall require not less than such expenses as the Secretary finds six concurring votes including one by a are reasonable and likely to be in- handler, or an alternate acting as such. curred to enable the committee to ex- (b) The committee may provide for ercise its powers and perform its duties simultaneous meetings of groups of its in accordance with the provisions of members assembled at two or more this part during each fiscal year. The

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funds to cover such expenses shall be committee to adjust its reserve funds acquired by the levying of assessments to meet such obligations. as provided for in § 915.41. [19 FR 3439, June 11, 1954. Redesignated at 26 [19 FR 3439, June 11, 1954. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 35 FR FR 12751, Dec. 30, 1961, as amended at 35 FR 16627, Oct. 27, 1970; 40 FR 52605, Nov. 11, 1975; 16627, Oct. 27, 1970] 43 FR 39323, Sept. 5, 1978; 73 FR 6837, Feb. 6, 2008] § 915.41 Assessments. § 915.42 Accounting. (a) Each person who first handles avocados shall, with respect to the avoca- (a) If, at the end of a fiscal year, the dos so handled by him, pay to the com- assessments collected are in excess of mittee upon demand such person’s pro expenses incurred, such excess shall be rata share of the expenses which the accounted for as follows: Secretary finds are reasonable and (1) Except as provided in paragraph likely to be incurred by the committee (a)(2) of this section, each person enti- during each fiscal year. Each such per- tled to a proportionate refund of the son’s share of such expenses shall be excess assessment shall be credited equal to the ratio between the total with such refund against the operation quantity of avocados handled by him as of the following fiscal year unless such the first handler thereof during the ap- person demands repayment thereof, in plicable fiscal year, and the total quan- which event it shall be paid to him: tity of avocados so handled by all per- Provided, That any sum paid by a persons during the same fiscal year. The son in excess of his pro rata share of payment of assessments for the main- the expenses during any fiscal year tenance and functioning of the com- may be applied by the committee at mittee may be required under this part the end of such fiscal year to any out- throughout the period it is in effect ir- standing obligations due the com- respective of whether particular provi- mittee from such person. sions thereof are suspended or become (2) The Secretary, upon recommenda- inoperative. If a handler does not pay tion of the committee, may determine his assessment within the time pre- that it is appropriate for the mainte- scribed by the committee, the unpaid nance and functioning of the com- assessment may be subject to an inter- mittee that the funds remaining at the est charge at rates prescribed by the end of a fiscal year which are in excess committee with the approval of the of the expenses necessary for com- Secretary. mittee operations during such year (b) The Secretary shall fix the rate of may be carried over into following assessment per 55-pounds of fruit or years as a reserve. Such reserve may be equivalent in any container or in bulk, established at an amount not to exceed to be paid by each such handler. At any approximately 3 fiscal years’ oper- time during or after a fiscal year, the ational expenses. Funds in the reserve Secretary may increase the rate of as- may be used to cover the necessary ex- sessment, in order to secure sufficient penses of liquidation, in the event of funds to cover any later finding by the termination of this part, and to cover Secretary relative to the expense the expenses incurred for the mainte- which may be incurred. Such increase nance and functioning of the com- shall be applied to all fruit handled mittee during any fiscal year when during the applicable fiscal year. In there is crop failure, or during any pe- order to provide funds for the adminis- riod of suspension of any or all of the tration of the provisions of this part, provisions of this part. Such reserve the committee may accept the pay- may also be used by the committee to ment of assessments in advance, or finance its operations during any fiscal borrow money on an emergency short- year prior to the time that assessment term basis. The authority of the com- income is sufficient to cover such ex- mittee to borrow money is subject to penses and to cover deficits incurred approval of the Secretary and may be during any fiscal year when income is used only to meet financial obligations less than expenses. Upon termination as the obligations occur or to allow the of this part, any funds not required to

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defray the necessary expenses of liq- contain information relative to (a) the uidation shall be disposed of in such estimated total production of avocados manner as the Secretary may deter- within the production area; (b) the ex- mine to be appropriate: Provided, That pected general quality and maturity of to the extent practical, such funds avocados in the production area and in shall be returned pro rata to the per- competing areas; (c) the expected de- sons from whom such funds were col- mand conditions for avocados in dif- lected. ferent market outlets; (d) the expected (b) All funds received by the com- shipments of avocados produced in the mittee pursuant to the provisions of production area and competing areas; this part shall be used solely for the (e) supplies of competing commodities; purposes specified in this part, and (f) trend and level of consumer income; shall be accounted for in the manner (g) other factors having a bearing on provided in this part. The Secretary the marketing of avocados; and (h) the may, at any time, require the com- type of regulations expected to be rec- mittee and its members to account for ommended during the season. In the all receipts and disbursements. event it becomes advisable, because of [19 FR 3439, June 11, 1954, as amended at 22 changes in the supply and demand situ- FR 3513, May 21, 1957. Redesignated at 26 FR ation for avocados, to modify substan- 12751, Dec. 30, 1961, as amended at 35 FR tially such marketing policy, the com- 16628, Oct. 27, 1970; 43 FR 39323, Sept. 5, 1978] mittee shall submit to the Secretary a revised marketing policy report setting § 915.43 Contributions. forth the information prescribed in this The committee may accept voluntary section. The committee shall publicly contributions. Such contributions shall announce the contents of each mar- be free from any encumbrances by the keting policy report and copies thereof donor and the committee shall retain shall be maintained in the offices of complete control of their use. the committee where they shall be [73 FR 6837, Feb. 6, 2008] available for examination by growers and handlers. RESEARCH AND DEVELOPMENT [40 FR 52605, Nov. 11, 1975] § 915.45 Production research, marketing research and development. REGULATIONS The committee may, with the ap- § 915.50 Recommendations for regula- proval of the Secretary, establish or tion. provide for the establishment of production research, marketing research (a) Whenever the committee deems it and development projects designed to advisable to regulate the handling of assist, improve or promote the mar- any variety or varieties of avocados keting, distribution, and consumption grown in District 1 or District 2 in the or efficient production of avocados. manner provided in § 915.51, it shall so Such products may provide for any recommend to the Secretary. form of marketing promotion, includ- (b) In arriving at its recommenda- ing paid advertising. The expenses of tions pursuant to paragraph (a) of this such projects shall be paid from funds section, the committee shall give con- collected pursuant to the applicable sideration to such of the following fac- provisions of § 915.41, or from such tors as may be applicable: other funds as approved by the USDA. (1) The estimated total production [73 FR 6837, Feb. 6, 2008] and shipments of each variety of avocados, including avocados grown in other § 915.49 Marketing policy. areas; Each season prior to making any rec- (2) The time of bloom and growing ommendations pursuant to § 915.50, the conditions during the development of committee shall submit to the Sec- the crop; retary a report setting forth its mar- (3) The quality of the avocado crop; keting policy for the ensuing season. (4) The anticipated demand for avo- Such marketing policy report shall cados; and

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(5) Other available information hav- shall be packed in accordance with ing a bearing on the market for avoca- such pack specifications, and shall be dos with each recommendation for reg- identified by appropriate labels, seals, ulation the committee shall submit to stamps, or tags, affixed to the con- the Secretary the data and information tainers by the handler under the super- on which such recommendation is vision of the committee or an inspector predicated, and such other available in- of the Federal-State Inspection Serv- formation as the Secretary may re- ice, showing the particular pack speci- quest. fications of the lot. (c) All meetings of the committee (6) Provide that any or all require- held for the purpose of formulating rec- ments effective pursuant to paragraphs ommendations for regulations shall be (a)(1), (2), (3), and (4) of this section ap- open to growers and handlers. The plicable to the handling of avocados committee shall give notice of such shall be different for the handling of meetings to growers and handlers by avocados within the production area mailing such notice to each grower and and for the handling of avocados be- handler who has filed his address with tween the production area and any the committee and requested such no- point outside thereof. tice. (7) Prescribe requirements, as provided in this paragraph, applicable to § 915.51 Issuance of regulations. exports of any variety of avocados (a) The Secretary shall regulate, in which are different from those applica- the manner specified in this section, ble to the handling of the same variety the handling of avocados whenever he to other destinations. finds, from the recommendations and (b) The committee shall be informed information submitted by the com- immediately of any such regulations mittee or from other available infor- issued by the Secretary and the com- mation, that such regulations will tend mittee shall promptly give notice to effectuate the declared policy of the thereof to growers and handlers. act. Such regulations may: [19 FR 3439, June 11, 1954, as amended at 20 (1) Prohibit, prior to such time as FR 4177, June 15, 1955; 22 FR 3514, May 21, shall be specified, the handling of any 1957. Redesignated at 26 FR 12751, Dec. 30, size or sizes of any variety or varieties 1961, as amended at 36 FR 14126, July 30, 1971; of avocados grown in District 1 or Dis- 40 FR 52606, Nov. 11, 1975; 43 FR 39322, Sept. trict 2. 5, 1978] (2) Prohibit the handling of any variety or varieties of avocados grown in § 915.52 Modification, suspension, or District 1 or District 2 which do not termination of regulations. meet such quality and maturity stand- (a) In the event the committee at any ards as shall be prescribed. time finds that, by reason of changed (3) Limit the shipment of the total conditions, any regulations issued pur- quantity of avocados by prohibiting suant to § 915.51 should be modified, the shipment thereof: Provided, That no suspended, or terminated, it shall so such prohibition shall be effective dur- recommend to the Secretary. ing any fiscal period, other than for (b) Whenever the Secretary finds, four periods not exceeding six days from the recommendations and infor- each immediately prior to, including, mation submitted by the committee or or following July 4, Labor Day, from other available information, that Thanksgiving Day, and Christmas Day. a regulation should be modified, sus- (4) Fix the size, capacity, weight, di- pended, or terminated with respect to mensions, or pack of the container or any or all shipments of avocados in containers which may be used in the order to effectuate the declared policy packaging, and the transportation, of the act, he shall modify, suspend, or sale, shipment or other handling of av- terminate such regulation. If the Sec- ocados. retary finds that a regulation obstructs (5) Establish and prescribe pack spec- or does not tend to effectuate the de- ifications for the grading and packing clared policy of the act, he shall sus- of any variety or varieties of avocados pend or terminate such regulation. On and require that all avocados handled the same basis and in like manner the

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Secretary may terminate any such quantities or types of shipments as the modification or suspension. committee, with the approval of the Secretary, may prescribe. The com- § 915.53 Exemption certificates. mittee shall, with the approval of the Whenever a regulation is in effect Secretary, prescribe such rules, regula- pursuant to § 915.51(a)(1), the com- tions, and safeguards as it may deem mittee shall issue one or more exemp- necessary to prevent avocados handled tion certificates to any person who fur- under the provisions of this section nishes proof, satisfactory to the com- from entering channels of trade for mittee, that his avocados of a par- other than the specific purposes au- ticular variety are mature prior to the thorized by this section. Such rules, time such variety may be handled regulations, and safeguards may in- under such regulation. Such exemption clude the requirements that handlers certificates shall authorize the person shall file applications with the com- to whom the certificates are issued to mittee for authorization to handle avo- handle, or have handled, only that por- cados pursuant to this section, and tion of his avocados of the particular that such applications be accompanied variety which the committee has deter- by a certification by the intended pur- mined to be mature. The committee chaser or receiver that the avocados shall adopt, with the approval of the will not be used for any purpose not au- Secretary, procedural rules by which thorized by this section. such exemption certificates will be [19 FR 3439, June 11, 1954, as amended at 20 issued and the avocados covered there- FR 4177, June 15, 1955. Redesignated at 26 FR under may be handled. Exemption cer- 12751, Dec. 30, 1961] tificates shall be transferred to the handler of the avocados covered by § 915.60 Reports. such certificates at the time the avoca- (a) Each handler shall furnish to the dos are delivered to such handler. committee, at such times and for such periods as the committee may des- § 915.54 Inspection and certification. ignate, certified reports covering, to Whenever the handling of any variety the extent necessary for the committee of avocados is regulated pursuant to to perform its functions, the following: § 915.51, each handler who handles avo- (1) The quantities of each variety of cados shall, prior thereto, cause each avocados he received; lot of avocados handled to be inspected (2) A complete record of the quan- by the Federal-State Inspection Serv- tities disposed of by him, segregated as ice and certified by it as meeting the to varieties and as to the respective applicable requirements of such regula- quantities subject to regulation and tion: Provided, That such inspection not subject to regulation; and certification shall not be required (3) The date of each such disposition whenever the avocados previously have and the identification of the carrier been so inspected and certified. transporting such fruit; Promptly thereafter, each such handler (4) Identification of the inspection shall submit, or cause to be submitted, certificates and the exemption certifi- to the committee a copy of the certificates, if any, pursuant to which the cate of inspection with respect to such fruit was handled, together with the handling. destination of each such exempted disposition, and of all fruit handled pursu- § 915.55 Avocados not subject to regu- ant to § 915.55; and lations. (5) The quantity of each variety held Except as otherwise provided in this by him at the end of the period. section, any person may, without re- (b) Upon request of the committee, gard to the provisions of §§ 915.41, 915.51, made with the approval of the Sec- and 915.54, and the regulations issued retary, each handler shall furnish to thereunder, handle avocados (a) for the committee, in such manner and at consumption by charitable institu- such times as it may prescribe, such tions; (b) for distribution by relief other information as may be necessary agencies; (c) for commercial processing to enable the committee to perform its into products; or (d) in such minimum duties under this part.

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MISCELLANEOUS PROVISIONS percent of the volume of the avocados produced within the production area: § 915.61 Compliance. And Provided further, That such termi- Except as provided in this part, no nation shall be announced by March 15 person shall handle avocados, the ship- of the then current fiscal year. ment of which have been prohibited by (d) The Secretary shall conduct a ref- the Secretary in accordance with the erendum as soon as practicable after provisions of this part; and no person the end of the fiscal year ending March shall handle avocados except in con- 31, 1990, and at such time every sixth formity with the provisions of this part year thereafter, to ascertain whether and the regulations issued under this continuance of this part is favored by part. avocado producers. The Secretary may terminate the provisions of this part at § 915.62 Right of the Secretary. the end of any fiscal year in which the The members of the committee (in- Secretary has found that continuance cluding successors and alternates), and of this part is not favored by producers any agents, employees, or representa- who, during a representative period de- tives thereof, shall be subject to re- termined by the Secretary, have been moval or suspension by the Secretary engaged in the production for market at any time. Each and every regula- of avocados in the production area: tion, decision, determination, or other Provided, That termination of this part act of the committee shall be subject shall be effective only if announced on to the continuing right of the Sec- or before March 15 of the then current retary to disapprove of the same at any fiscal year. time. Upon such disapproval, the dis- (e) The provisions of this part shall, approved action of the committee shall in any event, terminate whenever the be deemed null and void, except as to provisions of the Act authorizing them acts done in reliance thereon or in ac- cease to be in effect. cordance therewith prior to such dis- [19 FR 3439, June 11, 1954. Redesignated at 26 approval by the Secretary. FR 12751, Dec. 30, 1961, as amended at 52 FR 7118, Mar. 9, 1987] § 915.63 Effective time. The provisions of this part shall be- § 915.65 Proceedings after termination. come effective at such time as the Sec- (a) Upon the termination of the pro- retary may declare above his signature visions of this part, the committee to this part, and shall continue in force shall, for the purpose of liquidating the until terminated in one of the ways affairs of the committee, continue as specified in § 915.64. trustees of all the funds and property then in its possession, or under its con- § 915.64 Termination. trol, including claims for any funds un- (a) The Secretary may at any time paid or property not delivered at the terminate the provisions of this part time of such termination. by giving at least one day’s notice by (b) The said trustees shall (1) con- means of a press release or in any other tinue in such capacity until discharged manner in which he may determine. by the Secretary; (2) from time to time (b) The Secretary shall terminate or account for all receipts and disburse- suspend the operation of any and all of ments and deliver all property on hand, the provisions of this part whenever he together with all books and records of finds that such provisions do not tend the committee and of the trustees, to to effectuate the declared policy of the such persons as the Secretary may di- act. rect; and (3) upon the request of the (c) The Secretary shall terminate the Secretary, execute such assignments or provisions of this part whenever the other instruments necessary or appro- Secretary finds by referendum or oth- priate to vest in such person, full title erwise that such termination is favored and right to all of the funds, property, by a majority of the producers: Pro- and claims vested in the committee or vided, That such majority has, during a the trustees pursuant thereto. representative period determined by (c) Any person to whom funds, prop- the Secretary, produced more than 50 erty, or claims have been transferred

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or delivered, pursuant to this section, ually or jointly with others, in any way shall be subject to the same obligation whatsoever, to any person for errors in imposed upon the committee and upon judgment, mistakes, or other acts, ei- the trustees. ther of commission or omission, as such member, alternate, employee, or § 915.66 Effect of termination or agent, except for acts of dishonesty, amendment. willful misconduct, or gross neg- Unless otherwise expressly provided ligence. by the Secretary, the termination of this part or of any regulation issued § 915.71 Separability. pursuant to this part, or the issuance If any provision of this part is de- of any amendment to either thereof, clared invalid or the applicability shall not (a) affect or waive any right, thereof to any person, circumstance, or duty, obligation, or liability which thing is held invalid, the validity of the shall have arisen or which may there- remainder of this part or the applica- after arise in connection with any pro- bility thereof to any other person, cir- vision of this part or any regulation cumstance, or thing shall not be af- issued under this part, or (b) release or fected thereby. extinguish any violation of this part or of any regulation issued under this Subpart—Rules and Regulations part, or (c) affect or impair any rights or remedies of the Secretary or of any § 915.110 Exemption certificates. other person with respect to any such Exemption certificates under § 915.53 violation. shall be issued by the Avocado Admin- § 915.67 Duration of immunities. istrative Committee pursuant to the following rules and regulations: The benefits, privileges, and immuni- (a) The grower must make applica- ties conferred upon any person by vir- tion for exemption on a form supplied tue of this part shall cease upon its ter- by the committee. A separate applica- mination, except with respect to acts tion must be made for each variety or done under and during the existence of classification of avocados and shall this part. contain the following: (1) Name and address of the appli- § 915.68 Agents. cant, and date of application; The Secretary may, by designation in (2) District in which the applicant’s writing, name any officer or employee grove is located; of the United States, or name any (3) Regulation from which exemption agency or division in the United States is requested; Department of Agriculture, to act as (4) Variety for which exemption is re- his agent or representative in connec- quested; tion with any of the provisions of this (5) Location (by county, highway, part. rural route, distance from nearest town, etc.) of grove from which avoca- § 915.69 Derogation. dos are to be shipped pursuant to the Nothing contained in this part is, or requested exemption certificate; shall be construed to be, in derogation (6) Information as to the average size or in modification of the rights of the of such avocados and the reasons why Secretary or of the United States (a) to applicant believes he is entitled to an exercise any powers granted by the act exemption certificate; and or otherwise, or (b) in accordance with (7) Name of the person who will han- such powers, to act in the premises dle any exempted fruit if different than whenever such action is deemed advis- the applicant. able. (b) Upon receipt of an application for exemption certificate, the Avocado Ad- § 915.70 Personal liability. ministrative Committee shall check all No member or alternate member of information furnished by the applicant the committee and no employee or and shall conduct such investigations agent of the committee shall be held concerning the maturity of the appli- personally responsible, either individ- cant’s avocados as may be necessary to

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determine whether the application ination meeting and exercising his shall be approved or denied. right to vote in person. (c) Approval of the application shall [21 FR 78, Jan. 5, 1956. Redesignated at 26 FR be evidenced by the issuance to the ap- 12751, Dec. 30, 1961, as amended at 48 FR 2519, plicant, by the Manager of the Avocado Jan. 20, 1983] Administrative Committee on its behalf, of one or more exemption certifi- § 915.120 Handler registration. cates which shall authorize the han- (a) Each handler who desires to handling of the quantity of the applicant’s dle avocados pursuant to the excep- avocados which the committee has de- tions in § 915.10 shall, prior thereto, termined is mature. register with the committee. Such reg- (d) If the application is denied, the istration shall be by application for applicant shall be informed of such de- registration filed with the Avocado Ad- nial by written notice stating the rea- ministrative Committee on a form, sons therefor. prescribed and furnished by the com- [19 FR 5439, Aug. 26, 1954. Redesignated at 26 mittee, which shall contain the fol- FR 12751, Dec. 30, 1961] lowing information: (1) Name and address of applicant; § 915.115 Nomination procedure. (2) Applicant’s principal place(s) of (a) Any grower who resides outside business; the production area and desires to be (3) Type of business organization (in- represented in a nomination meeting dividual, corporation, partnership, by a duly authorized agent and to have etc.); such grower’s vote cast by such agent (4) If other than an individual, the in the nomination and election of names and addresses of officers, part- nominees for grower members and al- ners, etc.; ternate members to fill positions on (5) Nature of business (handler, the Avocado Administrative Com- trucker, wholesaler, etc.); mittee, as provided in § 915.22(b)(2), (6) Number of years engaged in avo- shall submit to the committee, not cado business; later than January 20, a written state- (7) Estimated seasonal volume of av- ment containing the following: ocados handled; (1) Name of grower; (8) Place within production area (2) Mailing address; where the avocados will be prepared for (3) Location of each avocado grove market, and name and address of per- (either legal or from established land- son responsible for such preparation; marks); (9) Name and address of three ref- (4) Number of avocado trees owned; erences, one of which shall be a bank; (5) Number of 55-pound units of avo- (10) Certification of accuracy of in- cados marketed to date during the cur- formation furnished; and rent season; (11) An agreement to comply with the (6) Name of the handler of the fruit provisions of this part. marketed; (b) When the committee receives an (7) Authorization, including the name application for registration, it shall and address, of the person who is to issue the applicant a certificate of reg- represent said grower at the nomina- istration, if it determines based upon tion meeting. an investigation that the applicant (b) Any grower who has not filed the may be expected to handle avacados in statement as prescribed in paragraph accordance with this part. (a) of this section must be present at (c) If it is determined from the avail- the nomination meeting to be eligible able information that the applicant is to have his vote counted in connection not entitled to be registered with the with the nomination and election of committee, he shall be so informed by nominees. written notice stating why the certifi- (c) Any grower who, pursuant to the cate of registration was not issued. provisions of paragraph (a) of this sec- (d) Any certificate of registration tion, has authorized an agent to cast issued to a handler pursuant to this such grower’s vote, may rescind such section may be canceled by the com- authorization by appearing at the nom- mittee under circumstances which

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would have justified denial of his appli- fruit was used for the intended purpose, cation. and that the residue from the seed sep- (e) The committee shall suspend the aration process will not be allowed to certificate of registration issued under enter fresh channels of trade. this section of any handler who fails to pay assessments or furnish reports as [23 FR 9126, Nov. 26, 1958. Redesignated at 26 required under this part, and so advise FR 12751, Dec. 30, 1961, as amended at 30 FR 10880, Aug. 21, 1965; 36 FR 1191, Jan. 26, 1971; the handler in writing of the suspen- 43 FR 23557, May 31, 1978] sion and the effective date. The committee shall lift such suspension at § 915.141 Handling avocados for com- such time as the handler pays such as- mercial processing into products. sessments and files such reports, and (a) No person shall handle any avoca- the committee determines that the handler may be expected to handle dos for commercial processing into avacados in the future in accordance products unless prior to such handling with this part. such person notifies the Avocado Ad- ministrative Committee of the pro- [19 FR 5439, Aug. 26, 1954. Redesignated at 26 posed handling and provides the com- FR 12751, Dec. 30, 1961, as amended at 49 FR mittee with the name of the intended 33203, Aug. 22, 1984] processor. If the intended processor’s name is not on the Avocado Adminis- § 915.140 Avocados not subject to regulation. trative Committee’s current list of approved manufacturers of avocado prod- (a) Minimum quantity. During any one ucts, as prescribed in paragraph (b) of day any handler may handle not to ex- this section, or if on the list is sus- ceed 55 pounds total of avocados expended, such person shall furnish the empt from the provisions of §§ 915.41, committee, prior to each such han- 915.51, and 915.54, and the regulations dling, with a statement executed by issued thereunder: Provided, That such the intended processor that the avoca- exempted quantity shall not be in- dos will be used for the stated purpose cluded as part of a shipment exceeding only. 55 pounds. (b) Any person who desires to have (b) Gift shipments. Any handler may, his name placed on the Avocado Ad- exempt from the provisions of §§ 915.41, ministrative Committee’s list of ap- 915.51, and 915.54, and the regulations proved manufacturers of avocado prod- issued thereunder, handle avocados in ucts shall, prior to such listing, submit individually addressed gift containers to the Avocado Administrative Com- not exceeding 20 pounds net weight for mittee an application containing the use by the addressee other than for re- following information: sale. (c) Commercial processing into products. (1) Name and address of applicant; The term commercial processing into (2) Location of the facilities for com- products, as used in § 915.55(c), means mercial processing into products; the manufacture of any avocado prod- (3) Proposed type of avocado product uct which is preserved by any recog- or products to be manufactured from nized commercial process, including avocados and the proposed commercial canning, freezing, dehydrating, drying, process of preservation; the addition of chemical substances, or (4) Description of facilities for com- by fermentation. mercial processing into products; (d) Avocados for seed. Any handler (5) Quantity of avocados used in com- may ship avocados to be used for seed mercial processing into products dur- purposes exempt from the provisions of ing the previous fiscal year and esti- §§ 915.41, 915.51, and 915.54, and the regu- mate of the quantity of avocados to be lations issued thereunder: Provided, similarly processed during the current That such handler shall make applica- fiscal year; (6) expected source of avo- tion to the committee for an exemp- cados for commercial processing into tion prior to the loading of each ship- products; (7) method of transporting ment and that the receiver of each avocados and unloading point; (8) Avo- such shipment shall certify, on a form cado Administrative Committee han- provided by the committee, that such dler certificate of registration number,

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if any; (9) a statement that the avoca- proximately 3 fiscal years’ operational dos obtained for commercial processing expenses is appropriate and necessary into products will be used for that pur- to the maintenance and functioning of pose only and will not be resold or dis- the Avocado Administrative Com- posed of in fresh fruit channels; and mittee. Such reserve, including funds (10) an agreement to submit such re- carried forward from prior fiscal years, ports as are required by the Avocado shall be used to provide for the mainte- Administrative Committee with ap- nance and functioning of the com- proval of the Secretary. mittee in accordance with the provi- (c) Upon receipt of an application for sions of the marketing agreement, as such listing, the Avocado Administra- amended, and this part. tive Committee shall make such inves- (b) Terms used in this section shall tigation as it deems appropriate, and if have the same meaning as when used in it appears that the applicant may rea- said marketing agreement and order. sonably be expected to use avocados covered by the application in accord- [43 FR 39323, Sept. 5, 1978. Redesignated at 45 ance with, and to comply with, the re- FR 47653, July 16, 1980] quirements of paragraph (b) of this section, it shall place the person’s name § 915.150 Reports. on Avocado Administrative Commit- (a) Each handler shall file with the tee’s current list of approved manufac- Avocado Administrative Committee, turers of avocado products. on a weekly basis, a report of all avoca- (d) If it is determined by the com- dos received by him. Such report shall mittee from the available information be on forms prescribed by the com- that the applicant is not entitled to mittee and shall include: (1) The name such listing he shall be so informed by and address of the handler; (2) weekly written notice stating why his application was denied. period covered by the report; (3) dis- (e) Any such listing pursuant to para- trict in which the avocados were re- graphs (b) and (c) of this section may ceived; and (4) the quantity of each va- be canceled by the committee under riety of avocados received. Each such circumstances which would have justi- report shall be filed with the com- fied denial of this application. mittee not later than one week after (f) The committee shall suspend the the close of business of the last day of listing of any approved manufacturer the period covered by the report. who fails to submit reports as pre- (b) Each handler registered with the scribed pursuant to the provisions of Avocado Administrative Committee paragraph (b) of this section. The com- shall render a report to the committee mittee shall advise such manufacturer of the disposition of each lot of noncer- in writing of the pending suspension tified avocados removed from the and shall specify the time such suspen- premises of his handling facilities dur- sion is to become effective. Upon deter- ing each week in which any avocados mination by the committee that the are handled subject to the provisions of manufacturer has satisfied by such ef- §§ 915.41, 915.51, and 915.54, or exemp- fective time the requirements with re- tions therefrom pursuant to § 915.53. spect to the submission of reports the Such report shall be on forms pre- committee shall not make such suspen- scribed by the committee and shall in- sion effective. However, if the suspen- clude: (1) The quantity; (2) purpose for sion is in effect, the committee shall which removed; (3) date of removal; terminate such suspension at such and (4) the name of the person or firm time as it determines that the manu- to which the avocados were delivered facturer has satisfied the requirements or consigned. Each such report shall be with respect to the submission of re- signed by the handler or his authorized ports. representative, shall cover the period [36 FR 1191, Jan. 26, 1971] Sunday through Saturday, and shall be placed in the mail not later than one § 915.142 Reserve fund. week after the close of business of the (a) The establishment of a reserve Saturday ending the period covered by fund at an amount not to exceed ap- the report.

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(c) Each handler shall render a report Administrative Committee after the ef- to the Avocado Administrative Com- fective date of this section. mittee of each lot of noncertified avocados received from a district other [40 FR 50024, Oct. 28, 1975] than that in which his handling facili- § 915.160 Public member eligibility re- ties are located. Such report shall be quirements and nomination proce- on forms prescribed by the committee dures. and shall include: (1) The name of the handler; (2) the quantity of avocados (a) Public member and alternate received; (3) date received; (4) name member candidates shall not represent and address of the person from whom an agricultural interest, and shall not the avocados were purchased; (5) the have a financial interest in, or be asso- district from which the avocados were ciated with the production, processing, transferred; and (6) the district to financing, or marketing of avocados. which the avocados were transferred. (b) Public member and alternate Each such report shall cover the period member candidates should be able to Sunday through Saturday and shall be devote sufficient time to attend com- placed in the mail not later than one mittee activities regularly and to fa- week after the close of business of the miliarize themselves with the back- Saturday ending the period covered by ground and economics of the avocado the report. industry. (d) Each handler shall, at the end of (c) The public member and alternate the day’s operation, report to the com- member shall be a resident of the pro- mittee the number of containers of av- duction area. ocados sold and delivered in the State (d) The public member and alternate of Florida in the following containers: member should be nominated by the (1) 1⁄4 Bushel, (2) 1⁄2 Bushel, and (3) 4⁄5 Bushel. Upon request by the com- Avocado Administrative Committee, mittee, such reports shall be confirmed and shall serve a one-year term which in writing on a weekly basis on a form coincides with the term of the producer prescribed by the committee. and handler members of the com- (e) At the time of inspection, each mittee. handler shall provide to the Federal- [44 FR 9370, Feb. 13, 1979] State Inspection Service the quantity NOTE: After January 1, 1979, ‘‘Budget of Ex- and size of containers being packed and penses and Rate of Assessment’’ regulations inspected for the fresh avocado market. (e.g. sections .200 through .299) and ‘‘Han- In addition, each handler shall provide dling’’ regulations (e.g. sections .310 through the number of avocados packed per .399) which are in effect for a year or less, container (count per container). will not be carried in the Code of Federal Regulations. For FEDERAL REGISTER cita- [21 FR 6695, Sept. 6, 1956, as amended at 21 tions affecting these regulations, see the FR 7368, Sept. 27, 1956. Redesignated at 26 FR ‘‘List of CFR Sections Affected’’, which ap- 12751, Dec. 30, 1961, as amended at 53 FR 1743, pears in the Finding Aids section of the Jan. 22, 1988; 70 FR 36470, June 24, 2005] printed volume and at www.fdsys.gov. EFFECTIVE DATE NOTES: 1. At 61 FR 17552, Apr. 22, 1996, in § 915.150, paragraph (d) was Assessment Rates suspended indefinitely. 2. At 71 FR 76899, Dec. 22, 2006, in § 915.150, § 915.235 Assessment rate. paragraphs (b), (c), and (d) were suspended indefinitely, effective Dec. 26, 2006. On and after April 1, 2010, an assessment rate of § 915.155 Delinquent assessments. $0.37 per 55-pound container or equiv- Each handler shall pay interest of alent is established for avocados grown one percent per month on any unpaid in South Florida. assessment balance beginning 30 days [75 FR 55944, Sept. 15, 2010] after date of billing. Such interest charge is to apply to any unpaid assessments which become due the Avocado

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Subpart—Container and Pack (4) Containers shall not contain less Regulations than 8.5 pounds net weight of avocados: Provided, That not to exceed 5 percent, § 915.305 Florida Avocado Container by count, of such containers in any lot Regulation 5. may fail to meet such weight require- (a) No handler shall handle any avo- ment. All avocados packed at this des- cados for the fresh market from the ignated net weight shall be placed in production area to any point outside one layer only and the net weight of all thereof in containers having a capacity avocados in any such container shall of more than 4 pounds of avocados un- not be less than 8.5 pounds. Such con- less the containers meet the require- tainers shall be for export shipments ments specified in this section: Pro- only. vided, That the containers authorized (5) Such other types and sizes of con- in this section shall not be used for tainers as may be approved by the Avo- handling avocados for commercial cado Administrative Committee, with processing into products pursuant to the approval of the Secretary, for test- § 915.55(c). All avocados shall be packed ing in connection with a research in containers of 33, 31, 24, 12, and 8.5 project conducted by or in cooperation pounds designated net weights and with said committee: Provided, That shall conform to all other applicable the handling of each lot of avocados in requirements of this section: such test containers shall be subject to (1) Containers shall not contain less prior approval, and under the super- than 33 pounds net weight of avocados, vision of, the Avocado Administrative except that for avocados of unnamed Committee. varieties, which are avocados that have (b) The limitations set forth in para- not been given varietal names, and for graph (a) of this section shall not apply Booth 1, Fuchs, and Trapp varieties, to master containers for individual such weight shall be not less than 31 packages of avocados: Provided, That pounds. Not more than 10 percent, by the markings or labels, if any, on the count, of the individual containers in individual packages within such mas- any lot may fail to meet the applicable ter containers do not conflict with the specified weight. No container in any markings or labels on the master con- lot may contain a net weight of avoca- tainer. dos exceeding 2 pounds less than the (c) No handler shall handle any avo- specified net weight; or cados for the fresh market in 20 bushel (2) Containers shall not contain less plastic field bins to destinations inside than 24 pounds net weight of avocados: the production area. Provided, That not to exceed 5 percent, (d) Avocados handled for the fresh by count, of such containers in any lot market in containers other than those may fail to meet such weight require- authorized under § 915.305(a) and ment. All avocados packed at this des- shipped to destinations within the pro- ignated net weight shall be placed in duction area must be packed in 1-bush- two layers and the net weight of all av- el containers. ocados in any such container shall not (e) All containers in which the avoca- be less than 24 pounds: Provided, That dos are packed must be new, and clean the requirement as to placing avocados in appearance, without marks, stains, in two layers only shall not apply to or other evidence of previous use. such container if each of the avocados [63 FR 37480, July 13, 1998, as amended at 64 therein weighs 14 ounces or less; or FR 69383, Dec. 13, 1999; 65 FR 15205, Mar. 22, (3) Containers shall not contain less 2000; 70 FR 36470, June 24, 2005; 73 FR 66719, than 12 pounds net weight of avocados: Nov. 12, 2008] Provided, That not to exceed 5 percent, by count, of such containers in any lot § 915.306 Florida avocado grade, pack, may fail to meet such weight require- and container marking regulation. ment. All avocados packed at this des- (a) No handler shall handle any vari- ignated net weight shall be placed in ety of avocados grown in the produc- one layer only and the net weight of all tion area unless: avocados in any such container shall (1) Such avocados grade at least U.S. not be less than 12 pounds; or No. 2, except that avocados handled to

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destinations within the production marked at least once with either the area may be placed in containers with registered handler number assigned to avocados of dissimilar varietal charac- the handler at the time of certification teristics. as a registered handler or with the (2) Such avocados are in containers name and address of the handler. authorized under § 915.305, when han- (b) The provisions of paragraphs dled to points outside the production (a)(2), (a)(3), (a)(4), (a)(5), and (a)(6) of area. this section shall not apply to indi- (3) Such avocados are packed in ac- vidual packages of avocados weighing cordance with standard pack, when four pounds or less, net weight, in mas- handled in containers authorized under ter containers. § 915.305. (c) Terms pertaining to grades and (4) Such avocados are in containers standard pack mean the same as those marked with a Federal-State Inspec- defined in the United States Standards tion Service lot stamp number, when for Florida Avocados (7 CFR 51.3050 handled in containers authorized under through 51.3069). § 915.305: Provided, That when inspection occurs after palletization, only all [50 FR 32553, Aug. 13, 1985, as amended at 56 exposed or outside containers of avoca- FR 36080, July 31, 1991; 57 FR 3716, Jan. 31, dos must be plainly marked with the 1992; 57 FR 48931, Oct. 29, 1992; 60 FR 42770, lot stamp number corresponding to the Aug. 17, 1995; 61 FR 31006, June 19, 1996; 63 FR 37480, July 13, 1998; 73 FR 66719, Nov. 12, 2008] lot inspection conducted by an authorized inspector. § 915.332 Florida avocado maturity (5) Such avocados are in containers regulation. marked with a Federal-State Inspec- tion Service (FSIS) lot stamp number (a) No handler shall handle any vari- applied to an adhesive tape seal affixed ety of avocados, except Hass, Fuerte, to the container in a manner to pre- Zutano, and Edranol, grown in the pro- vent the container from being opened duction area unless: and/or the fruit being removed without (1) Any portion of the skin of the in- breaking the seal, when handled in con- dividual avocados has changed to the tainers other than those authorized color normal for that fruit when ma- under § 915.305. The stamp and tape ture for those varieties which normally shall be affixed to the container by the change color to any shade of red or FSIS or by the handler under the su- purple when mature, except for the pervision of the FSIS. Only stamps and Linda variety; or tape which have been approved by the (2) Such avocados meet the minimum Fresh Products Branch, Fruit and Veg- weight or diameter requirements for etable Division, Agricultural Mar- the Monday nearest each date speci- keting Service, U.S. Department of Ag- fied, through the Sunday immediately riculture, may be used for purposes of prior to the nearest Monday of the stamping and sealing containers to specified date in the next column, for meet these requirements. each variety listed in the following (6) Such avocados when handled in table I: Provided, that avocados may containers authorized under § 915.305, not be handled prior to the earliest except for those to export destinations, date specified in column A of such are marked once with the grade of fruit table for the respective variety; Pro- in letters and numbers at least 1 inch vided further, There are no restrictions in height on the top or one side of the on size or weight on or after the date container, not to include the bottom. specified in column D; Provided further, (7) Such avocados when handled in That up to a total of 10 percent, by containers other than those authorized count to the individual fruit in each lot under § 915.305(a) for shipment to des- may weigh less than the minimum tinations within the production area specified or be less than the specified are marked once with the grade of fruit diameter, except that no such avocados in letters and numbers at least 3 inches shall be over 2 ounces lighter than the in height on the top or one side of the minimum weight specified for the vari- container, not to include the bottom. ety: Provided further, That up to double Each such container is also to be such tolerance shall be permitted for

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fruit in an individual container in a lot.

TABLE I

Min. Min. Min. Min. Min. Min. Variety A date wt. diam. B date wt. diam. C date wt. diam. D date

Dr. Dupuis #2 ...... 5–30 16 37⁄16 6–13 14 35⁄16 7–04 12 32⁄16 7–18 Simmons ...... 6–20 16 39⁄16 7–04 14 37⁄16 7–18 12 31⁄16 8–01 Pollock ...... 6–20 18 311⁄16 7–04 16 37⁄16 7–18 14 34⁄16 8–01 Hardee ...... 6–27 16 32⁄16 7–04 14 214⁄16 7–11 12 ...... 7–25 Nadir ...... 6–27 14 33⁄16 7–04 12 31⁄16 7–11 10 214⁄16 7–18 Ruehle ...... 7–04 18 311⁄16 7–11 16 39⁄16 8–01 12 35⁄16 8–15 7–18 14 37⁄16 8–08 10 33⁄16 Bernecker ...... 7–18 18 36⁄16 8–01 16 35⁄16 8–15 14 34⁄16 8–29 Miguel (P) ...... 7–18 22 313⁄16 8–01 20 312⁄16 8–15 18 310⁄16 8–29 Nesbitt ...... 7–18 22 312⁄16 8–01 16 35⁄16 8–08 14 33⁄16 8–22 Tonnage ...... 8–01 16 36⁄16 8–15 14 34⁄16 8–22 12 30⁄16 8–29 Waldin ...... 8–01 16 39⁄16 8–15 14 37⁄16 8–29 12 34⁄16 9–12 Tower II ...... 8–01 14 36⁄16 8–15 12 34⁄16 8–29 10 32⁄16 9–05 Beta ...... 8–08 18 38⁄16 8–15 16 35⁄16 8–29 14 33⁄16 9–05 Lisa (P) ...... 8–08 12 32⁄16 8–15 11 3 ...... 8–22 Black Prince ...... 8–15 28 41⁄16 8–29 23 314⁄16 9–12 16 39⁄16 10–03 Loretta ...... 8–22 30 43⁄16 9–05 26 315⁄16 9–19 22 312⁄16 9–26 Booth 8 ...... 8–29 16 39⁄16 9–12 14 36⁄16 9–26 12 33⁄16 10–24 10–10 10 31⁄16 Booth 7 ...... 8–29 18 313⁄16 9–12 16 310⁄16 9–26 14 38⁄16 10–10 Booth 5 ...... 9–05 14 39⁄16 9–19 12 36⁄16 ...... 10–03 Choquette ...... 9–26 28 44⁄16 10–17 24 41⁄16 10–31 20 314⁄16 11–14 Hall ...... 9–26 26 314⁄16 10–10 20 39⁄16 10–24 18 38⁄16 11–07 Lula ...... 10–03 18 311⁄16 10–10 14 36⁄16 10–31 12 33⁄16 11–14 Monroe ...... 11–07 26 43⁄16 11–21 24 41⁄16 12–05 20 314⁄16 1–02 12–19 16 39⁄16 Arue ...... 5–16 16 ...... 5–30 14 33⁄16 6–20 12 ...... 7–04 Donnie ...... 5–23 16 35⁄16 6–06 14 34⁄16 6–20 12 ...... 7–04 Fuchs ...... 6–06 14 33⁄16 6–20 12 30⁄16 ...... 7–04 K–5 ...... 6–13 18 35⁄16 6–27 14 33⁄16 ...... 7–11 West Indian Seedling 1 6–20 18 ...... 7–18 16 ...... 8–22 14 ...... 9–19 Gorham ...... 7–04 29 45⁄16 7–18 27 43⁄16 ...... 8–15 Biondo ...... 7–11 13 ...... 8–15 Petersen ...... 7–11 14 38⁄16 7–18 12 35⁄16 7–25 10 32⁄16 8–08 232 ...... 7–18 14 ...... 8–01 12 ...... 8–15 Pinelli ...... 7–18 18 312⁄16 8–01 16 310⁄16 ...... 8–15 Trapp ...... 7–18 14 310⁄16 8–01 12 37⁄16 ...... 8–15 K–9 ...... 8–01 16 ...... 8–22 Christina ...... 8–01 11 214⁄16 ...... 8–22 Catalina ...... 8–15 24 ...... 8–29 22 ...... 9–19 Blair ...... 8–29 16 38⁄16 9–12 14 35⁄16 ...... 10–03 Guatemalan Seedling 2 9–05 15 ...... 10–03 13 ...... 12–05 Marcus ...... 9–05 32 412⁄16 9/19 24 45⁄16 ...... 10–31 Brooks 1978 ...... 9–05 12 34⁄16 9–12 10 31⁄16 9–19 8 214⁄16 10–10 Rue ...... 9–12 30 43⁄16 9–19 24 315⁄16 10–03 18 39⁄16 10–17 Collinson ...... 9–12 16 310⁄16 ...... 10–10 Hickson ...... 9–12 12 31⁄16 9–26 10 30⁄16 ...... 10–10 Simpson ...... 9–19 16 39⁄16 ...... 10–10 Chica ...... 9–19 12 37⁄16 10–03 10 34⁄16 ...... 10–17 Leona ...... 9–26 18 310⁄16 10–03 16 ...... 10–10 Melendez ...... 9–26 26 314⁄16 10–10 22 311⁄16 10–24 18 37⁄16 11–07 Herman ...... 10–03 16 39⁄16 10–17 14 36⁄16 ...... 10–31 Pinkerton (CP) ...... 10–03 13 33⁄16 10–17 11 30⁄16 10–31 9 ...... 11–14 Taylor ...... 10–10 14 35⁄16 10–24 12 32⁄16 ...... 11–07 Ajax (B–7) ...... 10–10 18 314⁄16 ...... 10–31 Booth 3 ...... 10–10 16 38⁄16 10–17 14 36⁄16 ...... 10–31 Semil 34 ...... 10–17 18 310⁄16 10–31 16 38⁄16 11–14 14 35⁄16 11–28 Semil 43 ...... 10–24 18 310⁄16 11–7 16 38⁄16 11–21 14 35⁄16 12–05 Booth 1 ...... 11–14 16 312⁄16 11–28 12 36⁄16 ...... 12–12 Zio (P) ...... 11–14 12 31⁄16 11–28 10 214⁄16 ...... 12–12 Gossman ...... 11–28 11 31⁄16 ...... 12–26 Brookslate ...... 12–05 18 313⁄16 12–12 16 310⁄16 1–02 12 35⁄16 1–30 12–19 14 38⁄16 1–16 10 Meya (P) ...... 12–12 13 32⁄16 12–26 11 30⁄16 ...... 1–09 Reed (CP) ...... 12–12 12 34⁄16 12–26 10 33⁄16 1–09 9 30⁄16 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.

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(3) Avocados which fail to meet the RESEARCH maturity requirements specified in this 916.45 Marketing research and development. section must be maintained under the supervision of the Federal or Federal- REGULATIONS State Inspection Service using the 916.50 Marketing policy. Positive Lot Identification program, 916.51 Recommendations for regulation. and when presented for reinspection, 916.52 Issuance of regulations. must meet the maturity requirements 916.53 Modification, suspension, or termination of regulations. which correspond to the date of the 916.54 Special purpose shipments. original inspection. 916.55 Inspection and certification. (b) The term diameter means the greatest dimension measured at a right REPORTS angle to a straight line from the stem 916.60 Reports. to the blossom end of the fruit. MISCELLANEOUS PROVISIONS [59 FR 30869, June 16, 1994, as amended at 64 916.61 Compliance. FR 53185, Oct. 1, 1999; 71 FR 11294, Mar. 7, 916.62 Right of the Secretary. 2006; 73 FR 26945, May 12, 2008] 916.63 Effective time. 916.64 Termination. PART 916—NECTARINES GROWN IN 916.65 Proceedings after termination. CALIFORNIA 916.66 Effect of termination or amendment. 916.67 Duration of immunities. 916.68 Agents. Subpart—Order Regulating Handling 916.69 Derogation. 916.70 Personal liability. DEFINITIONS 916.71 Separability. Sec. 916.1 Secretary. Subpart—Rules and Regulations 916.2 Act. 916.3 Person. 916.110 Exemptions. 916.115 Lot stamping. 916.4 Production area. 916.5 Nectarines. Subpart—Assessment Rates 916.6 Varieties. 916.7 Fiscal period. 916.234 Assessment rate. 916.8 Committee. 916.235 Delinquent assessments. 916.9 Grower. 916.10 Handler. Subpart—Container and Pack Regulation 916.11 Handle. 916.12 District. 916.350 California Nectarine Container and 916.13 Pack. Pack Regulation. 916.14 Container. 916.15 Marketing season. Subpart—Grade and Size Regulation 916.16 Pure grower or pure producer. 916.356 California Nectarine Grade and Size Regulation. ADMINISTRATIVE BODY AUTHORITY: 7 U.S.C. 601–674. 916.20 Establishment and membership. 916.21 Term of office. 916.22 Nomination. Subpart—Order Regulating 916.23 Selection. Handling 916.24 Failure to nominate. 916.25 Acceptance. SOURCE: 23 FR 4616, June 25, 1958, unless 916.26 Vacancies. otherwise noted. Redesignated at 26 FR 12751, 916.27 Alternate members. Dec. 30, 1961. 916.30 Powers. 916.31 Duties. DEFINITIONS 916.32 Procedure. 916.33 Expenses and compensation. § 916.1 Secretary. 916.34 Annual report. Secretary means the Secretary of Ag- EXPENSES AND ASSESSMENTS riculture of the United States, or any 916.40 Expenses. officer or employee of the Department 916.41 Assessments. to whom authority has heretofore been 916.42 Accounting. delegated, or to whom authority may

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hereafter be delegated, to act in his in growing nectarines are eligible to stead. serve in grower positions on the committee. § 916.2 Act. [71 FR 41350, July 21, 2006] Act means Public Act No. 10, 73d Con- gress (May 12, 1933), as amended and as § 916.10 Handler. reenacted and amended by the Agricul- Handler is synonymous with shipper tural Marketing Agreement Act of 1937, and means any person (except a com- as amended (48 Stat. 31, as amended; 7 mon or contract carrier transporting U.S.C. 601 et seq.; 68 Stat. 906, 1047). nectarines owned by another person) who handles nectarines. § 916.3 Person. Person means an individual, partner- § 916.11 Handle. ship, corporation, association, or any Handle and ship are synonymous and other business unit. mean to pack, sell, consign, deliver, or transport nectarines, or to cause nec- § 916.4 Production area. tarines to be packed, sold, consigned, Production area means the State of delivered, or transported, between the California. production area and any point outside thereof, or within the production area: § 916.5 Nectarines. Provided, That the term handle shall Nectarines means: (a) All varieties of not include the sale of nectarines on nectarines grown in the production the tree, the transportation within the area; and production area of nectarines from the (b) Hybrids grown in the production orchard where grown to a packing fa- area that exhibit the characteristics of cility located within such area for a nectarine and are subject to cultural preparation for market, or the delivery practices common to nectarines, as of such nectarines to such packing fa- recommended by the committee and cility for such preparation. approved by the Secretary. [71 FR 41350, July 21, 2006] [71 FR 41350, July 21, 2006] § 916.12 District. § 916.6 Varieties. District means the applicable one of Varieties means and includes all clas- the following described subdivisions of sifications or subdivisions of nec- the production area or such other sub- tarines. division as may be prescribed pursuant to § 916.31: § 916.7 Fiscal period. (a) District 1 shall include the coun- Fiscal period is synonymous with fis- ties of Madera and Fresno. cal year and means the 12-month pe- (b) District 2 shall include the coun- riod beginning on March 1 of one year ties of Kings and Tulare. and ending on the last day of February (c) District 3 shall include all of the of the following year or such other pe- production area lying south of the riod as the committee, with the ap- northern boundaries of the counties of proval of the Secretary, may prescribe. San Luis Obispo, Kern, and San Bernardino. § 916.8 Committee. (d) District 4 shall include the coun- Committee means the Nectarine Ad- ties of Merced, Stanislaus, and the bal- ministrative Committee established ance of the production area. pursuant to § 916.20. [31 FR 8176, June 10, 1966, as amended at 71 FR 41350, July 21, 2006] § 916.9 Grower. Grower is synonymous with producer § 916.13 Pack. and means any person who produces Pack means the specific arrangement, nectarines for market in fresh form, size, weight, count, or grade of a quan- and who has a proprietary interest tity of nectarines in a particular type therein. Employees of growers and offi- and size of container, or any combina- cers of corporations actively engaged tion thereof.

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§ 916.14 Container. resentation area shall be pure growers. Container means a box, bag, crate, Furthermore, no person shall serve lug, basket, carton, package, or any more than three consecutive two-year other type of receptacle used in the terms of office or a total of six con- packaging or handling of nectarines. secutive years; Provided further, That an appointment to fill less than a two § 916.15 Marketing season. year term of office, or serving one term as an alternate, shall not be included Marketing season means the period be- in determining the three consecutive ginning on April 1 and ending on No- terms of office; Provided further, That vember 30 of any year. time served prior to the effective date [71 FR 41350, July 21, 2006] of this section shall not be counted toward consecutive term limits. § 916.16 Pure grower or pure producer. [71 FR 41350, July 21, 2006] (a) Pure grower means any grower: § 916.21 Term of office. (1) Who produces his or her own product (and is not an employee or officer The term of office of each member of a packing business); or and alternate member of the com- (2) Who produces and handles his or mittee shall be for 2 years beginning on her own product; Provided, That a pure March 1 of an odd numbered year and grower can pack the production of ending on the last day of February of other growers as long as the production an odd numbered year. Members and packed does not exceed 25 percent of alternate members shall serve in such the total production packed for that capacities for the portion of the term marketing year for that pure grower’s of office for which they are selected packing facility. Pure grower is syn- and have qualified and until their re- onymous with pure producer. spective successors are selected and (b) The committee may establish, have qualified. with the approval of the Secretary, [36 FR 9290, May 22, 1971] rules and regulations for the implementation and operation of this sec- § 916.22 Nomination. tion. (a) Initial members. Nominations for [71 FR 41350, July 21, 2006] each of the initial members, together with nominations for the initial alter- ADMINISTRATIVE BODY nate members for each position, may be submitted to the Secretary by the § 916.20 Establishment and member- committee responsible for promulga- ship. tion of this part. Such nominations There is hereby established a Nec- may be made by means of group meet- tarine Administrative Committee con- ings of the growers concerned in each sisting of thirteen members, each of district. Such nominations, if made, whom shall have an alternate who shall be filed with the Secretary no shall have the same qualifications as later than the effective date of this the member for whom he/she is an al- part. In the event nominations for ini- ternate. The members and their alter- tial members and alternate members of nates shall be growers or authorized the committee are not filed pursuant employees of growers. Six of the mem- to, and within the time specified in, bers and their respective alternates this section, the Secretary may select shall be growers of nectarines in Dis- such initial members and alternate trict 1. Four members and their respec- members without regard to nomina- tive alternates shall be growers of nec- tions, but selections shall be on the tarines in District 2; two of the mem- basis of the representation provided in bers and their respective alternates § 916.20. shall be growers of nectarines in Dis- (b) Successor members. (1) The com- trict 3; and one member and his/her al- mittee shall appoint a nominating ternate shall be growers of nectarines committee, which will hold or cause to in District 4; Provided, That at least be held, not later than January 31 of 50% of the nominees from each rep- each odd numbered year, a nomination

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procedure or a meeting or meetings of members of the committee and an al- growers in each district for the purpose ternate for each such member. of designating nominees for successor [23 FR 4616, June 25, 1958. Redesignated at 26 members and alternate members of the FR 12751, Dec. 30, 1961, as amended at 72 FR committee. Meetings may be super- 7821, Feb. 21, 2007] vised by the nominating committee that shall prescribe such procedure as § 916.24 Failure to nominate. shall be reasonable and fair to all per- If nominations are not made within sons concerned. After the nomination the time and in the manner prescribed procedure or meetings have concluded, in § 916.22, the Secretary may, without the nominating committee by Feb- regard to nominations, select the mem- ruary 15 will verify consent to place bers and alternate members of the the nominee’s name on the ballot and committee on the basis of the represen- will cause a ballot listing all of the tation provided for in § 916.20. nominees for a given district to be mailed to all growers within the dis- § 916.25 Acceptance. trict. Members and their alternates Each person to be selected by the will be chosen based on a descending Secretary as a member or as an alter- ranking of votes received. Once ballots nate member of the committee shall, have been tabulated, the Nectarine Ad- prior to such selection, qualify by administrative Committee will announce vising the Secretary that he/she agrees to the growers the nominees that have to serve in the position for which nomi- been selected and recommended to the nated for selection. Secretary. [71 FR 41351, July 21, 2006] (2) Nominations may only be by growers, or by duly authorized employ- § 916.26 Vacancies. ees. At meetings, only growers who are To fill any vacancy occasioned by the present at such nomination meetings failure of any person selected as a may participate in the nomination of member or as an alternate member of nominees for members and their alter- the committee to qualify, or in the nates. All known growers will then re- event of the death, removal, resigna- ceive a ballot for the nominees in the tion, or disqualification of any member district in which they produce and are or alternate member of the committee, entitled to vote accordingly. A grower a successor for the unexpired term of who produces in multiple districts is such member or alternate member of allowed to vote only in one district, the committee shall be nominated and and may exchange his/her ballot for selected in the manner specified in that of the nominees in another dis- §§ 916.22 and 916.23. If the names of trict provided the grower is producing nominees to fill any such vacancy are in the district for which he/she wants not made available to the Secretary to participate. Employees of such within a reasonable time after such va- grower shall be eligible for membership cancy occurs, the Secretary may fill as principal or alternate to fill only such vacancy without regard to nomi- one position on the committee. nations, which selection shall be made (3) A particular grower, including au- on the basis of representation provided thorized employees of such grower, for in § 916.20. shall be eligible for membership as principal or alternate to fill only one § 916.27 Alternate members. position on the committee. An alternate member of the com- [23 FR 4616, June 25, 1958. Redesignated at 26 mittee, during the absence of the mem- FR 12751, Dec. 30, 1961, as amended at 31 FR ber for whom he is an alternate, shall 8176, June 10, 1966; 36 FR 9290, May 22, 1971; 71 act in the place and stead of such mem- FR 41350, July 21, 2006] ber and perform such other duties as assigned. In the event of the death, re- § 916.23 Selection. moval, resignation, or disqualification From the nominations made pursu- of a member, his alternate shall act for ant to § 916.22, or from other qualified him until a successor for such member persons, the Secretary shall select the is selected and has qualified. In the

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event both a member of the committee (g) To act as intermediary between and his alternate are unable to attend the Secretary and any grower or han- a committee meeting, the member or dler; the committee members present may (h) To investigate and assemble data designate any other alternate to serve on the growing, handling, and marin such member’s place and stead pro- keting conditions with respect to nec- vided such action is necessary to se- tarines; cure a quorum. (i) To submit to the Secretary the same notice of meetings of the com- [23 FR 4616, June 25, 1958. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 31 FR mittee as is given to its members; 8176, June 10, 1966] (j) To submit to the Secretary such available information as he may re- § 916.30 Powers. quest; The committee shall have the fol- (k) To investigate compliance with lowing powers: the Provisions of this part; (a) To administer the provisions of (l) With the approval of the Sec- this part in accordance with its terms; retary, to redefine the districts into (b) To receive, investigate, and report which the production area is divided to the Secretary complaints of viola- and to reapportion the representation tions of the provisions of this part; of any district on the committee: Pro- (c) To make and adopt rules and reg- vided, That any such changes shall re- ulations to effectuate the terms and flect, insofar as practicable, shifts in provisions of this part; and nectarine production within the dis- (d) To recommend to the Secretary tricts and the production area. amendments to this part. § 916.32 Procedure. § 916.31 Duties. (a) Nine members of the committee, The committee shall have, among or alternates acting for members, shall others, the following duties: constitute a quorum and any action of (a) To select a chairman and such the committee shall require the con- other officers as may be necessary, and curring vote of the majority of those to define the duties of such officers; present: Provided, That actions of the (b) To appoint such employees, committee with respect to expenses agents, and representatives as it may and assessments, or recommendations deem necessary, and to determine com- for regulations pursuant to §§ 916.50 to pensation and to define the duties of 916.55, shall require at least nine concurring votes. each; (b) The committee may vote by tele- (c) To submit to the Secretary as phone, telegraph, or other means of soon as practicable after the beginning communication, such as facsimile, and of each fiscal period a budget for such any votes so cast shall be confirmed fiscal period, including a report in ex- promptly in writing: Provided, That if planation of the items appearing there- an assembled meeting is held, all votes in and a recommendation as to the rate shall be cast in person. A video- of assessment for such period; conference shall be considered an as- (d) To keep minutes, books, and sembled meeting and all votes shall be records which will reflect all of the considered as cast in person. acts and transactions of the committee and which shall be subject to examina- [71 FR 41351, July 21, 2006] tion by the Secretary; (e) To prepare periodic statements of § 916.33 Expenses and compensation. the financial operations of the com- The members of the committee, and mittee and to make copies of each such alternates when acting as members, statement available to growers and shall serve without compensation but handlers for examination at the office shall be reimbursed for expenses nec- of the committee; essarily incurred by them in the per- (f) To cause its books to be audited formance of their duties under this by a competent public accountant at part: Provided, That the committee at least once each fiscal year and at such its discretion may request the attend- times as the Secretary may request; ance of one or more alternates at any

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or all meetings notwithstanding the may be incurred. Such increase shall be expected or actual presence of the re- applied to all nectarines handled dur- spective members and may pay ex- ing the applicable fiscal period. In penses as aforesaid. order to provide funds for the administration of the provisions of this part [31 FR 8177, June 10, 1966] during the first part of a fiscal period § 916.34 Annual report. before sufficient operating income is available from assessments on the cur- The committee shall, as soon as is rent year’s shipments, the committee practicable after the close of each mar- may accept the payment of assess- keting season, prepare and mail an an- ments in advance, and may also borrow nual report to the Secretary and make money for such purposes. Furthermore, a copy available to each grower and any assessment not paid by a handler handler who requests a copy of the re- within a period of time prescribed by port. the committee may be subject to an in- EXPENSES AND ASSESSMENTS terest or late payment charge, or both. The period of time, rate of interest and § 916.40 Expenses. late payment charge shall be as rec- The committee is authorized to incur ommended by the committee and ap- such expenses as the Secretary finds proved by the Secretary. Subsequent to are reasonable and likely to be in- such approval, all assessments not paid curred by the committee for its main- within the prescribed period of time tenance and functioning and to enable shall be subject to an interest or late it to exercise its powers and perform payment charge or both. its duties in accordance with the provi- [23 FR 4616, June 25, 1958. Redesignated at 26 sions of this part. The funds to cover FR 12751, Dec. 30, 1961 as amended at 71 FR such expenses shall be acquired in the 41351, July 21, 2006] manner prescribed in § 916.41. § 916.42 Accounting. § 916.41 Assessments. (a) If, at the end of a fiscal period, (a) As his pro rata share of the ex- the assessments collected are in excess penses which the Secretary finds are of expenses incurred, such excess shall reasonable and likely to be incurred by be accounted for in accordance with the committee during a fiscal period, one of the following: each person who first handles nec- (1) If such excess is not retained in a tarines during such period shall pay to reserve, as provided in paragraph (a)(2) the committee, upon demand, assess- of this section, it shall be refunded pro- ments on all nectarines so handled. portionately to the persons from whom The payment of assessments for the it was collected: Provided, That any maintenance and functioning of the sum paid by a person in excess of his committee may be required under this pro rata share of the expenses during part throughout the period it is in ef- any fiscal period may be applied by the fect irrespective of whether particular committee at the end of such fiscal pe- provisions thereof are suspended or be- riod to any outstanding obligations due come inoperative. the committee from such person. (b) The Secretary shall fix the rate of (2) The committee, with the approval assessment to be paid by each such per- of the Secretary, may carry over such son during a fiscal period in an amount excess into subsequent fiscal periods as designed to secure sufficient funds to a reserve: Provided, That funds already cover the expenses which may be in- in the reserve do not equal approxi- curred during such period and to accu- mately one fiscal period’s expenses. mulate and maintain a reserve fund Such reserve funds may be used (i) to equal to approximately one fiscal peri- defray expenses, during any fiscal pe- od’s expenses. At any time during or riod, prior to the time assessment inafter the fiscal period, the Secretary come is sufficient to cover such ex- may increase the rate of assessment in penses, (ii) to cover deficits incurred order to secure sufficient funds to during any fiscal year when assessment cover any later finding by the Sec- income is less than expenses, (iii) to retary relative to the expenses which defray expenses incurred during any

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period when any or all provisions of the committee shall submit to the Sec- this part are suspended or are inoper- retary a report setting forth its mar- ative, (iv) to cover necessary expenses keting policy for the ensuing mar- of liquidation in the event of termi- keting season. Such marketing policy nation of this part. Upon such termi- report shall contain information rel- nation, any funds not required to de- ative to: fray the necessary expenses of liquida- (1) The estimated total production of tion shall be disposed of in such man- nectarines within the production area; ner as the Secretary may determine to (2) The expected general quality and be appropriate: Provided, That to the size of nectarines in the production extent practical, such funds shall be re- area and in other areas; turned pro rata to the persons from (3) The expected demand conditions whom such funds were collected. for nectarines in different market out- (b) All funds received by the com- lets; mittee pursuant to the provisions of (4) The expected shipments of nec- this part shall be used solely for the tarines produced in the production area purpose specified in this part and shall and in areas outside the production be accounted for in the manner pro- area; vided in this part. The Secretary may (5) Supplies of competing commod- at any time require the committee and ities; its members to account for all receipts (6) Trend and level of consumer in- and disbursements. come; (c) Upon the removal or expiration of (7) Other factors having a bearing on the term of office of any member of the the marketing of nectarines; and committee, such member shall account for all receipts and disbursements and (8) The type of regulations expected deliver all property and funds in his to be recommended during the mar- possession to the committee, and shall keting season. execute such assignments and other in- (b) [Reserved] struments as may be necessary or ap- § 916.51 Recommendations for regula- propriate to vest in the committee full tion. title to all of the property, funds, and claims vested in such member pursuant (a) Whenever the committee deems it to this part. advisable to regulate the handling of any variety or varieties of nectarines RESEARCH in the manner provided in § 916.52, it shall so recommend to the Secretary. § 916.45 Marketing research and devel- (b) In arriving at its recommenda- opment. tions for regulation pursuant to para- The committee, with the approval of graph (a) of this section, the com- the Secretary, may establish or provide mittee shall give consideration to cur- for the establishment of production re- rent information with respect to the search, marketing research and devel- factors affecting the supply and de- opment projects designed to assist, im- mand for nectarines during the period prove, or promote the marketing, dis- or periods when it is proposed that tribution and consumption or efficient such regulations should be made effec- production of nectarines. Such projects tive. With each such recommendation may provide for any form of marketing for regulation, the committee shall promotion including paid advertising. submit to the Secretary the data and The expense of such projects shall be information on which such rec- paid by funds collected pursuant to ommendation is predicated and such § 916.41. other available information as the Sec- [36 FR 9290, May 22, 1971] retary may request.

REGULATIONS § 916.52 Issuance of regulations. (a) The Secretary shall regulate, in § 916.50 Marketing policy. the manner specified in this section, (a) Each season prior to making any the handling of nectarines whenever he recommendations pursuant to § 916.51, finds, from the recommendations and

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information submitted by the com- tions issued thereunder, handle nec- mittee, or from other available infor- tarines (1) for consumption by chari- mation, that such regulations will tend table institutions; (2) for distribution to effectuate the declared policy of the by relief agencies; or (3) for commer- act. Such regulations may: cial processing into products. (1) Limit, during any period or peri- (b) Upon the basis of recommenda- ods, the shipment of any particular tions and information submitted by the grade, size, quality, maturity, or pack, committee, or from other available in- or any combination thereof, of any va- formation, the Secretary may relieve riety or varieties of nectarines grown from any or all requirements, under or in the production area; established pursuant to §§ 916.41, 916.52, (2) Limit the shipment of nectarines 916.53, or 916.55, the handling of nec- by establishing, in terms of grades, tarines (1) to designated market areas sizes, or both, minimum standards of within the State of California; or (2) for quality and maturity during any period when season average prices are ex- such specified purposes (including ship- pected to exceed the parity level; ments to facilitate the conduct of mar- (3) Fix the size, capacity, weight, di- keting research and development mensions, markings, or pack of the projects established pursuant to container, or containers, which may be § 916.45), or in such minimum quantities used in the packaging or handling of or types of shipments, as may be pre- nectarines. scribed. (b) The committee shall be informed (c) The committee shall, with the ap- immediately of any such regulation proval of the Secretary, prescribe such issued by the Secretary and the com- rules, regulations, and safeguards as it mittee shall promptly give notice may deem necessary to prevent nec- thereof to handlers. tarines handled under the provisions of this section from entering the channels § 916.53 Modification, suspension, or of trade for other than the specific pur- termination of regulations. poses authorized by this section. Such (a) In the event the committee at any rules, regulations, and safeguards may time finds that, by reason of changed include the requirements that handlers conditions, any regulations issued pur- shall file applications and receive ap- suant to § 916.52 should be modified, proval from the committee for author- suspended, or terminated, it shall so ization to handle nectarines pursuant recommend to the Secretary. to this section, and that such applica- (b) Whenever the Secretary finds tions be accompanied by a certification from the recommendations and infor- by the intended purchaser or receiver mation submitted by the committee or that the nectarines will not be used for from other available information, that any purpose not authorized by this sec- a regulation should be modified, sus- tion. pended, or terminated with respect to any or all shipments of nectarines in § 916.55 Inspection and certification. order to effectuate the declared policy of the act, he shall modify, suspend, or (a) Whenever the handling of any va- terminate such regulation. If the Sec- riety of nectarines is regulated pursu- retary finds that a regulation obstructs ant to § 916.52, or § 916.53, each handler or does not tend to effectuate the de- who handles nectarines shall, prior clared policy of the act, he shall sus- thereto, cause such nectarines to be in- pend or terminate such regulation. On spected by the Federal or Federal- the same basis and in like manner the State Inspection Service and certified Secretary may terminate any such as meeting the applicable requirements modification or suspension. of such regulation: Provided, That inspection and certification shall not be § 916.54 Special purpose shipments. required for nectarines which pre- (a) Except as otherwise provided in viously have been so inspected and cer- this section, any person may, without tified if such prior inspection was per- regard to the provisions of §§ 916.41, formed within such period as may be 916.52, 916.53, and 916.55, and the regula- established pursuant to paragraph (b)

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of this section. Promptly after inspec- to enable the committee to perform its tion and certification, each such han- duties under this part. dler shall submit, or cause to be sub- (c) Each handler shall maintain for mitted, to the committee a copy of the at least two succeeding fiscal years, certificate of inspection issued with re- such records of the nectarines received spect to such nectarines. The com- and disposed of by him as may be nec- mittee may, with the approval of the essary to verify the reports he submits Secretary, prescribed rules and regula- to the committee pursuant to this sections waiving the inspection require- tion. ments of this section where it is deter- (d) All reports and records submitted mined that inspection is not available: by handlers pursuant to the provisions Provided, That all shipments made of this section shall be received by, and under such waiver shall comply with at all times be in custody of, one or all regulations in effect. more designated employees of the com- (b) The committee may, with the ap- mittee. No such employee shall dis- proval of the Secretary, establish a pe- close to any person, other than the riod prior to shipment during which Secretary upon request therefor, data the inspection required by this section or information obtained or extracted must be performed. from such reports and records which (c) The committee may enter into an might affect the trade position, finan- agreement with the Federal and Fed- cial condition, or business operation of eral-State Inspection Services with re- the particular handler from whom respect to the costs of the inspection received: Provided, That such data and in- quired by paragraph (a) of this section, formation may be combined, and made and may collect from handlers their re- available to any person, in the form of spective pro rata shares of such costs. general reports in which the identities of the individual handler furnishing the REPORTS information is not disclosed and may be revealed to any extent necessary to § 916.60 Reports. effect compliance with the provisions (a) Each handler shall furnish to the of this part and the regulations issued committee, at such times and for such thereunder. periods as the committee may des- MISCELLANEOUS PROVISIONS ignate, certified reports covering, to the extent necessary for the committee § 916.61 Compliance. to perform its functions, each shipment of nectarines as follows: Except as provided in this part, no person shall handle nectarines, the (1) The name of the shipper and the shipment of which has been prohibited shipping point; by the Secretary in accordance with (2) The car or truck license number the provisions of this part; and no per- (or name of the trucker), and identi- son shall handle nectarines except in fication of the carrier; conformity with the provisions of this (3) The date and time of departure; part and the regulations issued under (4) The number and type of con- this part. tainers in the shipment; (5) The quantities shipped, showing § 916.62 Right of the Secretary. separately the variety, grade, and size The members of the committee (in- of the fruit; cluding successors and alternates), and (6) The destination; any agents, employees, or representa- (7) Identification of the inspection tives thereof, shall be subject to re- certificate or waiver pursuant to which moval or suspension by the Secretary the fruit was handled. at any time. Each and every regula- (b) Upon request of the committee, tion, decision, determination, or other made with the approval of the Sec- act of the committee shall be subject retary, each handler shall furnish to to the continuing right of the Sec- the committee, in such manner and at retary to disapprove of the same at any such times as it may prescribe, such time. Upon such disapproval, the dis- other information as may be necessary approved action of the committee shall

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be deemed null and void, except as to growers. The Secretary shall conduct acts done in reliance thereon or in ac- such referendum within the same pe- cordance therewith prior to such dis- riod of every fourth fiscal period there- approval by the Secretary. after. (f) The provisions of this part shall, § 916.63 Effective time. in any event, terminate whenever the The provisions of this part, and of provisions of the act authorizing them any amendment thereto, shall become cease to be in effect. effective at such time as the Secretary [23 FR 4616, June 25, 1958. Redesignated at 26 may declare above his signature and FR 12751, Dec. 30, 1961, as amended at 31 FR shall continue in force until termi- 8177, June 10, 1966; 36 FR 9290, May 22, 1971] nated in one of the ways specified in § 916.64. § 916.65 Proceedings after termination. (a) Upon the termination of the pro- § 916.64 Termination. visions of this part, the committee (a) The Secretary may at any time shall, for the purpose of liquidating the terminate the provisions of this part affairs of the committee, continue as by giving at least one day’s notice by trustee of all the funds and property means of a press release or in any other then in its possession, or under its con- manner in which he may determine. trol, including claims for any funds un- (b) The Secretary shall terminate or paid or property not delivered at the suspend the operation of any and all of time of such termination. the provisions of this part whenever he (b) The said trustees shall (1) con- finds that such provisions do not tend tinue in such capacity until discharged to effectuate the declared policy of the by the Secretary; (2) from time to time act. account for all receipts and disburse- (c) The Secretary shall terminate the ments and deliver all property on hand, provisions of this part whenever he together with all books and records of finds by referendum or otherwise that the committee and of the trustees, to such termination is favored by a ma- such persons as the Secretary may di- jority of the growers: Provided, That rect; and (3) upon the request of the such majority has, during the current Secretary, execute such assignments or marketing season, produced more than other instruments necessary or appro- 50 percent of the volume of the nec- priate to vest in such person, full title tarines which were produced within the and right to all of the funds, property, production area for shipment in fresh and claims vested in the committee or form. Such termination shall become the trustees pursuant thereto. effective on the first day of March sub- (c) Any person to whom funds, prop- sequent to the announcement thereof erty, or claims have been transferred by the Secretary. or delivered, pursuant to this section, (d) The committee shall consider all shall be subject to the same obligation petitions from growers submitted to it imposed upon the committee and upon for termination of this part provided the trustees. such petitions are received by the committee prior to October 1 of the then § 916.66 Effect of termination or current fiscal period. Upon rec- amendment. ommendation of the committee re- Unless otherwise expressly provided ceived not later than December 1 of the by the Secretary, the termination of then current fiscal period, the Sec- this part or of any regulation issued retary shall conduct a referendum pursuant to this part, or the issuance among the growers prior to February of any amendment to either thereof, 15 of such fiscal period to ascertain shall not (a) affect or waive any right, whether continuance of this part is fa- duty, obligation, or liability which vored by producers. shall have arisen or which may there- (e) The Secretary shall conduct a ref- after arise in connection with any pro- erendum within the period beginning vision of this part or any regulation December 1, 1974, and ending February issued under this part, or (b) release or 15, 1975, to ascertain whether continu- extinguish any violation of this part or ance of this part is favored by the of any regulation issued under this

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part, or (c) affect or impair any rights Subpart—Rules and Regulations or remedies of the Secretary or of any other person with respect to any such § 916.110 Exemptions. violation. (a) Waivers. A handler may handle nectarines without inspection and cer- § 916.67 Duration of immunities. tification, as prescribed under § 916.55, The benefits, privileges, and immuni- if all the following conditions are met: ties conferred upon any person by vir- (1) The handler requests the Federal- tue of this part shall cease upon its ter- State Inspection Service to provide in- mination, except with respect to acts spection during its regular working done under and during the existence of hours at least 2 hours in advance of the this part. time when inspection is needed. The request need not be in writing but it § 916.68 Agents. shall be confirmed immediately in writing on a waiver form to be supplied The Secretary may, by designation in by the inspection service; writing, name any officer or employee (2) The Federal-State Inspection of the United States, or name any Service advises the handler that it is agency or division in the United States not practicable to provide inspection at Department of Agriculture, to act as the time and place designated by the his agent or representative in connec- handler. This advice may be verbal but tion with any of the provisions of this it shall be confirmed in writing by the part. Federal-State Inspection Service by execution of the waiver form on which § 916.69 Derogation. the handler submitted his written re- Nothing contained in this part is, or quest. A confirmed copy thereof shall shall be construed to be, in derogation be forwarded by the inspection service or in modification of the rights of the to the office of the Nectarine Adminis- Secretary or of the United States (a) to trative Committee. exercise any powers granted by the act (3) The Federal-State Inspection or otherwise, or (b) in accordance with Service furnishes the handler with the such powers, to act in the premises number of the waiver which shall cover whenever such action is deemed advis- the nectarines on which inspection is able. requested; (4) When instructed to do so, the han- § 916.70 Personal liability. dler plainly and conspicuously marks No member or alternate member of one end of each container with the let- the committee and no employee or ter ‘‘W’’ and the waiver number supplied agent of the committee shall be held by the Federal-State Inspection Serv- personally responsible, either individ- ice. The letter W and the number shall not be less than one-half inch in ually or jointly with others, in any way height. whatsoever, to any person for errors in (b) Minimum quantities. Notwith- judgment, mistaken, or other acts, ei- standing any other provision of this ther of commission or omission, as section, nectarines may be handled such member, alternate, employee, or without regard to the provisions of agent, except for acts of dishonesty, §§ 916.41, 916.52, 916.53, 916.55, and 916.60 willful misconduct, or gross neg- under the following conditions: ligence. (1) Such nectarines meet the grade requirements set forth in Article 30 of § 916.71 Separability. the Food and Agriculture Code of Cali- If any provision of this part is de- fornia. clared invalid or the applicability (2) Such nectarines are for home use thereof to any person, circumstance, or and not for resale. thing is held invalid, the validity of the (3) The net weight of such nectarines remainder of this part or the applica- to any one vehicle during any one day bility thereof to any other person, cir- does not exceed 200 pounds. cumstance, or thing shall not be af- (4) Such nectarines are handled by fected thereby. the person who produced them; and the

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handling takes place (i) on the prem- in the Finding Aids section of the printed ises where grown, (ii) at a packing- volume and at www.fdsys.gov. house or retail stand nearby which is operated by said handler, or (iii) at a Subpart—Assessment Rates certified farmers market in compliance with section 1392 of the regulations of § 916.234 Assessment rate. the California Department of Food and On and after March 1, 2010, an assess- Agriculture: Provided, That the exemp- ment rate of $0.0280 per 25-pound con- tion for certified farmers markets shall tainer or container equivalent of nec- not apply to nectarines sorted out by a tarines is established for California handler unless the nectarines are nectarines. packed in containers clearly and leg- [75 FR 31279, June 3, 2010] ibly marked to show that the nectarines contained therein are only to § 916.235 Delinquent assessments. be sold at certified farmers markets, (a) The Nectarine Administrative and the handler complies with regula- Committee shall impose a late pay- tions established under §§ 916.41, ment charge on any assessment that 916.52(a)(1), 916.55, and 916.60 except has not been received in the Nectarine that nectarines may be handled to such Administrative Committee’s office, or markets if the nectarines fail to meet legibly postmarked by the U.S. Postal the U.S. No. 1 grade only on account of Service, within 60 days of the invoice being soft and overripe. date shown on the handler’s assess- [31 FR 7474, May 24, 1966, as amended at 41 ment statement. The late payment FR 22071, June 1, 1976; 42 FR 23157, May 6, charge shall be 10 percent of the unpaid 1977; 47 FR 30452, July 14, 1982; 49 FR 28541, balance. July 13, 1984; 53 FR 15194, Apr. 28, 1988] (b) In addition to that specified in paragraph (a) of this section, the Nec- § 916.115 Lot stamping. tarine Administrative Committee shall Except when loaded directly into impose an interest charge on any as- railway cars, exempted under § 916.110, sessment payment that has not been or for nectarines mailed directly to received in the committee’s office, or consumers in consumer packages, all legibly postmarked by the U.S. Postal exposed or outside containers of nec- Service, within 60 days of the invoice tarines marked ‘‘CA WELL MAT’’ or date. The interest charge shall be 1.5 ‘‘California Well Matured’’, and not less percent per month and shall be applied than 75 percent of the total containers to the unpaid balance and late pay- on a pallet, shall be plainly stamped, ment charge for the number of days all prior to shipment, with a Federal-State or any part of the assessment specified Inspection Service lot stamp number, in the handler’s assessment statement assigned by such Service, showing that is delinquent beyond the 60 day pay- such fruit has been USDA inspected in ment period. accordance with § 916.55: Provided, That pallets of returnable plastic containers [72 FR 25947, May 8, 2007] shall have the lot stamp numbers affixed to each pallet with a USDA-ap- Subpart—Container and Pack proved pallet tag, in addition to the lot Regulation stamp numbers and other required information on cards on the individual § 916.350 California Nectarine Con- containers. tainer and Pack Regulation. (a) During the period beginning April [72 FR 18853, Apr. 16, 2007] 1 and ending October 31, no handler EDITORIAL NOTE: After January 1, 1979, shall ship any package or container of ‘‘Budget of Expenses and Rate of Assessment’’ any variety of nectarines marked ‘‘CA regulations (e.g. sections .200 through .299) WELL MAT’’ or ‘‘California Well Ma- and ‘‘Handling’’ regulations (e.g. sections .357 tured except in accordance with the through .399) which are in effect for a year or ’’ less, will not be carried in the Code of Fed- following terms and conditions: eral Regulations. For FEDERAL REGISTER ci- (1) Such nectarines, when packed in tations affecting these regulations, see the any closed package or container, ex- List of CFR Sections Affected, which appears cept master containers of consumer

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packages, individual consumer pack- (iv) The size of nectarines, when ages, and five down Euro containers, packed in loose-filled or tight-filled shall conform to the requirements of containers, shall be marked in accord- standard pack: Provided, That nec- ance with the following table 1 and tarines in any such volume-filled con- table 2 which specify the tray-pack size tainer need only be filled to within designation in Column A with the cor- one-inch of the top of the container. responding maximum number of nec- (2) Each package or container of nectarines in a 16-pound sample of each tarines shall bear, on one outside end size of the fruit in Column B: Provided, in plain sight and in plain letters, the That the following procedure shall be word ‘‘nectarines.’’ used in determining whether nec- (3) Each package or container of nectarines meet the minimum size re- tarines bearing the words ‘‘California quirements specified for each size cat- Well Matured’’ or ‘‘CA WELL MAT’’ egory in this section applying the 16- shall be well matured as defined in pound sample. A sample consisting of § 916.356. one-half of the specified number of (4) Each package or container of nec- fruit for a particular size category tarines shall bear, on one outside end shall be used, provided such sample in plain sight and in plain letters, the weighs at least eight pounds. When name and address of the shipper. one-half the specified number of fruit (5) Each package or container of nec- in a sample results in a number ending tarines, except consumer packages with one-half a fruit, the smaller full mailed directly to consumers, shall number of fruit shall be used to deter- bear, on one outside end in plain sight mine the sample weight. If a sample and in plain letters, the following fails with respect to minimum size re- count and/or size description of the quirements on the basis of an 8-pound nectarines as applicable. sample, a 16-pound sample shall be used (i) The size of nectarines packed in to determine if the fruit meets the molded forms (tray-packs) in the No. minimum size requirements. 22D and the No. 32 standard boxes, or consumer packages; No. 22G standard TABLE 1—WEIGHT-COUNT STANDARDS FOR ALL lug boxes, experimental containers; or VARIETIES OF NECTARINES (EXCEPT PEENTO the No. 12B fruit (peach) boxes or flats; TYPE NECTARINES) PACKED IN LOOSE-FILLED and the size of wrapped nectarines OR TIGHT-FILLED CONTAINERS packed in rows in No. 12B fruit (peach) Column B— boxes shall be indicated in accordance Maximum number of with the number of nectarines in each nectarines in a container, such as ‘‘80 count,’’ ‘‘88 16-pound sample appli- count,’’ etc. cable to vari- (ii) The size of nectarines in molded Column A— eties specified Tray pack size designation in paragraphs forms (tray-packs) in experimental (a)(2)(ii), containers, and in the No. 22G standard (a)(3)(ii), (a)(4)(ii), lug boxes, shall be indicated according (a)(5)(ii), to the number of such nectarines when (a)(7)(ii), and (a)(8)(ii) of packed in molded forms in the No. 22D § 916.356 standard lug box or the No. 32 standard box, in accordance with the require- 108 ...... 100 96 ...... 90 ments of standard pack, such as ‘‘80 88 ...... 84 size,’’ ‘‘88 size,’’ etc., along with count 84 ...... 78 requirements in paragraph (a)(5)(i) of 80 ...... 75 72 ...... 68 this section. 70 ...... 63 (iii) The size of nectarines loose-filled 64 ...... 57 or tight-filled in any container shall be 60 ...... 53 indicated according to the number of 56 ...... 48 54 ...... 45 such nectarines when packed in molded 50 ...... 42 forms in the No. 22D or No. 32 standard 48 ...... 41 lug box in accordance with the require- 44 ...... 36 42 ...... 34 ments of standard pack, such ‘‘80 size,’’ 40 ...... 32 ‘‘88 size,’’ etc. 36 ...... 29 117

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TABLE 1—WEIGHT-COUNT STANDARDS FOR ALL TABLE 3—WEIGHT-COUNT STANDARDS FOR VARIETIES OF NECTARINES (EXCEPT PEENTO PEENTO TYPE NECTARINES PACKED IN TYPE NECTARINES) PACKED IN LOOSE-FILLED LOOSE-FILLED OR TIGHT-FILLED CONTAINERS OR TIGHT-FILLED CONTAINERS—Continued Column B— maximum Column B— number of Maximum Column A—tray pack size designation nectarines in a number of 16-pound nectarines in a sample 16-pound sample applicable to vari- 80 ...... 140 Column A— eties specified 72 ...... 128 Tray pack size designation in paragraphs 70 ...... 111 (a)(2)(ii), 64 ...... 99 (a)(3)(ii), 60 ...... 93 (a)(4)(ii), 56 ...... 87 (a)(5)(ii), (a)(7)(ii), and 54 ...... 80 (a)(8)(ii) of 50 ...... 77 § 916.356 48 ...... 74 44 ...... 70 34 ...... 27 42 ...... 68 32 ...... 25 40 ...... 59 30 ...... 23 36 ...... 53 34 ...... 50 32 ...... 39 TABLE 2—WEIGHT-COUNT STANDARDS FOR ALL 30 ...... 32 VARIETIES OF NECTARINES (EXCEPT PEENTO TYPE NECTARINES) PACKED IN LOOSE-FILLED (6) Each No. 22D standard lug box, OR TIGHT-FILLED CONTAINERS No. 22G standard lug box, or No. 32 standard box of loose-filled nectarines Column B— shall bear on one outside end, in plain Maximum Number of sight and in plain letters, the words ‘‘25 nectarines in a pounds net weight.’’ 16-pound Column A— sample appli- (7) Each No. 22E standard lug box of Tray pack size designation cable to vari- loose-filled nectarines shall bear on eties specified in paragraphs one outside end, in plain sight and in (a)(6)(ii) and plain letters, the words 35 pounds net (a)(9)(ii) of § 916.356 weight. (8) Each bulk bin container of loose- 108 ...... 92 filled nectarines shall contain not less 96 ...... 87 than 100 pounds net weight, and bear 88 ...... 80 on one outside panel, in plain sight and 84 ...... 76 80 ...... 72 in plain letters, the following informa- 72 ...... 65 tion: 70 ...... 62 (i) The name and address (including 64 ...... 56 zip code) of the shipper. 60 ...... 53 (ii) The net weight. 56 ...... 47 (9) Each master container when filled 54 ...... 45 with nectarines packed in consumer 50 ...... 42 48 ...... 41 packages shall bear on one outside end 44 ...... 36 in plain sight and in plain letters the 42 ...... 34 following information: 40 ...... 32 (i) The number of individual con- 36 ...... 29 sumer packages, the net weight of each 34 ...... 27 consumer package, and the size de- 32 ...... 25 30 ...... 23 scription of the contents: Provided, That when consumer packages of different sizes of nectarines are contained in a master container, the size description of the contents shall indicate the minimum size contained therein, using the terms ‘‘Minimum size 60 and larger,’’ or ‘‘Minimum size 70 and larger,’’ etc., as applicable.

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(ii) The name and address (including with all other required markings, in zip code) of the shipper. letters at least 3⁄8 inch in height. (10) Each individual consumer pack- [50 FR 39074, Sept. 27, 1985] age shall bear the name and address, including the zip code, of the shipper EDITORIAL NOTE: For FEDERAL REGISTER ci- and the net weight. When a consumer tations affecting § 916.350, see the List of CFR Sections Affected, which appears in the package is not in a master container, it Finding Aids section of the printed volume must also bear the number of nec- and at www.fdsys.gov. tarines contained in the package and be marked as specified in paragraph Subpart—Grade and Size (a)(3) of this section. (b) As used in this section, ‘‘standard Regulation pack’’ and ‘‘fairly uniform in size’’ shall § 916.356 California Nectarine Grade have the same meaning as set forth in and Size Regulation. the U.S. Standards for Grade of Nec- (a) During the period beginning April tarines (Secs. 51.3145 to 51.3160) and all 1 and ending October 31, no handler other terms shall have the same mean- shall ship any package or container of ing as when used in the amended mar- any variety of nectarines marked ‘‘CA keting agreement and order. A No. 12B WELL MAT’’ or ‘‘California Well Ma- standard fruit box measures 23⁄8 to 71⁄8 × tured’’ except in accordance with the 1 × 1 11 ⁄2 16 ⁄8 inches, a No. 22D standard following terms and conditions: 7 1 × 1 × 1 lug box measures 2 ⁄8 to 7 ⁄8 13 ⁄2 16 ⁄8 (1) Any lot or package or container of inches, a No. 22E standard lug box any variety of nectarines shall meet 3 × 1 × 1 measures 8 ⁄4 13 ⁄2 16 ⁄8 inches, a No. the requirements of U.S. No. 1 grade: 3 22G standard lug box measures 7 ⁄8 to Provided, That nectarines 2 inches in 1 × 1 × 7 7 ⁄2 13 ⁄4 15 ⁄8 inches, a No. 32 stand- diameter or smaller, shall not have 3 1 × × 3 ard box measures 5 ⁄4 to 7 ⁄4 12 19 ⁄4 fairly light-colored, fairly smooth inches, a No. 35 standard box measures scars which exceed an aggregate area 31⁄2 to 715⁄16 × 159⁄16 to 1513⁄16 × 231⁄4 to 233⁄4 of a circle 3⁄8 inch in diameter, and nec- inches, and a No. 36 standard box meas- tarines larger than 2 inches in diame- ures 5 to 61⁄2 × 131⁄4 × 171⁄4 inches. All di- ter shall not have fairly light-colored, mensions are given in depth (inside di- fairly smooth scars which exceed an mensions) by width and by length (out- aggregate area of a circle 1⁄2 inch in di- side dimensions). ‘‘Individual consumer ameter: Provided further, That an addi- packages’’ means packages holding 15 tional tolerance of 25 percent shall be pounds or less net weight of peaches. permitted for fruit that is not well ‘‘Tree ripe’’ means ‘‘tree ripened’’ and formed but not badly misshapen: Pro- fruit shipped and marked as ‘‘tree ripe,’’ vided further, That nectarines of the ‘‘tree ripened,’’ or any similar terms Peento type shall be permitted blossom using the words ‘‘tree’’ and ‘‘ripe’’ must end cracking that is well healed and meet the minimum California Well Ma- does not exceed the aggregate area of a tured standards. circle 3⁄8 inch in diameter, and/or does (c) Each container of nectarines in not exceed a depth that exposes the pit: plastic, 12×193⁄4 inch reusable and recy- Provided further, That any handler may clable containers shall meet and bear, handle nectarines if such nectarines on the container lid or on the outside meet ‘‘CA Utility’’ quality require- end, all applicable marking requirements. The term ‘‘CA Utility’’ means ments under the order. that not more than 40 percent of the (d) During the period April 1 through nectarines in any container meet or ex- October 31, each container or package ceed the requirements of the U.S. No. 1 when packed with nectarines meeting grade, except that when more than 30 the ‘‘CA Utility’’ quality requirements, percent of the nectarines in any con- shall bear the words ‘‘CA Utility,’’ along tainer meet or exceed the requirements with all other required container of the U.S. No. 1 grade, the additional markings, in letters at least 3⁄8 inch in 10 percent shall have non-scoreable height on the visible display panel. blemishes as determined when applying Consumer bags or packages must also the U.S. Standards for Grades of Nec- be clearly marked on the consumer tarines; and that such nectarines are bags or packages as ‘‘CA Utility,’’ along well mature and are: 119

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(i) Free from insect injury which has would make the specified guides an in- penetrated or damaged the flesh; split appropriate measure of ‘‘well matured.’’ pits which cause an unhealed crack or one or more well healed cracks which, TABLE 1 either singly or in the aggregate, are Column A variety Column B ma- more than 3⁄8 inch in length; mold, turity guide brown rot, and decay which has af- Alshir Red ...... J fected the edible portion; and Alta Red ...... J (ii) Free from serious damage due to April Glo ...... H skin breaks, cuts, growth cracks, August Fire ...... L August Glo ...... L bruises, or other causes. Damage to August Lion ...... J any nectarine is serious when it causes August Red ...... J a waste of 10 percent or more, by vol- Aurelio Grand ...... F ume, of the individual nectarine. Autumn Delight ...... L Big Jim ...... J (iii) Tolerances. Not more than 10 per- Burnectone (Spring Ray®) ...... L cent, by count, of the nectarines in any Burnectseven (Summer Flare® 28) ...... J one container may be below the re- Burnectten (Spring Flare® 19) ...... H Burnecttwelve (Sweet Flare® 21) ...... I quirements which are prescribed by Candy Gold ...... L this paragraph, including not more Crimson Baby ...... G than 5 percent, by count, for any one Diamond Bright ...... J Diamond Jewel ...... L defect, except split pits. An additional Diamond Ray ...... L tolerance of 10 percent, by count, of the Earliglo ...... I nectarines in any one container or bulk Early Diamond ...... J Early Red Jim ...... J lot may contain nectarines affected Early Sungrand ...... H with split pits. This means a total tol- Emelia ...... J erance of 20 percent is allowed for all Fairlane ...... L defects, including split pits, but not to Fantasia ...... J Firebrite ...... H exceed 15 percent for split pits alone. Fire Sweet ...... J (iv) The Federal or Federal-State In- Flame Glo ...... L spection Service shall make final de- Flamekist ...... L Flaming Red ...... K terminations on maturity through the Flavortop ...... J use of color guides or such other tests Gee Sweet ...... L as determined appropriate by the in- Grand Candy ...... J Grand Diamond ...... L spection agency. The Federal or Fed- Grand Sweet ...... J eral-State Inspection Service will use Gran Sun ...... L the maturity guides listed in table 1 to Honey Blaze ...... J paragraph (a)(1)(iv) in making matu- Honey Dew ...... B * Honey Fire ...... L rity determinations for the specified Honey Kist ...... I varieties when inspecting to the ‘‘well Honey Royale ...... J matured’’ level of maturity. For these July Red ...... L June Brite ...... I varieties, not less than 90 percent of June Candy ...... K any lot shall meet the color guide es- Juneglo ...... H tablished for the variety, and an aggre- Kay Diamond ...... L Kay Glo ...... J gate area of not less than 90 percent of Kay Sweet ...... J the fruit surface shall meet the color King Jim ...... L guide established for the variety, ex- Kism Grand ...... J Larry’s Red ...... J cept that for the Tom Grand variety of Late Le Grand ...... L nectarines, not less than an aggregate Late Red Jim ...... J area of 80 percent of the fruit surface Mango ...... B * shall meet the color guide established May Diamond ...... I May Fire ...... H for the variety. For varieties not list- Mayglo ...... H ed, the Federal or Federal-State In- May Grand ...... H spection Service will use such tests as May Kist ...... H Mid Glo ...... L it deems proper. A variance for any va- Moon Grand ...... L riety from the application of the matu- Niagra Grand ...... H rity guides specified in table 1 to para- P–R Red ...... L graph (a)(1)(iv) may be granted during Prince Jim ...... L Prince Jim I ...... L the season to reflect changes in crop, Prima Diamond VII ...... L weather, or other conditions that Prima Diamond XIII ...... L

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TABLE 1—Continued using other California well matured characteristics. *Predominant ground color must Column A variety Column B ma- be breaking yellowish green. turity guide (v) If a grower or handler believes his/ Prima Diamond XIX ...... L her fruit is meeting the appropriate Red Delight ...... I maturity level but the fruit has not Red Diamond ...... L been so graded by the inspector, he/she Red Fred ...... J Red Free ...... L may appeal the inspection by calling Red Glen ...... J the officer-in-charge of the local Fed- Red Glo ...... I eral-State Inspection Service office to Red Jewel ...... L Red Jim ...... L arrange for an on-site examination of Red May ...... J the fruit. Red Roy ...... J (2) Any package or container of April Regal Red ...... K Glo variety nectarines unless: Rio Red ...... L Rose Diamond ...... J (i) Such nectarines, when packed in Royal Giant ...... I molded forms (tray packs) in a No. 22D Royal Glo ...... I standard lug box or a No. 32 standard Ruby Diamond ...... L Ruby Fire ...... G box, are of a size that will pack, in ac- Ruby Grand ...... J cordance with the requirements of a Ruby Sun ...... J standard pack, not more than 108 nec- Ruby Sweet ...... J tarines in the box; or Scarlet Red ...... K September Bright ...... J (ii) Such nectarines, when packed September Free ...... J other than as specified in paragraph September Grand ...... L (a)(2)(i) of this section, are of a size September Red ...... L Shay Sweet ...... J that a 16-pound sample, representative Sheri Red ...... J of the nectarines in the package or Sparkling June ...... L container, contains not more than 100 Sparkling May ...... J nectarines, except for Peento-type nec- Sparkling Red ...... L Spring Bright ...... L tarines. Spring Diamond ...... L (3) Any package or container of Spring Red ...... H Burnectfive (Spring Flare® 21), Spring Sweet ...... J ® Star Brite ...... J Burnectten (Spring Flare 19), Crimson Sugar Queen ...... L Baby, Earliglo, Honey May, May Summer Beaut ...... H PearlTM, Polar Ice, Polar Light, Red Summer Blush ...... J Jewel or Zee Fire variety nectarines Summer Bright ...... J Summer Diamond ...... L unless: Summer Fire ...... L (i) Such nectarines, when packed in Summer Grand ...... L molded forms (tray packs) in a No. 22D Summer Jewel ...... L Summer Lion ...... L standard lug box or a No. 32 standard Summer Red ...... L box, are of a size that will pack, in ac- Sunburst ...... J cordance with the requirements of a Sun Diamond ...... I standard pack, not more than 96 nec- Sunecteight (Super Star) ...... G Sun Grand ...... G tarines in the box; or Sunny Red ...... J (ii) Such nectarines, when packed Tom Grand ...... L other than as specified in paragraph WF 1 ...... J Zee Fire ...... J (a)(3)(i) of this section, are of a size Zee Glo ...... J that a 16-pound sample, representative Zee Grand ...... I of the nectarines in the package or * Predominant ground color must be breaking yellowish container, contains not more than 90 green. nectarines, except for Peento-type nec- NOTE: Consult with the Federal or Federal- tarines. State Inspection Service Supervisor for the (4) Any package or container of Arc- maturity guides applicable to the varieties tic Star, Burnectone (Spring Ray®), not listed above. On varieties with less than Burnecttwelve (Sweet Flair® 21), 10 percent surface ground color required to Burnectthirteen (Snow Flare® 22), determine California Well-Matured, the stem Burnectfourteen (Snow Flare® 21), Dia- cavity color will be utilized to make the determination. As a guide, stem cavities for mond Bright, Diamond Pearl, Gee most varieties should be at least yellowish- Sweet, Honey Lite, June Pearl, June green as defined by the H maturity guide. Sweet, Kay Diamond, Kay Fire, Kay Confirmation may be further established by Glo, Kay Sweet, Prima Diamond IV,

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Prima Diamond VI, Prima Diamond Larry’s Red, Late Red Jim, Mike’s Red, XIII, Prince Jim, Prince Jim 1, Red Orange Honey, Prima Diamond IX, Roy, Rose Bright, Rose Diamond, Prima Diamond X, Prima Diamond Royal Glo, or Zee Grand variety nec- XIX, Prima Diamond XXIV, Prima Dia- tarines unless: mond XXVIII, Prince Jim 3, Raspberry (i) Such nectarines, when packed in Jewel, Red Baron 2, Red Bright, Red molded forms (tray packs) in a No. 22D Diamond, Red Glen, Red Jim, Red standard lug box or a No. 32 standard Pearl, Regal Pearl, Regal Red, Ruby box, are of a size that will pack, in ac- Bright, Ruby Diamond, Ruby Pearl, cordance with the requirements of a Ruby Sweet, Saucer, September Bright standard pack, not more than 88 nec- (26P–490), September Free, September tarines in the box; or Red, Signature, Snow Pearl, Sparkling (ii) Such nectarines, when packed June, Spring Bright, Spring PearlTM, other than as specified in paragraph Spring Sweet, Sugar PearlTM, (a)(4)(i) of this section, are of a size Sugarine, Summer Blush, Summer that a 16-pound sample, representative Bright, Summer Diamond, Summer of the nectarines in the package or Fire, Summer Jewel, Summer Lion, container, contains not more than 84 Summer Red, Sunburst, Sun Valley nectarines, except for Peento-type nec- Sweet, Zee Glo or Zephyr variety nectarines. tarines unless: (5) Any package or container of (ii) Such nectarines, when packed Mango variety nectarines unless: other than as specified in paragraph (i) Such nectarines, when packed in (a)(6)(i) of this section, are of a size molded forms (tray packs) in a No. 22D that a 16-pound sample, representative standard lug box or a No. 32 standard of the nectarines in the package or box, are of a size that will pack, in ac- container, contains not more than 76 cordance with the requirements of a nectarines, except for Peento-type nec- standard pack, not more than 84 nectarines. tarines in the box; or (7) During the period April 1 through (ii) Such nectarines, when packed May 31 of each fiscal year, no handler other than as specified in paragraph shall handle any package or container (a)(5)(i) of this section, are of a size of any variety of nectarines not specifi- that a 16-pound sample, representative cally named in paragraphs (a)(2), (a)(3), of the nectarines in the package or (a)(4), (a)(5), or (a)(6) of this section un- container, contains not more than 78 less: nectarines, except for Peento-type nec- (i) Such nectarines, when packed in tarines. molded forms (tray packs) in a No. 22D (6) Any package or container of standard lug box or a No. 32 standard 15G225, 225LP242, Arctic Belle, Arctic box, are of a size that will pack, in ac- Blaze, Arctic Ice, Arctic Jay, Arctic cordance with the requirements of a Mist, Arctic Pride, Arctic Queen, Arc- standard pack, not more than 96 nec- tic Snow (White Jewel), Arctic Sweet, tarines in the box; or August Bright, August Fire, August (ii) Such nectarines, when packed Glo, August Lion, August Pearl, Au- other than as specified in paragraph gust Red, August Sweet, Bright Pearl, (a)(7)(i) of this section, are of a size Burnectfour (Summer Flare® 35), that a 16-pound sample, representative Burnectseven (Summer Flare® 28), of the nectarines in the package or Burnecteleven (Summer Flare® 30), container, contains not more than 90 Burnectfifteen (Summer Flare® 27), nectarines, except for Peento-type nec- Burnectseventeen (Summer Flare® 32), tarines. Candy Gold, Candy Pearl, Crimson (8) During the period June 1 through Sweet, Diamond Ray, Early Red Jim, June 30 of each fiscal period, no han- Fire Pearl, Fire Sweet, Giant Pearl, dler shall handle any package or con- Grand Bright, Grand Candy, Grand tainer of any variety of nectarines not Pearl, Grand Sweet, Honey Blaze, specifically named in paragraphs (a)(2), Honey Dew, Honey Diva, Honey Fire, (a)(3), (a)(4), (a)(5), or (a)(6) of this sec- Honey Kist, Honey Rose, Honey tion unless: Royale, July Bright, July Pearl, July (i) Such nectarines, when packed in Red, June Ice, Kay Pearl, La Pinta, molded forms (tray packs) in a No. 22D

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standard lug box or a No. 32 standard provided the averages for the entire lot box, are of a size that will pack, in ac- are within the tolerances specified in cordance with the requirements of a this part: standard pack, not more than 88 nec- (1) For packages which contain more tarines in the box; or than 10 pounds, and a tolerance of 10 (ii) Such nectarines, when packed percent or more is provided, individual other than as specified in paragraph packages shall have not more than one (a)(8)(i) of this section, are of a size and one-half times the tolerance speci- that a 16-pound sample, representative fied. For packages which contain more of the nectarines in the package or than 10 pounds and a tolerance of less container, contains not more than 84 than 10 percent is provided, individual nectarines, except for Peento-type nec- packages shall have not more than tarines. double the tolerance specified. (9) During the period July 1 through (2) For packages which contain 10 October 31 of each fiscal period, no han- pounds or less, individual packages are dler shall handle any package or con- not restricted as to the percentages of tainer of any variety of nectarines not defects. specifically named in paragraphs (a)(2), (d) As used herein, U.S. No. 1, mature, (a)(3), (a)(4), (a)(5), or (a)(6) of this sec- and standard pack, mean the same as tion unless: defined in the United States Standards (i) Such nectarines, when packed in for Grades of Nectarines [7 CFR 51.3145 molded forms (tray packs) in a No. 22D through 51.3160]; and No. 22D standard standard lug box or a No. 32 standard lug box means the same as defined in box, are of a size that will pack, in ac- section 1380.19 (17) of the ‘‘Regulations cordance with the requirements of a of the California Department of Food standard pack, not more than 84 nec- and Agriculture’’. Well matured means a tarines in the box; or condition distinctly more advanced (ii) Such nectarines, when packed than mature. other than as specified in paragraph [59 FR 15838, Apr. 5, 1994] (a)(9)(i) of this section, are of a size that a 16-pound sample, representative EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 917.356, see the List of CFR of the nectarines in the package or Sections Affected, which appears in the container, contains not more than 76 Finding Aids section of the printed volume nectarines, except for Peento-type nec- and at www.fdsys.gov. tarines. (b) The following procedure shall be PART 917—FRESH PEARS AND used in determining whether nec- PEACHES GROWN IN CALIFORNIA tarines meet the minimum size requirements specified for each size cat- Subpart—Order Regulating Handling egory in this section applying a 16- pound sample. A sample consisting of DEFINITIONS one-half of the number of fruit speci- Sec. fied for a 16-pound sample for a par- 917.1 Secretary. ticular size category shall be used, pro- 917.2 Act. vided such sample weighs at least eight 917.3 Person. pounds. When one-half the specified 917.4 Fruit. number of fruit in a sample results in 917.5 Grower. 917.6 Handle. a number ending with one-half a fruit, 917.7 Handler. the smaller full number of fruit shall 917.8 Pure grower or pure producer. be used to determine the sample 917.9 Fiscal period. weight. If a sample fails with respect to 917.11 Production area. minimum size requirements on the 917.12 Container. basis of an 8-pound sample, a 16-pound 917.13 Pack. 917.14 District. sample shall be used to determine if 917.15 Representation area. the fruit meets the minimum size requirements. ADMINISTRATIVE BODIES (c) Container tolerances. The contents 917.16 Designation of Control Committee. of individual packages in the lot are 917.17 Nomination of shipper members of subject to the following limitations, the Control Committee.

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917.18 Nomination of commodity committee GENERAL members of the Control Committee. 917.19 Selection of members of the Control 917.110 Communications. Committee. ADMINISTRATIVE BODIES 917.20 Designation of members of commodity committees. 917.115 Nomination of shipper members for 917.21 Nomination of Pear Commodity Com- the Control Committee. mittee members. 917.119 Procedure for nominating members 917.22 Nomination of Peach Commodity for various Commodity Committees; Committee members. meetings. 917.24 Procedure for nominating members of 917.121 Changes in nomination of Pear Com- various commodity committees. modity Committee members. 917.25 Selection of members of various commodity committees. 917.122 Qualification requirements and nom- 917.26 Failure to nominate. ination procedure for public members of 917.27 Alternates. Commodity Committees. 917.28 Procedure for filling vacancies on committees. REGULATION BY GRADES, SIZES, AND MINIMUM 917.29 Organization of committees. STANDARDS OF QUALITY AND MATURITY 917.30 Removal and disapproval. 917.143 Exemptions. 917.31 Compensation and expenses. 917.149 Special purpose shipments. 917.32 Funds and other property. 917.33 Powers of Control Committee. REGULATION OF DAILY SHIPMENTS 917.34 Duties of Control Committee. 917.35 Powers and duties of each commodity 917.150 Lot stamping. committee. REPORTS EXPENSES AND ASSESSMENTS 917.179 Assessment reports. 917.36 Expenses. 917.37 Assessments. Subpart—Assessment Rates 917.38 Accounting. 917.258 Assessment rate. RESEARCH 917.259 Delinquent assessments. 917.39 Production research, market research and development. Subpart—Container and Pack Regulation

REGULATIONS 917.442 California Peach Container and Pack 917.40 Recommendations for regulations. Regulation. 917.41 Issuance of regulations. 917.42 Modification, suspension, or termi- Subpart—Grade and Size Regulation nation of regulations. 917.459 California Peach Grade and Size 917.43 Special purpose shipments. 917.45 Inspection and certification. Regulation. 917.461 Pear Regulation 12. REPORTS AUTHORITY: 7 U.S.C. 601–674. 917.50 Reports.

MISCELLANEOUS PROVISIONS Subpart—Order Regulating 917.60 Effective time. Handling 917.61 Termination. 917.62 Proceedings after termination. SOURCE: 41 FR 17528, Apr. 27, 1976, unless 917.63 Effect of termination or amendment. otherwise noted. 917.64 Compliance. 917.65 Duration of immunities. DEFINITIONS 917.66 Agents. 917.67 Derogation. 917.68 Liability of committee members. § 917.1 Secretary. 917.69 Separability. Secretary means the Secretary of Ag- riculture of the United States, or any Subpart—Rules and Regulations officer or employee of the Department DEFINITIONS to whom authority has heretofore been 917.100 Order. delegated, or to whom authority may 917.101 Marketing agreement. hereafter be delegated, to act in his 917.103 Terms. stead.

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§ 917.2 Act. Provided further, That the term handle Act means Public Act No. 10, 73d Con- shall not include the sale of fruit on gress (May 12, 1933), as amended, and as the tree, the transportation within the reenacted and amended by the Agricul- production area of fruit from the or- tural Marketing Agreement Act of 1937, chard where grown to a packing facil- as amended (48 Stat. 31, as amended; 7 ity located within such area for prepa- U.S.C. 601–674). ration for market, or the delivery of such fruit to such packing facility for § 917.3 Person. such preparation. Person means an individual, partner- [71 FR 41351, July 21, 2006] ship, corporation, association, or any other business unit. § 917.7 Handler. Handler is synonymous with shipper § 917.4 Fruit. and means any person (except a com- Fruit means the edible product of the mon or contract carrier transporting following kinds of trees: fruit owned by another person) who (a) All varieties of peaches grown in handles fruit. the production area; (b) All hybrids grown in the produc- § 917.8 Pure grower or pure producer. tion area exhibiting the characteristics (a) For peaches, pure grower means of a peach and subject to cultural prac- any grower: tices common to peaches as rec- (1) Who produces his or her own prod- ommended by the committee and ap- uct (and is not an employee or officer proved by the Secretary; and of a packing business); or (c) All varieties of pears except (2) Who produces and handles his or Beurre Hardy, Beurre D’Anjou, Bosc, her own product; Provided, That a pure Winter Nelis, Doyenne du Comice, producer can pack the production of Beurre Easter, and Beurre Clairgeau. other growers as long as the production [71 FR 41351, July 21, 2006] packed does not exceed 25 percent of the total production packed for that EFFECTIVE DATE NOTE: At 71 FR 41351, July marketing year by that pure grower’s 21, 2006, in § 917.4, the words ‘‘ and (c) All vari- packing facility. Pure grower is synony- eties of pears except Beurre Hardy, Beurre D’Anjou, Bosc, Winter Nelis, Doyenne du mous with pure producer. Comice, Beurre Easter, and Beurre (b) The committee may establish, Clairgeau’’ were suspended, effective Jan. 1, with the approval of the Secretary, 2007. rules and regulations for the implementation and operation of this sec- § 917.5 Grower. tion. Grower is synonymous with producer [71 FR 41351, July 21, 2006] and means any person who produces fruit for market in fresh form, and who § 917.9 Fiscal period. has a proprietary interest therein. Em- Fiscal period is synonymous with fis- ployees of growers and officers of cor- cal year and means the 12-month pe- porations actively engaged in growing riod ending on the last day of February peaches are eligible to serve in grower of each year, or such other period that positions on the committee. may be approved by the Secretary pur- [71 FR 41351, July 21, 2006] suant to recommendations by the committee. § 917.6 Handle. Handle and ship are synonymous and § 917.11 Production area. mean to sell, consign, deliver or trans- Production area means the State of port fruit or to cause fruit to be sold, California. consigned, delivered or transported between the production area and any § 917.12 Container. point outside thereof, or within the Container means a box, bag, crate, production area: Provided, That for lug, basket, carton, package, or any peaches, packing or causing the fruit other type of receptacle used in the to be packed also constitutes handling; packaging or handling of fruit.

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§ 917.13 Pack. (l) Stockton District includes and consists of San Joaquin County, Amador Pack means the specific arrangement, County, Calaveras County, and Alpine size, weight, count, or grade of a quan- County. tity of fruit in a particular type and (m) Stanislaus District includes and size of container or any combination consists of Merced County, Stanislaus thereof. County, Tuolumne County, and § 917.14 District. Mariposa County. (n) Fresno District includes and con- District means any of the following sists of Madera County, Fresno County, subdivisions of the State of California: and Mono County. (a) North Sacramento Valley District in- (o) Tulare District includes and concludes and consists of Glenn County, sists of Tulare County and Kings Coun- Shasta County, Tehama County, Modoc ty. County, Siskiyou County, Lassen (p) Kern District includes and consists County, Plumas County, and Colusa of that portion of Kern County west of County. the Tehachapi Mountains. (b) Central Sacramento Valley District (q) Tehachapi District includes and includes and consists of Sutter County, consists of that portion of Kern County Butte County, Yuba County, and Sierra not included in Kern District, and Inyo County. County. (c) Sacramento River District includes (r) Southern California District in- and consists of Sacramento County, cludes and consists of San Bernardino that portion of Yolo County east of a County, Orange County, San Diego straight line from the northwest corner County, Imperial County, Riverside of Sacramento County to the North- County, and Los Angeles County. east corner of Solano County, and that (s) North Bay District includes and portion of Solano County east of a consists of Sonoma County, Napa straight line from the northeast corner County, and Marin County. of Solano County to the town of Rio Vista. [41 FR 17528, Apr. 27, 1976, as amended at 71 (d) El Dorado District includes and FR 41351, July 21, 2006] consists of El Dorado County. § 917.15 Representation area. (e) Placer-Colfax District includes and consists of Nevada and Placer Coun- Representation area means any one of ties. the districts or groups of districts (f) Solano District includes and con- which are designated for nominating sists of that portion of Yolo County not members and alternate members to the included in the Sacramento River Dis- commodity committees under §§ 917.21 trict, and that portion of Solano Coun- through 917.22 or as changed pursuant ty not included in the Sacramento to § 917.35(g). River District. [56 FR 46369, Sept. 12, 1991] (g) Contra Costa District includes and consists of Contra Costa County. EFFECTIVE DATE NOTE: At 59 FR 10055, Mar. 3, 1994, in § 917.15, the words ‘‘§ 917.21 through’’ (h) Santa Clara District includes and were suspended, effective April 4, 1994. consists of Alameda County, Monterey County, Santa Clara County, San ADMINISTRATIVE BODIES Mateo County, Santa Cruz County, and San Benito County. § 917.16 Designation of Control Com- (i) Lake District includes and consists mittee. of Lake County. A Control Committee is hereby es- (j) Mendocino District includes and tablished consisting of 12 shipper mem- consists of Mendocino County, Hum- bers and 13 commodity committee boldt County, Trinity County, and Del members, and the members shall be se- Norte County. lected in accordance with the provi- (k) South Coast District includes and sions of § 917.17 through § 917.19. The consists of San Luis Obispo County, members shall be selected annually for Santa Barbara County, and Ventura a term ending on the last day of Feb- County. ruary, and said members shall serve

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until their respective successors are se- have all the powers, duties, and func- lected and have qualified. tions given to the Control Committee under this part and sections of this § 917.17 Nomination of shipper mem- part pertaining to the designation of bers of the Control Committee. the Control Committee shall be termi- Nominations for the 12 members of nated or suspended. the Control Committee to represent (b) A person nominated by any com- shippers shall be made in the following modity committee for membership on manner: the Control Committee shall be an in- (a) By February 1 of each year the dividual person who is a member or al- Control Committee shall announce a ternate member of the commodity time and place for a meeting of all committee that nominates him/her. shippers of fruit and shall conduct the Each member of each commodity com- election of nominees at such meeting. mittee shall have only one vote in the At said election meeting the shippers selection of nominees for membership present shall select a nominee for each on the Control Committee. of the shipper member positions on the Control Committee. Each shipper shall § 917.19 Selection of members of the cast only one vote. Control Committee. (b) No shipper shall be entitled to From the nominations made pursu- participate in the nomination of mem- ant to § 917.17, or from other persons, bers of the Control Committee, or be the Secretary shall select the shipper eligible for membership on such com- members of the Control Committee. mittee, if such shipper has failed to pay From the nominations made pursuant the assessments, due to be paid by him to § 917.18, or from other persons, the pursuant to the provisions of § 917.37. Secretary shall select the commodity committee members of the Control § 917.18 Nomination of commodity Committee. Any person selected as committee members of the Control Committee. member of the Control Committee shall qualify by filing with the Sec- Nominations for the 13 members of retary a written acceptance of the ap- the Control Committee to represent pointment. the commodity committees shall be made in the following manner: § 917.20 Designation of members of (a) A nomination for one member commodity committees. shall be made by each commodity com- There are hereby established a Pear mittee selected pursuant to § 917.25. Commodity Committee and a Peach Nominations for the remaining mem- Commodity Committee each consisting bers shall be made by the respective of 13 members. Each commodity com- commodity committees as provided in mittee may be increased by one public this section. The number of remaining member nominated by the respective members which each respective com- commodity committee and selected by modity committee shall be entitled to the Secretary. The members of each nominate shall be based upon the pro- said committees shall be selected bien- portion that the previous three fiscal nially for a term ending on the last day periods’ shipments of the respective of February of odd numbered years, fruit is of the total shipments of all and such members shall serve until fruit to which this part is applicable their respective successors are selected during such periods. In the event provi- and have qualified. The members of sions of this part are terminated or each commodity committee shall be se- suspended as to any fruit, nominations lected in accordance with the provi- of members to the Control Committee sions of § 917.25. shall be composed of representatives of any remaining fruit.The apportion- [41 FR 17528, Apr. 27, 1976, as amended at 56 ment shall be determined as afore- FR 46369, Sept. 12, 1991]

said.In the event provisions of this part EFFECTIVE DATE NOTE: At 59 FR 10055, Mar. are terminated or suspended as to any 3, 1994, in § 917.20, the words ‘‘a Pear Com- fruit, the members of the commodity modity Committee and’’ were suspended, ef- committee of the remaining fruit shall fective April 4, 1994.

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§ 917.21 Nomination of Pear Com- February 15 for pears of each odd num- modity Committee members. bered year a meeting or meetings of Nominations for membership on the the growers of the fruits in each rep- Pear Commodity Committee shall be resentation area set forth in §§ 917.21 made by the growers of pears in the re- and 917.22. These meetings shall be su- spective representation areas as fol- pervised by the Control Committee, lows: which shall prescribe such procedure as (a) North Sacramento Valley District shall be reasonable and fair to all per- and the Central Sacramento Valley sons concerned. District one nominee. (b) With respect to each commodity (b) Sacramento River District, committee only growers of the par- Stockton District, Stanislaus District, ticular fruit who are present at such Contra Costa District, Santa Clara Dis- nomination meetings or represented at trict, and Solano District four nomi- such meetings by duly authorized em- nees. ployees may participate in the nomina- (c) Placer-Colfax District one nomi- tion and election of nominees for com- nee. modity committee members and alter- (d) Lake District four nominees. nates. Each such grower, including em- (e) Mendocino District and the North ployees of such grower, shall be enti- Bay District one nominee. tled to cast but one vote for each posi- (f) El Dorado District one nominee. tion to be filled for the representation (g) All of the production area not in- area in which he produces such fruit. cluded in paragraphs (a) through (f) of All peach growers, or authorized em- this section one nominee. ployees, will receive a ballot for the

EFFECTIVE DATE NOTE: At 59 FR 10055, Mar. nominees in the district in which they 3, 1994, § 917.21 was suspended, effective April produce and are entitled to vote ac- 4, 1994. cordingly. A peach grower who produces in multiple districts is allowed § 917.22 Nomination of Peach Com- to vote only in one district, and may modity Committee members. exchange his/her ballot for that of Nominations for membership on the nominees in another district provided Peach Commodity Committee shall be the grower is producing in the district made by growers of peaches in the re- for which he/she wants to participate. spective representation areas, as fol- For both commodity committees, each lows: such grower, including employees of (a) District 1 composed of the Fresno such grower, shall be entitled to cast District: seven nominees. but one vote for each position to be (b) District 2 composed of the Tulare filled for the representation area in District: three nominees. which he/she produces such fruit. (c) District 3 composed of the (c) A particular grower, including Tehachapi District and Kern District: employees of such growers, shall be eli- one nominee. gible for membership as principle or al- (d) District 5 composed of the South ternate to fill only one position on a Coast District and Southern California commodity committee. A grower nomi- District: one nominee. nated for membership on the Pear (e) District 4 composed of the Commodity Committee must have pro- Stanislaus District, Stockton District duced at least 51 percent of the pears and all of the production area not in- shipped by him during the previous fis- cluded in paragraphs (a) through (d) of cal period, or he must represent an or- this section: one nominee. ganization which produced at least 51 [71 FR 41352, July 21, 2006] percent of the pears shipped by it during such period. The members and al- § 917.24 Procedure for nominating ternates of the Peach Commodity Com- members of various commodity mittee shall be growers, or shall be au- committees. thorized employees of such growers and (a) The Control Committee shall hold at least 50% of the nominees from each or cause to be held not later than Jan- representation area shall be pure grow- uary 31 for peaches and not later than ers.

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(d) For peaches, no person shall serve § 917.26 Failure to nominate. more than three (3) consecutive two- If nominations are not made within year terms of office or a total of six (6) the time and in the manner prescribed consecutive years; Provided, That an in §§ 917.21 through 917.24, the Secretary appointment to fill less than a two- may, without regard to nominations, year term of office, or serving one (1) select the member and alternate mem- term as an alternate, shall not be in- bers of commodity committees on the cluded in determining the (3) consecu- basis of representation provided in tive terms of office; Provided further, §§ 917.21 and 917.22. In the event nomi- That time served prior to the effective nations are not made for membership date of this section shall not be count- on the Control Committee, pursuant to ed toward consecutive term limits. The the provisions of §§ 917.17 and 917.18, by members shall serve until their respec- May 1 of each year, the Secretary may tive successors are selected and have select such members without waiting qualified. for nominees to be designated. [41 FR 17528, Apr. 27, 1976, as amended at 56 [41 FR 17528, Apr. 27, 1976, as amended at 56 FR 46369, Sept. 12, 1991; 71 FR 41352, July 21, FR 46369, Sept. 12, 1991] 2006] EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. EFFECTIVE DATE NOTES: 1. At 59 FR 10055, 3, 1994, in § 917.26, the words ‘‘§ 917.21 through’’ Mar. 3, 1994, in § 917.24, paragraph (a), the and ‘‘§ 917.21 and’’ were suspended, effective words ‘‘§ 917.21 and’’ and in paragraph (c) the April 4, 1994. words ‘‘A grower nominated for membership on the Pear Commodity Committee must § 917.27 Alternates. have produced at least 51 percent of the There shall be an alternate for each pears shipped by him during the previous fis- member of the Control Committee, and cal period, or he must represent an organization which produced at least 51 percent of an alternate for each member of each the pears shipped by it during such period.’’ commodity committee. Each such al- were suspended, effective Apr. 4, 1994. ternate shall possess the same quali- 2. At 72 FR 7821, Feb. 21, 2007, in § 917.24, fications, shall be nominated and se- paragraph (a), the words ‘‘and not later than lected in the same manner and shall February 15 for pears’’ were suspended effec- hold office for the same term, as the tive February 21, 2007. member for whom he is alternate. An alternate shall, in the event of such § 917.25 Selection of members of var- member’s absence at a meeting of the ious commodity committees. committee, act in the place and stead (a) The Secretary shall select the of such member; and, in the event of members of each commodity com- such member’s removal, resignation, mittee from nominations made by disqualification, or death, the alter- growers, as provided in §§ 917.21 through nate for such member shall, until a 917.24, or from among other eligible successor for the unexpired term of persons. Any person selected as a mem- said member has been selected, act in ber of a commodity committee shall the place and stead of said member. In qualify by filing with the Secretary a the event both a member and his alter- written acceptance of the appointment. nate are unable to attend a meeting the member or the committee members (b) For the Peach Commodity Com- present may designate any other alter- mittee, each person to be selected by native to serve in such member’s place the Secretary as a member or as an al- and stead provided such action is nec- ternate member of the committee essary to secure a quorum. shall, prior to such selection, qualify by advising the Secretary that he/she § 917.28 Procedure for filling vacancies agrees to serve in the position for on committees. which nominated for selection. To fill any vacancy on the Control EFFECTIVE DATE NOTE: At 71 FR 41352, July Committee or on any of the commodity 21, 2006, in § 917.25, paragraph (a), the words committees occasioned by the failure ‘‘§ 917.21 through’’ were suspended, effective of any person selected as a member or Jan. 1, 2007. as an alternate member to qualify, or

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in the event of the death, removal, res- after confirm in writing his/her vote so ignation, or disqualification of any cast. member or alternate member, a suc- [41 FR 17528, Apr. 27, 1976, as amended at 56 cessor for the unexpired term of such FR 46369, Sept. 12, 1991; 71 FR 41352, July 21, member or alternate shall be nomi- 2006] nated and selected in the manner speci- EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. fied in §§ 917.17 through 917.19 and 3, 1994, in § 917.29, in paragraph (b), the words §§ 917.21 through 917.25. If the names of ‘‘of the Pear Commodity Committee and’’ and nominees to fill any such vacancy are ‘‘each’’ were suspended, effective April 4, 1994. not made available to the Secretary within a reasonable time after such va- § 917.30 Removal and disapproval. cancy occurs, the Secretary may fill The members of the Control Com- such vacancy without regard to nomi- mittee, including their respective suc- nations on the basis of representation cessors and alternates, and the mem- provided for in §§ 917.16, 917.21 and bers of each commodity committee, in- 917.22. cluding their respective successors and alternates, and any agent or employee [41 FR 17528, Apr. 27, 1976, as amended at 56 appointed or employed by the Control FR 46369, Sept. 12, 1991] Committee and the members of any EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. other committee established pursuant 3, 1994, in § 917.28, the words ‘‘§ 917.21 through’’, to the provisions of this subpart shall and ‘‘, 917.21’’ were suspended, effective April be subject to removal or suspension at 4, 1994. any time by the Secretary. Each regulation, decision, determination, or § 917.29 Organization of committees. other act of the Control Committee, or (a) A majority of all of the members any commodity committee, or any of the Control Committee shall con- other committee established pursuant stitute a quorum, and any action of the to the provisions of this subpart, shall Control Committee shall require the be subject to the continuing right of concurrence of the majority of all the Secretary to disapprove of the members present at the meeting. same at any time; and, upon such dis- (b) A quorum of the Pear Commodity approval, each such regulation, deci- Committee and of the Peach Com- sion, determination, or other act, shall be deemed null and void except as to modity Committee shall each consist acts done in reliance thereon or in of nine members. compliance therewith prior to such dis- (c) The Control Committee and each approval by the Secretary. commodity committee shall give to the Secretary the same notice of each § 917.31 Compensation and expenses. meeting that is given to the members All committee members shall serve of the respective committee. without compensation, but said mem- (d) The Control Committee or any bers, and their respective alternates, commodity committee may, upon due shall be reimbursed for expenses nec- notice to all of the members of the re- essarily incurred in the performance of spective committee, vote by letter, their duties. At its discretion any com- telegraph or telephone: Provided, That mittee may request the attendance of any member voting by telephone shall one or more alternates at any or all promptly thereafter confirm in writing meetings, notwithstanding the ex- his/her vote so cast. The Peach Com- pected or actual presence of the respec- modity Committee may, upon due no- tive members, and may pay expenses as tice to all of the members of the re- aforesaid. spective committee, vote by letter, telegraph, telephone, facsimile, video § 917.32 Funds and other property. teleconference, or any other means of (a) All funds received by the Control communication recommended by the Committee, pursuant to the provisions committee and approved by the Sec- of this part, shall be used solely for the retary; Provided, That any member vot- purpose specified in this part; and the ing by telephone shall promptly there- Secretary may require the Control

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Committee and its members to account shipping, and marketing conditions re- for all receipts and disbursements. specting fruit, as defined in § 917.4; to (b) Upon the resignation, removal, or engage in such research and service ac- expiration of the term of any member tivities in connection with the han- or employee of the Control Committee, dling of such fruit as may be approved, or of any member of any commodity from time to time, by the Secretary; committee, all books, records, funds, and to furnish to the Secretary such and other property in his possession be- available information as may be re- longing to the Control Committee or quested. any commodity committee shall be de- (d) To appoint such employees, livered to the Control Committee or to agents, and representatives as it may his successor in office; and such assign- deem necessary, and to determine the ments and other instruments shall be compensation and define the duties of executed as may be necessary to vest each. in the Control Committee full title to (e) To develop and provide the com- all the books, records, funds, and other modity committees data on shared ex- property in the possession or under the penses to facilitate equitable appor- control of such member or employee, tionment of such expenses in the devel- pursuant to the provisions of this part. opment of budgets. (c) The Control Committee may, with (f) To confer with representatives of the approval of the Secretary, main- shippers and growers of fruit produced tain in its own name, or in the name of in other states and areas with respect its members, a suit against any shipper to the formulation or operation of mar- for the collection of such shipper’s pro keting agreements providing for the rata share of expenses, pursuant to the regulation of shipments among the sev- provisions of this part. eral states and areas in the United States in which such fruit is grown. § 917.33 Powers of Control Committee. (g) With the approval of the Sec- The Control Committee shall have retary establish procedures for the se- the following powers: lection and appointment of a public (a) To administer, as specifically pro- member and alternate to each of the vided in this part, the terms and provi- commodity committees. sions of this part. (h) To establish and define the duties (b) To make administrative rules and of additional committees or sub- regulations in accordance with and to committees to assist in the perform- effectuate the terms and provisions of ance of any of the duties and functions this part. of the Control Committee. (c) To receive, investigate, and report (i) To defend all legal proceedings to the Secretary complaints of viola- against any committee members (indi- tions of the provisions of this part. vidually or as members) or any officers (d) To recommend to the Secretary or employees of such committees aris- amendments to this part. ing out of any act or omission made in good faith pursuant to the provisions § 917.34 Duties of Control Committee. of this part. The Control Committee shall have (j) To cause the books of the Control the following duties: Committee to be audited by a com- (a) To act as intermediary between petent accountant at least once each the Secretary and any grower or ship- fiscal period and at such other time or pers. times as the Control Committee may (b) To keep minute books and records deem necessary or as the Secretary which will clearly reflect all of the acts may request. Such audit shall indicate and transactions of said Control Com- whether the funds have been received mittee; and such minute books and and expended in accordance with the records shall be subject at any time to provisions of this part. examination by the Secretary or by (k) To appoint nomination commit- such person as may be designated by tees if it deems proper for any or each the Secretary. nomination meeting held pursuant to (c) To investigate, from time to time, §§ 917.21 and 917.22. Such nomination and assemble data on the growing, committees would canvas prospective

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members and alternate members to the §§ 917.40 through 917.43 to determine the commodity committees to determine marketing policy to be followed for the their eligibility and willingness to respective commodity during the ensu- serve and present a slate of nominees ing fiscal period and to submit such to the meeting or meetings. The pres- policy to the Secretary, said policy re- entation of nominees by the nomi- port to contain, among other provi- nating committee at these meetings sions, information relative to the esti- shall not exclude the right of any grow- mated total production and shipments er to nominate any eligible person at of the fruit by districts, information as such meeting. to the expected general quality and size of fruit, possible or expected de- [41 FR 17528, Apr. 27, 1976, as amended at 56 FR 46369, Sept. 12, 1991] mand conditions of different market outlets, supplies of competitive com- EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. modities, such analysis of the fore- 3, 1994, in § 917.34, in paragraph (k), the words going factors and conditions as the ‘‘§ 917.21 and’’ were suspended, effective April 4, 1994. committee deems appropriate, and the type of regulations of shipments ex- § 917.35 Powers and duties of each pected to be recommended for the re- commodity committee. spective fruit. Each commodity committee shall (f) To submit as soon as practicable have the following powers and duties: after the beginning of each fiscal year (a) With regard to the respective to the Secretary, for his approval, a fruit for which it was established, to budget of its expenses for such fiscal establish production research and mar- period, including its proportional share keting research and development of the expenses of the Control Com- projects as authorized under § 917.39, to mittee and an explanation of the items recommend to the Secretary regula- therein, and a recommendation as to tion of shipments pursuant to the pro- the rate of assessment for the respec- visions of this part, and to possess such tive fruit for which the commodity other powers and exercise such other committee was established. duties as will properly effectuate the (g) With the approval of the Sec- purpose of this part: Provided, however, retary, to redefine the Districts into That the Peach and Pear Commodity which the State of California has been Committee shall each approve actions divided under § 917.14 or change the rep- under § 917.39 and make said rec- resentation of any representation area ommendations pursuant to §§ 917.40 affecting the respective commodity through 917.43 only upon the affirma- committee: Provided, however, That if tive vote of not less than nine members any such changes are made, representa- of each said committee. tion on any such committee from the (b) To make such rules and regula- various representation areas shall be tions with respect to fruit for which it based, so far as practicable, upon the was established as may be necessary to proportionate quantity of the respec- effectuate the terms and provisions of tive fruit shipped from the respective this part. representation area during the pre- (c) To forward to the Control Com- ceding three fiscal periods: Provided mittee and to the Secretary a record of further, That the commodity commit- the minutes of each meeting of the tees shall follow the principle, so far as commodity committee. practicable, of assigning a member po- (d) To establish such other commit- sition on the commodity committees tees to aid the commodity committee to any representation area from which in the performance of its duties under five percent of regulated shipments this part as may be deemed advisable. have originated during such periods. To establish subcommittees to aid the [41 FR 17528, Apr. 27, 1976, as amended at 56 Peach Commodity Committee in the FR 46369, Sept. 12, 1991; 71 FR 41352, July 21, performance of its duties under this 2006] part as may be deemed advisable. EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. (e) Each season prior to any rec- 3, 1994, in § 917.35, in paragraph (a), the words ommendation to the Secretary for a ‘‘and Pear’’ and ‘‘each’’ were suspended every- regulation of shipments pursuant to where they appear, effective April 4, 1994.

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EXPENSES AND ASSESSMENTS such approval, all assessments for peaches not paid within the prescribed § 917.36 Expenses. period of time shall be subject to an in- Each commodity committee is au- terest or late payment charge or both. thorized to incur such expenses as the (c) In order to provide funds to carry Secretary finds are reasonable and are out the functions of the commodity likely to be incurred by the said com- committee prior to commencement of modity committee during each fiscal shipments in any season, shippers may period for the maintenance and func- make advance payments of assess- tioning of such committee, including ments, which advance payments shall its proportionate share of the expenses be credited to such shippers and the as- of the Control Committee; and for such sessments of such shippers shall be ad- research and service activities relating justed so that such assessments are to handling of the fruit for which the based upon the quantity of fruit commodity committee was established shipped by such shippers during such as the Secretary may determine to be season. Any shipper who ships fruit for appropriate. The funds to cover such the account of a grower may deduct, expenses shall be acquired by the lev- from the account of sale covering such ying of assessments as provided in shipment or shipments, the amount of § 917.37. assessments levied on said fruit shipped for the account of such grower. § 917.37 Assessments. [71 FR 41352, July 21, 2006] (a) As his/her pro rata share of the expenses which the Secretary finds are § 917.38 Accounting. reasonable and are likely to be in- If, at the end of a fiscal period the as- curred by the commodity committees sessments collected are in excess of ex- during a fiscal period, each handler penses incurred, each commodity com- shall pay to the Control Committee, mittee, with the approval of the Sec- upon demand, assessments on all fruit retary, may carry over such excess into handled by him/her. The payment of as- subsequent fiscal periods as a reserve: sessments for the maintenance and Provided, That funds already in the re- functioning of the committees may be serve do not exceed approximately one required under this part throughout fiscal period’s expenses. Such reserve the period it is in effect irrespective of funds may be used (1) to cover any ex- whether particular provisions thereof penses authorized by this part and (2) are suspended or become inoperative. to cover necessary expenses of liquida- (b) The Secretary shall fix the re- tion in the event of termination of this spective rate of assessment, which han- part. If any such excess is not retained dlers shall pay with respect to each in a reserve, each handler entitled to a fruit during each fiscal period in an proportionate refund shall be credited amount designed to secure sufficient with such refund against the oper- funds to cover the respective expenses, ations of the following fiscal period or which may be incurred during such pe- be paid such refund. Upon termination riod. At any time during or after the of this part, any funds not required to fiscal period, the Secretary may in- defray the necessary expenses of liq- crease the rates of assessment in order uidation shall be disposed of in such to secure funds to cover any later find- manner as the Secretary may deter- ings by the Secretary relative to such mine to be appropriate: Provided, That, expenses, and such increase shall apply to the extent practical, such funds to all fruit shipped during the fiscal pe- shall be returned pro rata to the per- riod. Furthermore, any assessment not sons from whom such funds were col- paid by a peach handler within a period lected. of time prescribed by the Control Com- mittee may be subject to an interest or RESEARCH late payment charge, or both. The period of time, rate of interest and late § 917.39 Production research, market payment charge shall be as rec- research and development. ommended by the committee and ap- The committees, with the approval of proved by the Secretary. Subsequent to the Secretary, may establish or provide

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for the establishment of production re- rity during any period when season av- search, marketing research, and devel- erage prices are expected to exceed the opment projects designed to assist, im- parity level; prove, or promote the marketing, dis- (3) Fix the size, capacity, weight, di- tribution, and consumption or efficient mensions, markings, or pack of the production of fruit. Such projects may container, or containers, which may be provide for any form of marketing pro- used in the packaging or handling of motion including paid advertising. The any fruit. expenses of such projects shall be paid (b) The commodity committee shall from funds collected pursuant to be informed immediately of any such § 917.37. regulation issued by the Secretary, and the commodity committee shall REGULATIONS promptly give notice thereof to handlers. § 917.40 Recommendations for regulations. § 917.42 Modification, suspension, or (a) Whenever a commodity com- termination of regulations. mittee deems it advisable to regulate (a) In the event the commodity com- the handling of any variety or varieties mittee at any time finds that, by rea- of fruit in the manner provided in son of changed conditions, any regula- § 917.41, it shall so recommend to the tions issued pursuant to § 917.41 should Secretary. be modified, suspended, or terminated, (b) In arriving at its recommenda- it shall so recommend to the Sec- tions for regulation pursuant to para- retary. graph (a) of this section, the com- (b) Whenever the Secretary finds, modity committee shall give consider- from the recommendations and infor- ation to current information with re- mation submitted by the commodity spect to the factors affecting the sup- committee or from other available in- ply and demand for such fruit during formation, that a regulation should be the period or periods when it is pro- modified, suspended, or terminated posed that such regulation should be with respect to any or all shipments of made effective. With each such rec- fruit in order to effectuate the declared ommendation for regulation, the com- policy of the act, he shall modify, sus- modity committee shall submit to the pend, or terminate such regulation. If Secretary the data and information on the Secretary finds that a regulation which such recommendation is predi- obstructs or does not tend to effectuate cated and such other available infor- the declared policy of the act, he shall mation as the Secretary may request. suspend or terminate such regulation. On the same basis and in like manner § 917.41 Issuance of regulations. the Secretary may terminate any such (a) The Secretary shall regulate, in modification or suspension. the manner specified in this section, the handling of any variety or varieties § 917.43 Special purpose shipments. of fruit whenever he finds, from the (a) Except as otherwise provided in recommendations and information sub- this section, any person may, without mitted by the commodity committee, regard to the provisions of §§ 917.37, or from other available information, 917.41, and 917.42, and the regulations that such regulations will tend to ef- issued thereunder, handle fruit (1) for fectuate the declared policy of the act. consumption by charitable institu- Such regulations may: tions; (2) for distribution by relief (1) Limit, during any period or peri- agencies; or (3) for commercial proc- ods, the total quantity of any grade, essing into products. size, quality, maturity, or pack, or any (b) Upon the basis of recommenda- combination thereof, of any variety or tions and information submitted by the varieties of fruit; commodity committee, or from other (2) Limit the shipment of any variety available information, the Secretary or varieties of fruit by establishing, in may relieve from any or all require- terms of grades, sizes, or both, min- ments, under or established pursuant imum standards of quality and matu- to § 917.41, § 917.42, § 917.45, or § 917.37,

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the handling of fruit; (1) To designated this section, for any or all fruits, and market areas outside the continental may collect from handlers their respec- United States; (2) for such specified tive pro rata shares of such costs. purposes (including shipments to facilitate the conduct of marketing research REPORTS and development projects established pursuant to § 917.39); or (3) in such min- § 917.50 Reports. imum quantities or types of shipments, (a) Each handler shall furnish to the as may be prescribed. Manager of the Control Committee, at (c) The commodity committee shall, such times and for such periods as the with the approval of the Secretary, Control Committee or the commodity prescribe such rules, regulations, and committees may designate, certified safeguards as it may deem necessary to reports covering, to the extent nec- prevent fruit handled under the provi- essary for the committees to perform sions of this section from entering the their functions, each shipment of fruits channels of trade for other than the as follows: specified purposes authorized by this (1) The name of the shipper and the section. Such rules, regulations, and shipping point; safeguards may include the require- (2) The car or truck license number ments that handlers shall file applica- (or name of the trucker), and identi- tions and receive approval from the fication of the carrier; commodity committee for authoriza- (3) The date and time of departure; tion to handle fruit pursuant to this (4) The number and type of con- section, and that such applications be tainers in the shipment; accompanied by a certification by the (5) The quantities shipped, showing intended purchaser or receiver that the separately the variety, grade, and size fruit will not be used for any purpose of the fruit; not authorized by this section. (6) The destination; (7) Identification of the inspection § 917.45 Inspection and certification. certificate or waiver pursuant to which (a) Whenever the handling of any va- the fruit was handled; riety of a particular fruit is regulated (8) The price per package at which pursuant to § 917.41 or § 917.42, each han- sold, including specific and detailed in- dler who handles such fruit shall, prior formation relative to all discounts, al- thereto, cause such fruit to be in- lowances, rebates, or other adjust- spected by the Federal or Federal- ments thereof. State Inspection Service: Provided, (b) Upon request of any committee, That inspection and certification shall made with the approval of the Sec- not be required if such fruit has pre- retary, each handler shall furnish to viously been so inspected and certified. the Manager of the Control Committee, Promptly after inspection and certifi- in such manner and at such times as it cation, each such handler shall submit, may prescribe, such other information or cause to be submitted, to the com- as may be necessary to enable the commodity committee a copy of the cer- mittee to perform its duties under this tificate of inspection issued with re- part. spect to such fruit. The commodity (c) Each handler shall maintain for committees may, with the approval of at least two succeeding fiscal years, the Secretary, prescribe rules and regu- such records of the fruits received and lations waiving the inspection require- disposed of by him as may be necessary ments of this section where it is deter- to verify the reports he submits to the mined that inspection is not available: committee pursuant to this section. Provided, That all shipments made (d) All reports and records submitted under such waiver shall comply with by handlers pursuant to the provisions all regulations in effect. of this section shall be received by, and (b) The Control Committee may at all times be in custody of, one or enter into an agreement with the Fed- more designated employees of the Con- eral and Federal-State Inspection Serv- trol Committee. No such employee ices with respect to the costs of the in- shall disclose to any person, other than spection required by paragraph (a) of the Secretary upon request therefor,

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data or information obtained or ex- ceived by the Control Committee prior tracted from such reports and records to October 1 of the then current fiscal which might affect the trade position, period. Upon recommendation of the financial condition, or business oper- Control Committee, received not later ation of the particular handler from than December 1 of the then current whom received: Provided, That such fiscal period, the Secretary shall con- data and information may be com- duct a referendum among the growers bined, and made available to any per- of the particular kind of fruit prior to son, in the form of general reports in February 15 of such fiscal period to as- which the identities of the individual certain whether continuance of this handlers furnishing the information part is favored by producers. are not disclosed and may be revealed (e) The Secretary shall conduct a ref- to any extent necessary to effect com- erendum within the period beginning pliance with the provisions of this part December 1, 1974, and ending February and the regulations issued thereunder. 15, 1975, to ascertain whether continuance of this part as to any fruit in- MISCELLANEOUS PROVISIONS cluded in this part is favored by the § 917.60 Effective time. growers. The Secretary shall conduct such a referendum within the same pe- The provisions of this part and of any riod of every fourth fiscal period there- amendment thereto, shall become ef- after. fective at such time as the Secretary (f) The provisions of this part shall, may declare above his signature and in any event, terminate whenever the shall continue in force until termi- provisions of the act authorizing them nated in one of the ways specified in cease to be in effect. § 917.61.

§ 917.61 Termination. § 917.62 Proceedings after termination. (a) The Secretary may at any time (a) Upon the termination of the pro- terminate the provisions of this part visions of this part pertaining to any by giving at least one day’s notice by fruit or fruits, the Control Committee means of a press release or in any other then functioning shall for the purpose manner in which he may determine. of liquidating the affairs of the Control (b) The Secretary shall terminate or Committee with respect to such fruit suspend the operation of any and all of continue as trustee of all the funds and the provisions of this part whenever he property then in its possession, or finds that such provisions do not tend under its control, including claims for to effectuate the declared policy of the any funds unpaid or property not deliv- act. ered at the time of such termination. (c) The Secretary shall terminate the (b) The said trustees shall (1) con- provisions of this part or the applica- tinue in such capacity until discharged bility of the provisions of this part as by the Secretary; (2) from time to time to a particular fruit whenever he finds account for all receipts and disburse- by referendum or otherwise that such ments and deliver all property on hand, termination is favored by a majority of together with all books and records of the growers of the fruit: Provided, That the committee and of the trustees, to such majority has during the current such persons as the Secretary may di- fiscal period produced more than 50 rect; and (3) upon the request of the percent of the volume of the fruit Secretary, execute such assignments or which was produced within the produc- other instruments necessary or appro- tion area for shipment in fresh form. priate to vest in such person, full title Such termination shall become effec- and right to all funds, property, and tive on the first day of March subse- claims vested in the Control Com- quent to the announcement therof by mittee or the trustees pursuant there- the Secretary. to. (d) The Control Committee shall con- (c) Any person to whom funds, prop- sider all petitions from growers sub- erty, or claims have been transferred mitted to it for termination of this or delivered, pursuant to this section, part provided such petitions are re- shall be subject to the same obligation

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imposed upon the Control Committee whenever such action is deemed advis- and upon the trustees. able.

§ 917.63 Effect of termination or § 917.68 Liability of committee mem- amendment. bers. Unless otherwise expressly provided No members of the Control Com- by the Secretary, the termination of mittee, any commodity committee, or this subpart or of any regulation issued other committee, or any sub- pursuant to this subpart, or the committee, or any employee of the issuance of any amendment to either Control Committee shall be held per- thereof, shall not (a) affect or waive sonally responsible, either individually any right, duty, obligation, or liability or jointly with others, in any way which shall have arisen or which may whatsoever, to any shipper or any thereafter arise in connection with any other person for errors in judgment, provision of this subpart or any regula- mistakes, or other acts, either of com- tion issued under this subpart, or (b) mission or omission, as such member release or extinguish any violation of or employee, except for acts of dishon- this subpart or of any regulation issued esty. under this subpart, or (c) affect or impair any rights or remedies of the Sec- § 917.69 Separability. retary or of any other person with re- If any provision of this part is de- spect to any such violation. clared invalid or the applicability thereof to any person, circumstance, § 917.64 Compliance. thing, or any particular kind of fruit is Each shipper shall comply with all held invalid, the validity of the re- regulations. No shipper shall ship fruit mainder of this part or the applica- in violation of the provisions of this bility thereof to any other person, cir- part or in violation of any regulation cumstance, thing, or kind of fruit shall issued by the Secretary pursuant to not be affected thereby. the provisions of this part.

§ 917.65 Duration of immunities. Subpart—Rules and Regulations The benefits, privileges, and immuni- SOURCE: 16 FR 12776, Dec. 20, 1951, unless ties conferred by virtue of the provi- otherwise noted. Redesignated at 26 FR 12751, sions of this subpart shall cease upon Dec. 30, 1961. its termination except with respect to acts done under and during the time DEFINITIONS the provisions of this part are in force and effect. § 917.100 Order. Order means Marketing Order No. § 917.66 Agents. 917, as amended (this part 917), regu- The Secretary may by a designation lating the handling of fresh pears and in writing name any person, including peaches grown in the State of Cali- any officer or employee of the Govern- fornia. ment or any agency or Division in the United States Department of Agri- [31 FR 7476, May 5, 1966, as amended at 56 FR culture, to act as his agent or rep- 46369, Sept. 12, 1991] resentative in connection with any of EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. the provisions of this part. 3, 1994, in § 917.100, the words ‘‘pears and’’ were suspended, effective April 4, 1994. § 917.67 Derogation. § 917.101 Marketing agreement. Nothing contained in this part is or shall be construed to be in derogation Marketing agreement means Mar- or in modification of the rights of the keting Agreement No. 85 as amended. Secretary or of the United States to exercise any powers granted by the act § 917.103 Terms. or otherwise, and in accordance with All other terms used in this subpart such powers to act in the premises shall have the same meaning as when

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used in the marketing agreement and only to the Pear Commodity Com- order. mittee. [18 FR 712, Feb. 4, 1953. Redesignated at 26 (b) The manager of the then existing FR 12751, Dec. 30, 1961] Control Committee shall arrange for, and publicize, meetings of growers to GENERAL nominate members for the different commodity committees, and each such § 917.110 Communications. meeting shall be attended by one or Unless otherwise prescribed in this more employees of the Control Com- subpart, or in the marketing agree- mittee. Members of the Agricultural ment and order, or required by the Extension Service of the University of Control Committee, or a particular California may be authorized by the commodity committee, all reports, ap- manager to assist in calling such meet- plications, submittals, requests, and ings and advise growers, on their re- communications in connection with spective mailing lists, of such meet- the marketing agreement and order ings. shall be addressed as follows: (c) Growers assembled at any such meetings may select a chairman and California Tree Fruit Agreement, P.O. Box secretary, but in the event none of the 968, Reedley, CA, 93654–0968. aforesaid employees of the Control [63 FR 16041, Apr. 1, 1998, as amended at 71 Committee is selected as secretary of FR 78041, Dec. 28, 2006] the meeting, one such employee shall, nevertheless, record all nominations ADMINISTRATIVE BODIES made. § 917.115 Nomination of shipper mem- (d) The nominations at any meeting bers for the Control Committee. shall be conducted according to Rob- ert’s rules of order. However, voting (a) All shippers who, prior to Feb- ruary 1 of the then current year, have may be by secret ballot or by acclama- not advised the manager of the Control tion in accordance with the desire of Committee in writing of their partici- the majority of the growers attending pation in the formation of an elective the meeting. body shall be notified promptly by the (e) No individual, whether rep- manager after that date, by mail, of resenting a corporation or otherwise, the time and place for a meeting of may cast more than one vote for each such shippers to elect nominees for nominee to be selected at the meeting shipper membership on the Control where such individual is eligible to par- Committee. ticipate in the selection of nominees (b) The chairman of the then existing for members and alternate members of Control Committee shall schedule a the Commodity Committees. meeting of shippers in the month of [16 FR 12776, Dec. 20, 1951, as amended at 24 February of the then current year, for FR 470, Jan. 21, 1959. Redesignated at 26 FR the purpose of making nominations to 12751, Dec. 30, 1961, as amended at 71 FR the shipper membership of the Control 78041, Dec. 28, 2006] Committee; and such chairman is authorized to appoint a member of the § 917.121 Changes in nomination of Control Committee to act as chairman Pear Commodity Committee members. of the meeting and to conduct the election. Nominations for membership on the Pear Commodity Committee shall be § 917.119 Procedure for nominating made by the growers of pears in the re- members for various Commodity spective representation areas as fol- Committees; meetings. lows: (a) The nomination procedures that (a) North Sacramento Valley Dis- appear in paragraphs (b) and (c) of this trict, Central Sacramento Valley Dis- section apply to both the Peach and trict, Placer-Colfax District, El Dorado Pear Commodity Committees, and the District, and all of the production area voting procedures that appear in para- not included in paragraphs (b) through graphs (d) and (e) of this section apply (d) of this section, one nominee.

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(b) Sacramento River District, (2) The Federal-State Inspection Stockton District, Stanislaus District, Service advises the handler that it is Contra Costa District, Santa Clara Dis- not practicable to provide inspection at trict and Solano District, three nomi- the time and place designated by the nees. handler. Such advice may be verbal but (c) Lake District, six nominees. it shall be confirmed in writing by the (d) Mendocino District and North Federal-State Inspection Service by Bay District, three nominees. execution of the waiver form on which the handler submitted his written re- [52 FR 12513, Apr. 17, 1987] quest. A confirmed copy thereof shall EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. be forwarded by the inspection service 3, 1994, § 917.121 was suspended, effective April to the office of the Control Committee; 4, 1994. (3) The Federal-State Inspection Service furnishes the handler with the § 917.122 Qualification requirements and nominiation procedure for pub- number of the waiver which shall cover lic members of Commodity Commit- the fruit on which inspection is re- tees. quested; (4) When so instructed, the handler (a) Public members shall not have a plainly and conspicuously marks one financial interest in or be associated end of each container with the letter W with production, processing, financing, and the waiver number supplied by the or marketing (except as consumers) of Federal-State Inspection Service. The the commodities regulated under this letter W and the number so marked part. shall be not less than one-half inch in (b) Public members should be able to height. devote sufficient time and express a (b) Minimum quantities. Notwith- willingness to attend committee ac- standing any other provisions of this tivities regularly, and to familiarize section, pears and peaches may be han- themselves with the background and dled without regard to the provisions economics of the industry. of §§ 917.37, 917.41, 917.42, 917.45 and (c) Public members must be residents 917.50 under the following conditions: of California. (1) Such pears and peaches meet the (d) Public members should be nomi- grade requirements set forth in Arti- nated by each Commodity Committee cles 35, 38, and 34, respectively of the and should serve a two-year term Food and Agriculture Code of Cali- which coincides with the term of office fornia. of grower members of Commodity Com- (2) Such pears and peaches are for mittees. home use and not for resale. [42 FR 3625, Jan. 19, 1977, as amended at 43 (3) The shipment does not exceed 200 FR 58355, Dec. 14, 1978] pounds of pears and 200 pounds of peaches to any one vehicle during any REGULATION BY GRADES, SIZES, AND one day. MINIMUM STANDARDS OF QUALITY AND (4) Such pears and peaches are han- MATURITY dled by the person who produces them; and the handling takes place (i) on the § 917.143 Exemptions. premises where grown, (ii) at a pack- (a) Waivers. A handler may handle inghouse or retail stand nearby which fruit without inspection and certifi- is operated by said handler, or (iii) at a cation, as prescribed under § 917.45, if certified farmers market in compliance all the following conditions are met: with section 1392 of the regulations of (1) The handler requests the Federal- the California Department of Food and State Inspection Service to provide in- Agriculture: Provided, That the exemp- spection during its regular working tion for certified farmers markets shall hours at least two hours in advance of not apply to fruit sorted out by a han- the time when inspection is needed. dler unless such fruit is packed in con- The request need not be in writing but tainers clearly and legibly marked to it shall be confirmed immediately in show that the fruit contained therein writing on a waiver form supplied by is only to be sold at a certified farmers the inspection service; market, and the handler complies with

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regulations established under §§ 917.37, mittee that the pears will not be han- 917.41(a)(1), 917.45, and 917.50, except dled contrary to the requirements of that such fruit may be handled to such the marketing agreement and order. markets if the fruit fails to meet the Such proof shall include a written cer- applicable grade only on account of tificate, executed by both the handler being soft and overripe. and the intended receiver, stating that the pears will not be used for any pur- [31 FR 7476, May 24, 1966, as amended at 41 FR 22071, June 1, 1976; 41 FR 28509, July 12, pose not authorized by this section. 1976; 42 FR 22875, May 5, 1977; 47 FR 30452, [41 FR 31180, July 27, 1976] July 14, 1982; 49 FR 36361, Sept. 17, 1984; 53 FR 18818, May 25, 1988; 56 FR 46369, Sept. 12, 1991] EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. 3, 1994, § 917.149 was suspended, effective April EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. 4, 1994. 3, 1994, in § 917.143, (b) introductory text and paragraphs (b)(1), (b)(2), and (b)(4) the words REGULATION OF DAILY SHIPMENTS ‘‘pears and’’, and in paragraph (b)(3) the words ‘‘200 pounds of pears and’’, were suspended, ef- § 917.150 Lot stamping. fective April 4, 1994. Except when loaded directly into § 917.149 Special purpose shipments. railway cars, exempted under § 917.143, Any person may file a request with or for peaches mailed directly to con- the Pear Commodity Committee to sumers in consumer packages, all ex- transport pears to a packing facility posed or outside containers of peaches located in the State of Oregon without marked ‘‘CA WELL MAT’’ or ‘‘California inspection and certification prior to Well Matured’’, and not less than 75 such transporting. The committee may percent of the total containers on a approve such a request subject to the pallet, shall be plainly stamped, prior following terms and conditions: to shipment, with a Federal-State In- (a) Approval shall be requested by spection Service lot stamp number, as- the person prior to transporting the signed by such Service, showing that pears out of the area of production. such fruit has been USDA inspected in (b) Such person shall file with the accordance with § 917.45: Provided, That committee, in such manner as re- pallets of returnable plastic containers quired, reports showing, among other shall have the lot stamp numbers af- things, the date and quantity of pears fixed to each pallet with a USDA-ap- comprising each shipment of pears proved pallet tag, in addition to the lot transported to Oregon and the disposi- stamp numbers and other required in- tion thereof. formation on cards on the individual (c) All such pears shall be of the per- containers. son’s own production and the packing [72 FR 18854, Apr. 16, 2007] facility to which they are transported must be owned and operated by that REPORTS person. (d) All such pears shall be inspected § 917.176 Pears. and certified, as required by § 917.45, by (a) Report of daily packout. When re- the Federal or Federal-State Inspec- quested by the Pear Commodity Com- tion Service prior to the time such mittee, each shipper who ships pears pears are shipped from the packing fa- shall furnish to the manager of the cility. Any pears shipped to any such Control Committee or when designated facility which, upon inspection, do not to the Federal-State Inspection Service meet the requirements of the then ef- a report of the number of packages by fective grade, size, or quality regula- container type, by variety and by dis- tions, may be shipped, or handled, trict of origin, which the shipper within the State, for consumption by packed during the preceding day. any charitable institution or for dis- (b) Recapitulation of shipments. When tribution by any relief agency or for requested by the Pear Commodity conversion into products. Prior to any Committee, each shipper of pears shall such shipment or handling, there shall furnish to the manager of the Control first have been submitted to the com- Committee a recapitulation of his ship- mittee proof satisfactory to the com- ments. The recapitulation shall show:

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(1) The name of the shipper, (b) In addition to that specified in (2) The shipping point, paragraph (a) of this section, the Peach (3) The district of origin, Commodity Committee shall impose an (4) The variety, and interest charge on any assessment pay- (5) The number of packages, by size, ment that has not been received in the for each container type. Peach Commodity Committee’s office, (c) Report of pears held in storage. or legibly postmarked by the U.S. Each shipper who has pears under re- Postal Service, within 60 days of the frigeration in a storage warehouse invoice date. The interest charge shall shall upon request, file with the man- be 1.5 percent per month and shall be ager of the Control Committee within applied to the unpaid balance and late the time specified in the request an ac- payment charge for the number of days curate report containing the following all or any part of the assessment speci- information: fied in the handler’s assessment state- (1) The name and address of the shipment is delinquent beyond the 60 day per; and payment period. (2) The total quantity, as of the date [72 FR 25947, May 8, 2007] specified in the request, of pears in storage outside of the State of Cali- fornia and in storage in the State of Subpart—Container and Pack California. Regulation [39 FR 27117, July 25, 1974] § 917.442 California Peach Container and Pack Regulation. EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. 3, 1994, § 917.176 was suspended, effective April (a) During the period beginning April 4, 1994. 1 and ending November 23, no handler EDITORIAL NOTE: After January 1, 1979, shall ship any package or container of ‘‘Budget of Expenses and Rate of Assessment’’ any variety of peaches marked ‘‘CA regulations (e.g. sections .200 through .299) WELL MAT’’ or ‘‘California Well Ma- and ‘‘Handling’’ regulations (e.g. sections .300 tured’’ except in accordance with the through .399) which are in effect for a year or following terms and conditions: less, will not be carried in the Code of Fed- (1) Such peaches, when packed in any eral Regulations. For FEDERAL REGISTER ci- closed package or container, except tations affecting these regulations, see the List of CFR Sections Affected, which appears master containers of consumer pack- in the Finding Aids section of the printed ages, individual consumer packages, volume and at www.fdsys.gov. and five down Euro containers, shall conform to the requirements of stand- Subpart—Assessment Rates ard pack: Provided, That peaches in any such volume-filled container need only § 917.258 Assessment rate. be filled to within one-inch of the top of the container. On and after March 1, 2010, an assess- (2) Each package or container of ment rate of $0.026 per 25-pound con- peaches shall bear, on one outside end tainer or container equivalent of in plain sight and in plain letters, the peaches is established for California word peaches. peaches. ‘‘ ’’ (3) Each package or container of [75 FR 31279, June 3, 2010] peaches bearing the words ‘‘California Well Matured’’ or ‘‘CA WELL MAT’’ § 917.259 Delinquent assessments. shall be well matured as defined in (a) The Peach Commodity Committee § 917.459. shall impose a late payment charge on (4) Each package or container of any assessment that has not been re- peaches shall bear, on one outside end ceived in the Peach Commodity Com- in plain sight and in plain letters, the mittee’s office, or legibly postmarked name and address of the shipper. by the U.S. Postal Service, within 60 (5) Each package or container of days of the invoice date shown on the peaches, except consumer packages handler’s assessment statement. The mailed directly to consumers, shall late payment charge shall be 10 percent bear on one outside end in plain sight of the unpaid balance. and in plain letters, the following

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count and/or size description of the basis of an 8-pound sample, a 16-pound peaches as applicable: sample shall be used to determine if (i) The size of peaches packed in the fruit meets the minimum size re- molded forms (tray-packs) in the No. quirements. 22D and No. 32 standard boxes, cartons, or consumer packages; No. 22G stand- TABLE 1—WEIGHT-COUNT STANDARDS FOR ALL ard lug boxes or experimental con- VARIETIES OF PEACHES (EXCEPT PEENTO tainers; or No. 12B fruit (peach) boxes TYPE PEACHES) PACKED IN LOOSE-FILLED OR or flats; and the size of wrapped peach- TIGHT-FILLED CONTAINERS es packed in rows in No. 12B fruit Column B— (peach) boxes shall be indicated in ac- Maximum number of cordance with the number of peaches in peaches in a each container, such as ‘‘80 count,’’ ‘‘88 16-pound count,’’ etc. sample appli- Column A— cable to vari- (ii) The size of peaches in molded Tray pack size designation eties specified in paragraphs forms (tray-packs) in experimental (a)(2)(ii), containers, and in the No. 22G standard (a)(3)(ii), (a)(4)(ii), lug boxes, shall be indicated according (a)(5)(ii), and to the number of such peaches when (b)(3) of packed in molded forms in the No. 22D § 917.459 standard lug box or the No. 32 standard 96 ...... 96 box, in accordance with the require- 88 ...... 92 ments of standard pack, such as ‘‘80 84 ...... 83 80 ...... 77 size,’’ ‘‘88 size,’’ etc., along with count 72 ...... 69 requirements in paragraph (a)(5)(i) of 70 ...... 65 this section. 64 ...... 58 60 ...... 53 (iii) The size of peaches loose-filled or 56 ...... 48 tight-filled in any container shall be 54 ...... 46 indicated according to the number of 50 ...... 43 48 ...... 41 such peaches when packed in molded 44 ...... 37 forms in No. 22D or No. 32 standard 42 ...... 34 boxes, in accordance with the require- 40 ...... 32 ments of standard pack, such as 80 36 ...... 29 ‘‘ 34 ...... 28 size,’’ ‘‘88 size,’’ etc. 32 ...... 25 (iv) The size of peaches, when packed 30 ...... 23 in loose-filled or tight-filled con- 28 ...... 21 26 ...... 20 tainers, shall be marked in accordance with the following table 1 and table 2 which specify the tray-pack size des- TABLE 2—WEIGHT-COUNT STANDARDS FOR ALL ignation in Column A with the cor- VARIETIES OF PEACHES (EXCEPT PEENTO responding maximum number of peach- TYPE PEACHES) PACKED IN LOOSE-FILLED OR es in a 16-pound sample of each size of TIGHT FILLED CONTAINERS the fruit in Column B: Provided, That Column B— the following procedure shall be used in Maximum number of determining whether peaches meet the peaches in a minimum size requirements specified 16-pound Column A— sample appli- for each size category in this section Tray pack size designation cable to vari- applying the 16-pound sample. A sam- eties specified in paragraphs ple consisting of one-half of the speci- (a)(6)(ii) and fied number of fruit for a particular (c)(3) of size category shall be used, provided § 917.459 such sample weighs at least eight 96 ...... 96 pounds. When one-half the specified 88 ...... 83 number of fruit in a sample results in 84 ...... 79 80 ...... 73 a number ending with one-half a fruit, 72 ...... 66 the smaller full number of fruit shall 70 ...... 62 be used to determine the sample 64 ...... 56 60 ...... 52 weight. If a sample fails with respect to 56 ...... 47 minimum size requirements on the 54 ...... 46

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TABLE 2—WEIGHT-COUNT STANDARDS FOR ALL in plain sight and in plain letters, the VARIETIES OF PEACHES (EXCEPT PEENTO words ‘‘25 pounds net weight.’’ TYPE PEACHES) PACKED IN LOOSE-FILLED OR (8) Each No. 22E standard lug box of TIGHT FILLED CONTAINERS—Continued loose-filled peaches shall bear on one outside end, in plain sight and in plain Column B— Maximum letters, the words 35 pounds net weight. number of (9) Each bulk bin container of loose- peaches in a 16-pound filled peaches shall contain not less Column A— sample appli- than 100 pounds net weight, and bear Tray pack size designation cable to varieties specified on one outside panel, in plain sight and in paragraphs in plain letters, the following informa- (a)(6)(ii) and (c)(3) of tion: § 917.459 (i) The name and address (including zip code) of the shipper. 50 ...... 42 48 ...... 41 (ii) The net weight. 44 ...... 37 (10) Each master container when 42 ...... 34 filled with peaches packed in consumer 40 ...... 32 packages shall bear on one outside end 36 ...... 29 34 ...... 28 in plain sight and in plain letters the 32 ...... 25 following information: 30 ...... 23 (i) The number of individual con- 28 ...... 21 sumer packages, the net weight of each 26 ...... 20 consumer package, and the size description of the contents: Provided, TABLE 3—WEIGHT-COUNT STANDARDS FOR That when consumer packages of dif- PEENTO TYPE PEACHES PACKED IN LOOSE- ferent sizes of peaches are contained in FILLED OR TIGHT-FILLED CONTAINERS a master container, the size description Column B— of the contents shall indicate the min- Maximum imum size contained therein, using the number of Column A—Tray pack size designation peaches in terms ‘‘Minimum size 60 and larger,’’ or a 16-pound ‘‘Minimum size 70 and larger,’’ etc., as sample applicable. 80 ...... 140 (ii) The name and address (including 72 ...... 128 zip code) of the shipper. 70 ...... 111 (11) Each individual consumer pack- 64 ...... 99 60 ...... 93 age shall bear the name and address, 56 ...... 87 including the zip code, of the shipper 54 ...... 80 and the net weight. When a consumer 50 ...... 77 package is not in a master container, it 48 ...... 74 44 ...... 70 must also bear the number of peaches 42 ...... 68 contained in the package and be 40 ...... 59 marked as specified in paragraph (a)(3) 36 ...... 53 of this section. 34 ...... 50 32 ...... 39 (b) As used in this section, ‘‘standard 30 ...... 32 pack’’ and ‘‘fairly uniform in size’’ shall have the same meaning as set forth in (6) The variation in diameter between the U.S. Standards for Grade of Peach- the smallest and largest peach in any es (Secs. 51.1210 to 51.1223) and all other individual container shall not exceed terms shall have the same meaning as one-forth (1⁄4) inch for size 80 and small- when used in the amended marketing er and three-eights (3⁄8) inch for peaches agreement and order. A No. 12B stand- larger than size 80: Provided, That not ard fruit box measures 23⁄8 to 71⁄8 × 111⁄2 more than five (5) percent, by count, of × 161⁄8 inches, a No. 22D standard lug the peaches in any individual container box measures 27⁄8 to 71⁄8 × 131⁄2 × 161⁄8 may fail to meet the diameter require- inches, a No. 22E standard lug box ments of this paragraph. measures 83⁄4 × 13 1⁄2 × 16 inches, a No. (7) Each No. 22D standard lug box or 22G standard lug box measures 73⁄8 to No. 32 standard box of loose-filled 71⁄2 × 131⁄4 × 157⁄8 inches, a No. 32 stand- peaches shall bear on one outside end, ard box measures 53⁄4 to 71⁄4 × 12 × 193⁄4

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inches, a No. 35 standard box measures damaged, but not seriously damaged: 31⁄2 to 715⁄16 × 159⁄16 to 15 13⁄16 × 231⁄4 to 233⁄4 Provided further, That peaches of the inches, and a No. 36 standard box meas- Peento type shall be permitted blossom ures 5 to 61⁄2 × 131⁄4 × 171⁄4 inches. All di- end cracking that is well healed and mensions are given in depth (inside di- does not exceed the aggregate area of a mensions) by width and by length (out- circle 3⁄8 inch in diameter, and/or does side dimensions). ‘‘Individual consumer not exceed a depth that exposes the pit; packages’’ means packages holding 15 Provided further, That any handler may pounds or less net weight of peaches. handle peaches if such peaches meet ‘‘Tree ripe’’ means ‘‘tree ripened’’ and ‘‘CA Utility’’ quality requirements. The fruit shipped and marked as ‘‘tree ripe,’’ term ‘‘CA Utility’’ means that not more ‘‘tree ripened,’’ or any similar terms than 40 percent of the peaches in any using the words ‘‘tree’’ and ‘‘ripe’’ must container meet or exceed the require- meet the minimum California Well Ma- ment of the U.S. No. 1 grade, except tured standards. that when more than 30 percent of the (c) Each container of peaches in plas- peaches in any container meet or ex- tic, 12×193⁄4 inch reusable and recyclable ceed the requirements of the U.S. No. 1 containers shall meet and bear, on the grade, the additional 10 percent shall container lid or on the outside end, all have non-scoreable blemishes as deter- applicable marking requirements under mined when applying the U.S. Stand- the order. ards for Grades of Peaches; and that (d) During the period April 1 through such peaches are well mature and are: November 23, each container or pack- (i) Free from insect injury which has age when packed with peaches meeting penetrated or damaged the flesh; split ‘‘CA Utility’’ quality requirements, pits which cause an unhealed crack or shall bear the words ‘‘CA Utility,’’ along one or more healed cracks which, ei- with all other required container ther singly or in the aggregate, are markings, in letters at least 3⁄8 inch in more than 1⁄2 inch in length; and mold, height on the visible display panel. brown rot, and decay; and Consumer bags or packages must also (ii) Free from serious damage due to be clearly marked on the consumer cuts, skin breaks, growth cracks, bags or packages as ‘‘CA Utility,’’ along bruises, scab, rust, blight, disease, hail with all other required markings, in or other causes. Damage to any peach 3 letters at least ⁄8 inch in height. is serious when it causes a waste of 10 [50 FR 39074, Sept. 27, 1985] percent or more, by volume, of the in- EDITORIAL NOTE: For FEDERAL REGISTER ci- dividual peach. tations affecting § 917.442, see the List of CFR (iii) Tolerances. Not more than 10 per- Sections Affected, which appears in the cent, by count, of the peaches in any Finding Aids section of the printed volume container may be below the require- and at www.fdsys.gov. ments prescribed by this paragraph. Not more than one-half of this toler- Subpart—Grade and Size ance shall be allowed for any one Regulation cause. Individual containers in any lot may contain not more than one and § 917.459 California Peach Grade and one-half times the tolerances specified Size Regulation. if the percentage of defects of the en- (a) During the period beginning April tire lot averages within the tolerances. 1 and ending November 23, no handler (iv) The Federal or Federal-State In- shall ship any package or container of spection Service shall make the final any variety of peaches marked ‘‘CA determinations on maturity through WELL MAT’’ or ‘‘California Well Ma- the use of color chips or other tests as tured’’ except in accordance with the determined appropriate by the inspec- following terms and conditions: tion agency. The Federal or Federal- (1) Any lot or package or container of State Inspection Service will use the any variety of peaches shall meet the maturity guides listed in Table 1 in following requirements of U.S. No. 1 making maturity determinations for grade: Provided, That an additional 25 the specified varieties when inspecting percent tolerance shall be permitted to the ‘‘well matured’’ level of matu- for fruit with open sutures which are rity. For these varieties, not less than

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90 percent of any lot shall meet the TABLE 1—Continued color guide established for the variety, Column B ma- and an aggregate area of not less than Column A variety turity guide 90 percent of the fruit surface shall meet the color guide established for Flavorcrest ...... G Flavor Joy ...... H the variety, except that for the Joanna Flavor Queen ...... H Sweet variety of peaches, any of the Flavor Red ...... G fruit surface that is not red shall meet Franciscan ...... G Goldcrest ...... H the color guide established for the vari- Golden Princess ...... L ety, including any color noted in the Henry III ...... J stem cavity. For varieties not listed, Honey Red ...... G the Federal or Federal-State Inspec- Island Princess ...... H Joanna Sweet ...... J tion Service will use such tests as it John Henry ...... J deems proper. A variance for any vari- July Elberta ...... C ety from the application of the matu- June Lady ...... G Junelicious ...... I rity guides specified in Table 1 may be June Pride ...... J granted during the season to reflect Kaweah ...... L changes in crop, weather, or other con- Kern Sun ...... H Kingscrest ...... H ditions that would make the specified Kings Lady ...... I guides an inappropriate measure of Kings Red ...... I ‘‘well matured.’’ King Sweet ...... I Lacey ...... I TABLE 1 Lady Lou ...... I Lady Sue ...... L Late Ito Red ...... L Column B ma- Column A variety turity guide Madonna Sun ...... J Magenta Queen ...... J Angelus ...... I May Crest ...... G August Dream ...... J May Sun ...... I August Lady ...... L May Sweet ...... I Autumn Flame ...... J Merrill Gem ...... G Autumn Gem ...... I Merrill Gemfree ...... G Autumn Lady ...... H Morning Lord ...... J Autumn Red ...... J O’Henry ...... I Autumn Rose ...... H Pacifica ...... G Bev’s Red ...... I Pretty Lady ...... J Blum’s Beauty ...... G Prima Gattie 8 ...... L Bright Princess ...... L Prima Gattie 10 ...... J Brittney Lane ...... J Prima Peach IV ...... J Burpeachfive (July Flame®) ...... L Prima Peach 23 ...... J Burpeachfourteen (Spring Flame® 20) ...... J Queencrest ...... G Burpeachone (Spring Flame® 21) ...... J Ray Crest ...... G Burpeachsix (June Flame®) ...... L Red Dancer (Red Boy) ...... I Burpeachthree (September Flame®) ...... I Redhaven ...... G Burpeachtwo (Henry II®) ...... J Red Lady ...... G Cal Red ...... I Redtop ...... G Candy Red ...... J Regina ...... G Carnival ...... I Rich Lady ...... J Cassie ...... H Rich May ...... H Coronet ...... E Rich Mike ...... H Crimson Lady ...... J Rio Oso Gem ...... I Crown Princess ...... J Royal Lady ...... J Country Sweet ...... J Royal May ...... G David Sun ...... I Ruby May ...... H Diamond Princess ...... J Ryan Sun ...... I Earlirich ...... H September Sun ...... I Earlitreat ...... H Sharise ...... J Early Delight ...... H Shelly ...... J Early Elegant Lady ...... L Sierra Gem ...... J Early May Crest ...... H Sierra Lady ...... I Early O’Henry ...... I Sierra Rich ...... J Early Top ...... G Sparkle ...... I Elberta ...... B Sprague Last Chance ...... L Elegant Lady ...... L Springcrest ...... G Fairtime ...... G Spring Delight ...... G Fancy Lady ...... J Spring Gem ...... J Fay Elberta ...... C Spring Lady ...... H Fire Red ...... I Springtreat (60EF32) ...... I First Lady ...... D Sugar Time (214LC68) ...... I Flamecrest ...... I Summer Fling ...... L

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TABLE 1—Continued than 96 peaches except for Peento type peaches. Column B ma- Column A variety turity guide (3) Any package or container of Is- land Prince, Snow Peak, Spring Prin- Summer Kist ...... J cess, or Super Rich variety peaches un- Summer Lady ...... L Summerset ...... I less: Summer Zee ...... L (i) Such peaches when packed in Suncrest ...... G molded forms (tray packs) in a No. 22D Supechfour (Amber Crest) ...... G Super Chief ...... H standard lug box or a No. 32 standard Super Rich ...... H box are of a size that will pack, in ac- Sweet Amber ...... J cordance with the requirements of Sweet Blaze ...... J standard pack, not more that 88 peach- Sweet Crest ...... H Sweet Dream ...... J es in the box; or Sweet Gem ...... J (ii) Such peaches in any container Sweet Kay ...... J when packed other than as specified in Sweet Mick ...... J Sweet Scarlet ...... J paragraph (a)(3)(i) of this section are of Sweet September ...... I a size that a 16-pound sample rep- Topcrest ...... H resentative of the peaches in the pack- Tra Zee ...... J Vista ...... J age or container, contains not more Willie Red ...... G than 92 peaches except for Peento type Zee Diamond ...... J peaches. Zee Lady ...... L (4) Any package or container of May

NOTE: Consult with the Federal or Federal- Saturn (Early Saturn) variety peaches State Inspection Service Supervisor for the unless: maturity guides applicable to the varieties (i) Such peaches when packed in not listed above. On varieties with less than molded forms (tray pack) in a No. 22D 10 percent surface ground color required to standard lug box are of a size that will determine California Well-Matured, the stem pack, in accordance with the require- cavity color will be utilized to make the de- ments of standard pack, not more than termination. As a guide, stem cavities for 84 peaches in the box; or most varieties should be at least yellowish- green as defined by the H maturity guide. (ii) Such peaches when packed in a Confirmation may be further established by No. 12B standard fruit (peach) box are using other California well matured charac- of a size that will pack, in accordance teristics. with the requirements of a standard (v) If a grower or handler believes his/ pack, not more than 65 peaches in the her fruit is meeting the box; or appropriatematurity level but the fruit (iii) Such peaches in any container has not been so graded by the inspec- when packed other than as specified in tor, he/she may appeal the inspection paragraph (a)(4) (i) and (ii) of this sec- by calling the officer-in-charge of the tion are of a size that a 16-pound sam- local Federal-State Inspection Service ple, representative of the peaches in office to arrange for an on-site exam- the package or container, contains not ination of the fruit. more than 83 peaches except for Peento (2) Any package or container of type peaches. Earlitreat, Snow Angel, Supechfifteen, (5) Any package or container of Bab- or Super Lady variety peaches unless: cock, Bev’s Red, Bright Princess, (i) Such peaches when packed in Brittney Lane, Burpeachone (Spring molded forms (tray packs) in a No. 22D Flame® 21), Burpeachfourteen (Spring standard lug box or a No. 32 standard Flame® 20), Burpeachnineteen (Spring box are of a size that will pack, in ac- Flame® 22), Candy Red, Crimson Lady, cordance with the requirements of Crown Princess, Early May Crest, standard pack, not more that 96 peach- Flavorcrest, Honey Sweet, Ivory Duch- es in the box; or ess, Ivory Queen, June Lady, Magenta (ii) Such peaches in any container Queen, May Crest, May Sweet, Prima when packed other than as specified in Peach IV, Queencrest, Rich May, paragraph (a)(2)(i) of this section are of Sauzee Queen, Scarlet Queen, Sierra a size that a 16-pound sample, rep- Snow, Snow Brite, Springcrest, Spring resentative of the peaches in the pack- Lady, Spring Snow, Springtreat age or container, contains not more (60EF32), Sugar Time (214LC68),

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Supecheight (012–094), Supechnine, Snow Jewel, Snow King, Snow Magic, Sweet Scarlet, or Zee Diamond variety Snow Princess, Sprague Last Chance, peaches unless: Strawberry, Sugar Crisp, Sugar Giant, (i) Such peaches when packed in Summer Dragon, Summer Fling, Sum- molded forms (tray packs) in a No. 22D mer Lady, Summer Sweet, Summer standard lug box or a No. 32 standard Zee, Sweet Blaze, Sweet Dream, Sweet box are of a size that will pack, in ac- Henry, Sweet September, Tra Zee, Val- cordance with the requirements of ley Sweet, Vista, White Lady, or Zee standard pack, not more that 80 peach- Lady variety peaches unless: es in the box; or (i) Such peaches when packed in (ii) Such peaches when packed in a molded forms (tray packs) in a No. 22D No. 12B standard fruit (peach) box are standard lug box or a No. 32 standard of a size that will pack, in accordance box are of a size that will pack, in ac- with the requirements of standard cordance with the requirements of pack, not more than 65 peaches in the standard pack, not more than 80 peach- box; or es in the box; or (iii) Such peaches in any container (ii) Such peaches when packed in a when packed other than as specified in No. 12B standard fruit (peach) box are paragraph (a)(5)(i) and (ii) of this sec- of a size that will pack in accordance tion are of a size that a 16-pound sam- with the requirements of standard ple, representative of the peaches in pack, not more than 65 peaches in the the package or container, contains not lug box. more than 77 peaches except for Peento (iii) Such peaches in any container type peaches. when packed other than as specified in (6) Any package or container of paragraphs (a)(6)(i) and (ii) of this sec- 116LM397, 382LN469, August Lady, Au- tion are of a size that a 16-pound sam- gust Saturn, Autumn Flame, Autumn ple, representative of the peaches in Jewel, Autumn Red, Autumn Rich, Au- the package or container, contains not tumn Rose, Autumn Snow, Autumn more than 66 peaches, or if the peaches Sun, Burpeachtwo (Henry II®), Burpeachthree (September Flame®), are ‘‘well matured,’’ not more than 73 Burpeachfour (August Flame®), peaches, except for Peento type peach- Burpeachfive (July Flame®), es. Burpeachsix (June Flame®), (b) During the period April 1 through Burpeachseven (Summer Flame® 29), June 30 of each fiscal period, no han- Burpeachfifteen (Summer Flame® 34), dler shall handle any package or con- Burpeachtwenty (Summer Flame®), tainer of any variety of peaches not Burpeachtwentyone (Summer Flame® specifically named in paragraphs (a)(2), 26), Candy Princess, Country Sweet, (a)(3), (a)(4), (a)(5), or (a)(6) of this sec- Crimson Jewel, Diamond Candy, Dia- tion unless: mond Princess, Earlirich, Early Ele- (1) Such peaches when packed in gant Lady, Elegant Lady, Fancy Lady, molded forms (tray packs) in a No. 22D Fay Elberta, Full Moon, Galaxy, Gla- standard lug box or a No. 32 standard cier White, Golden Moon, Henry III, box are of a size that will pack, in ac- Henry IV, Ice Princess, Ivory King, cordance with the requirements of Ivory Princess, Jasper Gem, Jillie standard pack, not more that 96 peach- White, Joanna Sweet, John Henry, es in the box; or Kaweah, Klondike, Last Tango, Na- (2) Such peaches when packed in a tures #10, O’Henry, Peach-N-Cream, No. 12B standard fruit (peach) box are Pearl Princess, Pink Giant, Pink of a size that will pack in accordance Moon, Prima Gattie 8, Prima Peach 13, with the requirements of standard Prima Peach XV, Prima Peach 20, pack, not more than 65 peaches in the Prima Peach 23, Prima Peach XXVII, box; or Queen Jewel, Rich Lady, Ruby Queen, (3) Such peaches in any container Ryan Sun, Saturn (Donut), September when packed other than as specified in Blaze, September Snow, September paragraphs (b)(1) and (b)(2) of this sec- Sun, Sierra Gem, Sierra Rich, Snow tion are of a size that a 16-pound sam- Beauty, Snow Blaze, Snow Duchess, ple, representative of the peaches in Snow Fall, Snow Gem, Snow Giant, the package or container, contains not

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more than 96 peaches, except for packages shall have not more than one Peento type peaches. and one-half times the tolerance speci- (c) During July 1 through October 31 fied. For packages which contain more of each fiscal period, no handler shall than 10 pounds and a tolerance of less handle any package or container of any than 10 percent is provided, individual variety of peaches not specifically packages shall have not more than named in paragraphs (a)(2), (a)(3), double the tolerance specified. (a)(4), (a)(5), or (a)(6) of this section un- (2) For packages which contain 10 less: pounds or less, individual packages are (1) Such peaches when packed in not restricted as to the percentage of molded forms (tray packs) in a No. 22D defects. standard lug box or a No. 32 standard (f) As used herein, U.S. No. 1, mature, box are of a size that will pack, in ac- and standard pack, mean the same as cordance with the requirements of defined in the United States Standards standard pack, not more that 80 peach- for Grades of Peaches (7 CFR 51.1210 es in the box; or through 51.1223); and No. 22D standard (2) Such peaches when packed in a lug box and No. 12B standard fruit No. 12B standard fruit (peach) box are (peach) box mean the same as defined in of a size that will pack in accordance section 1380.19 (18) of the ‘‘Regulations with the requirements of standard of the California Department of Food pack, not more than 65 peaches in the and Agriculture’’. Well matured means a box; or condition distinctly more advanced (3) Such peaches in any container than mature. when packed other than as specified in [59 FR 15841, Apr. 5, 1994] paragraphs (c)(1) and (c)(2) of this sec- EDITORIAL NOTES: 1. For FEDERAL REGISTER tion are of a size that a 16-pound sam- citations affecting § 917.459, see the List of ple, representative of the peaches in CFR Sections Affected, which appears in the the package or container, contains not Finding Aids section of the printed volume more than 73 peaches, except for and at www.fdsys.gov. Peento type peaches. 2. At 74 FR 7782, Feb. 20, 2009, § 917.459 was (d) The following procedure shall be amended by adding paragraph (a)(6)(iii); how- used in determining whether peaches ever, the amendment could not be incor- meet the minimum size requirements porated due to an inaccurate amendatory in- specified for each size category in this struction. For the convenience of the user, the added text is set forth as follows. section applying a 16-pound sample. A sample consisting of one-half of the § 917.459 California peach grade and size number of fruit specified for a 16-pound regulation. sample for a particular size category (a) * * * shall be used, provided such sample (6) * * * weighs at least eight pounds. When (iii) Such peaches in any container when packed other than as specified in paragraphs one-half the specified number of fruit (a)(6)(i) and (ii) of this section are of a size in a sample results in a number ending that a 16-pound sample, representative of the with one-half a fruit, the smaller full peaches in the package or container, con- number of fruit shall be used to deter- tains not more than 73 peaches, except for mine the sample weight. If a sample Peento type peaches. fails with respect to minimum size requirements on the basis of an 8-pound * * * * * sample, a 16-pound sample shall be used to determine if the fruit meets the § 917.461 Pear Regulation 12. minimum size requirements. (a) No handler shall ship: (e) Container tolerances. The contents (1) Bartlett or Max-Red (Max-Red of individual packages in the lot are Bartlett, Red Bartlett) varieties of subject to the following limitations, pears which do not grade at least U.S. provided the averages for the entire lot Combination with not less than 80 per- are within the tolerances specified in cent, by count, of the pears grading at this part: least U.S. No. 1: Provided, That for the (1) For packages which contain more 1992 crop year, no handler shall ship or- than 10 pounds, and a tolerance of 10 ganic pears of these varieties unless percent or more is provided, individual they grade at least U.S. Combination

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with not less than 50 percent, by count, pears (not packed in rows and not wrap grading at least U.S. No. 1 and the repacked), other than consumer packages mainder grading at least U.S. No. 2, ex- in master containers and consumer cept that russeting shall not be scored packages not in master containers, un- as a defect for such organic pears. Han- less (i) such boxes or containers are dlers who intend to ship organic pears well filled with pears fairly uniform in in accordance with this paragraph shall size; (ii) such pears are packed fairly provide, upon request of the com- tight; (iii) there is an approved top pad mittee, with the approval of the Sec- in each box or container that will cover retary, information to indicate that the fruit with no more than 1⁄4 inch be- the pears were grown in accordance tween the pad and any side or end of with the provisions of paragraph (b)(5) the box or container; and (iv) the top of of this section. the box or container shall be securely (2) Any box or container, including fastened to the bottom: Provided, That consumer packages in master con- 10 percent of the boxes or containers in tainers and consumer packages not in any lot may fail to meet the require- master containers, of Bartlett or Max- ments of this paragraph. Red (Max-Red Bartlett, Red Bartlett) (7) Each master container, when varieties of pears unless such pears are filled with pears packed in consumer of a size not smaller than the size packages, shall bear on one outside end known commercially as size 165; in plain sight and plain letters the va- (3) Any box or container, other than rietal name and size description of the consumer packages in master con- contents; the number of consumer tainers and consumer packages not in packages packed in the master con- master containers, of Bartlett or Max- tainer; the net weight of each con- Red (Max-Red Bartlett, Red Bartlett) sumer package; and the name and ad- varieties of pears unless such box or dress, including zip code, of the han- container is stamped or otherwise dler. marked, in plain sight and in plain let- (8) Each individual consumer pack- ters, on one outside end with the name age shall bear the name and address, of the variety; including the zip code, of the handler (4) Bartlett or Max-Red (Max-Red and the net weight of the contents. Bartlett, Red Bartlett) varieties of When a consumer package is not pears, when packed in closed con- shipped in a master container, it must tainers, other than consumer packages also bear the varietal name, number in master containers and consumer and size description of pears contained packages not in master containers, un- in the package. less such box or container conforms to (b) Definitions. (1) Size known commer- the requirement of standard pack, ex- cially as size 165 means a size of pear cept that such pears may be fairly that will pack a standard pear box, tightly packed; packed in accordance with the speci- (5) Bartlett or Max-Red (Max-Red fications of standard pack, with 165 Bartlett, Red Bartlett) varieties of pears and that one-half of the count pears, when packed in other than a size designated, representative of the closed container, unless such pears do size of the pears in the box or con- not vary more than 3⁄8 inch in their tainer, shall weigh at least 22 pounds. transverse diameter for counts 120 or (2) Standard pear box means the con- less, and 1⁄4 inch for counts 135 to 165, tainer so designated in § 1380.19 of the inclusive: Provided, That 10 percent of regulations of the California Depart- the containers in any lot may fail to ment of Food and Agriculture. meet the requirements of this subpara- (3) U.S. No. 1, U.S. No. 2, U.S. Combina- graph: Provided further, That such vari- tion, and Standard Pack mean the same eties of pears shipped in bulk bin con- as defined in the United States Stand- tainers containing 300 pounds or more ards for Summer and Fall Pears (7 CFR of pears shall be exempt from the re- 51.1260 to 51.1280). quirements in this subparagraph. (4) Approved top pad shall mean a pad (6) Any volume-filled box or con- of wood-type excelsior construction, tainer of Bartlett or Max-Red (Max- fairly uniform in thickness, weighing Red Bartlett, Red Bartlett) varieties of at least 160 pounds per 1,000 square feet

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(e.g., an 11 inch by 17 inch pad will 920.33 Expenses and compensation. weigh at least 21 pounds per 100 pads) 920.34 Annual report. or an equivalent made of material EXPENSES AND ASSESSMENTS other than wood excelsior approved by the committee. 920.40 Expenses. (5) Organic pears means pears which 920.41 Assessments. are produced, harvested, distributed, 920.42 Accounting.

stored, processed and packaged without REGULATIONS application of synthetically compounded fertilizers, pesticides, or 920.50 Marketing policy. growth regulators. In addition, no syn- 920.51 Recommendations for regulation. thetically compounded fertilizers, pes- 920.52 Issuance of regulations. ticides, or growth regulators shall be 920.53 Modification, suspension, or termination of regulations. applied by the grower to the field or 920.54 Special purpose shipments. area in which the pears are grown for 920.55 Inspection and certification. 12 months prior to the appearance of flower buds and throughout the entire REPORTS growing and harvest season for pears. 920.60 Reports. (6) Consumer package means a package holding 15 pounds or less net MISCELLANEOUS PROVISIONS weight of pears. 920.61 Compliance. [46 FR 48116, Oct. 1, 1981, as amended at 47 FR 920.62 Right of the Secretary. 34116, Aug. 6, 1982; 54 FR 32796, Aug. 10, 1989; 920.63 Termination. 55 FR 25958, June 26, 1990; 56 FR 32063, July 920.64 Proceeding after termination. 15, 1991; 57 FR 31093, July 14, 1992] 920.65 Effect of termination or amendment. 920.66 Duration of immunities. EFFECTIVE DATE NOTE: At 59 FR 10056, Mar. 3, 1994, § 917.461 was suspended, effective April 920.67 Agents. 4, 1994. 920.68 Derogation. 920.69 Personal liability. 920.70 Separability. PART 920—KIWIFRUIT GROWN IN 920.110 Exemptions. CALIFORNIA 920.112 Late payments. 920.122 Nomination procedures. DEFINITIONS 920.160 Reports. 920.213 Assessment rate. Sec. 920.1 Secretary. 920.302 Grade, size, pack, and container reg- 920.2 Act. ulations. 920.3 Person. 920.303 Container marking regulations. 920.4 Production area. AUTHORITY: 7 U.S.C. 601–674. 920.5 Kiwifruit. 920.6 Varieties. SOURCE: 49 FR 39658, Oct. 10, 1984, unless 920.7 Fiscal period. otherwise noted. 920.8 Committee. 920.9 Grower. DEFINITIONS 920.10 Handler. 920.11 Handle. § 920.1 Secretary. 920.12 District. Secretary means the Secretary of Ag- 920.13 Pack. riculture of the United States, or any 920.14 Container. officer or employee of the Department ADMINISTRATIVE BODY of whom authority has heretofore been 920.20 Establishment and membership. delegated, or to whom authority may 920.21 Term of office. hereafter be delegated. 920.22 Nomination. 920.23 Selection. § 920.2 Act. 920.24 Failure to nominate. Act means Public Act No. 10, 73d Con- 920.25 Acceptance. gress (May 12, 1933), as amended and as 920.26 Vacancies. 920.27 Alternate members. reenacted and amended by the Agricul- 920.30 Powers. tural Marketing Agreement Act of 1937, 920.31 Duties. as amended (48 Stat. 31, as amended; 7 920.32 Procedure. U.S.C. 601 et seq.).

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§ 920.3 Person. kiwifruit from the vineyard where grown to a packing facility located Person means an individual, partner- within such area for preparation for ship, corporation, association or any market, or the delivery of such other business unit. kiwifruit to such packing facility for § 920.4 Production area. such preparation. Production area means the State of § 920.12 District California. District means the applicable one of the following described subdivisions of § 920.5 Kiwifruit. the production area or such other sub- Kiwifruit means all varieties of division as may be prescribed pursuant kiwifruit, or kiwi grown in the produc- to § 920.31: tion area. (a) District 1 shall include Butte, Sut- [58 FR 65102, Dec. 13, 1993] ter, and Yuba Counties. (b) District 2 shall include Tulare § 920.6 Varieties. County. (c) District 3 shall include all counties Varieties means and includes all clas- within the production area not in- sifications or subdivisions of kiwifruit. cluded in Districts 1 and 2. § 920.7 Fiscal period. [75 FR 37291, June 29, 2010] Fiscal period is synonymous with fiscal year and means a 12-month period § 920.13 Pack. beginning on August 1 of one year and Pack means the specific arrangement, ending on the last day of July of the size, weight, count, or grade of a quan- following year or such other period as tity of kiwifruit in a particular type the committee, with the approval of and size of container, or any combina- the Secretary, may prescribe. tion thereof.

§ 920.8 Committee. § 920.14 Container. Committee means the Kiwifruit Ad- Container means a box, bag, crate, ministrative Committee established lug, basket, carton, package, or any pursuant to § 920.20. other type of receptacle used in the packaging or handling of kiwifruit. § 920.9 Grower. ADMINISTRATIVE BODY Grower is synonymous with producer and means any person who produces § 920.20 Establishment and member- kiwifruit for the fresh market and who ship. has a proprietary interest therein. There is hereby established a Kiwifruit Administrative Committee § 920.10 Handler. consisting of 12 members, each of Handler is synonymous with shipper whom shall have an alternate who and means any person (except a com- shall have the same qualifications as mon or contract carrier transporting the member for whom he or she is an kiwifruit owned by another person) alternate. The 12-member committee who handles kiwifruit. shall be made up of the following: One public member (and alternate), and § 920.11 Handle. eleven members (and alternates). With Handle and ship are synonymous and the exception of the public member and mean to sell, consign, deliver, or trans- alternate, all members and their report kiwifruit, or to cause kiwifruit to spective alternates shall be growers or be sold, consigned, delivered, or trans- employees of growers. In accordance ported, between the production area with § 920.31(l), district representation and any point outside thereof, or with- on the committee shall be based upon in the production area: Provided, That the previous five-year average produc- the term handle shall not include the tion in the district and shall be estab- sale of kiwifruit on the vine, the trans- lished so as to provide an equitable re- portation within the production area of lationship between membership and

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districts. The committee may, with the tion of nominees in more than one disapproval of the Secretary, provide such trict in any one fiscal year. other allocation of membership as may (d) A particular grower shall be eligi- be necessary to assure equitable rep- ble for membership as member or alter- resentation. nate member to fill only one position on the committee. [75 FR 37291, June 29, 2010] (e) The public member and alternate shall be nominated by the grower mem- § 920.21 Term of office. bers of the committee. The term of office of each member and alternate member of the com- [57 FR 1219, Jan. 12, 1992, as amended at 75 FR 37291, June 29, 2010] mittee shall be for two years from the date of their selection and until their § 920.23 Selection. successors are selected. The term of office of the three additional grower From the nominations made pursu- members and their alternates selected ant to § 920.22, or from other qualified from the three districts shipping the persons, the Secretary shall select the highest volumes of kiwifruit in the 12 members of the committee and an prior fiscal period shall be for two alternate for each such member, with years. The terms of office shall begin the exception of the public member and on August 1 and end on the last day of alternate member, who shall be selected by the Secretary in his discre- July, or such other dates as the com- tion. mittee may recommend and the Sec- retary approve. Members may serve up § 920.24 Failure to nominate. to three consecutive 2-year terms not to exceed 6 consecutive years as mem- If nominations are not made within bers. Alternate members may serve up the time and in the manner prescribed to three consecutive 2-year terms not in § 920.22, the Secretary may, without to exceed 6 consecutive years as alter- regard to nominations, select the mem- nate members. bers and alternate members of the committee on the basis of the represen- [57 FR 1219, Jan. 12, 1992] tation provided for in § 920.20.

§ 920.22 Nomination. § 920.25 Acceptance. (a) Except as provided in paragraph Each person to be selected by the (b) of this section, the committee shall Secretary as a member or as an alter- hold, or cause to be held, not later than nate member of the committee shall, June 1 of each year in which nomina- prior to such selection, qualify by ad- tions are made, or such other date as vising the Secretary that he/she agrees may be specified by the Secretary, a to serve in the position for which nomi- meeting or meetings of growers in each nated for selection. district for the purpose of designating nominees to serve as grower members § 920.26 Vacancies. and alternates on the committee. Any To fill any vacancy occasioned by the such meetings shall be supervised by failure of any person selected as a the committee, which shall prescribe member or as an alternate member of such procedures as shall be reasonable the committee to qualify, or in the and fair to all persons concerned. event of the death, removal, resigna- (b) Nominations in any or all dis- tion, or disqualification of any member tricts may be conducted by mail in a or alternate member of the committee, manner recommended by the com- a successor for the unexpired term of mittee and approved by the Secretary. such member or alternate member of (c) Only growers may participate in the committee shall be nominated and the nomination of grower members and selected, or, in the case of the public their alternates. Each grower shall be member and alternate, selected by the entitled to cast only one vote for each Secretary in his discretion, in the man- position to be filled in the district in ner specified in §§ 920.22 and 920.23. If which such grower produces kiwifruit. the names of nominees to fill any such No grower shall participate in the elec- vacancy are not made available to the

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Secretary within a reasonable time and which shall be subject to examina- after such vacancy occurs, the Sec- tion by the Secretary; retary may fill such vacancy without (e) To prepare periodic statements of regard to nominations, which selection the financial operations of the com- shall be made on the basis of represen- mittee and to make copies of each such tation provided for in § 920.20. statement available to growers and handlers for examination at the office § 920.27 Alternate members. of the committee; An alternate member of the com- (f) To cause its books to be audited mittee, during the absence of either by a public accountant at least once the member for whom that individual each fiscal year and at such times as is an alternate, or, in the case of dis- the Secretary may request; tricts with two grower positions on the (g) To act as intermediary between committee, the other member and that the Secretary and any grower or han- member’s alternate, shall act in the dler; place and stead of such member and (h) To investigate and assemble data perform such other duties as assigned. on the growing, handling and mar- In the event of the death, removal, res- keting conditions with respect to ignation, or disqualification of a mem- kiwifruit; ber, the alternate of such member shall (i) To submit to the Secretary the act for him or her until a successor for same notice of meetings of the com- such member is selected and has quali- mittee as is given to its members; fied. (j) To submit to the Secretary such § 920.30 Powers. available information as may be requested; The committee shall have the fol- (k) To investigate compliance with lowing powers: the provisions of this part; (a) To administer the provisions of this part in accordance with its terms; (l) With the approval of the Sec- (b) To receive, investigate, and report retary, to redefine the districts into to the Secretary complaints of viola- which the production area is divided tions of the provisions of this part; and to reapportion the representation (c) To make and adopt rules and reg- of any district on the committee: Pro- ulations to effectuate the terms and vided, That any such changes shall re- provisions of this part; and flect, insofar as practicable, shifts in (d) To recommend to the Secretary kiwifruit production within the dis- amendments to this part. tricts and the production area.

§ 920.31 Duties. § 920.32 Procedure. The committee shall have, among (a) Eight members of the committee, others, the following duties: or alternates acting for members, shall (a) To select a chairperson and such constitute a quorum and any action of other officers as may be necessary, and the committee shall require the con- to define the duties of such officers; curring vote of the majority of those (b) To appoint such employees, present: Provided, That actions of the agents and representatives as it may committee with respect to expenses deem necessary, and to determine com- and assessments, or recommendations pensation and to define the duties of for regulations pursuant to §§ 920.50 each; through 920.55, of this part shall re- (c) To submit to the Secretary as quire at least eight concurring votes. soon as practicable after the beginning (b) Committee meetings may be as- of each fiscal period a budget for such sembled or held by telephone, video fiscal period, including a report in ex- conference, or other means of commu- planation of the items appearing there- nication. The committee may vote by in and a recommendation as to the rate telephone, facsimile, or other means of of assessment for such period; communication. Votes by members or (d) To keep minutes, books and alternates present at assembled meet- records which will reflect all of the ings shall be cast in person. Votes by acts and transactions of the committee members or alternates participating by

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telephone or other means of commu- § 920.41 Assessments. nication shall be by roll call; Provided, (a) As his or her pro rata share of the That a video conference shall be con- expenses which the Secretary finds are sidered an assembled meeting, and reasonable and likely to be incurred by votes by those participating through the committee during a fiscal period, video conference shall be considered as each person who first handles kiwifruit cast in person. during such period shall pay to the [49 FR 39658, Oct. 10, 1984, as amended at 75 committee, upon demand, assessments FR 37291, June 29, 2010] on all kiwifruit so handled. The payment of assessments for the mainte- § 920.33 Expenses and compensation. nance and functioning of the com- (a) Except for the public member and mittee may be required under this part alternate, the members of the com- throughout the period it is in effect, ir- mittee, and alternates when acting as respective of whether particular provi- members, shall serve without com- sions thereof are suspended or become pensation but shall be reimbursed for inoperative. If a handler does not pay expenses necessarily incurred by them any assessment within the time pre- in the performance of their duties scribed by the committee, the assess- under this part: Provided, That the ment may be subject to an interest or committee at its discretion may relate payment charge, or both, as may quest the attendance of one or more al- be established by the Secretary upon ternates, including the public alter- recommendation of the committee. nate, at any or all meetings notwith- (b) The Secretary shall fix the rate of standing the expected or actual pres- assessment to be paid by each such per- ence of the respective members and son during a fiscal period in an amount may pay expenses as aforesaid. designed to secure sufficient funds to (b) The public member and alternate cover the expenses which may be in- shall be reimbursed for expenses nec- curred during such period and to accu- essarily incurred by them in the per- mulate and maintain a reserve fund formance of their duties under this equal to approximately one fiscal peri- part, and shall receive per diem com- od’s expenses. At any time during or pensation established by the com- after the fiscal period, the Secretary mittee. may increase the rate of assessment in order to secure sufficient funds to § 920.34 Annual report. cover any later finding by the Sec- The committee shall, as soon as is retary relative to the expenses which practicable after the close of each mar- may be incurred: Provided, That any as- keting season, prepare and mail an an- sessment, excluding any amount col- nual report to the Secretary and make lected pursuant to § 920.55(c), must be a copy available to each grower and limited to a maximum assessment rate handler who requests a copy of the re- of three and one-half cents per flat, or port. the equivalent thereof. The Secretary may increase this maximum rate in EXPENSES AND ASSESSMENTS each succeeding year after the initial year of order operation by the Con- § 920.40 Expenses. sumer Price Index (cost of living) for The committee is authorized to incur California as published by the Bureau such expenses as the Secretary finds of Labor Statistics. Such increase shall are reasonable and likely to be in- be applied to all kiwifruit handled dur- curred by the committee for its maining the applicable fiscal period. In tenance and functioning and to enable order to provide funds for the adminis- it to exercise its powers and perform tration of the provisions of this part its duties in accordance with the provi- during the first part of a fiscal period sions of this part. The funds to cover before sufficient operating income is such expenses shall be acquired in the available from assessments on the cur- manner prescribed in § 920.41. rent year’s shipments, the committee

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may accept the payment of assess- its members to account for all receipts ments in advance, and may also borrow and disbursements. money for such purposes. (c) Upon the removal or expiration of [49 FR 39658, Oct. 10, 1984, as amended at 57 the term of office of any member of the FR 1220, Jan. 12, 1992] committee, such member shall account for all receipts and disbursements and § 920.42 Accounting. deliver all property and funds in his or (a) If, at the end of a fiscal period, her possession to the committee, and the assessments collected are in excess shall execute such assignments and of expenses incurred, such excess shall other instruments as may be necessary be accounted for in accordance with or appropriate to vest in the com- one of the following: mittee full title to all of the property, (1) If such excess is not retained in a funds, and claims vested in such mem- reserve, as provided in paragraph (a)(2) ber pursuant to this part. of this section, it shall be refunded proportionately to the persons from whom REGULATIONS it was collected: Provided, That any sum paid by a person in excess of his or § 920.50 Marketing policy. her pro rata share of the expenses dur- (a) Each season prior to making any ing any fiscal period may be applied by recommendations pursuant to § 920.51, the committee at the end of such fiscal the committee shall submit to the Sec- period to any outstanding obligations retary a report setting forth its mar- due the committee from such person. keting policy for the ensuing mar- (2) The committee, with the approval keting season. Such marketing policy of the Secretary, may carry over such report shall contain information rel- excess into subsequent fiscal periods as ative to: a reserve: Provided, That funds already (1) The estimated total production of in the reserve do not equal approxi- kiwifruit within the production area; mately one fiscal period’s expenses. (2) The expected general quality and Such reserve funds may be used: (i) To size of kiwifruit in the production area defray expenses, during any fiscal pe- and in other areas; riod, prior to the time assessment income is insufficient to cover such ex- (3) The expected demand conditions penses; (ii) to cover deficits incurred for kiwifruit in different market out- during any fiscal year when assessment lets; income is less than expenses; (iii) to (4) The expected shipments of defray expenses incurred during any kiwifruit produced in the production period when any or all provisions of area and in areas outside the produc- this part are suspended or are inoper- tion area; ative; and, (iv) to cover necessary ex- (5) Supplies of competing commod- penses of liquidation in the event of ities; termination of this part. Upon such (6) Trend and level of consumer in- termination, any funds not required to come; defray the necessary expenses of liq- (7) Other factors having a bearing on uidation shall be disposed of in such the marketing of kiwifruit; and manner as the Secretary may deter- (8) The type of regulations expected mine to be appropriate: Provided, That to be recommended during the mar- to the extent practical, such funds keting season. shall be returned pro rata to the per- (b) [Reserved] sons from whom such funds were collected. § 920.51 Recommendations for regula- (b) All funds received by the com- tion. mittee pursuant to the provisions of this part shall be used solely for the (a) Whenever the committee deems it purpose specified in this part and shall advisable to regulate the handling of be accounted for in the manner pro- any variety or varieties of kiwifruit in vided in this part. The Secretary may the manner provided in § 920.52, it shall at any time require the committee and so recommend to the Secretary.

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(b) In arriving at its recommenda- (b) Whenever the Secretary finds tions for regulation pursuant to para- from the recommendations and infor- graph (a) of this section, the com- mation submitted by the committee or mittee shall give consideration to cur- from other available information, that rent information with respect to the a regulation should be modified, sus- factors affecting the supply and de- pended, or terminated with respect to mand for kiwifruit during the period or any or all shipments of kiwifruit in periods when it is proposed that such order to effectuate the declared policy regulations should be made effective. of the act, the Secretary shall modify, With each such recommendation for suspend, or terminate such regulation. regulation, the committee shall submit If the Secretary finds that a regulation to the Secretary the data and informa- obstructs or does not tend to effectuate tion on which such recommendation is the declared policy of the act, the Sec- predicated and such other available in- retary shall suspend or terminate such formation as the Secretary may re- regulation. On the same basis and in quest. like manner the Secretary may terminate any such modification or suspen- § 920.52 Issuance of regulations. sion. (a) The Secretary shall regulate, in § 920.54 Special purpose shipments. the manner specified in this section, the handling of kiwifruit whenever the (a) Except as otherwise provided in Secretary finds, from the recommenda- this section, any person may, without tions and information submitted by the regard to the provisions of §§ 920.41, committee, or from other available in- 920.52, 920.53 and 920.55 and the regula- formation, that such regulations will tions issued thereunder, handle tend to effectuate the declared policy kiwifruit: of the act. Such regulations may: (1) For consumption by charitable in- (1) Limit, during any period or peri- stitutions; ods, the shipment of any particular (2) For distribution by relief agen- grade, size, quality, maturity, or pack, cies; or or any combination thereof, of any va- (3) For commercial processing into riety or varieties of kiwifruit grown in products. the production area; (b) Upon the basis of recommenda- (2) Limit the shipment of kiwifruit tions and information submitted by the by establishing, in terms of grades, committee, or from other available in- sizes, or both, minimum standards of formation, the Secretary may relieve quality and maturity during any period from any or all requirements, under or when season average prices are ex- established pursuant to § 920.41, § 920.52, pected to exceed the parity level; § 920.53 or § 920.55, the handling of (3) Fix the size, capacity, weight, di- kiwifruit: mensions, markings, or pack of the (1) To designated market areas; container, or containers, which may be (2) For such specified purposes (in- used in the packaging or handling of cluding shipments to facilitate the kiwifruit. conduct of marketing research and de- (b) The committee shall be informed velopment projects); or, immediately of any such regulation (3) In such minimum quantities or issued by the Secretary and the com- types of shipments, as may be pre- mittee shall promptly give notice scribed. thereof to handlers. (c) The committee shall, with the approval of the Secretary, prescribe such § 920.53 Modification, suspension, or rules, regulations, and safeguards as it termination of regulations. may deem necessary to prevent (a) In the event the committee at any kiwifruit handled under the provisions time finds that, by reason of changed of this section from entering the chan- conditions, any regulations issued pur- nels of trade for other than the specific suant to § 920.52 should be modified, purposes authorized by this section. suspended, or terminated, it shall so Such rules, regulations, and safeguards recommend to the Secretary. may include the requirements that

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handlers shall file applications and re- ignate, certified reports covering, to ceive approval from the committee for the extent necessary for the committee authorization to handle kiwifruit pur- to perform its functions, each shipment suant to this section, and that such ap- of kiwifruit as follows: plications be accompanied by a certifi- (1) The name of the shipper and the cation by the intended purchaser or re- shipping point; ceiver that the kiwifruit will not be (2) The car or truck license number used for any purpose not authorized by (or name of the trucker), and identi- this section. fication of the carrier; § 920.55 Inspection and certification. (3) The date and time of departure; (4) The number and type of con- (a) Whenever the handling of any va- tainers in the shipment; riety of kiwifruit is regulated pursuant to § 920.52, or § 920.53, each handler who (5) The quantities shipped, showing handles kiwifruit shall, prior thereto, separately the variety, size and grade cause such kiwifruit to be inspected by of the fruit; the Federal or Federal-State Inspec- (6) The destination; tion Service and certified as meeting (7) Identification of the inspection the applicable requirements of such certificate or waiver pursuant to which regulation: Provided, That inspection the fruit was handled. and certification shall not be required (b) Upon request of the committee, for kiwifruit which previously have made with the approval of the Sec- been so inspected and certified if such retary, each handler shall furnish to prior inspection was performed within the committee, in such manner and at such period as may be established pur- such times as it may prescribe, such suant to paragraph (b) of this section. other information as may be necessary Promptly after inspection and certifi- to enable the committee to perform its cation, each such handler shall submit, duties under this part. or cause to be submitted, to the com- (c) Each handler shall maintain for mittee a copy of the certificate of in- at least two succeeding fiscal years, spection issued with respect to such such records of the kiwifruit received kiwifruit. The committee may, with and disposed of by such handler as may the approval of the Secretary, pre- be necessary to verify the reports sub- scribe rules and regulations waiving mitted to the committee pursuant to the inspection requirements of this sec- this section. tion where it is determined that in- (d) All reports and records submitted spection is not available: Provided, by handlers pursuant to the provisions That all shipments made under such of this section shall be received by, and waiver shall comply with all regula- at all times be in custody of, one or tions in effect. more designated employees of the com- (b) The committee may, with the ap- mittee. No such employee shall dis- proval of the Secretary, establish a pe- close to any person, other than the riod prior to shipment during which Secretary upon request therefor, data the inspection required by this section must be performed. or information obtained or extracted (c) The committee may enter into an from such reports and records which agreement with the Federal and Fed- might affect the trade position, finan- eral-State Inspection Services with re- cial condition, or business operation of spect to the costs of the inspection re- the particular handler from whom required by paragraph (a) of this section, ceived: Provided, That such data and in- and may collect from handlers their re- formation may be combined, and made spective pro rata shares of such costs. available to any person, in the form of general reports in which the identities REPORTS of the individual handler furnishing the information, is not disclosed but may § 920.60 Reports. be revealed to any extent necessary to (a) Each handler shall furnish to the effect compliance with the provisions committee, at such times and for such of this part and the regulations issued periods as the committee may des- thereunder.

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MISCELLANEOUS PROVISIONS (c) The Secretary shall terminate the provisions of this part whenever the § 920.61 Compliance. Secretary finds by referendum or oth- (a) Except as provided in this part, no erwise that such termination is favored person shall handle kiwifruit, the ship- by a majority of the growers: Provided, ment of which has been prohibited by That such majority has, during the the Secretary in accordance with the current marketing season, produced provisions of this part; and no person more than 50 percent of the volume of shall handle kiwifruit except in con- the kiwifruit which were produced formity with the provisions of this part within the production area for ship- and the regulations issued under this ment in fresh form. Such termination part. shall become effective on the first day (b) For the purpose of checking and of August subsequent to the announce- verifying reports filed by handlers, the ment thereof by the Secretary. committee, through its duly authorized (d) The committee shall consider all representatives shall have access to petitions from growers submitted to it any handler’s premises during regular for termination of this part provided business hours, and shall be permitted such petitions are received by the com- at any such times to inspect such mittee prior to February 1 of the then premises and any kiwifruit held by current fiscal period. Upon rec- such handler, and any and all records ommendation of the committee re- of the handler with respect to his or ceived not later than April 1 of the her acquisition, sales, uses and ship- then current fiscal period, the Sec- ments of kiwifruit. Each handler shall retary shall conduct a referendum furnish all labor and equipment nec- among the growers prior to July 15 of essary to make such inspections. such fiscal period to ascertain whether continuance of this part is favored by § 920.62 Right of the Secretary. producers. (e) The Secretary shall conduct a ref- The members of the committee (in- erendum within the period beginning cluding successors and alternates), and May 15, 1990, and ending July 15, 1990, any agents, employees, or representa- to ascertain whether continuance of tives thereof, shall be subject to re- this part is favored by the growers as moval or suspension by the Secretary set forth in paragraph (c) of this sec- at any time. Each and every regulation. The Secretary shall conduct such tion, decision, determination, or other a referendum within the same period of act of the committee shall be subject every sixth fiscal period thereafter. to the continuing right of the Sec- (f) The provisions of this part shall, retary to disapprove of the same at any in any event, terminate whenever the time. Upon such disapproval, the dis- provisions of the act authorizing them approved action of the committee shall cease to be in effect. be deemed null and void, except as to acts done in reliance thereon or in ac- § 920.64 Proceeding after termination. cordance therewith prior to such dis- (a) Upon the termination of the pro- approval by the Secretary. visions of this part, the committee shall, for the purpose of liquidating the § 920.63 Termination. affairs of the committee, continue as (a) The Secretary may at any time trustee of all the funds and property terminate the provisions of this part then in its possession, or under its con- by giving at least one day’s notice by trol, including claims for any funds un- means of a press release or in any other paid or property not delivered at the manner in which the Secretary may de- time of such termination. termine. (b) The said trustees shall: (b) The Secretary shall terminate or (1) Continue in such capacity until suspend the operation of any and all of discharged by the Secretary; the provisions of this part whenever (2) From time to time account for all the Secretary finds that such provi- receipts and disbursements and deliver sions do not tend to effectuate the de- all property on hand, together with all clared policy of the act. books and records of the committee

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and of the trustees, to such persons as exercise any powers granted by the act the Secretary may direct; and or otherwise, or (b) in accordance with (3) Upon the request of the Secretary, such powers, to act in the premises execute such assignments or other in- whenever such action is deemed advis- struments necessary or appropriate to able. vest in such person, full title and right to all of the funds, property, and § 920.69 Personal liability. claims vested in the committee of the No member or alternate member of trustees pursuant thereto. the committee and no employee or (c) Any person to whom funds, prop- agent of the committee shall be held erty, or claims have been transferred personally responsible, either individ- or delivered, pursuant to this section, ually or jointly with others, in any way shall be subject to the same obligation whatsoever, to any person for errors in imposed upon the committee and upon judgment, mistakes, or other acts, ei- the trustees. ther of commission or omission, as such member, alternate, employee or § 920.65 Effect of termination or agent, except for acts of dishonesty, amendment. willful misconduct, or gross neg- Unless otherwise expressly provided ligence. by the Secretary, the termination of this part or of any regulation issued § 920.70 Separability. pursuant to this part, or the issuance If any provision of this part is de- of any amendment to either thereof, clared invalid or the applicability shall not (a) affect or waive any right, thereof to any person, circumstance, or duty, obligation, or liability which thing is held invalid, the validity of the shall have arisen or which may there- remainder of this part or the applica- after arise in connection with any pro- bility thereof to any other person, cir- vision of this part or any regulation cumstance, or thing shall not be af- issued under this part, or (b) release or fected thereby. extinguish any violation of this part or of any regulation issued under this § 920.110 Exemptions. part, or (c) affect or impair any rights (a) Waivers. A handler may handle or remedies of the Secretary or of any kiwifruit without inspection and cer- other person with respect to any such tification, as prescribed under § 920.55, violation. if all shipments made under such waivers comply with all regulations in ef- § 920.66 Duration of immunities. fect, and all the following conditions The benefits, priviliges, and immuni- are met: ties conferred upon any person by vir- (1) The handler requests the Federal- tue of this part shall cease upon its ter- State Inspection Service to provide in- mination, except with respect to acts spection during its regular working done under and during the existence of hours at least 4 hours in advance of the this part. time when inspection is needed. The request need not be in writing but it § 920.67 Agents. shall be confirmed immediately in The Secretary may, by designation in writing by the inspection service. writing, name any officer or employee (2) The Federal-State Inspection of the United States, or name any Service advises the handler that it is agency or division in the United States not practicable to provide inspection at Department of Agriculture, to act as the time and place designated by the the Secretary’s agent or representative handler. This advice may be verbal but in connection with any of the provi- it shall be confirmed in writing by the sions of this part. Federal-State Inspection Service. A confirmed copy thereof shall be for- § 920.68 Derogation. warded by the inspection service to the Nothing contained in this part is, or office of the Kiwifruit Administrative shall be construed to be, in derogation Committee. or in modification of the rights of the (3) The Federal-State Inspection Secretary or of the United States (a) to Service furnishes the handler with the

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waiver number which shall cover the themselves or any other eligible kiwifruit on which inspection is re- kiwifruit grower to vacant committee quested. positions for the nominee’s district. (4) When instructed to do so, the han- Completed nomination forms shall be dler plainly and conspicuously marks returned to the office of the committee the end of each container with the let- by a date specified by the committee ter ‘‘W’’ and the waiver number as- and approved by an agent of the Sec- signed by the Federal-State Inspection retary. Nomination forms shall provide Service. The letter ‘‘W’’ and the number for names of nominees, as well as the shall not be less than one-half inch in nominating grower’s name, address, height. telephone number, and signature. In- (b) Minimum quantities. Notwith- complete nominations forms will not standing any other provision of this be considered valid. section, kiwifruit may be handled with- (2) For each district involved in the out regard to the provision of §§ 920.41, current year’s nominations, committee 920.52, 920.55 and 920.60 under the fol- staff, with the Secretary’s oversight, lowing conditions: shall establish a slate of candidates (1) Such kiwifruit are for home use with the names of all qualified nomi- and not for resale. nees received. Persons submitting in- (2) The total weight of such kiwifruit valid nomination forms shall be noti- sold to all persons collectively in any fied of such by the committee. Within one vehicle during any one day does a reasonable time period, a ballot con- not exceed 200 pounds. taining a slate of candidates shall be (3) Such kiwifruit are handled by the mailed to all growers of record within person who produced them and, the the respective district represented by handling takes place: (i) On the prem- such candidates. The committee shall ises where grown, (ii) at a packing provide a reasonable period of time to house, or retail stand (roadside stand, growers to cast votes on the candidates flea market or any other outlet ap- and return the completed ballots for proved by the committee) which is op- tallying. erated by said handler, or (iii) at a Cer- tified Farmers Market. (3) To be eligible to vote, growers must be producing kiwifruit during the [50 FR 4856, Feb. 4, 1985, as amended at 53 FR crop year nominations are held and 34035, Sept. 2, 1988] within the district represented by the candidates on the ballot. A grower may § 920.112 Late payments. only vote for candidates from one dis- Pursuant to § 920.41(a), interest will trict and may only cast one ballot. be charged at a 1.5 percent monthly Growers may also cast votes for eligi- simple interest rate. Assessments for ble candidates who do not appear on kiwifruit shall be deemed late if not re- the ballots by writing in the name of ceived within 30 days of invoice, or such candidates on the ballot. Each such other later time period as speci- ballot shall provide for a voter eligi- fied by the committee. A 10 percent bility certification which must include late charge will be assessed when pay- the voter’s name, address, telephone ment becomes 30 days late. Interest number, and signature, as well as the and late payment charges shall be ap- name(s) of all handlers which handled plied only to the overdue assessment. the current season’s crop. At the dis- [62 FR 45295, Aug. 27, 1997] cretion of the Secretary, the ballots may include other background infor- § 920.122 Nomination procedures. mation about each candidate. (a) The manner of nominating grower (4) In order to be valid, ballots must members and alternate members to the be executed in accordance with the in- committee shall be as follows: structions set forth on the ballot, and (1) The committee’s mailing of an ap- are to be returned to the Secretary’s proved nomination form to all agent who will tally the ballots with kiwifruit growers of record shall con- such assistance from the committee as stitute notice of nominations. All eligi- may be requested by the agent. Such ble kiwifruit growers may nominate ballots shall be postmarked by a date

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specified by the committee and ap- committee may establish. Subsequent proved by an agent of the Secretary. KISS forms, including all three sec- (5) The names of the persons receiv- tions, shall be filed with the committee ing the highest total number of votes by the fifth day and again by the twen- for a particular position shall be sub- tieth day of each calendar month, or mitted to the Secretary as the nomi- such other later time as the committee nees for such positions. In the event of may establish, and will contain the fol- a tie vote, a ballot containing only the lowing information: names of the candidates receiving the (1) The beginning inventory of the tied vote shall be mailed to all growers handler by size and container type; in the affected district. (2) The quantity of fruit the handler (b) In the event of a vacancy as speci- lost in repack and repacked into other fied in § 920.26, the committee shall uti- container types; lize the same procedure as prescribed (3) The total domestic and export in § 920.122(a)(1) through (a)(5) to fill shipments of the handler by size and such vacancy. container type; and [57 FR 62160, Dec. 30, 1992] (4) Any other adjustments which increase or decrease posted handler in- § 920.160 Reports. ventory. (a) When requested by the Kiwifruit (c) Handler report of returned fruit. Administrative Committee, each ship- After fruit is returned to a grower, per who ships kiwifruit, except as pro- each handler shall file with the com- vided in paragraph (e) of this section, mittee, no later than five days from shall furnish a report of shipment and the date the fruit is returned, or such inventory data to the committee no other time as the committee may es- later than the fifth day of the month tablish, a Return Receipt of Kiwifruit following such shipment, or such other to Grower Form. later time established by the com- (d) KISS Price/Shipment report. Each mittee: Provided, That each shipper handler who ships 100,000 or more who ships less than 10,000 trays, or the trays, or the equivalent thereof, per equivalent thereof, per fiscal year and season, shall file the KISS Price/Ship- has qualified with the committee shall ment report with the committee. Han- furnish such report of shipment and in- dlers are not required to report organic ventory data to the committee twice kiwifruit shipments on this report. The per fiscal year. The first report shall be handler shall file the report weekly fol- due no later than January 5 and the lowing the first week he or she makes final report no later than the fifth day shipments and shall continue filing re- of the following month after such ship- ports until he or she submits a final re- ment is completed for the season, or port for the season. Each such report such other later times established by shall be filed with the committee no the committee. Such report shall show: later than 5:00 p.m. (the close of busi- (1) The reporting period; ness) on the Tuesday immediately fol- (2) The name and other identification lowing the shipping week. For the pur- of the shipper; pose of this subsection, the shipping (3) The number of containers by type week is defined as Sunday through Sat- and weight by shipment destination urday. The report shall show: category; (b) Kiwifruit Inventory Shipping System (1) The company name, contact per- (KISS) form. Each handler, except such son, and phone number of the handler; handlers that ship less than 10,000 (2) Weekly period covered by the re- trays, or the equivalent thereof, per port; season and have qualified with the (3) Total fresh market shipments and committee, shall file with the com- gross f.o.b. sales of kiwifruit by pack mittee the initial Kiwifruit Inventory style and size; and Shipment System (KISS) form, which (4) Total fresh market shipments and consists of three sections ‘‘KISS/Add In- gross f.o.b. sales to export markets by ventory,’’ ‘‘KISS/Deduct Inventory,’’ and pack style and size. ‘‘KISS/Shipment,’’ on or before Novem- (e) Handlers who file the KISS Price/ ber 5th, or such other later time as the Shipment report specified in paragraph

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(d) of this section are exempt from fil- (1) Grade requirements. Fresh ship- ing the shipping report specified in ments of kiwifruit shall be at least paragraph (a) of this section and the KAC No. 1 quality. KISS/Shipment report specified in (2) Size Requirements. Such kiwifruit paragraph (b) of this section. shall be at least a minimum Size 45. [50 FR 4856, Feb. 4, 1985, as amended at 52 FR Size 45 is defined as a maximum of 55 37130, Oct. 5, 1987; 59 FR 53565, Oct. 25, 1994; 61 pieces of fruit in an 8-pound sample. FR 51576, Oct. 3, 1996; 67 FR 54332, Aug. 22, (3) Maturity requirements. Such 2002; 74 FR 46309, Sept. 9, 2009] kiwifruit shall have a minimum of 6.2 percent soluble solids at the time of in- § 920.213 Assessment rate. spection. On and after August 1, 2008, an as- (4) Pack Requirements. (i) Kiwifruit sessment rate of $0.035 per 9-kilo vol- packed in containers with cell com- ume-fill container or equivalent of partments, cardboard fillers, or molded kiwifruit is established for kiwifruit trays shall be of proper size for the grown in California. cells, fillers, or molds in which they [73 FR 75540, Dec. 12, 2008] are packed. Such fruit shall be fairly uniform in size. § 920.302 Grade, size, pack, and con- (ii) (A) Kiwifruit packed in any container regulations. tainer shall be subject to the size des- (a) No handler shall ship any ignation, maximum number of fruit per kiwifruit unless such kiwifruit meet 8-pound sample, and the size variation the following requirements: tolerance specified as follows:

SIZE DESIGNATION AND SIZE VARIATION CHART

Column 2 maximum number of Column 3 size variation toler- Column 1 size designation fruit per 8- ance (diameter) pound sample

18 or larger ...... 25 1⁄2-inch (12.7 mm). 20 ...... 27 1⁄2-inch (12.7 mm). 23 ...... 30 1⁄2-inch (12.7 mm). 25 ...... 32 1⁄2-inch (12.7 mm). 27/28 ...... 35 1⁄2-inch (12.7 mm). 30 ...... 39 1⁄2-inch (12.7 mm). 33 ...... 43 3⁄8-inch (9.5 mm). 36 ...... 46 3⁄8-inch (9.5 mm). 39 ...... 49 3⁄8-inch (9.5 mm). 42 ...... 53 3⁄8-inch (9.5 mm). 45 or smaller ...... 55 1⁄4-inch (6.4 mm).

(B) The average weight of all sample tainers hold less than 15 pounds or units in a lot must weigh at least 8 more than 35 pounds net weight of pounds, but no sample unit may be kiwifruit. more than 4 ounces less than 8 pounds. (b) Definitions. The term KAC No. 1 (C) Not more than 10 percent, by quality means kiwifruit that meets the count, of the containers in any lot and requirements of the U.S. No. 1 grade as not more than 5 percent, by count, of defined in the United States Standards kiwifruit in any container, (except that for Grades of Kiwifruit (7 CFR 51.2335 for Sizes 42 and 45 kiwifruit, the toler- through 51.2340) except that the ance, by count, in any one container, kiwifruit shall be ‘‘not badly mis- may not be more than 25 percent) may shapen,’’ and an additional tolerance of fail to meet the size variation require- 7 percent is provided for kiwifruit that ments of this paragraph. is ‘‘badly misshapen,’’ and except that (iii) All volume fill containers of all varieties of kiwifruit are exempt kiwifruit designated by weight shall from the ‘‘tightly packed’’ standard as hold 19.8-pounds (9-kilograms) net defined in § 51.2338(a) of the U.S. Stand- weight of kiwifruit unless such con- ards for Grades of Kiwifruit. The terms

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fairly uniform in size and diameter mean tainers packed by weight or the count the same as defined in the U.S. Stand- for volume-fill containers packed by ards for Grades of Kiwifruit. count. (c) Exemptions. Any person may han- (3) For bulk containers or individual dle kiwifruit without regard to the pro- consumer packages not within a mas- visions of this section provided that ter container, the quantity shall be in- such kiwifruit is handled for (1) con- dicated in terms of the size designation sumption by charitable institutions; (2) and net weight, or in terms of the size distribution by relief agencies; or (3) designation and count. commercial processing into products. (4) Master containers, which hold For the purposes of this section, com- more than one individual package, mercial processing into products means must be properly marked with the that the kiwifruit is physically altered quantity of the contents. The size des- in form or chemical composition ignation must also be indicated. through freezing, canning, dehy- (5) The quantity shall be indicated in drating, pulping, juicing, or heating of terms of either net weight or count (or the product. The act of slicing, dicing, both) for individual consumer packages or peeling shall not be considered com- within a master container. If count is mercial processing into products. used, it must be accompanied by the [50 FR 36568, Sept. 9, 1985] size designation. (6) Designations of size, count, and EDITORIAL NOTE: For FEDERAL REGISTER ci- net weight on each container shall be tations affecting § 920.302 see the List of CFR Sections Affected, which appears in the accompanied by the words size, count, Finding Aids section of the printed volume or net weight as applicable. and at www.fdsys.gov. (d) Except as provided in paragraph (f) of this section, containers of § 920.303 Container marking regula- kiwifruit must be positive lot identi- tions. fied prior to shipment in accordance No handler shall ship any kiwifruit with the following requirements. All except in accordance with the fol- exposed or outside containers of lowing terms and conditions: kiwifruit, but not less than 75 percent (a) Each package or container of of the total containers on the pallet, kiwifruit shall bear on at least one out- shall be positive lot identified with a side principal display panel in plain plain mark corresponding to the lot in- sight and in plain letters, the word spection conducted by an authorized kiwifruit, the name of the variety (if inspector, except for individual con- other than the Hayward variety), if sumer packages within a master con- known or, when the variety is not tainer and containers that are being di- known, the words unknown variety. rectly loaded into a vehicle for export (b) Each package or container of shipment under the supervision of the kiwifruit shall bear on one outside Federal or Federal-State Inspection principal display panel in plain sight Service. Individual consumer packages and in plain letters the name and ad- of kiwifruit placed directly on a pallet dress (including the city, state, and zip shall have all outside or exposed pack- code) of the shipper. ages on a pallet positive lot identified (c) Each package or container of with a plain mark corresponding to the kiwifruit shall bear on one outside lot inspection conducted by an author- principal display panel in plain sight ized inspector or have one inspection and in plain letters the following infor- label placed on each side of the pallet. mation regarding the quantity of Reusable plastic containers of kiwifruit packed within the container: kiwifruit, placed on a pallet, shall be (1) The quantity shall be indicated in positive lot identified in accordance terms of count and size for kiwifruit with Federal or Federal-State Inspec- packed in cell compartments, card- tion Service procedures and shall have board fillers, or molded trays, and the required information on the cards of contents shall conform to the count. the individual containers, as provided (2) The quantity shall be indicated in in this section of the regulations. terms of the size designation and either (e) As used in this section, the term the net weight for volume-fill con- principal display panel means that part

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of the package or container most like- 922.4 Production area. ly to be displayed, presented, shown or 922.5 Apricots. examined under normal or customary 922.6 Varieties. conditions of display and purchase. 922.7 Fiscal period. (f) Kiwifruit that has been inspected 922.8 Committee. and certified, and is subsequently 922.9 Grade. placed into new containers, does not 922.10 Size. 922.11 Grower. have to be positive lot identified, as 922.12 Handler. prescribed in paragraph (d) of this sec- 922.13 Handle. tion: Provided, That: 922.14 District. (1) Such kiwifruit is of the same 922.15 Export. grade and size as originally inspected; 922.16 Pack. and 922.17 Container. (2) The handler requests a verification number from the Federal ADMINISTRATIVE BODY or Federal-State Inspection Service 922.20 Establishment and membership. prior to shipment; plainly marks one 922.21 Term of office. end of each container with such num- 922.22 Nomination. ber and the letter ‘‘R,’’ both of which 922.23 Selection. shall be at least one-half inch in 922.24 Failure to nominate. height; and submits a Kiwifruit 922.25 Acceptance. Verification Form to the Federal or 922.26 Vacancies. Federal-State Inspection Service with- 922.27 Alternate members. in 3 business days of such request. The 922.30 Powers. handler shall provide the following in- 922.31 Duties. formation on the Kiwifruit Verification 922.32 Procedure. 922.33 Expenses and compensation. Form. 922.34 Annual report. (i) From the original inspection: (A) The positive lot identification EXPENSES AND ASSESSMENTS numbers; 922.40 Expenses. (B) The identity of the handler; 922.41 Assessments. (C) The inspection certificate num- 922.42 Accounting. bers; (D) The grade and size of the RESEARCH kiwifruit; 922.45 Marketing research and development. (E) The number and type of containers; and REGULATIONS (F) The handler’s brand; and 922.50 Marketing policy. (ii) On the kiwifruit placed into new 922.51 Recommendations for regulation. containers: 922.52 Issuance of regulations. (A) The number and type of con- 922.53 Modification, suspension, or termi- tainers; and nation of regulations. (B) The applicable brand. 922.54 Special purpose shipments. 922.55 Inspection and certification. [58 FR 43246, Aug. 16, 1993, as amended at 61 FR 13395, Mar. 27, 1996; 64 FR 41019, July 29, REPORTS 1999; 69 FR 54199, Sept. 8, 2004; 71 FR 58249, Oct. 3, 2006] 922.60 Reports. MISCELLANEOUS PROVISIONS PART 922—APRICOTS GROWN IN 922.61 Compliance. DESIGNATED COUNTIES IN 922.62 Right of the Secretary. WASHINGTON 922.63 Effective time. 922.64 Termination. Subpart—Order Regulating Handling 922.65 Proceedings after termination. 922.66 Effect of termination or amendment. DEFINITIONS 922.67 Duration of immunities. Sec. 922.68 Agents. 922.1 Secretary. 922.69 Derogation. 922.2 Act. 922.70 Personal liability. 922.3 Person. 922.71 Separability.

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Subpart—Container Exemption; Waivers of § 922.5 Apricots. Inspection and Certification Apricots means all varieties of apri- 922.110 Container exemption. cots, grown in the production area, 922.111 Waiver of inspection and certifi- classified botanically as Prunus cation. armeniaca. 922.142 Reserve fund. § 922.6 Varieties. Subpart—Assessment Rate Varieties means and includes all clas- 922.235 Assessment rate. sifications or subdivisions of Prunus armeniaca. Subpart—Container Regulations § 922.7 Fiscal period. 922.306 Apricot Regulation 6. Fiscal period is synonymous with fis- Subpart—Grade and Size Regulation cal year and means the 12-month period ending on March 31 of each year or 922.321 Apricot Regulation 21. such other period that may be ap- AUTHORITY: 7 U.S.C. 601–674. proved by the Secretary pursuant to recommendations by the committee.

Subpart—Order Regulating § 922.8 Committee. Handling Committee means the Washington Apricot Marketing Committee estab- SOURCE: 22 FR 3514, May 21, 1957, unless lished pursuant to § 922.20. otherwise noted. Redesignated at 26 FR 12751, Dec. 30, 1961. § 922.9 Grade. DEFINITIONS Grade means any one of the officially established grades of apricots as de- § 922.1 Secretary. fined and set forth in: Secretary means the Secretary of Ag- (a) United States Standards for Apri- riculture of the United States, or any cots (§§ 51.2925 to 51.2932 of this title) or officer or employee of the Department amendments thereto, or modifications to whom authority has heretofore been thereof, or variations based thereon; delegated, or to whom authority may (b) Standards for apricots issued by hereafter be delegated, to act in his the State of Washington or amend- stead. ments thereto, or modifications thereof, or variations based thereon. § 922.2 Act. § 922.10 Size. Act means Public Act No. 10, 73d Con- gress (May 12, 1933), as amended and as Size means the greatest diameter, reenacted and amended by the Agricul- measured through the center of the tural Marketing Agreement Act of 1937, apricot, at right angles to a line run- as amended (48 Stat. 31, as amended; 7 ning from the stem to the blossom end, U.S.C. 601 et seq.; 68 Stat. 906, 1047). or such other specification as may be established by the committee with the § 922.3 Person. approval of the Secretary. Person means an individual, partner- § 922.11 Grower. ship, corporation, association, or any other business unit. Grower is synonymous with producer and means any person who produces § 922.4 Production area. apricots for market and who has a proprietary interest therein: Provided, Production area means the counties of That a grower who is also a handler Okanogan, Chelan, Kittitas, Yakima, must have produced not less than 51 and Klickitat in the State of Wash- percent of the apricots handled by him ington and all of the counties in Wash- during the previous season in order to ington lying east thereof. qualify as a grower under §§ 922.20, [27 FR 5188, June 2, 1962] 922.22, and 922.23.

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§ 922.12 Handler. ADMINISTRATIVE BODY Handler is synonymous with shipper § 922.20 Establishment and member- and means any person (except a com- ship. mon or contract carrier transporting There is hereby established a Wash- apricots owned by another person) who ington Apricot Marketing Committee handles apricots. consisting of twelve members, each of § 922.13 Handle. whom shall have an alternate who shall have the same qualifications as Handle or ship means to sell, consign, the member for whom he is an alter- deliver, or transport apricots within nate. Eight of the members and their the production area or between the respective alternates shall be growers production area and any point outside or officers or employees of corporate thereof: Provided, That the term ‘‘han- growers. Four of the members and dle’’ shall not include the transpor- their respective alternates shall be tation within the production area of handlers, or officers or employees of apricots from the orchard where grown corporate handlers. The eight members to a packing facility located within of the committee who are growers or such area for preparation for market. employees or officers of corporate [27 FR 5188, June 2, 1962] growers are referred to in this part as ‘‘grower members’’ of the committee; § 922.14 District. and the four members of the com- District means the applicable one of mittee who shall be handlers, or offi- the following described subdivisions of cers or employees of corporate han- the production area, or such other sub- dlers, are referred to in this part as divisions as may be prescribed pursu- ‘‘handler members’’ of the committee. Four of the grower members and their ant to § 922.31(m): respective alternates shall be pro- (a) District 1 shall include all counties ducers of apricots in District 1, and within the production area not in- four of the grower members and their cluded in District 2. respective alternates shall be pro- (b) shall include the Coun- District 2 ducers of apricots in District 2. Two of ties of Yakima, Benton, and Klickitat. the handler members and their respec- [22 FR 3514, May 21, 1957. Redesignated at 26 tive alternates shall be handlers of FR 12751, Dec. 30, 1961, as amended at 27 FR apricots in District 1, and two of the 5188, June 2, 1962] handler members with their respective alternates shall be handlers of apricots § 922.15 Export. in District 2. Export means to ship apricots beyond the continental boundaries of the § 922.21 Term of office. United States. The term of office of each member and alternate member of the com- § 922.16 Pack. mittee shall be for 2 years beginning Pack means the specific arrangement, April 1 and ending March 31: Provided, size, weight, count, or grade of a quan- That the terms of office of one-half the tity of apricots in a particular type and initial members and alternates shall size of container, or any combination end March 31, 1958. Members and alter- thereof. nate members shall serve in such capacities for the portion of the term of § 922.17 Container. office for which they are selected and Container means a box, bag, crate, have qualified and until their respec- lug, basket, carton, package, or any tive successors are selected and have other type of receptacle used in the qualified. The terms of office of suc- packaging or handling of apricots. cessor members and alternates shall be so determined that one-half of the total committee membership ends each March 31.

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§ 922.22 Nomination. (3) Only handlers, including duly au- (a) Initial members. Nominations for thorized officers or employees of cor- each of the eight initial grower mem- porate handlers, who are present at bers and four initial handler members such nomination meetings, may par- of the committee, together with nomi- ticipate in the nomination and election nations for the initial alternate mem- of nominees for handler members and bers for each position may be sub- their alternates. Each handler shall be mitted to the Secretary by individual entitled to cast only one vote for each growers and handlers. Such nomina- nominee to be elected in the district in tions may be made by means of group which he handles apricots. No handler meetings of the growers and handlers shall participate in the election of concerned in each district. Such nomi- nominees in more than one district in nations, if made, shall be filed with the any one fiscal year. If qualified, a per- Secretary no later than the effective son may vote either as a grower or as date of this part. In the event nomina- a handler but not as both. tions for initial members and alternate § 922.23 Selection. members of the committee are not filed pursuant to, and within the time From the nominations made pursu- specified, in this section, the Secretary ant to § 922.22, or from other qualified may select such initial members and persons, the Secretary shall select the alternate members without regard to eight grower members of the com- nominations, but selections shall be on mittee, the four handler members of the basis of the representation pro- the committee, and an alternate for vided for in § 922.20. each such member. (b) Successor members. (1) The com- § 922.24 Failure to nominate. mittee shall hold or cause to be held, not later than March 1 of each year, a If nominations are not made within meeting or meetings of growers and the time and in the manner prescribed handlers in each district for the pur- in § 922.22, the Secretary may, without pose of designating nominees for suc- regard to nominations, select the mem- cessor members and alternate members bers and alternate members of the of the committee. At each such meet- committee on the basis of the represen- ing a chairman and a secretary shall be tation provided for in § 922.20. selected by the growers and handlers eligible to participate therein. The § 922.25 Acceptance. chairman shall announce at the meet- Any person selected by the Secretary ing the number of votes cast for each as a member or as an alternate member person nominated for member or alter- of the committee shall qualify by filing nate member and shall submit prompt- a written acceptance with the Sec- ly to the committee a complete report retary promptly after being notified of concerning such meeting. The com- such selection. mittee shall, in turn, promptly submit a copy of each such report to the Sec- § 922.26 Vacancies. retary. To fill any vacancy occasioned by the (2) Only growers, including duly au- failure of any person selected as a thorized officers or employees of cor- member or as an alternate member of porate growers, who are present at the committee to qualify, or in the such nomination meetings may partici- event of the death, removal, resigna- pate in the nomination and election of tion, or disqualification of any member nominees for grower members and or alternate member of the committee, their alternates. Each grower shall be a successor for the unexpired term of entitled to cast only one vote for each such member or alternate member of nominee to be elected in the district in the committee shall be nominated and which he produces apricots. No grower selected in the manner specified in shall participate in the election of §§ 922.22 and 922.23. If the names of nominees in more than one district in nominees to fill any such vacancy are any one fiscal year. If qualified, a per- not made available to the Secretary son may vote either as a grower or as within a reasonable time after such va- a handler but not as both. cancy occurs, the Secretary may fill

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such vacancy without regard to nomi- acts and transactions of the committee nations, which selection shall be made and which shall be subject to examina- on the basis of representation provided tion by the Secretary; for in § 922.20. (e) To prepare periodic statements of the financial operations of the com- § 922.27 Alternate members. mittee and to make copies of each such An alternate member of the com- statement available to growers and mittee, during the absence or at the re- handlers for examination at the office quest of the member for whom he is an of the committee; alternate, shall act in the place and (f) To cause its books to be audited stead of such member and perform such by a competent accountant at least other duties as assigned. In the event once each fiscal year and at such times of the death, removal, resignation, or as the Secretary may request; disqualification of a member, his alter- (g) To act as intermediary between nate shall act for him until a successor the Secretary and any grower or han- for such member is selected and has dler; qualified. In the event both a member (h) To investigate and assemble data of the committee and his alternate are on the growing, handling, and mar- unable to attend a committee meeting, keting conditions with respect to apri- the member or the committee may des- cots; ignate any other alternate member (i) To submit to the Secretary such from the same district and group (han- available information as he may re- dler or grower) to serve in such mem- quest; ber’s place and stead. (j) To notify producers and handlers of all meetings of the committee to § 922.30 Powers. consider recommendations for regula- The committee shall have the fol- tions; lowing powers: (k) To give the Secretary the same (a) To administer the provisions of notice of meetings of the committee as this part in accordance with its terms; is given to its members; (b) To receive, investigate, and report (l) To investigate compliance with to the Secretary complaints of viola- the provisions of this part; tions of the provisions of this part; (m) With the approval of the Sec- (c) To make and adopt rules and reg- retary, to redefine the districts into ulations to effectuate the terms and which the production area is divided, provisions of this part; and and to reapportion the representation (d) To recommend to the Secretary of any district on the committee: Pro- amendments to this part. vided, That any such changes shall reflect, insofar as practicable, shifts in § 922.31 Duties. apricot production within the districts The committee shall have, among and the production area. others, the following duties: (a) To select a chairman and such § 922.32 Procedure. other officers as may be necessary, and (a) Eight members of the committee, to define the duties of such officers; including alternates acting for mem- (b) To appoint such employees, bers, shall constitute a quorum; and agents, and representatives as it may any action of the committee shall redeem necessary, and to determine com- quire the concurring vote of at least 7 pensation and to define the duties of members: Provided, That when two- each; thirds of the membership present is (c) To submit to the Secretary as greater than 7, such requirement shall soon as practicable after the beginning be two-thirds of such membership. of each fiscal period a budget for such (b) The committee may provide for fiscal period, including a report in ex- simultaneous meetings of groups of its planation of the items appearing there- members assembled at two or more in and a recommendation as to the rate designated places: Provided, That such of assessment for such period; meetings shall be subject to the estab- (d) To keep minutes, books, and lishment of communication between records which will reflect all of the all such groups and the availability of

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loud speaker receivers for each group ties in accordance with the provisions so that each member may participate of this part during each fiscal period. in the discussions and other actions The funds to cover such expenses shall the same as if the committee were as- be acquired by the levying of assess- sembled in one place. Any such meet- ments as prescribed in § 922.41. ing shall be considered as an assembled meeting. § 922.41 Assessments. (c) The committee may vote by tele- (a) Each person who first handles graph, telephone, or other means of apricots shall, with respect to the apri- communication, and any votes so cast cots so handled by him, pay to the shall be confirmed promptly in writing: committee upon demand such person’s Provided, That if an assembled meeting pro rata share of the expenses which is held, all votes shall be cast in per- the Secretary finds will be incurred by son. the committee during each fiscal period. Each such person’s share of such § 922.33 Expenses and compensation. expenses shall be equal to the ratio be- The members of the committee, and tween the total quantity of apricots alternates when acting as members, handled by him as the first handler shall be reimbursed for expenses nec- thereof during the applicable fiscal pe- essarily incurred by them in the per- riod and the total quantity of apricots formance of their duties under this so handled by all persons during the part and may also receive compensa- same fiscal period. The payment of as- tion, as determined by the committee, sessments for the maintenance and which shall not exceed $10 per day or functioning of the committee may be portion thereof spent in performing required under this part throughout such duties: Provided, That at its dis- the period it is in effect irrespective of cretion the committee may request the whether particular provisions thereof attendance of one or more alternates are suspended or become inoperative. at any or all meetings, notwith- (b) The Secretary shall fix the rate of standing the expected or actual pres- assessment to be paid by each such per- ence of the respective members, and son. At any time during or after the may pay expenses and compensation, fiscal period, the Secretary may in- as aforesaid. crease the rate of assessment in order to secure sufficient funds to cover any § 922.34 Annual report. later finding by the Secretary relative The committee shall, prior to the to the expenses which may be incurred. last day of each fiscal period, prepare Such increase shall be applied to all and mail an annual report to the Sec- apricots handled during the applicable retary and make a copy available to fiscal period. In order to provide funds each handler and grower who requests for the administration of the provi- a copy of the report. This annual re- sions of this part during the first part port shall contain at least: of a fiscal period before sufficient oper- (a) A complete review of the regu- ating income is available from assess- latory operations during the fiscal pe- ments on the current year’s shipments, riod; the committee may accept the pay- (b) An appraisal of the effect of such ment of assessments in advance, and regulatory operations upon the apricot may also borrow money for such pur- industry; and pose. (c) Any recommendations for changes in the program. § 922.42 Accounting. (a) If, at the end of a fiscal period, EXPENSES AND ASSESSMENTS the assessments collected are in excess of expenses incurred, such excess shall § 922.40 Expenses. be accounted for as follows: The committee is authorized to incur (1) Except as provided in paragraph such expenses as the Secretary finds (a)(2) of this section each person enti- are reasonable and likely to be in- tled to a proportionate refund of any curred by the committee to enable it to excess assessment shall be credited exercise its powers and perform its du- with such refund against the operation

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of the following fiscal period unless (c) Upon the removal or expiration of such person demands repayment there- the term of office of any member of the of, in which event it shall be paid to committee, such member shall account him: Provided, That any sum paid by a for all receipts and disbursements and person in excess of his pro rata share of deliver all property and funds in his the expenses during any fiscal period possession to his successor in office, may be applied by the committee at and shall execute such assignments and the end of such fiscal period to any other instruments as may be necessary outstanding obligations due the com- or appropriate to vest in such successor mittee from such person. full title to all of the property, funds, (2) The Secretary, upon recommenda- and claims vested in such member pur- tion of the committee, may determine suant to this part. that it is appropriate for the mainte- RESEARCH nance and functioning of the committee that the funds remaining at the § 922.45 Marketing research and devel- end of a fiscal period which are in ex- opment. cess of the expenses necessary for com- The committee, with the approval of mittee operations during such period the Secretary, may establish or provide may be carried over into following pe- for the establishment of marketing re- riods as a reserve. Such reserve may be search and development projects de- established at an amount not to exceed signed to assist, improve, or promote approximately one fiscal period’s oper- the marketing, distribution, and con- ational expenses; and such reserve may sumption of apricots. The expense of be used to cover the necessary expenses such projects shall be paid from funds of liquidation, in the event of termi- collected pursuant to § 922.41. nation of this part, and to cover the expenses incurred for the maintenance REGULATIONS and functioning of the committee during any fiscal period when there is a § 922.50 Marketing policy. crop failure, or during any period of (a) Each season prior to making any suspension of any or all of the provi- recommendations pursuant to § 922.51, sions of this part. Such reserve may the committee shall submit to the Sec- also be used by the committee to fi- retary a report setting forth its mar- nance its operations, during any fiscal keting policy for the ensuing season. period, prior to the time that assess- Such marketing policy report shall ment income is sufficient to cover such contain information relative to: expenses; but any of the reserve funds (1) The estimated total production of so used shall be returned to the reserve apricots within the production area; as soon as assessment income is avail- (2) The expected general quality and able for this purpose. Upon termination size of apricots in the production area of this part, any funds not required to and in other areas; defray the necessary expenses of liq- (3) The expected demand conditions uidation shall be disposed of in such for apricots in different market out- manner as the Secretary may deter- lets; mine to be appropriate: Provided, That (4) The expected shipments of apri- to the extent practical, such funds cots produced in the production area shall be returned pro rata to the per- and in areas outside the production sons from whom such funds were col- area; lected. (5) Supplies of competing commod- (b) All funds received by the com- ities; mittee pursuant to the provisions of (6) Trend and level of consumer in- this part shall be used solely for the come; purposes specified in this part and shall (7) Other factors having a bearing on be accounted for in the manner pro- the marketing of apricots; and vided in this part. The Secretary may (8) The type of regulations expected at any time require the committee and to be recommended during the season. its members to account for all receipts (b) In the event it becomes advisable, and disbursements. because of changes in the supply and

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demand situation for apricots, to mod- and maturity during any period when ify substantially such marketing pol- season average prices are expected to icy, the committee shall submit to the exceed the parity level; Secretary a revised marketing policy (3) Fix the size, capacity, weight, di- report setting forth the information mensions, markings, or pack of the prescribed in this section. The com- container, or containers, which may be mittee shall publicly announce the used in the packaging or handling of contents of each marketing policy re- apricots. port, including each revised marketing (b) The committee shall be informed policy report, and copies thereof shall immediately of any such regulation be maintained in the office of the com- issued by the Secretary, and the committee where they shall be available mittee shall promptly give notice for examination by growers and han- thereof to growers and handlers. dlers. [22 FR 3514, May 21, 1957. Redesignated at 26 § 922.51 Recommendations for regula- FR 12751, Dec. 30, 1961, as amended at 27 FR tion. 5188, June 2, 1962] (a) Whenever the committee deems it § 922.53 Modification, suspension, or advisable to regulate the handling of termination of regulations. any variety or varieties of apricots in the manner provided in § 922.52, it shall (a) In the event the committee at any so recommend to the Secretary. time finds that, by reason of changed (b) In arriving at its recommenda- conditions, any regulations issued pur- tions for regulation pursuant to para- suant to § 922.52 should be modified, graph (a) of this section, the com- suspended, or terminated, it shall so mittee shall give consideration to cur- recommend to the Secretary. rent information with respect to the (b) Whenever the Secretary finds, factors affecting the supply and de- from the recommendations and infor- mand for apricots during the period or mation submitted by the committee or periods when it is proposed that such from other available information, that regulation should be made effective. a regulation should be modified, sus- With each such recommendation for pended, or terminated with respect to regulation, the committee shall submit any or all shipments of apricots in to the Secretary the data and informa- order to effectuate the declared policy tion on which such recommendation is of the act, he shall modify, suspend or predicated and such other available in- terminate such regulation. On the formation as the Secretary may re- same basis and in like manner the Sec- quest. retary may terminate any such modification or suspension. If the Secretary § 922.52 Issuance of regulations. finds that a regulation obstructs or (a) The Secretary shall regulate, in does not tend to effectuate the declared the manner specified in this section, policy of the act, he shall suspend or the handling of apricots whenever he terminate such regulation. On the finds from the recommendations and same basis and in like manner the Sec- information submitted by the com- retary may terminate any such suspen- mittee, or from other available infor- sion. mation, that such regulations will tend to effectuate the declared policy of the § 922.54 Special purpose shipments. act. Such regulations may: (a) Except as otherwise provided in (1) Limit, during any period or peri- this section, any person may, without ods, the shipment of any particular regard to the provisions of §§ 922.41, grade, size, quality, maturity, or pack, 922.52, 922.53, and 922.55, and the regula- or any combination thereof, of any va- tions issued thereunder, handle apri- riety or varieties of apricots grown in cots (1) for consumption by charitable any district or districts of the produc- institutions; (2) for distribution by re- tion area; lief agencies; or (3) for commercial (2) Limit the shipment of apricots by processing into products. establishing, in terms of grades, sizes, (b) Upon the basis of recommenda- or both, minimum standards of quality tions and information submitted by the

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committee, or from other available in- would not be practical to perform the formation, the Secretary may relieve required inspection at a particular lo- from any or all requirements, under or cation: Provided, That all such ship- established pursuant to § 922.41, § 922.52, ments shall comply with all regula- § 922.53, or § 922.55, the handling of apri- tions in effect. cots in such minimum quantities, or [22 FR 3514, May 21, 1957. Redesignated at 26 types of shipments, or for such speci- FR 12751, Dec. 30, 1961, as amended at 27 FR fied purposes (including shipments to 5188, June 2, 1962] facilitate the conduct of marketing research and development projects estab- REPORTS lished pursuant to § 922.45), as the committee, with approval of the Secretary, § 922.60 Reports. may prescribe, (a) Upon request of the committee, (c) The committee shall, with the ap- made with the approval of the Sec- proval of the Secretary, prescribe such retary, each handler shall furnish to rules, regulations, and safeguards as it the committee, in such manner and at may deem necessary to prevent apri- such time as it may prescribe, such re- cots handled under the provisions of ports and other information as may be this section from entering the channels necessary for the committee to per- of trade for other than the specific pur- form its duties under this part. Such poses authorized by this section. Such reports may include, but are not nec- rules, regulations, and safeguards may essarily limited to, the following: include the requirements that handlers (1) The quantities of each variety of shall file applications and receive ap- apricots received by a handler, proval from the committee for author- (2) The quantities disposed of by him ization to handle apricots pursuant to segregated as to the respective quan- this section, and that such applications tities subject to regulation and not be accompanied by a certification by subject to regulation; the intended purchaser or receiver that (3) The date of each such disposition the apricots will not be used for any and the identification of the carrier purpose not authorized by this section. transporting such apricots, and (4) The destination of each such ship- § 922.55 Inspection and certification. ment. Whenever the handling of any variety (b) All such reports shall be held of apricots is regulated pursuant to under appropriate protective classifica- § 922.52 or § 922.53, each handler who tion and custody by the committee, or handles apricots shall, prior thereto, duly appointed employees thereof, so cause such apricots to be inspected by that the information contained therein the Federal-State Inspection Service which may adversely affect the com- and certified by it as meeting the ap- petitive position of any handler in rela- plicable requirements of such regulation to other handlers will not be dis- tion: Provided, That inspection and cer- closed. Compilations of general reports tification shall be required for apricots from data submitted by handlers is au- which previously have been so in- thorized, subject to the prohibition of spected and certified only if such apri- disclosure of individual handler’s iden- cots have been regraded, resorted, re- tities or operations. packaged, or in any other way further (c) Each handler shall maintain for prepared for market. Promptly after at least two succeeding years such inspection and certification, each such records of the apricots received, and of handler shall submit, or cause to be apricots disposed of, by such handler as submitted, to the committee a copy of may be necessary to verify reports pur- the certificate of inspection issued suant to this section. with respect to such apricots. The committee may, with the approval of the MISCELLANEOUS PROVISIONS Secretary, prescribe rules and regulations modifying the inspection require- § 922.61 Compliance. ments of this section as to time and Except as provided in this part, no place such inspection shall be per- person shall handle apricots, the ship- formed whenever it is determined it ment of which has been prohibited by

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the Secretary in accordance with the only if announced on or before March provisions of this part; and no person 31 of the then current fiscal period. shall handle apricots except in con- (d) The provisions of this part shall, formity with the provisions of this in any event, terminate whenever the part. provisions of the act authorizing them cease to be in effect. § 922.62 Right of the Secretary. The members of the committee (in- § 922.65 Proceedings after termination. cluding successors and alternates), and (a) Upon the termination of the pro- any agents, employees, or representa- visions of this part, the committee tives thereof, shall be subject to re- shall, for the purpose of liquidating the moval or suspension by the Secretary affairs of the committee, continue as at any time. Each and every regula- trustees of all the funds and property tion, decision, determination, or other then in its possession, or under its con- act of the committee shall be subject to the continuing right of the Sec- trol, including claims for any funds un- retary to disapprove of the same at any paid or property not delivered at the time. Upon such disapproval, the dis- time of such termination. approved action of the committee shall (b) The said trustees shall (1) con- be deemed null and void, except as to tinue in such capacity until discharged acts done in reliance thereon or in ac- by the Secretary; (2) from time to time cordance therewith prior to such dis- account for all receipts and disburse- approval by the Secretary. ments and deliver all property on hand, together with all books and records of § 922.63 Effective time. the committee and of the trustees, to The provisions of this part, and of such person as the Secretary may di- any amendment thereto, shall become rect; and (3) upon the request of the effective at such time as the Secretary Secretary, execute such assignments or may declare above his signature to this other instruments necessary or appro- part, and shall continue in force until priate to vest in such person, full title terminated in one of the ways specified and right to all of the funds, property, in § 922.64. and claims vested in the committee or the trustees pursuant hereto. § 922.64 Termination. (c) Any person to whom funds, prop- (a) The Secretary may at any time erty, or claims have been transferred terminate the provisions of this part or delivered pursuant to this section by giving at least one day’s notice by shall be subject to the same obligation means of a press release or in any other imposed upon the committee and upon manner in which he may determine. the trustees. (b) The Secretary shall terminate or suspend the operation of any and all of § 922.66 Effect of termination or the provisions of this part whenever he amendment. finds that such provisions do not tend Unless otherwise expressly provided to effectuate the declared policy of the by the Secretary, the termination of act. this subpart or of any regulation issued (c) The Secretary shall terminate the pursuant to this subpart, or the provisions of this part at the end of issuance of any amendment to either any fiscal period whenever he finds thereof, shall not (a) affect or waive that continuance is not favored by the any right, duty, obligation, or liability majority of producers who, during a which shall have arisen or which may representative period determined by thereafter arise in connection with any the Secretary, were engaged in the pro- provision of this subpart or any regula- duction area in the production of apri- tion issued under this subpart, or (b) cots for market: Provided, That such release or extinguish any violation of majority has produced for market dur- this subpart or of any regulation issued ing such period more than 50 percent of under this subpart, or (c) affect or im- the volume of apricots produced for pair any rights or remedies of the Sec- market in the production area; but retary or of any other person with re- such termination shall be effective spect to any such violation.

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§ 922.67 Duration of immunities. Subpart—Container Exemption; The benefits, privileges, and immuni- Waivers of Inspection and ties conferred upon any person by vir- Certification tue of this subpart shall cease upon the termination of this subpart, except § 922.110 Container exemption. with respect to acts done under and Whenever container limitations are during the existence of this subpart. effective pursuant to § 922.52, a handler may make test shipments of apricots § 922.68 Agents. in experimental containers, approved The Secretary may, by designation in by the committee, subject to the fol- writing, name any officer or employee lowing: of the United States, or name any (a) Test shipments shall be made agency or division in the United States only in connection with a container re- Department of Agriculture, to act as search project, or projects, being con- his agent or representative in connec- ducted by or in cooperation with the tion with any of the provisions of this Washington Apricot Marketing Com- part. mittee. (b) The handler shall first make ap- § 922.69 Derogation. plication to, and receive a permit from, Nothing contained in the provisions the Washington Apricot Marketing of this part is, or shall be construed to Committee on a form of the committee be, in derogation or in modification of to handle each experimental container the rights of the Secretary or of the proposed to be used by the handler for United States (a) to exercise any pow- test shipments. Such application shall ers granted by the act or otherwise, or contain the following information: (b) in accordance with such powers, to (1) Name and address of the applicant act in the premises whenever such ac- and date of application; tion is deemed advisable. (2) Description of the container, including size, weight, inside dimensions, § 922.70 Personal liability. and type of pack; No member or alternate member of (3) Quantity of such containers pro- the committee and no employee or posed to be shipped. agent of the committee shall be held (c) Approval of the application shall personally responsible, either individ- be evidenced by the issuance to the ap- ually or jointly with others, in any way plicant by the committee of a permit whatsoever, to any person for errors in which shall authorize the handling of judgment, mistakes, or other act, ei- apricots in such quantity of experi- ther of commission or omission, as mental containers as the committee such member, alternate, employee, or may approve. agent, except for acts of dishonesty, (d) With respect to each test ship- willful misconduct, or gross neg- ment of apricots handled in experi- ligence. mental containers, the handler shall, prior to such handling, advise the com- § 922.71 Separability. mittee as to (1) the number and type of If any provision of this part is de- the container or containers in the test clared invalid, or the applicability shipment, (2) identification of the car- thereof to any person, circumstance, or rier, (3) name and address of the re- thing is held invalid, the validity of the ceiver, and (4) expected time of arrival remainder of this part or the applica- at destination. bility thereof to any other person, cir- (e) Terms used in this section shall cumstance, or thing shall not be af- have the same meaning as when used in fected thereby. said marketing agreement and order (§§ 922.1 to 922.71). [23 FR 4781, June 28, 1958. Redesignated at 26 FR 12751, Dec. 30, 1961]

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§ 922.111 Waiver of inspection and cer- cation or from other proof satisfactory tification. to the Committee that the applicant is (a) Application. Any handler (includ- entitled to a waiver from the inspec- ing a grower-handler packing and han- tion requirements of the amended mar- dling apricots of his own production), keting agreement and order at time of whose packing facilities are located in shipment, the Committee shall issue a an area where a Washington State Hor- permit authorizing the applicant to ticultural Division Inspection Office or ship apricots in accordance with these Federal-State Inspector is not readily administrative regulations and the available to perform the required in- terms and conditions of such permit. spection may, prior to shipment, apply [29 FR 9526, July 14, 1964] to the Committee for a permit authorizing a waiver of inspection. Applica- § 922.142 Reserve fund. tions shall be made on forms furnished by the Committee and shall contain (a) The establishment of a reserve such information as the Committee fund of an amount not greater than ap- may require including: Name and ad- proximately one fiscal year’s oper- dress of applicant, location of packing ational expenses is appropriate and facility, distance of packing facility necessary to the maintenance and from the nearest inspection office, pe- functioning of the Washington Apricot riod (by approximate beginning and Marketing Committee. The committee ending dates) during which applicant is hereby authorized to carry forward expects to ship apricots, estimated in the aforesaid reserve $5,765.09 which quantity of apricots applicant expects are excess assessment funds from the to ship to fresh market during such pe- fiscal period ended March 31, 1960, and riod, manner in which the majority of $787.61 which are excess assessment applicant’s fruit will be marketed (i.e., funds from the fiscal period ended transported by applicant to market, March 31, 1961. Such reserve shall be sold at orchard to truckers, etc.), areas used in accordance with the provisions or markets to which applicant expects of § 922.42 of the said marketing agree- to ship the majority of his apricots. ment and order (§§ 922.1 to 922.71). The application shall also contain an (b) Terms used in this section shall agreement by applicant (1) not to ship have the same meaning as given to the or handle any apricots unless such respective term in said marketing apricots meet the grade, size, matu- agreement and order. rity, container, and all other require- [26 FR 8664, Sept. 16, 1961. Redesignated at 26 ments of the amended marketing FR 12751, Dec. 30, 1961, and further redesig- agreement and order in effect at time nated as 44 FR 73010, Dec. 17, 1979] of handling, (2) to report periodically to the Committee on reporting forms furnished by the Committee the fol- Subpart—Assessment Rate lowing information on each shipment: § 922.235 Assessment rate. quantity, variety, grade, minimum size, container, date of shipment, des- On and after April 1, 2010, an assess- tination, name and address of buyer or ment rate of $1.50 per ton is established receiver, and such other information as for the Washington Apricot Marketing the Committee may specify, (3) to pay Committee. applicable assessments on each ship- [75 FR 51926, Aug. 24, 2010] ment, (4) to have or cause to have each shipment of apricots inspected when such shipment is transported to a mar- Subpart—Container Regulations ket or through a location en route to § 922.306 Apricot Regulation 6. market where an inspector is available, and (5) to comply with such other safe- (a) No handler shall handle any apri- guards as the Committee may pre- cots unless such apricots are: scribe. (1) In open containers or telescope fi- (b) Issuance of permit. Whenever the berboard cartons and the net weight of Committee finds and determines from the apricots is not less than 28 pounds; the information contained in the appli- or

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(2) In closed containers containing (2) Minimum size requirements. Such not less than 14 pounds, net weight, of apricots measure not less than 15⁄8 apricots: Provided, That when the apri- inches in diameter except that apricots cots are packed in such containers they of the Blenheim, Blenril, and Tilton va- are row-faced or tray-packed; or rieties may measure not less than 11⁄4 (3) In closed containers that are inches: Provided, That not more than 10 marked ‘‘12 pounds net weight’’ and con- percent, by count, of such apricots may tain not less than 12 pounds, net fail to meet the applicable minimum weight, of apricots which are of ran- diameter requirements. dom size and are not row-faced; or (3) Notwithstanding any other provi- (4) In closed containers containing sion of this section, any individual not less than 24 pounds, net weight, of shipment of apricots which meets each apricots when packed loose in such of the following requirements may be containers; or handled without regard to the provi- (5) If exported to Canada, in any of sions of this paragraph, of § 922.41 (As- the containers specified in this para- sessments), and of § 922.55 (Inspection graph (a) or in containers having inside and Certification): dimensions of 161⁄8×111⁄2 inches with 43⁄4- (i) The shipment consists of apricots inch end pieces and 33⁄4-inch side pieces. sold for home use and not for resale; (b) Notwithstanding any other provi- (ii) The shipment does not, in the ag- sions of this section, any individual gregate, exceed 500 pounds, net weight, shipment of apricots which, in the ag- of apricots; and gregate, does not exceed 500 pounds, (iii) Each container is stamped or net weight, may be handled without re- marked with the words ‘‘not for resale’’ gard to the requirements specified in in letters at least one-half inch in this section or in §§ 922.41 or 922.55. height. (c) All apricots handled are also sub- (b) The terms diameter and Wash- ject to all applicable grade, size, qual- ington No. 1 shall have the same mean- ity, maturity and pack regulations ing as when used in the State of Wash- which are in effect pursuant to this ington Department of Agriculture Standards for Apricots, effective May part. 31, 1966; reasonably uniform in color (d) The terms handler, handle and means that the apricots in the indi- apricots shall have the same meaning as vidual container do not show sufficient when used in the amended marketing variation in color to materially affect agreement and order. the general appearance of the apricots; [59 FR 30673, June 15, 1994, as amended at 63 and generally well matured means that FR 32718, June 16, 1998] with respect to not less than 90 per- EFFECTIVE DATE NOTE: At 72 FR 16265, Apr. cent, by count, of the apricots in any 4, 2007, § 922.306 was suspended indefinitely, lot of containers, and not less than 85 effective Apr. 1, 2007. percent, by count, of such apricots in any container in such lot, at least 40 Subpart—Grade and Size percent of the surface area of the fruit Regulation is at least as yellow as Shade 3 on U.S. Department of Agriculture Standard § 922.321 Apricot Regulation 21. Ground Color Chart of Apples and Pears in Western States. (a) On and after August 1, 1981, no handler shall handle any container of [46 FR 38668, July 29, 1981, as amended at 54 apricots unless such apricots meet the FR 26186, June 22, 1989; 60 FR 32430, June 22, following applicable requirements, or 1995; 61 FR 30497, June 17, 1996; 75 FR 72935, are handled in accordance with para- Nov. 29, 2010] graph (a)(3) of this section: EDITORIAL NOTE: After January 1, 1979, (1) Minimum grade and maturity re- ‘‘Budget of Expenses and Rate of Assessment’’ quirements. Such apricots that grade regulations (e.g. sections .200 through .299) not less than Washington No. 1 and are and ‘‘Handling’’ regulations (e.g. sections .322 through .399) which are in effect for a year or at least reasonably uniform in color: less, will not be carried in the Code of Fed- Provided, That such apricots of the eral Regulations. For FEDERAL REGISTER ci- Moorpark variety in open containers tations affecting these regulations, see the shall be generally well matured. List of CFR Sections Affected, which appears

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in the Finding Aids section of the printed MISCELLANEOUS PROVISIONS volume and at www.fdsys.gov. 923.61 Compliance. 923.62 Right of the Secretary. PART 923—SWEET CHERRIES 923.63 Effective time. GROWN IN DESIGNATED COUN- 923.64 Termination. TIES IN WASHINGTON 923.65 Proceedings after termination. 923.66 Effect of termination or amendment. Subpart—Order Regulating Handling 923.67 Duration of immunities. 923.68 Agents. DEFINITIONS 923.69 Derogation. Sec. 923.70 Personal liability. 923.1 Secretary. 923.71 Separability. 923.2 Act. 923.142 Reserve fund. 923.3 Person. 923.4 Production area. ASSESSMENT RATE 923.5 Cherries. 923.6 Varieties. 923.236 Assessment rate. 923.7 Fiscal period. 923.8 Committee. GRADE, SIZE, CONTAINER AND PACK 923.9 Grade. REGULATION 923.10 Size. 923.322 Washington cherry handling regula- 923.11 Grower. tion. 923.12 Handler. 923.13 Handle. AUTHORITY: 7 U.S.C. 601–674. 923.14 District. SOURCE: 22 FR 3835, June 1, 1957, unless oth- 923.15 Export. erwise noted. Redesignated at 26 FR 12751, 923.16 Pack. Dec. 30, 1961. 923.17 Container. ADMINISTRATIVE BODY Subpart—Order Regulating 923.20 Establishment and membership. Handling 923.21 Term of office. 923.22 Nomination. DEFINITIONS 923.23 Selection. 923.24 Failure to nominate. § 923.1 Secretary. 923.25 Acceptance. 923.26 Vacancies. Secretary means the Secretary of Ag- 923.27 Alternate members. riculture of the United States, or any 923.30 Powers. officer or employee of the Department 923.31 Duties. to whom authority has heretofore been 923.32 Procedure. 923.33 Expenses and compensation. delegated, or to whom authority may 923.34 Annual report. hereafter be delegated, to act in his stead. EXPENSES AND ASSESSMENTS 923.40 Expenses. § 923.2 Act. 923.41 Assessments. Act means Public Act No. 10, 73d Con- 923.42 Accounting. gress (May 12, 1933), as amended and as 923.43 Contributions. reenacted and amended by the Agricul- RESEARCH tural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 923.45 Marketing research and development. U.S.C. 601 et seq.; 68 Stat. 906, 1047). REGULATIONS § 923.3 Person. 923.50 Marketing policy. 923.51 Recommendations for regulation. Person means an individual, partner- 923.52 Issuance of regulations. ship, corporation, association, or any 923.53 Modification, suspension, or termi- other business unit. nation of regulations. 923.54 Special purpose shipments. § 923.4 Production area. 923.55 Inspection and certification. Production area means the counties of REPORTS Okanogan, Chelan, Kittitas, Yakima, 923.60 Reports. Klickitat in the State of Washington

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and all of the counties in Washington § 923.12 Handler. lying east thereof. Handler is synonymous with shipper [66 FR 58356, Nov. 21, 2001] and means any person (except a common or contract carrier transporting § 923.5 Cherries. cherries owned by another person) who Cherries means all varieties of sweet handles cherries. cherries grown in the production area, classified botanically as Prunus avium. § 923.13 Handle. Handle and ship are synonymous and § 923.6 Varieties. mean to sell, consign, deliver, or trans- Varieties means and includes all clas- port cherries or cause the sale, con- sifications or subdivisions of Prunus signment, delivery, or transportation avium. of cherries or in any other way to place cherries, or cause cherries to be placed, § 923.7 Fiscal period. in the current of the commerce from any point within the production area Fiscal period is synonymous with fis- to any point outside thereof: Provided, cal year and means the 12-month pe- That the term handle shall not include riod ending on March 31 of each year or the transportation within the produc- such other period that may be ap- tion area of cherries from the orchard proved by the Secretary pursuant to where grown to a packing facility lo- recommendations by the committee. cated within such area for preparation for market, or the delivery of such § 923.8 Committee. cherries to such packing facility for Committee means the Washington such preparation. Cherry Marketing Committee established pursuant to § 923.20. § 923.14 District. District means the applicable one of § 923.9 Grade. the following described subdivisions of Grade means any one of the officially the production area, or such other sub- established grades of cherries as de- divisions as may be prescribed pursu- fined and set forth in: ant to § 923.31(m): (a) United States Standards for (a) District 1 shall include the Coun- Sweet Cherries (§§ 51.2646 to 51.2660 of ties of Chelan, Okanogan, Douglas, this title) or amendments thereto, or Grant, Lincoln, Spokane, Pend Oreille, modifications thereof, or variations Stevens, and Ferry. based thereon; (b) District 2 shall include the coun- (b) Standards for sweet cherries ties of Kittitas, Yakima, Klickitat, issued by the State of Washington or Benton, Adams, Franklin, Walla Walla, amendments thereto, or modifications Whitman, Columbia, Garfield and thereof, or variations based thereon. Asotin. [22 FR 3835, June 1, 1957. Redesignated at 26 § 923.10 Size. FR 12751, Dec. 30, 1961, as amended at 66 FR Size means the greatest diameter, 58356, Nov. 21, 2001] measured through the center of the cherry, at right angles to a line run- § 923.15 Export. ning from the stem to the blossom end, Export means to ship cherries beyond or such other specification as may be the continental boundaries of the established by the committee with the United States. approval of the Secretary. § 923.16 Pack. § 923.11 Grower. Pack means the specific arrangement, Grower is synonymous with producer size, weight, count, or grade of a quan- and means any person who produces tity of cherries in a particular type and cherries for market and who has a pro- size of container, or any combination prietary interest therein. thereof.

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§ 923.17 Container. consecutive terms. Members who have Container means a box, bag, crate, served for three consecutive terms lug, basket, carton, package, or any must leave the committee for at least other type of receptacle used in the one year before becoming eligible to packaging or handling of cherries. serve again. [70 FR 44252, Aug. 2, 2005] ADMINISTRATIVE BODY § 923.22 Nomination. § 923.20 Establishment and membership. (a) Initial members. Nominations for each of the ten initial grower members There is hereby established a Wash- and five initial handler members of the ington Cherry Marketing Committee committee, together with nominations consisting of sixteen members, each of for the initial alternate members for whom shall have an alternate who each position, may be submitted to the shall have the same qualifications as Secretary by individual growers and the member for whom he is an alter- handlers. Such nominations may be nate. Ten of the members and their re- made by means of group meetings of spective alternates shall be growers or the growers and handlers concerned in officers or employees of corporate each district. Such nominations, if growers. Six of the members and their made, shall be filed with the Secretary respective alternates shall be handlers, no later than the effective date of this or officers or employees of handlers. part. In the event nominations for ini- The ten members of the committee tial members and alternate members of who are growers or employees or offi- the committee are not filed pursuant cers of corporate growers are referred to, and within the time specified, in to in this part as ‘‘grower members’’ of this section, the Secretary may select the committee; and the six members of such initial members and alternate the committee who shall be handlers, members without regard to nomina- or officers or employees of handlers, tions, but selections shall be on the are referred to in this part as ‘‘handler basis of the representation provided for members’’ of the committee. Five of in § 923.20. the grower members and their respec- (b) Successor members. (1) The com- tive alternates shall be producers of mittee shall hold or cause to be held, cherries in District 1, and five of the not later than March 1 of each year, a grower members and their respective meeting or meetings of growers and alternates shall be producers of cher- handlers in each district for the pur- ries in District 2. Three of the handler pose of designating nominees for suc- members and their respective alter- cessor members and alternate members nates shall be handlers of cherries in of the committee. At each such meet- District 1, and three of the handler ing a chairman and a secretary shall be members and their respective alter- selected by the growers and handlers nates shall be handlers of cherries in eligible to participate therein. The District 2. chairman shall announce at the meet- [22 FR 3835, June 1, 1957. Redesignated at 26 ing the number of votes cast for each FR 12751, Dec. 30, 1961, as amended at 66 FR person nominated for member or alter- 58356, Nov. 21, 2001] nate member and shall submit promptly to the committee a complete report § 923.21 Term of office. concerning such meeting. The com- The term of office of each member mittee shall, in turn, promptly submit and alternate member of the com- a copy of each such report to the Sec- mittee shall be for two years beginning retary. April 1 and ending March 31. Members (2) Only growers, including duly au- and alternate members shall serve in thorized officers or employees of cor- such capacities for the portion of the porate growers, who are present at term of office for which they are se- such nomination meetings may partici- lected and have qualified and until pate in the nomination and election of their respective successors are selected nominees for grower members and and have qualified. Committee mem- their alternates. Each grower shall be bers shall not serve more than three entitled to cast only one vote for each

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nominee to be elected in the district in or alternate member of the committee, which he produces cherries. No grower a successor for the unexpired term of shall participate in the election of such member or alternate member of nominees in more than one district in the committee shall be nominated and any one fiscal year. If a person is both selected in the manner specified in a grower and a handler of cherries, §§ 923.22 and 923.23. If the names of such person may vote either as a grow- nominees to fill any such vacancy are er or as a handler but not as both. not made available to the Secretary (3) Only handlers, including duly au- within a reasonable time after such va- thorized officers or employees of han- cancy occurs, the Secretary may fill dlers, who are present at such nomina- such vacancy without regard to nomi- tion meetings, may participate in the nations, which selection shall be made nomination and election of nominees on the basis of representation provided for handler members and their alter- for in § 923.20. nates. Each handler shall be entitled to cast only one vote for each nominee to § 923.27 Alternate members. be elected in the district in which he An alternate member of the com- handles cherries. No handler shall par- mittee, during the absence or at the re- ticipate in the election of nominees in quest of the member for whom he is an more than one district in any one fiscal alternate, shall act in the place and year. If a person is both a grower and a stead of such member and perform such handler of cherries, such person may other duties as assigned. In the event vote either as a grower or as a handler of the death, removal, resignation, or but not as both. disqualification of a member, his alternate shall act for him until a successor § 923.23 Selection. for such member is selected and has From the nominations made pursu- qualified. In the event both a member ant to § 923.22, or from other qualified of the committee and his alternate are persons, the Secretary shall select the unable to attend a committee meeting, ten grower members of the committee, the member of the committee may des- the five handler members of the com- ignate any other alternate member mittee, and an alternate for each mem- from the same district and group (han- ber. dler or grower) to serve in such member’s place and stead. § 923.24 Failure to nominate. If nominations are not made within § 923.30 Powers. the time and in the manner prescribed The committee shall have the fol- in § 923.22, the Secretary may, without lowing powers: regard to nominations, select the mem- (a) To administer the provisions of bers and alternate members of the this part in accordance with its terms; committee on the basis of the represen- (b) To receive, investigate, and report tation provided for in § 923.20. to the Secretary complaints of violations of the provisions of this part; § 923.25 Acceptance. (c) To make and adopt rules and reg- Any person prior to selection as a ulations to effectuate the terms and member or an alternate member of the provisions of this part; and committee shall qualify by filing with (d) To recommend to the Secretary USDA a written acceptance of willing- amendments to this part. ness to serve on the committee. [66 FR 58356, Nov. 21, 2001] § 923.31 Duties. The committee shall have, among § 923.26 Vacancies. others, the following duties: To fill any vacancy occasioned by the (a) To select a chairman and such failure of any person selected as a other officers as may be necessary, and member or as an alternate member of to define the duties of such officers; the committee to qualify, or in the (b) To appoint such employees, event of the death, removal, resigna- agents, and representatives as it may tion, or disqualification of any member deem necessary, and to determine the

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compensation and to define the duties require the concurring vote of at least of each; nine members. (c) To submit to the Secretary as (b) The committee may provide for soon as practicable after the beginning simultaneous meetings of groups of its of each fiscal period a budget for such members assembled at two or more fiscal period, including a report in ex- designated places: Provided, That such planation of the items appearing there- meetings shall be subject to the estab- in and a recommendation as to the rate lishment of communication between of assessment for such period; all such groups and the availability of (d) To keep minutes, books, and loud speaker receivers for each group records which will reflect all of the so that each member may participate acts and transactions of the committee in the discussions and other actions and which shall be subject to examina- the same as if the committee were as- tion by the Secretary; sembled in one place. Any such meet- (e) To prepare periodic statements of ing shall be considered as an assembled the financial operations of the com- meeting. mittee and to make copies of each such (c) The committee may vote by tele- statement available to growers and graph, telephone, or other means of handlers for examination at the office communication, and any votes so cast of the committee; shall be confirmed promptly in writing: (f) To cause its books to be audited Provided, That if an assembled meeting by a competent accountant at least is held, all votes shall be cast in per- once each fiscal year and at such time son. as the Secretary may request; (g) To act as intermediary between § 923.33 Expenses and compensation. the Secretary and any grower or handler; The members of the committee, and (h) To investigate and assemble data alternates when acting as members, on the growing, handling, and mar- shall be reimbursed for expenses nec- keting conditions with respect to cher- essarily incurred by them in the per- ries; formance of their duties under this (i) To submit to the Secretary such part and may also receive compensa- available information as he may re- tion, as determined by the committee, quest; which shall not exceed $10 per day or (j) To notify producers and handlers portion thereof spent in performing of all meetings of the committee to such duties: Provided, That at its dis- consider recommendations for regula- cretion the committee may request the tions; attendance of one or more alternates (k) To give the Secretary the same at any or all meetings, notwith- notice of meetings of the committee as standing the expected or actual pres- is given to its members; ence of the respective members, and (l) To investigate compliance with may pay expenses and compensation, the provisions of this part; as aforesaid. (m) With the approval of the Sec- retary, to redefine the districts into § 923.34 Annual report. which the production area is divided, The committee shall, prior to the and to reapportion the representation last day of each fiscal period, prepare of any district on the committee: Pro- and mail an annual report to the Sec- vided, That any such changes shall re- retary and make a copy available to flect, insofar as practicable, shifts in each handler and grower who requests cherry production within the districts a copy of the report. This annual re- and the production area. port shall contain at least: (a) A complete review of the regulatory oper- § 923.32 Procedure. ations during the fiscal period; (b) an (a) Twelve members of the com- appraisal of the effect of such regu- mittee, including alternates acting for latory operations upon the cherry in- members, shall constitute a quorum; dustry; and (c) any recommendations and any action of the committee shall for changes in the program.

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EXPENSES AND ASSESSMENTS subject to an interest or late payment charge, or both, as may be established § 923.40 Expenses. by USDA as recommended by the com- The committee is authorized to incur mittee. such expenses as the Secretary finds [22 FR 3835, June 1, 1957. Redesignated at 26 are reasonable and likely to be in- FR 12751, Dec. 30, 1961, as amended at 66 FR curred by the committee to enable it to 58356, Nov. 21, 2001.] exercise its powers and perform its duties in accordance with the provisions § 923.42 Accounting. of this part during each fiscal period. (a) If, at the end of a fiscal period, The funds to cover such expenses shall the assessments collected are in excess be acquired by the levying of assess- of expenses incurred, such excess shall ments as prescribed in § 923.41. be accounted for as follows: (1) Except as provided in paragraph § 923.41 Assessments. (a)(2) of this section, each person enti- (a) Each person who first handles tled to a proportionate refund of any cherries shall, with respect to the cher- excess assessment shall be credited ries so handled by him, pay to the com- with such refund against the operation mittee upon demand such person’s pro of the following fiscal period unless rata share of the expenses which the such person demands repayment there- Secretary finds will be incurred by the of, in which event it shall be paid to committee during each fiscal period. him: Provided, That any sum paid by a Each such person’s share of such ex- person in excess of his pro rata share of penses shall be equal to the ratio be- the expenses during any fiscal period tween the total quantity of cherries may be applied by the committee at handled by him as the first handler the end of such fiscal period to any thereof during the applicable fiscal pe- outstanding obligations due the com- riod and the total quantity of cherries mittee from such person. so handled by all persons during the (2) The Secretary, upon recommenda- same fiscal period. The payment of as- tion of the committee, may determine sessments for the maintenance and that it is appropriate for the mainte- functioning of the committee may be nance and functioning of the com- required under this part throughout mittee that the funds remaining at the the period it is in effect irrespective of end of a fiscal period which are in ex- whether particular provisions thereof cess of the expenses necessary for com- are suspended or become inoperative. mittee operations during such period (b) The Secretary shall fix the rate of may be carried over into following pe- assessment to be paid by each such per- riods as a reserve. Such reserve may be son. At any time during or after the established at an amount not to exceed fiscal period, the Secretary may in- approximately one fiscal period’s oper- crease the rate of assessment in order ational expenses; and such reserve may to secure sufficient funds to cover any be used to cover the necessary expenses later finding by the Secretary relative of liquidation, in the event of termi- to the expenses which may be incurred. nation of this part, and to cover the ex- Such increase shall be applied to all penses incurred for the maintenance cherries handled during the applicable and functioning of the committee dur- fiscal period. In order to provide funds ing any fiscal period when there is a for the administration of the provi- crop failure, or during any period of sions of this part during the first part suspension of any or all of the provi- of a fiscal period before sufficient oper- sions of this part. Such reserve may ating income is available from assess- also be used by the committee to fi- ments on the current year’s shipments, nance its operations, during any fiscal the committee may accept the pay- period, prior to the time that assessment of assessments in advance, and ment income is sufficient to cover such may also borrow money for such pur- expenses; but any of the reserve funds pose. so used shall be returned to the reserve (c) If a handler does not pay any as- as soon as assessment income is avail- sessment within the time prescribed by able for this purpose. Upon termination the committee, the assessment may be of this part, any funds not required to

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defray the necessary expenses of liq- REGULATIONS uidation shall be disposed of in such manner as the Secretary may deter- § 923.50 Marketing policy. mine to be appropriate: Provided, That (a) Each season prior to making any to the extent practical, such funds recommendations pursuant to § 923.51, shall be returned pro rata to the per- the committee shall submit to the Sec- sons from whom such funds were col- retary a report setting forth its mar- lected. keting policy for the ensuing season. (b) All funds received by the com- Such marketing policy report shall mittee pursuant to the provisions of contain information relative to: this part shall be used solely for the (1) The estimated total production of cherries within the production area; purposes specified in this part and shall (2) The expected general quality and be accounted for in the manner pro- size of cherries in the production area vided in this part. The Secretary may and in other areas; at any time require the committee and (3) The expected demand conditions its members to account for all receipts for cherries in different market out- and disbursements. lets; (c) Upon the removal or expiration of (4) The expected shipments of cher- the term of office of any member of the ries produced in the production area committee, such member shall account and in areas outside the production for all receipts and disbursements and area; deliver all property and funds in his (5) Supplies of competing commod- possession to his successor in office, ities; and shall execute such assignments and (6) Trend and level of consumer in- other instruments as may be necessary come; or appropriate to vest in such successor (7) Other factors having a bearing on full title to all of the property, funds, the marketing of cherries; and and claims vested in such member pur- (8) The type of regulations expected suant to this part. to be recommended during the season. (b) In the event it becomes advisable, § 923.43 Contributions. because of changes in the supply and demand situation for cherries, to mod- The committee may accept voluntary ify substantially such marketing pol- contributions but these shall only be icy, the committee shall submit to the used to pay expenses incurred pursuant Secretary a revised marketing policy to § 923.45. Furthermore, such contribu- report setting forth the information tions shall be free from any encum- prescribed in this section. The com- brances by the donor and the committee shall publicly announce the mittee shall retain complete control of contents of each marketing policy re- their use. port, including each revised marketing policy report, and copies thereof shall [70 FR 44252, Aug. 2, 2005] be maintained in the office of the com- RESEARCH mittee where they shall be available for examination by growers and han- § 923.45 Marketing research and devel- dlers. opment. § 923.51 Recommendations for regula- The committee, with the approval of tion. the Secretary, may establish or provide (a) Whenever the committee deems it for the establishment of marketing re- advisable to regulate the handling of search and development projects de- any variety or varieties of cherries in signed to assist, improve, or promote the manner provided in § 923.52, it shall the marketing, distribution, and con- so recommend to the Secretary. sumption of cherries. The expense of (b) In arriving at its recommenda- such projects shall be paid from funds tions for regulation pursuant to para- collected pursuant to § 923.41. graph (a) of this section, the committee shall give consideration to current information with respect to the

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factors affecting the supply and de- mation submitted by the committee or mand for cherries during the period or from other available information, that periods when it is proposed that such a regulation should be modified, sus- regulation should be made effective. pended, or terminated with respect to With each such recommendation for any or all shipments of cherries in regulation, the committee shall submit order to effectuate the declared policy to the Secretary the data and informa- of the act, he shall modify, suspend, or tion on which such recommendation is terminate such regulation. On the predicated and such other available in- same basis and in like manner the Sec- formation as the Secretary may re- retary may terminate any such modi- quest. fication or suspension. If the Secretary finds that a regulation obstructs or § 923.52 Issuance of regulations. does not tend to effectuate the declared (a) The Secretary shall regulate, in policy of the act, he shall suspend or the manner specified in this section, terminate such regulation. On the the handling of cherries whenever he same basis and in like manner the Sec- finds, from the recommendations and retary may terminate any such suspen- information submitted by the com- sion. mittee, or from other available information, that such regulations will tend § 923.54 Special purpose shipments. to effectuate the declared policy of the (a) Except as otherwise provided in act. Such regulations may: this section, any person may, without (1) Limit, during any period or periods, the shipment of any particular regard to the provisions of §§ 923.41, grade, size, quality, maturity, or pack, 923.52, 923.53, and 923.55, and the regula- or any combination thereof, of any va- tions issued thereunder, handle cher- riety or varieties of cherries grown in ries (1) for consumption by charitable any district or districts of the produc- institutions; (2) for distribution by re- tion area; lief agencies; or (3) for commercial (2) Limit the shipment of cherries by processing into products. establishing, in terms of grades, sizes, (b) Upon the basis of recommenda- or both, minimum standards of quality tions and information submitted by the and maturity during any period when committee, or from other available in- season average prices are expected to formation, the Secretary may relieve exceed the parity level; from any or all requirements, under or (3) Fix the size, capacity, weight, di- established pursuant to § 923.41, § 923.52, mensions, markings, or pack of the § 923.53, or § 923.55, the handling of cher- container, or containers, which may be ries in such minimum quantities, or used in the packaging or handling of types of shipments, or for such speci- cherries. fied purposes, as the committee, with (b) The committee shall be informed approval of the Secretary, may pre- immediately of any such regulation scribe. Specified purposes under this issued by the Secretary, and the com- section may include shipments of cher- mittee shall promptly give notice ries for grading or packing to specified thereof to growers and handlers. locations outside the production area and shipments to facilitate the conduct [22 FR 3835, June 1, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 66 FR of marketing research and develop- 58356, Nov. 21, 2001] ment projects established pursuant to § 923.45. § 923.53 Modification, suspension, or (c) The committee shall, with the ap- termination of regulations. proval of the Secretary, prescribe such (a) In the event the committee at any rules, regulations, and safeguards as it time finds that, by reason of changed may deem necessary to prevent cher- conditions, any regulations issued pur- ries handled under the provisions of suant to § 923.52 should be modified, this section from entering the channels suspended, or terminated, it shall so of trade for other than the specific pur- recommend to the Secretary. poses authorized by this section. Such (b) Whenever the Secretary finds, rules, regulations, and safeguards may from the recommendations and infor- include the requirements that handlers

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shall file applications and receive ap- tities subject to regulation and not proval from the committee for author- subject to regulation; ization to handle cherries pursuant to (3) The date of each such disposition this section, and that such applications and the identification of the carrier be accompanied by a certification by transporting such cherries, and the intended purchaser or receiver that (4) The destination of each shipment the cherries will not be used for any of such cherries. purpose not authorized by this section. (b) All such reports shall be held The committee may rescind or deny to under appropriate protective classifica- any packing facility the special purpose shipment certificate if proof satis- tion and custody by the committee, or factory to the committee is obtained duly appointed employees thereof, so that cherries shipped for the purpose that the information contained therein stated in this section were handled which may adversely affect the com- contrary to the provisions of this sec- petitive position of any handler in relation. tion to other handlers will not be disclosed. Compilations of general reports [22 FR 3835, June 1, 1957. Redesignated at 26 from data submitted by handlers are FR 12751, Dec. 30, 1961, as amended at 66 FR 58356, Nov. 21, 2001] authorized, subject to the prohibition of disclosure of individual handler’s § 923.55 Inspection and certification. identities or operations. Whenever the handling of any variety (c) Each handler shall maintain for of cherries is regulated pursuant to at least two succeeding years such § 923.52 or § 923.53, each handler who records of the cherries received, and of handles cherries shall, prior thereto, cherries disposed of, by such handler as cause such cherries to be inspected by may be necessary to verify reports pur- the Federal-State Inspection Service, suant to this section. and certified by it as meeting the applicable requirements of such regula- MISCELLANEOUS PROVISIONS tion: Provided, That inspection and certification shall be required for cherries § 923.61 Compliance. which previously have been so in- Except as provided in this part, no spected and certified only if such cher- person shall handle cherries, the ship- ries have been regraded, resorted, re- ment of which has been prohibited by packaged, or in any other way further the Secretary in accordance with the prepared for market. Promptly after provisions of this part: And no person inspection and certification, each such shall handle cherries except in con- handler shall submit, or cause to be formity with the provisions of this submitted, to the committee a copy of part. the certificate of inspection issued with respect to such cherries. § 923.62 Right of the Secretary. REPORTS The members of the committee (including successors and alternates), and § 923.60 Reports. any agents, employees, or representa- (a) Upon request of the committee, tives thereof, shall be subject to re- made with the approval of the Sec- moval or suspension by the Secretary retary, each handler shall furnish to at any time. Each and every regula- the committee, in such manner and at tion, decision, determination, or other such time as it may prescribe, such re- act of the committee shall be subject ports and other information as may be to the continuing right of the Sec- necessary for the committee to per- retary to disapprove of the same at any form its duties under this part. Such time. Upon such disapproval, the dis- reports may include, but are not nec- approved action of the committee shall essarily limited to, the following: (1) The quantities of each variety of be deemed null and void, except as to cherries received by a handler; acts done in reliance thereon or in ac- (2) The quantities disposed of by him, cordance therewith prior to such dis- segregated as to the respective quan- approval by the Secretary.

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§ 923.63 Effective time. trustees of all the funds and property then in its possession, or under its con- The provisions of this part, and of trol, including claims for any funds un- any amendment thereto, shall become paid or property not delivered at the effective at such time as the Secretary time of such termination. may declare above his signature to this (b) The said trustees shall (1) con- part, and shall continue in force until tinue in such capacity until discharged terminated in one of the ways specified by the Secretary; (2) from time to time in § 923.64. account for all receipts and disburse- § 923.64 Termination. ments and deliver all property on hand, together with all books and records of (a) The Secretary may at any time the committee and of the trustees, to terminate the provisions of this part such person as the Secretary may di- by giving at least one day’s notice by rect; and (3) upon the request of the means of a press release or in any other Secretary, execute such assignments or manner in which he may determine. other instruments necessary or appro- (b) The Secretary shall terminate or priate to vest in such person, full title suspend the operation of any and all of and right to all of the funds, property, the provisions of this part whenever he and claims vested in the committee or finds that such provisions do not tend the trustees pursuant hereto. to effectuate the declared policy of the (c) Any person to whom funds, prop- act. erty, or claims have been transferred (c) The Secretary shall terminate the or delivered pursuant to this section provisions of this part whenever it is shall be subject to the same obligation found that such termination is favored imposed upon the committee and upon by a majority of growers who, during a the trustees. representative period, have been engaged in the production of cherries: § 923.66 Effect of termination or Provided, that such majority has, dur- amendment. ing such representative period, pro- Unless otherwise expressly provided duced for market more than 50 percent by the Secretary, the termination of of the volume of such cherries produced this subpart or of any regulation issued for market. pursuant to this subpart, or the (d) The Secretary shall conduct a ref- issuance of any amendment to either erendum six years after the effective thereof, shall not (a) affect or waive date of this section and every sixth any right, duty, obligation, or liability year thereafter, to ascertain whether which shall have arisen or which may continuance of this subpart is favored thereafter arise in connection with any by growers. The Secretary may termi- provision of this subpart or any regula- nate the provisions of this subpart at tion issued under this subpart, or (b) the end of any fiscal period in which release or extinguish any violation of the Secretary has found that continu- this subpart or of any regulation issued ance of this subpart is not favored by under this subpart, or (c) affect or im- growers who, during a representative pair any rights or remedies of the Sec- period determined by the Secretary, retary or of any other person with re- have been engaged in the production of spect to any such violation. cherries in the production area. (e) The provisions of this part shall, § 923.67 Duration of immunities. in any event, terminate whenever the The benefits, privileges, and immuni- provisions of the act authorizing them ties conferred upon any person by vir- cease to be in effect. tue of this subpart shall cease upon the [22 FR 3835, June 1, 1957, as amended at 70 FR termination of this subpart, except 44252, Aug. 2, 2005] with respect to acts done under and during the existence of this subpart. § 923.65 Proceedings after termination. (a) Upon the termination of the pro- § 923.68 Agents. visions of this part, the committee The Secretary may, by designation in shall, for the purpose of liquidating the writing, name any officer or employee affairs of the committee, continue as of the United States, or name any

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agency or division in the United States EDITORIAL NOTE: After January 1, 1979, Department of Agriculture, to act as ‘‘Budget of Expenses and Rate of Assessment’’ his agent or representative in connec- regulations (e.g. sections .200 through .299) tion with any of the provisions of this and ‘‘Handling’’ regulations (e.g. sections .323 through .399) which are in effect for a year or part. less, will not be carried in the Code of Fed- eral Regulations. For FEDERAL REGISTER ci- § 923.69 Derogation. tations affecting these regulations, see the Nothing contained in the provisions List of CFR Sections Affected, which appears of this part is, or shall be construed to in the Finding Aids section of the printed be, in derogation or in modification of volume and at www.fdsys.gov. the rights of the Secretary or of the ASSESSMENT RATE United States (a) to exercise any powers granted by the act or otherwise, or § 923.236 Assessment rate. (b) in accordance with such powers, to act in the premises whenever such ac- On and after April 1, 2007, an assess- tion is deemed advisable. ment rate of $0.40 per ton is established for the Washington Cherry Marketing § 923.70 Personal liability. Committee. No member or alternate member of [72 FR 44369, Aug. 8, 2007] the committee and no employee or agent of the committee shall be held GRADE, SIZE, CONTAINER AND PACK personally responsible, either individ- REGULATION ually or jointly with others, in any way § 923.322 Washington cherry handling whatsoever, to any person for errors in regulation. judgment, mistakes, or other acts, either of commission, or omission, as (a) Grade. No handler shall handle, such member, alternate, employee, or except as otherwise provided in this agent, except for acts of dishonesty, section, any lot of cherries, except willful misconduct, or gross neg- cherries of the Rainier, Royal Anne, ligence. and similar varieties, commonly referred to as ‘‘light sweet cherries’’ un- § 923.71 Separability. less such cherries grade at least Wash- ington No. 1 grade except that the fol- If any provision of this part is de- lowing tolerances, by count, of the clared invalid, or the applicability cherries in the lot shall apply in lieu of thereof to any person, circumstance, or the tolerances for defects provided in thing is held invalid, the validity of the the Washington State Standards for remainder of this part or the applica- Grades of Sweet Cherries: Provided, bility thereof to any other person, cir- That a total of 10 percent for defects cumstance, or thing shall not be af- including in this amount not more fected thereby. than 5 percent, by count, of the cher- § 923.142 Reserve fund. ries in the lot, for serious damage, and including in this latter amount not (a) The establishment of a reserve more than one percent, by count, of the fund of an amount which shall not ex- cherries in the lot, for cherries affected ceed approximately 1 fiscal year’s oper- by decay: Provided further, That the ational expenses is appropriate and contents of individual packages in the necessary to the maintenance and lot are not limited as to the percentage functioning of the Washington Cherry of defects but the total of the defects of Marketing Committee. The committee the entire lot shall be within the toler- is authorized to expend any funds in ances specified. such reserve for expenses authorized (b) Size. No handler shall handle, ex- pursuant to § 923.42. cept as otherwise provided in this sec- (b) Terms used in this section shall tion, any lot of cherries unless such have the same meaning as given to the cherries meet the following minimum respective term in said marketing size requirements: agreement and order. (1) For the Rainier variety and simi- [33 FR 9147, June 21, 1968. Redesignated at 44 lar varieties commonly referred to as FR 73011, Dec. 17, 1979] ‘‘lightly colored sweet cherries,’’ at 187

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least 90 percent, by count, of the cher- (e) Light sweet cherries marked as pre- ries in any lot shall measure not less mium. No handler shall handle, except than 61⁄64-inch in diameter and not as otherwise provided in this section, more than 5 percent, by count, may be any package or container of Rainier less than 57⁄64-inch in diameter. cherries or other varieties of lightly (2) For all other varieties, at least 90 colored sweet cherries marked as pre- percent, by count, of the cherries in mium except in accordance with the any lot shall measure not less than 54⁄64 following: inch in diameter and not more than 5 (1) Quality. 90 percent, by count, of percent, by count, may be less than 52⁄64 such cherries in any lot must exhibit a inch in diameter. pink-to-red surface blush and, for any (c) Maturity. No handler shall handle, given sample, not more than 20 percent except as otherwise provided in this of the cherries shall be absent a pink- section, any lot of Rainier cherries or to-red surface blush. other varieties of ‘‘lightly colored (2) Pack. At least 90 percent, by sweet cherries’’ unless such cherries count, of the cherries in any lot shall meet a minimum of 17 percent soluble measure not less than 64⁄64 inch (101⁄2 solids as determined from a composite row) in diameter and not more than 5 sample by refractometer prior to pack- percent, by count, may be less than 61⁄64 ing, at time of packing, or at time of inch (11-row) in diameter. shipment: Provided, That individual (f) Grading or packing cherries outside lots shall not be combined with other the production area. (1) Persons desiring lots to meet soluble solids require- to ship or receive cherries for grading ments. or packing outside the production area (d) Pack. (1) When containers of cher- shall apply to the committee on a ries are marked with a row count/row ‘‘Shippers/Receivers Application for size designation the row count/row size Special Purpose Shipment Certificate’’ marked shall be one of those shown in form, and receive approval from the Column 1 of the following table and at Committee. The application shall con- least 90 percent, by count, of the cher- tain the following: (i) Name, address, ries in any lot shall be not smaller telephone number, and signature of ap- than the corresponding diameter shown plicant; in Column 2 of such table: Provided, (ii) Certification by the applicant That the content of individual con- that cherries graded and packed out- tainers in the lot are not limited as to side the production area shall be in- the percentage of undersize; but the spected by the Federal-State Inspec- total of undersize of the entire lot shall tion Service and shall meet the grade, be within the tolerance specified. size, maturity, and pack requirements of this section prior to shipment; and TABLE (iii) Such other information as the committee may require. Column 2 Column 1, row count/row size diameter (2) Each approved applicant shall fur- (inches) nish to the committee, at the close of business every Friday, a report con- 8 ...... 84⁄64 taining the following information on a 81⁄2 ...... 79⁄64 9 ...... 75⁄64 ‘‘Special Purpose Shipment Report’’ 91⁄2 ...... 71⁄64 form: 10 ...... 67⁄64 (i) Name, address, telephone number, 1 64 10 ⁄2 ...... ⁄64 and signature of applicant; 11 ...... 61⁄64 111⁄2 ...... 57⁄64 (ii) Names of growers and handlers of 12 ...... 54⁄64 such cherries; (iii) The total quantity of each vari- (2) When containers of cherries are ety of cherries; and marked with a minimum diameter, at (iv) Such other information as the least 95 percent, by count, of the cher- committee may require. ries in any lot and at least 90 percent, (3) The committee may rescind or by count, of the cherries in any con- deny to any applicant its approval of tainer, shall be not smaller than such the ‘‘Shippers/Receivers Application for minimum diameter. Special Purpose Shipment Certificate’’ 188

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if proof satisfactory to the committee 924.8 Committee. is obtained that any cherries shipped 924.9 Grade. or received by such applicant for grad- 924.10 Size. 924.11 Grower. ing or packing were handled contrary 924.12 Handler. to the provisions of this section. 924.13 Handle. (g) Exceptions. Any individual ship- 924.14 District. ment of cherries which meets each of 924.15 Export. the following requirements may be 924.16 Pack. handled without regard to the provi- 924.17 Container. sions of paragraphs (a), (b), (c), (d), and ADMINISTRATIVE BODY (e) of this section, and of §§ 923.41 and 924.20 Establishment and membership. 923.55. 924.21 Term of office. (1) The shipment consists of cherries 924.22 Nominations. sold for home use and not for resale; 924.23 Selection. (2) The shipment does not, in the ag- 924.24 Failure to nominate. gregate, exceed 100 pounds, net weight, 924.25 Acceptance. of cherries; and 924.26 Vacancies. (3) Each container is stamped or 924.27 Alternate members. 924.30 Powers. marked with the words not for resale in 924.31 Duties. letters at least one-half inch in height. 924.32 Procedure. (h) Definitions. When used herein, 924.33 Expenses and compensation. Washington No. 1 and diameter shall 924.34 Annual report. have the same meaning as when used in the Washington State Standards for EXPENSES AND ASSESSMENTS Grades of Sweet Cherries (Order 1550 ef- 924.40 Expenses. fective April 29, 1978, WAC 16–414–050); 924.41 Assessments. face packed means that cherries in the 924.42 Accounting. top layer in any container are so RESEARCH placed that the stem ends are pointing 924.45 Research and development. downward toward the bottom of the container; row count/row size means the REGULATIONS number of cherries of a uniform size 924.50 Marketing policy. necessary to pack row-faced across a 924.51 Recommendations for regulation. 101⁄2 inch inside width container or 924.52 Issuance of regulations. comparable number of cherries when 924.53 Modification, suspension, or termi- packed loose in a container. nation of regulations. 924.54 Special purpose shipments. [47 FR 31538, July 21, 1982] 924.55 Inspection and certification. EDITORIAL NOTE: For FEDERAL REGISTER ci- REPORTS tations affecting § 923.322, see the List of CFR Sections Affected, which appears in the 924.60 Reports. Finding Aids section of the printed volume and at www.fdsys.gov. MISCELLANEOUS PROVISIONS 924.61 Compliance. PART 924—FRESH PRUNES GROWN 924.62 Right of the Secretary. 924.63 Effective time. IN DESIGNATED COUNTIES IN 924.64 Termination. WASHINGTON AND IN UMATILLA 924.65 Proceedings after termination. COUNTY, OREGON 924.66 Effect of termination or amendment. 924.67 Duration of immunities. Subpart—Order Regulating Handling 924.68 Agents. 924.69 Derogation. DEFINITIONS 924.70 Personal liability. 924.71 Separability. Sec. 924.1 Secretary. Subpart—Rules and Regulations 924.2 Act. 924.3 Person. 924.101 Changes in district representation. 924.4 Production area. 924.110 Waiver of inspection and certifi- 924.5 Prunes. cation. 924.6 Varieties. 924.121 Minimum quantity exemption. 924.7 Fiscal period. 924.142 Reserve fund.

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924.160 Reports. § 924.7 Fiscal period. Subpart—Assessment Rate Fiscal period is synonymous with fiscal year and means the 12-month pe- 924.236 Assessment rate. riod ending on March 31 of each year or such other period that may be ap- Subpart—Grade and Size Requirements proved by the Secretary pursuant to 924.319 Prune Regulation 19. recommendations by the committee. AUTHORITY: 7 U.S.C. 601–674. § 924.8 Committee. SOURCE: 25 FR 6350, July 7, 1960, unless otherwise noted. Redesignated at 26 FR 12751, Committee means the Washington-Or- Dec. 30, 1961. egon Fresh Prune Marketing Com- mittee established pursuant to § 924.20. Subpart—Order Regulating Handling § 924.9 Grade. Grade means any one of the officially DEFINITIONS established grades of prunes as defined and set forth in the United States § 924.1 Secretary. Standards for Fresh Plums and Prunes Secretary means the Secretary of Ag- (§§ 51.1520 through 51.1537 of this title) riculture of the United States, or any or amendments thereto, or modifica- officer or employee of the Department tions thereof, or variations based to whom authority has heretofore been thereon. delegated, or to whom authority may hereafter be delegated, to act in his § 924.10 Size. stead. Size means the shortest dimension, § 924.2 Act. measured through the center of the prune, at right angles to a line running Act means Public Act No. 10, 73d Con- from the stem to the blossom end, or gress (May 12, 1933), as amended and as such other specifications as may be es- re-enacted and amended by the Agri- tablished by the committee with the cultural Marketing Agreement Act of approval of the Secretary. 1937, as amended (sections 1–19, 48 Stat. 31, as amended; 7 U.S.C. 601–674). § 924.11 Grower. § 924.3 Person. Grower is synonymous with producer and means any person who produces Person means an individual, partnership, corporation, association, or any prunes for market and who has a pro- other business unit. prietary interest therein.

§ 924.4 Production area. § 924.12 Handler. Production area means the Counties Handler is synonymous with shipper of Okanogan, Chelan, Kittitas, Yak- and means any person (except a com- ima, and Klickitat in the State of mon or contract carrier transporting Washington and all counties in Wash- prunes owned by another person) who ington lying east thereof and Umatilla handles prunes. County in the State of Oregon. § 924.13 Handle. § 924.5 Prunes Handle or ship means to sell, consign, Prunes means all varieties of plums, deliver, or transport prunes within the classified botanically as Prunus production area or between the produc- domestica, grown in the production tion area and any point outside there- area, except those of the President va- of: Provided, That the term ‘‘handle’’ riety. shall not include the transportation within the production area of prunes § 924.6 Varieties. from the orchard where grown to a Varieties means and includes all clas- packing facility located within such sifications or subdivisions of prunes. area for preparation for market.

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§ 924.14 District. be handlers, or officers or employees of District means the applicable one of handlers, are hereinafter referred to as the following described subdivisions of ‘‘handler members’’ of the committee. the production area, or such other sub- Four of the grower members and their divisions as may be prescribed pursu- respective alternates shall be pro- ant to § 924.31(m): ducers of prunes in District 1, and 2 of (a) District 1 shall include all of the the grower members and their respec- production area except Walla Walla, tive alternates shall be producers of Columbia, Garfield, and Asotin Coun- prunes in District 2. Two of the handler ties in the State of Washington, and members and their respective alter- Umatilla County in the State of Or- nates shall be handlers of prunes in egon. District 1, and 1 of the handler mem- (b) District 2 shall include the County bers and his respective alternate shall of Umatilla in the State of Oregon and be handlers of prunes in District 2. the Counties of Walla Walla, Columbia, § 924.21 Term of office. Garfield, and Asotin in the State of Washington. The term of office of each member and alternate member of the com- § 924.15 Export. mittee shall be for two years beginning Export means to ship prunes to any April 1 and ending March 31: Provided, destination which is not within the 48 That the term of office of one-half the contiguous States, or the District of initial grower members and alternates Columbia, of the United States. from each district and one handler member and alternate from District 1 § 924.16 Pack. shall end March 31, 1961. Members and Pack means the specific arrangement, alternate members shall serve in such size, weight, count, or grade of a quan- capacities for the portion of the term tity of prunes in a particular type and of office for which they are selected size of container, or any combination and have qualified and until their re- thereof. spective successors are selected and have qualified. § 924.17 Container. § 924.22 Nominations. Container means a box, bag, crate, lug, basket, carton, package, or any (a) Initial members. Nominations for other type of receptacle used in the each of the initial members of the com- packaging or handling of prunes. mittee, together with nominations for the initial alternate members for each ADMINISTRATIVE BODY position, may be submitted to the Sec- retary by individual growers and han- § 924.20 Establishment and member- dlers. Such nominations may be made ship. by means of group meetings of the There is hereby established a Wash- growers and handlers concerned in each ington-Oregon Fresh Prune Marketing district. Such nominations, if made, Committee consisting of 9 members, shall be filed with the Secretary no each of whom shall have an alternate later than the effective date of this who shall have the same qualifications part. In the event nominations for ini- as the member for whom he is an alter- tial members and alternate members of nate. Six of the members and their re- the committees are not filed pursuant spective alternates shall be growers or to, and within the time specified in, officers or employees of corporate this section, the Secretary may select growers. Three of the members and such initial members and alternate their respective alternates shall be members without regard to nomina- handlers, or officers or employees of tions, but selections shall be on the handlers. The 6 members of the com- basis of the representation provided for mittee who are growers or employees in § 924.20. or officers of corporate growers are (b) Successor members. (1) Except as hereinafter referred to as ‘‘grower may otherwise be prescribed pursuant members’’ of the committee; and the 3 to paragraph (b)(3) of this section, the members of the committee who shall committee shall hold or cause to be

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held, not later than March 1 of each may vote either as a grower or as a year, a meeting or meetings of growers handler but not as both. and handlers in each district for the purpose of designating nominees for § 924.23 Selection. successor members and alternate mem- From the nominations made pursu- bers of the committee. At each such ant to § 924.22, or from other qualified meeting a chairman and a secretary persons, the Secretary shall select the shall be selected by the growers and 6 grower members of the committee, handlers eligible to participate therein. the 3 handler members of the com- The chairman shall announce at the mittee, and an alternate for each such meeting the number of votes cast for member. each person nominated for member or § 924.24 Failure to nominate. alternate member and shall submit promptly to the committee a complete If nominations are not made within report concerning such meeting. The the time and in the manner prescribed committee shall, in turn, promptly in § 924.22, the Secretary may, without submit a copy of each such report to regard to nominations, select the mem- the Secretary. bers and alternate members of the committee on the basis of the represen- (2) Only growers, including duly au- tation provided for in § 924.20. thorized officers or employees of corporate growers, who are present at § 924.25 Acceptance. such nomination meetings may partici- Any person selected by the Secretary pate in the nomination and election of as a member or as an alternate member nominees for grower members and of the committee shall qualify by filing their alternates. Each grower shall be a written acceptance with the Sec- entitled to cast only one vote for each retary promptly after being notified of nominee to be elected in the district in such selection. which he produces prunes. No grower shall participate in the election of § 924.26 Vacancies. nominees in more than one district in To fill any vacancy occasioned by the any one fiscal year. If a person is both failure of any person selected as a a grower and a handler of prunes, such member or as an alternate member of person may vote either as a grower or the committee to qualify, or in the as a handler but not as both. event of the death, removal, resigna- (3) Only handlers, including duly au- tion, or disqualification of any member thorized officers or employees of han- or alternate member of the committee, dlers, who are present at such nomina- a successor for the unexpired term of tion meetings, may participate in the such member or alternate member of nomination and election of nominees the committee shall be nominated and for handler members and their alter- selected in the manner specified in nates: Provided, That, in the event the §§ 924.22 and 924.23. If the names of committee determines that attendance nominees to fill any such vacancy are at such nomination meetings is not not made available to the Secretary representative of handlers generally, it within a reasonable time after such va- may, with the approval of the Sec- cancy occurs, the Secretary may fill retary, obtain nominations for handler such vacancy without regard to nomi- members and their alternates by mail nations, which selection shall be made ballot. Each handler shall be entitled on the basis of representation provided to cast only one vote for each nominee for in § 924.20. to be elected in the district in which he handles prunes, which vote shall be § 924.27 Alternate members. weighted by the volume of prunes han- An alternate member of the com- dled by such handler during the then mittee, during the absence or at the re- current fiscal year. No handler shall quest of the member for whom he is an participate in the election of nominees alternate, shall act in the place and in more than one district in any one stead of such member and perform such fiscal year. If a person is both a grower other duties as assigned. In the event and a handler of prunes, such person of the death, removal, resignation, or

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disqualification of a member, his alter- (g) To act as intermediary between nate shall act for him until a successor the Secretary and any grower or han- for such member is selected and has dler; qualified. In the event both a member (h) To investigate and assemble data of the committee and his alternate are on the growing, handling, and mar- unable to attend a committee meeting, keting conditions with respect to the member or the committee may des- prunes; ignate any other alternate member (i) To submit to the Secretary such from the same district and group (han- available information as he may re- dler or grower) to serve in such mem- quest; ber’s place and stead. (j) To notify producers and handlers of all meetings of the committee to § 924.30 Powers. consider recommendations for regula- The committee shall have the fol- tions; lowing powers: (k) To give the Secretary the same (a) To administer the provisions of notice of meetings of the committee as this part in accordance with its terms; is given to its members; (b) To receive, investigate, and report (l) To investigate compliance with to the Secretary complaints of viola- the provisions of this part; tions of the provisions of this part; (m) With the approval of the Sec- (c) To make and adopt rules and reg- retary, to redefine the districts into ulations to effectuate the terms and which the production area is divided, provisions of this part; and and to reapportion the representation (d) To recommend to the Secretary of any district on the committee: Pro- amendments to this part. vided, That any such changes shall reflect, insofar as practicable, shifts in § 924.31 Duties. prune production within the districts The committee shall have, among and the production area. others, the following duties: (a) To select a chairman and such § 924.32 Procedure. other officers as may be necessary, and (a) Six members of the committee, to define the duties of such officers; including alternates acting for mem- (b) To appoint such employees, bers, shall constitute a quorum; and agents, and representatives as it may any action of the committee shall redeem necessary, and to determine the quire the concurring vote of at least 6 compensation and to define the duties members: Provided, That any action re- of each; lating to regulations authorized by (c) To submit to the Secretary as §§ 924.52 and 924.53 which would be effec- soon as practicable after the beginning tive in District 2 shall require the con- of each fiscal period a budget for such curring vote of at least 2 members from fiscal period, including a report in ex- District 2. planation of the items appearing there- (b) The committee may provide for in and a recommendation as to the rate simultaneous meetings of groups of its of assessment for such period; members assembled at two or more (d) To keep minutes, books, and designated places: Provided, That such records which will reflect all of the meetings shall be subject to the estab- acts and transactions of the committee lishment of communication between and which shall be subject to examina- all such groups and the availability of tion by the Secretary; loud speaker receivers for each group (e) To prepare periodic statements of so that each member may participate the financial operations of the com- in the discussions and other actions mittee and to make copies of each such the same as if the committee were as- statement available to growers and sembled in one place. Any such meet- handlers for examination at the office ing shall be considered as an assembled of the committee; meeting. (f) To cause its books to be audited (c) The committee may vote by tele- by a competent accountant at least graph, telephone, or other means of once each fiscal year and at such time communication, and any votes so cast as the Secretary may request; shall be confirmed promptly in writing:

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Provided, That if an assembled meeting Secretary finds will be incurred by the is held, all votes shall be cast in per- committee during each fiscal period. son. Each such person’s share of such expenses shall be equal to the ratio be- § 924.33 Expenses and compensation. tween the total quantity of prunes han- The members of the committee, and dled by him as the first handler thereof alternates when acting as members, during the applicable fiscal period and shall be reimbursed for expenses nec- the total quantity of prunes so handled essarily incurred by them in the per- by all persons during the same fiscal formance of their duties under this period. The payment of assessments for part and may also receive compensa- the maintenance and functioning of the tion, as determined by the committee, committee may be required under this which shall not exceed $10 per day or part throughout the period it is in ef- portion thereof spent in performing fect irrespective of whether particular such duties: Provided, That at its dis- provisions thereof are suspended or be- cretion the committee may request the come inoperative. attendance of one or more alternates (b) The Secretary shall fix the rate of at any or all meetings, notwith- assessment to be paid by each such per- standing the expected or actual pres- son. At any time during or after the ence of the respective members, and fiscal period, the Secretary may in- may pay expenses and compensation, crease the rate of assessment in order as aforesaid. to secure sufficient funds to cover any later finding by the Secretary relative § 924.34 Annual report. to the expenses which may be incurred. The committee shall, prior to the Such increase shall be applied to all last day of each fiscal period, prepare prunes handled during the applicable and mail an annual report to the Sec- fiscal period. In order to provide funds retary and make a copy available to for the administration of the provi- each handler and grower who requests sions of this part during the first part a copy of the report. This annual re- of a fiscal period before sufficient oper- port shall contain at least: (a) A com- ating income is available from assess- plete review of the regulatory oper- ments on the current year’s shipments, ations during the fiscal period; (b) an the committee may accept the pay- appraisal of the effect of such regu- ment of assessments in advance, and latory operations upon the prune in- may also borrow money for such pur- dustry; and (c) any recommendations pose. for changes in the program. § 924.42 Accounting. EXPENSES AND ASSESSMENTS (a) If, at the end of a fiscal period, the assessments collected are in excess § 924.40 Expenses. of expenses incurred, such excess shall The committee is authorized to incur be accounted for as follows: such expenses as the Secretary finds (1) Except as provided in paragraphs are reasonable and likely to be in- (a) (2) and (3) of this section, each per- curred by the committee for its main- son entitled to a proportionate refund tenance and functioning and to enable of any excess assessment shall be credit to exercise its powers and perform ited with such refund against the oper- its duties in accordance with the provi- ation of the following fiscal period un- sions of this part during each fiscal pe- less such person demands repayment riod. The funds to cover such expenses thereof, in which event it shall be paid shall be acquired by the levying of as- to him: Provided, That any sum paid by sessments as prescribed in § 924.41. a person in excess of his pro rata share of the expenses during any fiscal period § 924.41 Assessments. may be applied by the committee at (a) Each person who first handles the end of such fiscal period to any prunes shall, with respect to the prunes outstanding obligations due the com- so handled by him, pay to the committee from such person. mittee upon demand such person’s pro (2) The committee, with the approval rata share of the expenses which the of the Secretary, may establish and

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maintain during one or more fiscal REGULATIONS years an operating monetary reserve in an amount not to exceed approxi- § 924.50 Marketing policy. mately one fiscal year’s operational ex- (a) Each season prior to making any penses. Funds in such reserve shall be recommendations pursuant to § 924.51, available for use by the committee for the committee shall submit to the Sec- all expenses authorized pursuant to retary a report setting forth its mar- § 924.40. keting policy for the ensuring season. (3) Upon termination of this part, Such marketing policy report shall any funds not required to defray the contain information relative to: necessary expenses of liquidation shall (1) The estimated total production of prunes within the production area; be disposed of in such manner as the (2) The expected general quality and Secretary may determine to be appro- size of prunes in the production area priate: That to the extent Provided, and in other areas; practical, such funds shall be returned (3) The expected demand conditions pro rata to the persons from whom for prunes in different market outlets; such funds were collected. (4) The expected shipments of prunes (b) All funds received by the com- produced in the production area and in mittee pursuant to the provisions of areas outside the production area; this part shall be used solely for the (5) Supplies of competing commod- purposes specified in this part and shall ities; be accounted for in the manner pro- (6) Trend and level of consumer in- vided in this part. The Secretary may come; at any time require the committee and (7) Other factors having a bearing on its members to account for all receipts the marketing of prunes; and and disbursements. (8) The type of regulations expected (c) Upon the removal or expiration of to be recommended during the season. the term of office of any member of the (b) In the event it becomes advisable, committee, such member shall account because of changes in the supply and for all receipts and disbursements and demand situation for prunes, to modify substantially such marketing policy, deliver all property and funds in his the committee shall submit to the Sec- possession to his successor in office, retary a revised marketing policy re- and shall execute such assignments and port setting forth the information pre- other instruments as may be necessary scribed in this section. The committee or appropriate to vest in such successor shall publicly announce the contents of full title to all of the property, funds, each marketing policy report, includ- and claims vested in such member pur- ing each revised marketing policy re- suant to this part. port, and copies thereof shall be maintained in the office of the committee RESEARCH where they shall be available for examination by growers and handlers. § 924.45 Research and development. The committee, with the approval of § 924.51 Recommendations for regula- the Secretary, may establish or provide tion. for the establishment of production re- (a) Whenever the committee deems it search, and marketing research and de- advisable to regulate the handling of velopment projects designed to assist, any variety or varieties of prunes in improve, or promote the marketing, the manner provided in § 924.52, it shall distribution, and consumption or effi- so recommend to the Secretary. cient production of fresh prunes. The (b) In arriving at its recommenda- expense of such projects shall be paid tions for regulation pursuant to para- from funds collected pursuant to graph (a) of this section, the com- § 924.41. mittee shall give consideration to current information with respect to the [39 FR 33306, Sept. 17, 1974] factors affecting the supply and demand for prunes during the period or periods when it is proposed that such

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regulation should be made effective. conditions, any regulations issued pur- With each such recommendation for suant to § 924.52 should be modified, regulation, the committee shall submit suspended, or terminated, it shall so to the Secretary the data and informa- recommend to the Secretary. tion on which such recommendation is (b) Whenever the Secretary finds, predicated and such other available in- from the recommendations and infor- formation as the Secretary may re- mation submitted by the committee or quest. from other available information, that a regulation should be modified, sus- § 924.52 Issuance of regulations. pended, or terminated with respect to (a) The Secretary shall regulate, in any or all shipments of prunes in order the manner specified in this section, to effectuate the declared policy of the the handling of prunes whenever he act, he shall modify, suspend, or termi- finds, from the recommendations and nate such regulation. On the same information submitted by the com- basis and in like manner the Secretary mittee, or from other available infor- may terminate any such modification mation, that such regulations will tend or suspension. If the Secretary finds to effectuate the declared policy of the that a regulation obstructs or does not act. Such regulations may: tend to effectuate the declared policy (1) Limit, during any period or peri- of the act, he shall suspend or termi- ods, the shipment of any particular nate such regulation. On the same grade, size, quality, maturity, or pack basis and in like manner the Secretary or any combination thereof, of any va- may terminate any such suspension. riety or varieties of prunes grown in any district or districts: Provided, That § 924.54 Special purpose shipments. whenever any regulation under this (a) Except as otherwise provided in paragraph prescribes a specific matu- this section, any person may, without rity requirement applicable to the han- regard to the provisions of §§ 924.41, dling of any variety of prunes, such 924.52, 924.53, and 924.55, and the regula- maturity requirement shall apply uni- tions issued thereunder, handle prunes formly to all prunes of such variety (1) for consumption by charitable insti- grown in both districts; tutions; (2) for distribution by relief (2) Limit the shipment of prunes by agencies; or (3) for commercial proc- establishing, in terms of grades, sizes, essing into products. or both, minimum standards of quality (b) Upon the basis of recommenda- and maturity during any period when tions and information submitted by the season average prices are expected to committee, or from other available in- exceed the parity level; formation, the Secretary may relieve (3) Fix the size, capacity, weight, di- from any or all requirements, under or mensions, markings, or pack of the established pursuant to § 924.41, § 924.52, container, or containers, which may be § 924.53, or § 924.55, the handling of used in the packaging or handling of prunes in such minimum quantities, or prunes; types of shipments, or for such speci- (4) Prescribe requirements, as pro- fied purposes (including shipments to vided in this paragraph, applicable to facilitate the conduct of marketing re- exports of any variety of prunes which search and development projects estab- are different from those applicable to lished pursuant to § 924.45) as the com- the handling of the same variety to mittee, with approval of the Secretary, other destinations. may prescribe. (b) The committee shall be informed (c) The committee shall, with the ap- immediately of any such regulation proval of the Secretary, prescribe such issued by the Secretary, and the com- rules, regulations, and safeguards as it mittee shall promptly give notice may deem necessary to prevent prunes thereof to growers and handlers. handled under the provisions of this section from entering the channels of § 924.53 Modification, suspension, or trade for other than the specific pur- termination of regulations. poses authorized by this section. Such (a) In the event the committee at any rules, regulations, and safeguards may time finds that, by reason of changed include the requirements that handlers

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shall file applications and receive ap- subject to regulation and not subject proval from the committee for author- to regulation; (3) the date of each such ization to handle prunes pursuant to disposition and the identification of this section, and that such applications the carrier transporting such prunes; be accompanied by a certification by and (4) the destination of each ship- the intended purchaser or receiver that ment of such prunes. the prunes will not be used for any pur- (b) All such reports shall be held pose not authorized by this section. under appropriate protective classifica- § 924.55 Inspection and certification. tion and custody by the committee, or duly appointed employees thereof, so Whenever the handling of any variety that the information contained therein of prunes is regulated pursuant to which may adversely affect the com- § 924.52 or § 924.53, each handler who petitive position of any handler in rela- handles prunes shall, prior thereto, tion to other handlers will not be dis- cause such prunes to be inspected by closed. Compilations of general reports the Federal or Federal-State Inspec- tion Service, and certified by it as from data submitted by handlers are meeting the applicable requirements of authorized, subject to the prohibition such regulation: Provided, That inspec- of disclosure of individual handler’s tion and certification shall be required identities or operations. for prunes which previously have been (c) Each handler shall maintain for so inspected and certified only if such at least two succeeding years such prunes have been regraded, resorted, records of the prunes received, and of repackaged, or in any other way fur- prunes disposed of, by such handler as ther prepared for market. Promptly may be necessary to verify reports pur- after inspection and certification, each suant to this section. such handler shall submit, or cause to be submitted, to the committee a copy MISCELLANEOUS PROVISIONS of the certificate of inspection issued with respect to such prunes. The com- § 924.61 Compliance. mittee may, with the approval of the Except as provided in this part, no Secretary, prescribe rules and regula- person shall handle prunes, the ship- tions modifying the inspection requirement of which has been prohibited by ments of this section as to time and the Secretary in accordance with the place such inspection shall be per- provisions of this part; and no person formed whenever it is determined it shall handle prunes except in con- would not be practical to perform the formity with the provisions and the required inspection at a particular lo- regulations issued under this part. cation: Provided, That all such shipments shall comply with all regula- § 924.62 Right of the Secretary. tions in effect. The members of the committee (in- REPORTS cluding successors and alternates), and any agents, employees, or representa- § 924.60 Reports. tives thereof, shall be subject to re- (a) Upon request of the committee moval or suspension by the Secretary made with the approval of the Sec- at any time. Each and every regula- retary, each handler shall furnish to tion, decision, determination, or other the committee, in such manner and at act of the committee shall be subject such time as it may prescribe, such re- to the continuing right of the Sec- ports and other information as may be retary to disapprove of the same at any necessary for the committee to per- time. Upon such disapproval, the dis- form its duties under this part. Such approved action of the committee shall reports may include, but are not nec- be deemed null and void, except as to essarily limited to, the following: (1) acts done in reliance thereon or in ac- The quantities of each variety of cordance therewith prior to such dis- prunes received by a handler; (2) the quantities disposed of by him, seg- approval by the Secretary. regated as to the respective quantities

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§ 924.63 Effective time. the committee and of the trustees, to The provisions of this part and any such persons as the Secretary may di- amendments thereto shall become ef- rect; and (3) upon the request of the fective at such time as the Secretary Secretary, execute such assignments or may declare above his signature, and other instruments necessary or appro- shall continue in force until termi- priate to vest in such person, full title nated in one of the ways specified in and right to all of the funds, property, § 924.64. and claims vested in the committee or the trustees pursuant hereto. § 924.64 Termination. (c) Any person to whom funds, property, or claims have been transferred (a) The Secretary may at any time or delivered, pursuant to this section, terminate the provisions of this part shall be subject to the same obligation by giving at least one day’s notice by imposed upon the committee and upon means of a press release or in any other the trustees. manner in which he may determine. (b) The Secretary shall terminate or § 924.66 Effect of termination or suspend the operation of any and all of amendment. the provisions of this part whenever he Unless otherwise expressly provided finds that such provisions do not tend by the Secretary, the termination of to effectuate the declared policy of the this part or of any regulation issued act. pursuant to this part, or the issuance (c) The Secretary shall terminate the of any amendment to either thereof, provisions of this part at the end of shall not (a) affect or waive any right, any fiscal period whenever he finds duty, obligation, or liability which that continuance is not favored by the majority of producers who, during a shall have arisen or which may there- representative period determined by after arise in connection with any pro- the Secretary, were engaged in the provision of this part or any regulation duction area in the production of issued under this part, or (b) release or prunes for market in fresh form: Pro- extinguish any violation of this part or vided, That such majority has produced of any regulation issued under this for market during such period more part, or (c) affect or impair any rights than 50 percent of the volume of prunes or remedies of the Secretary or of any produced for fresh market in the pro- other person with respect to any such duction area; but such termination violation. shall be effective only if announced on § 924.67 Duration of immunities. or before March 31 of the then current fiscal period. The benefits, privileges, and immuni- (d) The provisions of this part shall, ties conferred upon any person by vir- in any event, terminate whenever the tue of this part shall cease upon the provisions of the act authorizing them termination of this part, except with cease to be in effect. respect to acts done under and during the existence of this part. § 924.65 Proceedings after termination. (a) Upon the termination of the pro- § 924.68 Agents. visions of this part, the committee The Secretary may, by designation in shall, for the purpose of liquidating the writing, name any officer or employee affairs of the committee, continue as of the United States, or name any trustees of all the funds and property agency or division in the United States then in its possession, or under its con- Department of Agriculture, to act as trol, including claims for any funds un- his agent or representative in connec- paid or property not delivered at the tion with any of the provisions of this time of such termination. part. (b) The said trustees shall (1) continue in such capacity until discharged § 924.69 Derogation. by the Secretary; (2) from time to time Nothing contained in the provisions account for all receipts and disburse- of this part is, or shall be construed to ments and deliver all property on hand, be, in derogation or in modification of together with all books and records of the rights of the Secretary or of the

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United States (a) to exercise any pow- duction), whose packing facilities are ers granted by the act or otherwise, or located in an area where either a Wash- (b) in accordance with such powers, to ington State Plant Industry Division act in the premises whenever such ac- Inspection Office or Oregon State Plant tion is deemed advisable. Industry Inspection Office or Federal- State Inspector is not readily available § 924.70 Personal liability. to perform the required inspection No member or alternate member of may, prior to shipment, apply to the the committee and no employee or Committee for a permit authorizing a agent of the committee shall be held waiver of inspection. Applications shall personally responsible, either individ- be made on forms furnished by the ually or jointly with others, in any way Committee and shall contain such in- whatsoever, to any person for errors in formation as the Committee may re- judgment, mistakes, or other acts, ei- quire including: Name and address of ther of commission or omission, as applicant, location of packing facility, such member, alternate, employee, or distance of packing facility from the agent, except for acts of dishonesty, nearest inspection office, period (ap- willful misconduct, or gross neg- proximate beginning and ending dates) ligence. during which the applicant expects to ship to fresh market during the period, § 924.71 Separability. manner in which the majority of appli- If any provision of this part is de- cant’s fruit will be marketed (i.e., clared invalid or the applicability transported by applicant to market, thereof to any person, circumstance, or sold at orchard to truckers, etc.), areas thing is held invalid, the validity of the or markets to which the applicant ex- remainder of this part or the applica- pects to ship the majority of the bility thereof to any other person, cir- prunes. The application shall also con- cumstance, or thing shall not be af- tain an agreement by applicant fected thereby. (1) not to ship or handle any prunes unless such prunes meet the grade, size, maturity, container, and all other Subpart—Rules and Regulations requirements of the marketing agree- § 924.101 Changes in district represen- ment and order in effect at time of tation. handling; (2) to report periodically to the Com- Beginning with the 1970–71 fiscal pe- mittee on reporting forms furnished by riod, the representation or membership the Committee, the following informa- on the Washington-Oregon Fresh Prune tion on each shipment: quantity, vari- Marketing Committee is reapportioned ety, grade, minimum size, container, as follows: date of shipment, destination, name (a) Three (3) grower members and and address of buyer or receiver, and their respective alternates shall be pro- such other information as the Com- ducers of prunes in District 1; mittee may specify; (b) Three (3) grower members and (3) to pay applicable assessments on their respective alternates shall be pro- each shipment; ducers of prunes in District 2; (4) to have or cause to have each (c) Two (2) handler members and shipment of prunes inspected when their respective alternates shall be pro- such shipment is transported to a mar- ducers of prunes in District 1; and ket or through a location enroute to (d) One (1) handler member and his market where an inspector is available; alternate shall be handlers of prunes in and District 2. (5) to comply with such other safe- [35 FR 3798, Feb. 27, 1970] guards as the Committee may prescribe. § 924.110 Waiver of inspection and cer- (b) Issuance of permit. Whenever the tification. Committee finds and determines from (a) Application. Any handler (includ- the information contained in the appli- ing a grower-handler packing and han- cation or from other proof satisfactory dling prunes of such handler’s own pro- to the Committee that the applicant is

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entitled to a waiver from the inspec- EDITORIAL NOTE: After January 1, 1979, tion requirements of the marketing ‘‘Budget of Expenses and Rate of Assessment’’ agreement and order at time of ship- regulations (e.g. sections .200 through .299) ment, the Committee shall issue a per- and ‘‘Handling’’ regulations (e.g. sections .320 through .399) which are in effect for a year or mit authorizing the applicant to ship less, will not be carried in the Code of Fed- prunes in accordance with these admin- eral Regulations. For FEDERAL REGISTER ci- istrative regulations and the terms and tations affecting these regulations, see the conditions of such permit. List of CFR Sections Affected, which appears in the Finding Aids section of the printed [44 FR 49416, Aug. 23, 1979] volume and at www.fdsys.gov. EFFECTIVE DATE NOTE: At 71 FR 26821, May 9, 2006, § 924.110 was suspended indefinitely, § 924.160 Reports. effective May 10, 2006. Each person handling prunes shall submit to the Committee, on or before § 924.121 Minimum quantity exemption. October 30 of each year, a ‘‘Handler Statement for Washington-Oregon Any individual shipment which, in Fresh Prunes’’ containing the following the aggregate, does not exceed 500 information: pounds net weight of prunes of the (a) The handler’s name and address; Stanley or Merton varieties, or 350 (b) The name and address of each pro- pounds net weight of prunes of any va- ducer; riety other than the Stanley or Merton (c) The quantity, in field run tons, of varieties, and which meets each of the early and late fresh prunes handled by following requirements may be handled each handler; without regard to the assessment pro- (d) The assessment due and enclosed; visions in § 924.41: (e) The name, telephone number, and (a) The shipment consists of prunes signature of the authorized person sold for home use and not for resale, completing the form; and and (f) The date the form is signed. (b) Each container is stamped or marked with the handler’s name and [71 FR 26821, May 9, 2006] address and with the words ‘‘not for re- EFFECTIVE DATE NOTE: At 75 FR 43042, July sale’’ in letters at least one-half inch in 23, 2010, § 924.160 was suspended, effective height. July 24, 2010. [71 FR 26821, May 9, 2006] Subpart—Assessment Rate § 924.142 Reserve fund. § 924.236 Assessment rate. (a) The establishment of a reserve On or after April 1, 2009, an assess- fund of an amount which shall not ex- ment rate of $2.00 per ton is established ceed approximately one fiscal year’s for the Washington-Oregon Fresh operational expenses is appropriate and Prune Marketing Committee. necessary to the maintenance and functioning of the Washington-Oregon [74 FR 48850, Sept. 25, 2009] Fresh Prune Marketing Committee. EFFECTIVE DATE NOTE: At 75 FR 43042, July The committee is hereby authorized to 23, 2010, § 924.236 was suspended, effective carry forward in the aforesaid reserve July 24, 2010. $4,863.46 which are excess assessment funds from the fiscal period ended Subpart—Grade and Size March 31, 1961. Such reserve shall be Requirements used in accordance with the provisions of § 924.42 of said marketing agreement § 924.319 Prune Regulation 19. and order (§§ 924.1 to 924.71). (a) During the period beginning July (b) Terms used in this section shall 15 and ending September 30, no handler have the same meaning as given to the shall handle any lot of prunes, except respective term in said marketing prunes of the Brooks variety, unless: agreement and order. (1) Such prunes grade at least U.S. [26 FR 8664, Sept. 16, 1961. Redesignated at 26 No. 1, except that at least two-thirds of FR 12751, Dec. 30, 1961, and further redesig- the surface of the prune is required to nated at 44 FR 73011, Dec. 17, 1979] be purplish in color, and such prunes

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measure not less than 11⁄4 inches in di- for Italian Prunes (October 5, 1977); the ameter as measured by a rigid ring: term diameter means the greatest di- Provided, That the following toler- mension measured at right angles to a ances, by count, of the prunes in any line from the stem to blossom end of lot shall apply in lieu of the tolerance the fruit; and, except as otherwise for defects provided in the United specified, all other terms shall have States Standards for Grades of Fresh the same meaning as when used in the Plums and Prunes: A total of not more marketing agreement and order. than 15 percent for defects, including [46 FR 38668, July 29, 1981, as amended at 49 therein not more than the following FR 27732, July 6, 1984; 61 FR 40958, Aug. 7, percentage for the defect listed: 1996] (i) 10 percent for prunes which fail to meet the color requirement; EFFECTIVE DATE NOTE: At 71 FR 26821, May 9, 2006, § 924.319 was suspended indefinitely, (ii) 10 percent for prunes which fail to effective May 10, 2006. meet the minimum diameter requirement; (iii) 10 percent for prunes which fail PART 925—GRAPES GROWN IN A to meet the remaining requirements of DESIGNATED AREA OF SOUTH- the grade: Provided, That not more EASTERN CALIFORNIA than one-half of this amount, or 5 percent, shall be allowed for defects caus- DEFINITIONS ing serious damage, including in the Sec. latter amount not more than 1 percent 925.1 Secretary. for decay; or 925.2 Act. (2) Such prunes are handled in ac- 925.3 Person. cordance with paragraph (b) of this sec- 925.4 Grapes. 925.5 Production area. tion. 925.6 Varieties. (b) Notwithstanding any other provi- 925.7 Producer. sion of this regulation, any individual 925.8 Handler. shipment which, in the aggregate, does 925.10 Handle. not exceed 500 pounds net weight, of 925.11 Pack. prunes of the Stanley or Merton vari- 925.12 Fiscal period. eties of prunes, or 350 pounds net 925.13 Container. 925.14 Committee. weight, of prunes of any variety other than Stanley or Merton varieties of ADMINISTRATIVE BODY prunes, which meets each of the fol- 925.20 Establishment and membership. lowing requirements may be handled 925.21 Term of office. without regard to the provisions of 925.22 Nomination. paragraph (a) of this section, and of 925.23 Selection. §§ 924.41 and 924.55: 925.24 Failure to nominate. (1) The shipment consists of prunes 925.25 Acceptance. sold for home use and not for resale, 925.26 Vacancies. 925.27 Alternate members. and 925.28 Powers. (2) Each container is stamped or 925.29 Duties. marked with the handler’s name and 925.30 Procedure. address and with the words ‘‘not for re- 925.31 Compensation and expenses. sale’’ in letters at least one-half inch in 925.32 Annual report. height. EXPENSES AND ASSESSMENTS (c) The term U.S. No. 1 shall have the same meaning as when used in the 925.40 Expenses. United States Standards for Grades of 925.41 Assessments. 925.42 Accounting. Fresh Plums and Prunes (7 CFR 2851.1520 through 2851.1538); the term RESEARCH AND MARKET DEVELOPMENT purplish color shall have the same 925.45 Production research and market re- meaning as when used in the Wash- search and development. ington State Department of Agri- culture Standards for Italian Prunes REGULATIONS (April 29, 1978), and in the Oregon State 925.50 Marketing policy. Department of Agriculture Standards 925.51 Recommendation for regulation.

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925.52 Issuance of regulations. § 925.4 Grapes. 925.53 Modification, suspension, or termination of regulations. Grapes means any variety of vinifera 925.54 Special purpose shipments. species table grapes grown in the production area. INSPECTION AND CERTIFICATION 925.55 Inspection and certification. § 925.5 Production area. Production area means Imperial Coun- REPORTS ty, California, and that part of River- 925.60 Reports. side County and San Diego County, California, situated east of a line MISCELLANEOUS PROVISIONS drawn due north and south through the 925.61 Compliance. Post Office in White Water, California. 925.62 Right of the Secretary. 925.63 Termination. § 925.6 Varieties. 925.64 Proceedings after termination. Varieties means and includes all clas- 925.65 Effect of termination or amendment. sifications or subdivisions of Vitis vi- 925.66 Duration of immunities. nifera table grapes. 925.67 Derogation. 925.68 Personal liability. § 925.7 Producer. 925.69 Separability. Producer is synonymous with grower Subpart—Rules and Regulations and means any person who produces grapes for the fresh market and who 925.112 Fiscal period. has a proprietary interest therein. 925.141 Late payments. 925.160 Reports. § 925.8 Handler. Handler is synonymous with shipper Subpart—Assessment Rates and means any person (except a com- 925.215 Assessment rate. mon or contract carrier of grapes 925.304 California Desert Grape Regulation owned by another person) who handles 6. grapes or causes grapes to be handled.

AUTHORITY: 7 U.S.C. 601–674. § 925.10 Handle. SOURCE: 45 FR 40566, June 16, 1980, unless Handle is synonymous with ship and otherwise noted. means to pack, sell, deliver (including delivery to a storage facility), trans- DEFINITIONS port, or in any way to place grapes in § 925.1 Secretary. the current of commerce within the production area or between the produc- Secretary means the Secretary of Ag- tion area and any point outside there- riculture of the United States, or any of: Provided, That such term shall not officer or employee of the Department include the sale of grapes on the vine to whom authority has heretofore been and except when regulations are effec- delegated, or to whom authority may tive pursuant to § 925.52(a)(5) shall not hereafter be delegated. include the transportation or delivery of grapes to a packinghouse within the § 925.2 Act. production area for preparation for Act means Public Act No. 10, 73d Con- market. gress (May 12, 1933), as amended and as reenacted and amended by the Agricul- § 925.11 Pack. tural Marketing Agreement Act of 1937, Pack means the specific arrangement, as amended (48 Stat. 31, as amended; 7 weight, grade or size, including the U.S.C. 601–674). uniformity thereof, of the grapes within a container: Provided, That when § 925.3 Person. used in or with respect to § 925.52(a)(5) Person means an individual, partner- such term shall mean to place grapes ship, corporation, association, or any into containers for shipment to market other business unit. as fresh grapes.

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§ 925.12 Fiscal period. § 925.21 Term of office. Fiscal period is synonymous with fis- The term of office of the members cal year and means the 12 month period and alternates shall be one fiscal pe- beginning on December 1 of one year riod. Each member and alternate shall and ending the last day of November of serve in such capacities for the portion the following year or such other period of the term of office for which they are as the committee, with the approval of selected and have qualified and until the Secretary, may prescribe. their respective successors are selected and have qualified. § 925.13 Container. § 925.22 Nomination. Container means any lug, box, bag, (a) Initial members. Nominations for crate, carton, or any other receptacle each of the initial members, together used in packing grapes for shipment as with nominations for the initial alter- fresh grapes, and includes the dimen- nate members for each position, may sions, capacity, weight, marking, and be submitted to the Secretary by the any pads, liners, lids, and any or all ap- Committee responsible for promulga- purtenances thereto or parts thereof. tion of this part. Such nominations The term applies, in the case of grapes may be made by means of a meeting of packed in consumer packages, to the the growers and a meeting of the han- master receptacle and to any and all dlers. Such nominations, if made, shall packages therein. be filed with the Secretary no later than the effective date of this part. In § 925.14 Committee. the event nominations for initial mem- Committee means the California bers and alternate members of the Desert Grape Administrative Com- committee are not filed pursuant to, mittee established under § 925.20. and within the time specified in, this section, the Secretary may select such ADMINISTRATIVE BODY initial members and alternate members without regard to nominations, § 925.20 Establishment and member- but selections shall be on the basis of ship. the representation provided in § 925.20. (a) There is hereby established a (b) Successor members. The Secretary California Desert Grape Administra- shall cause to be held, not later than November 15, of each year, meetings of tive Committee consisting of 12 mem- producers and handlers for the purpose bers, each of whom shall have an alter- of making nominations for members nate who shall have the same qualifica- and alternate members of the com- tions as the member. Five of the mem- mittee. bers and their alternates shall be pro- (c) Only producers, including duly au- ducers or officers or employees of pro- thorized officers or employees of producers (producer members). Five of the ducers, who are present at such nomi- members and their alternates shall be nation meetings, may participate in handlers or officers or employees of the nomination and election of nomi- handlers (handler members). One mem- nees for producer members and their ber and alternate shall be either a pro- alternates. Each producer entity shall ducer or handler or officer or employee be entitled to cast only one vote. If a thereof. One member and alternate person is both a producer and a handler shall represent the public. of grapes, such person may participate (b) Not more than two members and in both producer and handler nomina- not more than two alternate members tions. shall be affiliated with the same han- (d) Only handlers, including duly au- dler entity. thorized officers or employees of han- (c) The committee may, with the ap- dlers, who are present at such nomina- proval of the Secretary, provide such tion meetings, may participate in the other allocation of producer or handler nomination and election of nominees membership, or both, as may be nec- for handler members and their alter- essary to assure equitable representa- nates. Each handler entity shall be en- tion. titled to cast only one vote.

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(e) One member and alternate mem- § 925.27 Alternate members. ber shall be nominated by a vote of An alternate member shall act in the both producers and handlers and may place of the member during such mem- be of either group. ber’s absence or at such member’s re- (f) The public member and alternate quest, and may be assigned other pro- member shall be nominated by the gram duties by the chairman or the committee. The committee shall pre- committee. In the event of the death, scribe, with the approval of the Sec- removal, resignation, or disqualifica- retary, procedures for the nomination tion of a member the alternate shall of the public member and qualification act for the member until a successor requirements for such member. for such member is selected and has qualified. In the event that both a § 925.23 Selection. member and that member’s alternate The Secretary shall select members are unable to attend a committee and alternate members of the com- meeting, the member or committee mittee from persons nominated pursu- members present may designate any ant to § 925.22 or from other qualified other alternate to serve in such mem- persons. ber’s place at the meeting if such action is necessary to secure a quorum: § 925.24 Failure to nominate. Provided, That not more than two members or alternates acting for mem- If nominations are not made within bers who are affiliated with the same the time and in the manner specified in handler entity shall serve as members § 925.22 the Secretary may select the at the same meeting. members and alternate members of the committee without regard to nomina- § 925.28 Powers. tions on the basis of the representation The committee shall have the fol- provided for in § 925.20. lowing powers: (a) To administer the provisions of § 925.25 Acceptance. this part in accordance with its terms; Any person selected by the Secretary (b) To receive, investigate, and report as a member or as an alternate member to the Secretary complaints of viola- of the committee shall qualify by filing tions of the provisions of this part; a written acceptance with the Sec- (c) To make and adopt rules and reg- retary promptly after being notified of ulations to effectuate the terms and such selection. provisions of this part; and (d) To recommend to the Secretary § 925.26 Vacancies. amendments to this part. To fill any vacancy occasioned by the § 925.29 Duties. failure of any person selected as a The committees shall have, among member or as an alternate member of others, the following duties: the committee to qualify, or in the (a) To select a chairman and such event of the death, removal, resigna- other officers as may be necessary, and tion, or disqualification of any member to define the duties of such officers; or alternate member of the committee, (b) To appoint such employees, a successor for the unexpired term of agents, and representatives as it may such member or alternate member of deem necessary, and to determine com- the committee shall be nominated and pensation and to define the duties of selected in the manner specified in each; §§ 925.22 and 925.23. If the names of the (c) To submit to the Secretary as nominees to fill any such vacancy are soon as practicable after the beginning not made available to the Secretary of each fiscal period a budget for such within a reasonable time after such va- period, including a report in expla- cancy occurs, the Secretary may fill nation of the items appearing therein such vacancy without regard to nomi- and a recommendation as to the rate of nations, which selection shall be made assessment for such period; on the basis of the representation pro- (d) To keep minutes, books, and vided for in § 925.20. records, which will reflect all of the

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acts and transactions of the committee § 925.32 Annual report. and which shall be subject to examina- The committee should, as soon as tion by the Secretary; practicable, after the close of each fis- (e) To prepare periodic statements of cal period, prepare and mail an annual the financial operations of the com- report to the Secretary and make a mittee and to make copies of each such copy available to each grower and han- statement available to growers and dler who requests a copy of the report. handlers for examination at the office of the committee; EXPENSES AND ASSESSMENTS (f) To cause its books to be audited by a competent public accountant at § 925.40 Expenses. least once each fiscal period and at The committee is authorized to incur such times as the Secretary may re- such expenses as the Secretary finds quest; are reasonable and likely to be in- (g) To act as intermediary between curred by the committee for its main- the Secretary and any grower or han- tenance and functioning and to enable dler; it to exercise its powers and perform (h) To investigate and assemble data its duties in accordance with the provi- on the growing, handling, and mar- sions of this part. The funds to cover keting conditions with respect to such expenses shall be acquired in the grapes; manner prescribed in § 925.41. (i) To submit to the Secretary the same notice of meetings of the com- § 925.41 Assessments. mittee as is given to its members; (a) Each person who first handles (j) To submit to the Secretary such grapes shall pay to the committee, available information as may be re- upon demand, such handler’s pro rata quested; and share of the expenses which the Sec- (k) To investigate compliance with retary finds are reasonable and likely the provisions of this part. to be incurred by the committee during a fiscal period. The payment of assess- § 925.30 Procedure. ments for the maintenance and func- (a) Eight members of the committee tioning of the committee may be re- shall constitute a quorum and any acquired under this part throughout the tion of the committee shall require at period it is in effect irrespective of least eight concurring votes; whether particular provisions thereof (b) The committee may vote by tele- are suspended or become inoperative. phone, telegraph, or other means of (b) The Secretary shall fix the rate of communications; and any votes so cast assessment to be paid by each such per- shall be confirmed promptly in writing: son during a fiscal period in an amount Provided, That if an assembled meeting designed to secure sufficient funds to is held, all votes shall be cast in per- cover the expenses which may be in- son. curred during such period and to accumulate and maintain a reserve fund § 925.31 Compensation and expenses. equal to approximately one fiscal peri- The members of the committee, and od’s expenses. At any time during or alternates when acting as members, after a fiscal period, the Secretary may shall serve without compensation but increase the rate of assessment in may be reimbursed for expenses nec- order to secure sufficient funds to essarily incurred by them in the per- cover any later findings by the Sec- formance of their duties under this retary relative to the expenses which part: Provided, That the committee at may be incurred. Such increase shall be its discretion may request the attend- applied to all grapes handled during ance of one or more alternates at any the applicable fiscal period. In order to or all meetings notwithstanding the provide funds for the administration of expected or actual presence of the re- the provisions of this part during the spective members and may pay ex- first part of a fiscal period before suffi- penses as aforesaid. cient operating income is available

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from assessments in the current peri- manner as the Secretary may deter- od’s shipments, the committee may ac- mine to be appropriate: Provided, That cept the payment of assessments in ad- to the extent practicable such funds vance, and may also borrow money for shall be returned pro rata to the per- such purpose. sons from whom such funds were col- (c) Any assessment not paid by a lected. handler within a period of time pre- (b) All funds received by the com- scribed by the committee may be sub- mittee under this part shall be used ject to an interest or late payment solely for the purpose specified in this charge, or both. The period of time, part and shall be accounted for in the rate of interest, and late payment manner provided in this part. The Sec- charge shall be recommended by the retary may at any time require the committee and approved by the Sec- committee and its members to account retary. Subsequent to such approval, for all receipts and disbursements. all assessments not paid within the (c) Upon the removal or expiration of prescribed time shall be subject to the the term of office of any member of the interest or late payment charge, or committee, such member shall account both. for all receipts and disbursements and deliver all property and funds in such § 925.42 Accounting. member’s possession to the committee, (a) If, at the end of a fiscal period, and shall execute such assignments and the assessments collected are in excess other instruments as may be necessary of expenses incurred, such excess shall or appropriate to vest in the com- be accounted for in accordance with mittee full title to all of the property, one of the following: funds, and claims vested in such mem- (1) If such excess is not retained in a ber pursuant to this part. reserve, as provided in paragraph (d)(2) RESEARCH AND MARKET DEVELOPMENT of this section, it shall be refunded proportionately to the persons from whom § 925.45 Production research and mar- it was collected: Provided, That any ket research and development. sum paid by a person in excess of that The committee, with the approval of person’s pro rata share of the expenses the Secretary, may establish or provide during any fiscal period may be applied for the establishment of production re- by the committee at the end of such search, marketing research and devel- fiscal period to any outstanding obliga- opment projects designed to assist, im- tions due the committee from such per- prove or promote the marketing, dis- son. tribution and consumption or the effi- (2) The committee, with the approval cient production of grapes. The expense of the Secretary, may carry over such of such projects shall be paid from excess into subsequent fiscal periods as funds collected pursuant to this part. a reserve: Provided, That funds in the reserve shall not exceed approximately REGULATIONS one fiscal period’s expenses. Such reserve funds may be used: (i) To defray § 925.50 Marketing policy. expenses, during any fiscal period, Each season prior to making any rec- prior to the time the assessment in- ommendation pursuant to § 925.51 the come is sufficient to cover such ex- committee shall submit to the Sec- penses; (ii) to cover deficits incurred retary a report setting forth its mar- during any fiscal period when assess- keting policy for the ensuing mar- ment income is less than expenses; (iii) keting season. Such marketing policy to defray expenses incurred during any report shall contain information rel- period when any or all provisions of ative to: this part are suspended or are inoper- (a) The estimated total shipments of ative; or (iv) to cover necessary ex- grapes produced within the production penses of liquidation in the event of area; termination of this part. Upon such (b) The expected general quality of termination, any funds not required to grapes in the production area; defray the necessary expenses of liq- (c) The expected demand conditions uidation shall be disposed of in such for grapes;

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(d) The probable prices for grapes; § 925.53 Modification, suspension, or (e) Supplies of competing commod- termination of regulations. ities, including foreign produced (a) In the event the committee at any grapes; time finds that, by reason of changed (f) Trend and level of consumer in- conditions, any regulations issued pur- come; suant to § 925.52 should be modified, (g) Other factors having a bearing on suspended, or terminated, it shall so the marketing of grapes; and recommend to the Secretary. (h) The type of regulations expected (b) Whenever the Secretary finds to be recommended during the mar- from the recommendations and infor- keting season. mation submitted by the committee or from other available information that § 925.51 Recommendation for regula- a regulation should be modified, sus- tion. pended, or terminated with respect to Upon complying with the require- any or all shipments of grapes in order ments of § 925.50 the committee may to effectuate the declared policy of the recommend regulations to the Sec- act, the Secretary shall modify, sus- retary whenever the committee deems pend, or terminate such regulation. If that such regulations as are provided the Secretary finds that a regulation in § 925.52 will tend to effectuate the de- obstructs or does not tend to effectuate clared policy of the act. the declared policy of the act, the Sec- retary shall suspend or terminate such § 925.52 Issuance of regulations. regulation. On the same basis and in (a) The Secretary shall regulate, in like manner the Secretary may termi- the manner specified in this section, nate any such modification or suspen- the handling of grapes upon finding sion. from the recommendations and information submitted by the committee, or § 925.54 Special purpose shipments. from other available information, that (a) Regulations in effect pursuant to such regulation would tend to effec- § 925.41, § 925.52, or § 925.55 may be modi- tuate the declared policy of the act. fied, suspended, or terminated to facili- Such regulation may: (1) Limit the tate handling of grapes for purposes handling of any grade, size, quality, which may be recommended by the maturity, or pack, or any combination committee and approved by the Sec- thereof, of any or all varieties of grapes retary. during any period or periods; (2) limit (b) The committee shall, with the ap- the handling of any grade, size, qual- proval of the Secretary, prescribe such ity, maturity, or pack of grapes dif- rules, regulations, and safeguards as it ferently for different varieties, or any may deem necessary to prevent grapes combination of the foregoing during handled under the provisions of this any period or periods; (3) limit the han- section from entering the channels of dling of grapes by establishing in terms trade for other than the specific pur- of grades, sizes, or both, minimum poses authorized by this section. standards of quality and maturity during any period when season average INSPECTION AND CERTIFICATION prices are expected to exceed the parity level; (4) fix the size, capacity, § 925.55 Inspection and certification. weight, dimensions, markings, mate- (a) Whenever the handling of any va- rials, or pack of the container which riety of grapes is regulated pursuant to may be used in handling of grapes; (5) § 925.52, each handler who handles establish holidays by prohibiting the grapes shall, prior thereto, cause such packing of all varieties of grapes dur- grapes to be inspected by the Federal ing a specified period or periods. or Federal-State Inspection Service (b) No handler shall handle grapes and certified as meeting the applicable that were packed during any period requirements of such regulation: Pro- when such packing was prohibited by vided, That inspection and certification any regulation issued under paragraph shall not be required for grapes which (a)(5) of this section unless such grapes previously have been so inspected and are handled under § 925.54. certified if such prior inspection was

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performed within such period as may (d) All reports and records submitted be established pursuant to paragraph by handlers pursuant to the provisions (b) of this section. Promptly after the of this section shall be received by, and inspection and certification each such at all times be in custody of one or handler shall submit, or cause to be more designated employees of the com- submitted, to the committee a copy of mittee. No such employee shall dis- the certificate of inspection issued close to any person, other than the with respect to such grapes. Secretary upon request therefor, data (b) The committee may, with the ap- or information obtained or extracted proval of the Secretary, establish a pe- from such reports and records which riod prior to shipment during which might affect the trade position, finan- the inspection required by this section cial condition, or business operation of must be performed. the particular handler from whom re- (c) The committee may enter into an ceived: Provided, That such data and in- agreement with the Federal and Fed- formation may be combined, and made eral-State Inspection Services with re- available to any person, in the form of spect to the costs of the inspection re- general reports in which the identities quired by paragraph (a) of this section, of the individual handlers furnishing and may collect from handlers their re- the information are not disclosed and spective pro rata share of such costs. may be revealed to any extent necessary to effect compliance with the REPORTS provisions of this part and the regulations issued thereunder. § 925.60 Reports. (a) Each handler shall furnish to the MISCELLANEOUS PROVISIONS committee, at such times and for such § 925.61 Compliance. periods as the committee may designate, certified reports covering, to Except as provided in this part, no the extent necessary for the committee handler shall handle grapes except in to perform its functions, each shipment conformity with the provisions of this of grapes as follows: (1) The name of part and the regulations issued there- the shipper and the shipping point; (2) under. the car or truck license number (or name of the trucker), and identifica- § 925.62 Right of the Secretary. tion of the carrier; (3) the date and The members of the committee (in- time of departure; (4) the variety; (5) cluding successors and alternates) and the number and type of containers in any agents, employees, or representa- the shipment; (6) the destination; and tives thereof, shall be subject to re- (7) identification of the inspection cer- moval or suspension by the Secretary tificate pursuant to which the grapes at any time. Each and every regula- were handled. tion, decision, determination, or other (b) Upon request of the committee, act of the committee shall be subject made with the approval of the Sec- to the continuing right of the Sec- retary, each handler shall furnish to retary to disapprove of the same at any the committee, in such manner and at time. Upon such disapproval, the dis- such times as it may prescribe, such approved action of the committee shall other information as may be necessary be deemed null and void, except as to to enable the committee to perform its acts done in reliance thereon or in ac- duties under this part. cordance therewith prior to such dis- (c) Each handler shall maintain for approval by the Secretary. at least two succeeding fiscal periods after the end of the fiscal period in § 925.63 Termination. which the transactions occurred, such (a) The Secretary shall terminate or records of the grapes received and dis- suspend the operation of any and all of posed of by such handler as may be the provisions of this part whenever necessary to verify the reports such the Secretary finds that such provi- handler submits to the committee pur- sions do not tend to effectuate the de- suant to this section. clared policy of the act.

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(b) The Secretary shall terminate the any amendment to either thereof, shall provisions of this part whenever it is not: (a) Affect or waive any right, duty, found by referendum or otherwise that obligation, or liability which shall such termination is favored by a ma- have arisen or which may thereafter jority of the growers: Provided, That arise in connection with any provision such majority has during the current of this part or any regulation issued marketing season produced more than under this part; or (b) release or extin- 50 percent of the volume of grapes guish any violation of this part or any which were produced within the pro- regulation issued under this part; or (c) duction area for shipment in fresh affect or impair any rights or remedies form. Such termination shall become of the Secretary or any other person effective on the first day of December with respect to any such violation. subsequent to the announcement thereof by the Secretary. § 925.66 Duration of immunities. (c) The provisions of this part shall, The benefits, privileges, and immuni- in any event, terminate whenever the ties conferred upon any person by vir- provisions of the act authorizing them tue of this part shall cease upon its ter- cease to be in effect. mination, except with respect to acts § 925.64 Proceedings after termination. done under and during the existence of this part. (a) Upon the termination of the provisions of this part, the committee § 925.67 Derogation. shall, for the purpose of liquidating the affairs of the committee, continue as Nothing contained in this part is, or trustees of all the funds and property shall be construed to be, in derogation then in its possession, or under its con- or in modification of the rights of the trol, including claims for any funds un- Secretary or of the United States: (a) paid or property not delivered at the To exercise any powers granted by the time of such termination. Any action act or otherwise; or (b) in accordance by said trustees shall require the con- with such powers, to act in the prem- currence of a majority of the trustees. ises whenever such action is deemed (b) The said trustees shall: (1) Con- advisable. tinue in such capacity until discharged by the Secretary; (2) from time to time § 925.68 Personal liability. account for all receipts and disburse- No member or alternate member of ments and deliver all property on hand, the committee and no employee or together with all books and records of agent of the committee shall be held the committee and of the trustees, to personally responsible, either individ- such persons as the Secretary may di- ually or jointly with others, in any way rect; (3) upon the request of the Sec- whatsoever, to any person for errors in retary, execute such assignments or judgment, mistakes, or other acts, ei- other instruments necessary or appro- ther of commission or omission, as priate to vest in such person, full title such member, alternate, employee, or and right to all of the funds, property, agent, except for acts of dishonesty, and claims vested in the committee or willful misconduct, or gross neg- the trustees pursuant thereto. ligence. (c) Any person to whom funds, property, or claims have been transferred § 925.69 Separability. or delivered, pursuant to this section, If any provision of this part is de- shall be subject to the same obligation clared invalid or the applicability imposed upon the committee and upon thereof to any person, circumstance, or the trustees. thing is held invalid, the validity of the § 925.65 Effect of termination or remainder of this part or the applica- amendment. bility thereof to any other person, cir- Unless otherwise expressly provided cumstance, or thing shall not be af- by the Secretary, the termination of fected thereby. this part or any regulation issued pur- (Secs. 1–19, 48 Stat. 31, as amended (7 U.S.C. suant to this part, or the issuance of 601–674))

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Subpart—Rules and Regulations the last day of shipment for the season or such later time the Committee § 925.112 Fiscal period. deems appropriate. Such reports shall Beginning January 1, 1988, fiscal pe- show the reporting period, the name riod will mean January 1 through De- and other identification of the shipper cember 31 of each year. and grower, the invoice number, shipping date, varietal name, shipment des- [52 FR 27538, July 22, 1987] tination (city and state), and the num- § 925.141 Late payments. ber of lugs shipped (pounds). (b) When requested by the California (a) The committee shall impose a Desert Grape Administrative Com- late payment charge of 5 percent on mittee (CDGAC), each shipper who the unpaid balance on any handler ships grapes shall furnish to the com- whose assessment has not been re- mittee at such time as the committee ceived in the committee’s office, or the shall require, an annual grape acreage envelope containing the payment leg- survey (CDGAC Form 7), which shall ibly postmarked by the U.S. Postal include, but is not limited to, the fol- Service, within 45 days of the invoice lowing: The applicable year in which date shown on the handler’s assess- the report is requested; the names of ment statement. the shipper (handler) who will handle (b) In addition to that specified in the grapes and the grower who pro- paragraph (a) of this section, the committee shall impose an interest charge duces them; the location of each vine- on any handler whose assessment pay- yard; the variety or varieties grown in ment has not been received in the com- each vineyard; and the bearing, non- mittee’s office, or the envelope con- bearing, and total acres of each vine- taining the payment legibly post- yard. marked by the U.S. Postal Service, [69 FR 21692, Apr. 22, 2004, as amended at 72 within 45 days of the invoice date. The FR 29840, May 30, 2007] rate of 11⁄2 percent per month shall be applied to the unpaid balance and late Subpart—Assessment Rates payment charge for the number of days all or any part of the assessment speci- § 925.215 Assessment rate. fied in the handler’s assessment statement is delinquent beyond the 45 day On and after January 1, 2009, an as- period. sessment rate of $0.01 per 18-pound lug (c) The committee, upon receipt of a is established for grapes grown in a late payment, shall promptly notify designated area of southeastern Cali- the handler (by registered mail) of any fornia. late payment charge and/or interest [74 FR 8143, Feb. 24, 2009] charge due as provided in paragraphs (a) and (b) of this section. If such § 925.304 California Desert Grape Reg- charges are not paid, or the envelope ulation 6. containing payment is not legibly post- During the period April 10 through marked by the U.S. Postal Service, July 10 each year, no person shall pack within 45 days of the date of such noti- or repack any variety of grapes except fication, late payment and interest Emperor, Almeria, Calmeria, and charges as provided in paragraphs (a) Ribier varieties, on any Saturday, Sun- and (b) of this section will accrue on day, Memorial Day, or the observed the unpaid amount. Independence Day holiday, unless ap- [57 FR 24352, June 9, 1992] proved in accordance with paragraph (e) of this section, nor handle any vari- § 925.160 Reports. ety of grapes except Emperor, (a) When requested by the California Calmeria, Almeria, and Ribier vari- Desert Grape Administrative Com- eties, unless such grapes meet the re- mittee, each shipper who ships grapes, quirements specified in this section. shall furnish an end-of-season grape (a) Grade, size, and maturity. Except shipment report (CDGAC–3) to the as provided in paragraphs (a)(1) and Committee no later than 10 days after (a)(2) of this section, such grapes shall

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meet the minimum grade and size re- (2) Grapes of the Flame Seedless vari- quirements of U.S. No. 1 Table, as set ety shall meet the minimum berry size forth in the United States Standards requirement of ten-sixteenths of an for Grades of Table Grapes (European inch and shall be considered mature if or Vinifera Type 7 CFR 51.880 through the juice meets or exceeds 16.5 percent 51.914), or shall meet all the require- soluble solids, or contains not less than ments of U.S. No. 1 Institutional with 15 percent soluble solids and the solu- the exception of the tolerance percent- ble solids are equal to or in excess of 20 age for bunch size. Such tolerance shall parts to every part acid contained in be 33 percent instead of 4 percent as is juice in accordance with applicable required to meet U.S. No. 1 Institu- tional grade. Grapes meeting these sampling and testing procedures speci- quality requirements may be marked fied in sections 1436.3, 1436.5, 1436.6, ‘‘DGAC No. 1 Institutional’’ but shall 1436.7, 1436.12, and 1436.17 of Article 25 not be marked ‘‘Institutional Pack.’’ In of Title 3: California Code of Regula- addition, U.S. No. 1 Table grade grapes tions (CCR). may be packed in individual consumer (b) Container and pack. (1) Such packages containing 2 pounds net grapes shall be packed in one of the fol- weight or less: Provided, That not more lowing containers, which are new and than 20 percent of the weight of such clean, and otherwise meet the require- containers may consist of single clus- ments of sections 1380.14, and 1380.19(n), ters weighing less than one-quarter 1436.37, and 1436.38 of Title 3: California pound, but with at least five berries Code of Regulations, except that reus- each. able plastic containers may be reused (1) Grapes of the Perlette variety if such containers are clean: shall meet the minimum berry size requirement of ten-sixteenths of an inch;

CONTAINER DESCRIPTIONS IN INCHES

Container Depth Width Length

28 Sawdust Pack ...... 73⁄4 (inside) ...... 1415⁄16 (inside) ...... 185⁄8 (inside) 38J Polystyrene Lug ...... 63⁄4 (inside) ...... 121⁄2 (inside) ...... 153⁄8 (inside) 38K Standard Grape ...... 41⁄2–81⁄2 (inside) ...... 131⁄2–141⁄2 (outside) ...... 165⁄8–171⁄2 (outside) 38L Grape Lug ...... 75⁄8 (inside) ...... 1311⁄16 (outside) ...... 16 (outside) 38M Grape Lug ...... 41⁄4–53⁄4 (inside) ...... 153⁄8–16 (outside) ...... 231⁄2–24 (outside) 38Q Polystyrene Lug ...... 61⁄4–81⁄4 (inside) ...... 111⁄4 (inside) ...... 181⁄8 (inside) 38R Grape Lug ...... 4–7 (inside) ...... 153⁄4–16 (outside) ...... 1911⁄16–20 (outside) 38S Grape Lug ...... 5–9 (inside) ...... 1111⁄16–12 (outside) ...... 1911⁄16—20 (outside) 38T Grape Lug ...... 51⁄2–71⁄2 (inside) ...... 131⁄8–1315⁄16 (outside) ...... 155⁄16–16 (outside) 38U Grape Lug ...... 63⁄16–7 (inside) ...... 1311⁄16 (outside) ...... 201⁄2 (outside) 38 V Grape Lug ...... 53⁄4 (inside) ...... 14 (outside) ...... 16 (outside) CP Grape Lug ...... 315⁄16–43⁄4 (inside) ...... 153⁄4–159⁄16 (outside) ...... 231⁄2–233⁄4 (outside) CP1 Grape Lug ...... 43⁄4–5 (inside) ...... 191⁄2–20 (outside) ...... 233⁄4–24 (outside)

(ii) Containers with a net weight of 5 of grapes in a representative sample of kilograms (approximately 11 pounds) containers. Grapes in any such con- shall be for export only. tainers packed in bags, or wrapped in (iii) Such other types and sizes of plastic or paper prior to being placed in containers as may be approved by the these containers shall meet a min- Committee for experimental or re- imum net weight of 18 pounds based on search purposes. the average net weight of grapes in a (2) The minimum net weight of representative sample of containers: grapes in any such containers, except Provided, That grapes packed in master for containers containing grapes containers containing individual con- packed in sawdust, cork, excelsior or sumer packages are exempt from con- similar packing material, or packed in tainer marking requirements and min- bags or wrapped in plastic or paper, imum net weight requirements. Con- and containers authorized in paragraph tainers of grapes other than master (b)(1)(iii) of this section, shall be 20 containers containing individual con- pounds based on the average net weight sumer packages shall be marked with

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the minimum net weight of 20 or 18 appropriate permit or order from the pounds. County Agricultural Commissioner, (3) Such containers of grapes shall be and the by-product plant or packing plainly marked with the minimum net plant to which the grapes are shipped weight of grapes contained therein has adequate facilities for commercial (with numbers and letters at least one- processing, grading, packing or manu- fourth inch in height), the name of the facturing of by-products for resale. variety of the grapes and the name of (e) Suspension of packing holidays. the shipper, as provided in §§ 1436.30 and Upon recommendation of the com- 1359 of Title 3: California Code of Regu- mittee and approval of the Secretary, lations. the prohibition against packing or re- (4) Such containers of grapes shall be packing grapes on any Saturday, Sun- plainly marked with the lot stamp day or on Memorial Day or Independ- number corresponding to the lot in- ence Day holidays of each year, may be spection conducted by an authorized modified or suspended to permit the inspector, except that such require- handling of grapes provided such han- ment shall not apply to containers in dling complies with procedures and the center tier of a lot palletized in a 3 safeguards specified by the committee box by 3 box pallet configuration: Pro- as follows: vided, That pallets of reusable plastic (1) All requests for suspension of a containers shall have the lot stamp packing holiday shall be in writing, number stamped on two USDA-ap- shall state the reasons the suspension proved pallet tags, each affixed to op- is being requested, and shall be sub- posite sides of the pallet of containers, mitted to the Committee manager by in addition to other required informa- noon on Wednesday or at least 3 days tion on the cards of the individual con- prior to the requested suspension date; tainers. (2) Upon receipt of a written request, (c) Organically grown grapes. Organi- the Committee manager shall prompt- cally grown grapes (defined to mean ly give reasonable notice to producers grapes which have been grown for mar- and handlers and to the Secretary that ket as natural grapes by performing all an assembled Committee meeting will the normal cultural practices, but not be held to discuss the request(s). The using any inorganic fertilizers or agri- representative of the Secretary shall cultural chemicals including insecti- attend the meeting via speakerphone cides, herbicides, and growth regu- or in person, and all votes of the Com- lators, except sulfur) need not meet the mittee members shall be cast in per- minimum individual berry size require- son; ments of this section if the following (3) The Committee members shall conditions and safeguards are met: (1) consider marketing conditions (i.e., The handler of such grapes has reg- supplies of competing commodities to istered and certified with the com- include quantities in inventory, the ex- mittee on a date specified by the com- pected demand conditions for grapes in mittee the location of the vineyard, different markets, and any pertinent the acreage and variety of grapes, and documents which provide data on mar- such other information as may be need- ket conditions), weather conditions, ed by the committee to carry out these labor shortages, the size of the crop re- provisions; (2) each container of organi- maining to be marketed, and other per- cally grown grapes bears the words tinent factors in reaching a decision to ‘‘organically grown’’ on one outside end suspend packing holidays; of the container in plain letters in ad- (4) Once a vote is taken, any docu- dition to requirements specified under ments utilized during the meeting will paragraph (b)(3) of this section. be forwarded immediately to the Sec- (d) By-product grapes. The handling of retary’s representative and a summary grapes for processing (raisins, crushing of the Committee’s action and reasons and other by-products) is exempt from for recommending approval or dis- requirements specified in paragraphs approval will be prepared and also for- (a), (b), and (c) of this section if the warded by the committee; and committee determines that the person (5) The Secretary’s representative handling such grapes has secured the shall notify the Committee manager of

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approval or disapproval of the request regulations (e.g. sections .200 through .299) prior to commencement of the sus- and ‘‘Handling’’ regulations (e.g. sections .300 pended packing holiday and the Com- through .399) which are in effect for a year or mittee manager shall notify handlers less, will not be carried in the Code of Fed- eral Regulations. For FEDERAL REGISTER ci- and producers accordingly. tations affecting these regulations, see the (f) Certain maturity, container, and List of CFR Sections Affected, which appears pack requirements cited in this regula- in the Finding Aids section of the printed tion are specified in the Title 3: Cali- volume and at www.fdsys.gov. fornia Code of Regulations and are incorporated by reference. Copies of such PART 926—DATA COLLECTION, RE- requirements are available from Ron- ald L. Cioffi, Chief, Marketing Order PORTING AND RECORDKEEPING Administration Branch, F&V, AMS, REQUIREMENTS APPLICABLE TO USDA, Washington, DC 20090–6456, tele- CRANBERRIES NOT SUBJECT TO phone (202) 720–2491. They are also THE CRANBERRY MARKETING available for inspection at the National ORDER Archives and Records Administration (NARA). For information on the avail- Sec. ability of this material at NARA, call 926.1 Secretary. 202–741–6030, or go to: http:// 926.2 Act. www.archives.gov/federallregister/ 926.3 Person. codeloflfederallregulations/ 926.4 Cranberries. ibrllocations.html. This incorporation 926.5 Fiscal period. by reference was approved by the Di- 926.6 Committee. 926.7 Producer. rector of the Federal Register. These 926.8 Handler. materials are incorporated as they ex- 926.9 Handle. isted on the date of the approval and a 926.10 Acquire. notice of any change in these materials 926.11 Processed cranberries or cranberry will be published in the FEDERAL REG- products. ISTER. 926.12 Producer-handler. (g) The Federal or Federal-State In- 926.13 Processor. spection Service, F&V, AMS, USDA, is 926.14 Broker. the governmental inspection service 926.15 Importer. for certifying the grade, size, quality, 926.16 Reports. and maturity of table grapes grown in 926.17 Reporting requirements. the production area. The inspection 926.18 Records. 926.19 Confidential information. and certification services will be avail- 926.20 Verification of reports and records. able upon application in accordance 926.21 Suspension or termination. with the rules and regulations governing inspections and certification of AUTHORITY: 7 U.S.C. 601-674. fresh fruits, vegetables, and other prod- SOURCE: 70 FR 1999, Jan. 12, 2005, unless ucts (7 CFR part 51); except that all otherwise noted. persons who request such inspection and certification must provide ade- § 926.1 Secretary. quate facilities in which the inspec- Secretary means the Secretary of Ag- tions may be conducted and also pro- riculture of the United States or any vide the necessary equipment and inci- officer or employee of the United dental supplies that are considered as States Department of Agriculture who standard requirements for providing is, or who may hereafter be authorized fresh inspection under Federal or Fed- to act in her/his stead. eral-State inspection procedures. EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. [51 FR 12501, Apr. 11, 1986] 28, 2006, § 926.1 was suspended indefinitely, effective Dec. 29, 2006. EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 925.304, see the List of CFR Sections Affected, which appears in the § 926.2 Act. Finding Aids section of the printed volume Act means Public Act No. 10, 73d Con- and at www.fdsys.gov. gress [May 12, 1933], as amended, and as EDITORIAL NOTE: After January 1, 1979 reenacted and amended by the Agricul- ‘‘Budget of Expenses and Rate of Assessment’’ tural Marketing Agreement Act of 1937,

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as amended (Secs. 1-19, 48 Stat. 31, as EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. amended; 7 U.S.C. 601 et seq.). 28, 2006, § 926.7 was suspended indefinitely, effective Dec. 29, 2006. EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. 28, 2006, § 926.2 was suspended indefinitely, ef- § 926.8 Handler. fective Dec. 29, 2006. Handler means any person who han- § 926.3 Person. dles cranberries and is not subject to the reporting requirements of Part 929. Person means an individual, partnership, corporation, association, or any EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. other business unit. 28, 2006, § 926.8 was suspended indefinitely, effective Dec. 29, 2006. EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. 28, 2006, § 926.3 was suspended indefinitely, ef- § 926.9 Handle. fective Dec. 29, 2006. Handle means to can, freeze, dehydrate, acquire, sell, consign, deliver, or § 926.4 Cranberries. transport (except as a common or con- Cranberries means all varieties of the tract carrier of cranberries owned by fruit Vaccinium Macrocarpon and another person) fresh or processed Vaccinium oxycoccus, known as cran- cranberries produced within or outside berries. the United States or in any other way EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. to place fresh or processed cranberries 28, 2006, § 926.4 was suspended indefinitely, ef- into the current of commerce within or fective Dec. 29, 2006. outside the United States. This term includes all initial and subsequent han- § 926.5 Fiscal period. dling of cranberries or processed cran- Fiscal period is synonymous with fis- berries up to, but not including, the re- cal year and crop year and means the tail level. 12-month period beginning September 1 EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. and ending August 31 of the following 28, 2006, § 926.9 was suspended indefinitely, ef- year. fective Dec. 29, 2006.

EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. § 926.10 Acquire. 28, 2006, § 926.5 was suspended indefinitely, effective Dec. 29, 2006. Acquire means to obtain cranberries by any means whatsoever for the pur- § 926.6 Committee. pose of handling cranberries.

Committee means the Cranberry Mar- EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. keting Committee, which is hereby au- 28, 2006, § 926.10 was suspended indefinitely, thorized by USDA to collect informa- effective Dec. 29, 2006. tion on sales, acquisitions, and inventories of cranberries and cranberry § 926.11 Processed cranberries or cran- products under this part. The Com- berry products. mittee is established pursuant to the Processed cranberries or cranberry prod- Federal cranberry marketing order ucts means cranberries which have been regulating the handling of cranberries converted from fresh cranberries into grown in the States of Massachusetts, canned, frozen, or dehydrated cran- Rhode Island, Connecticut, New Jersey, berries or other cranberry products by Wisconsin, Michigan, Minnesota, Or- any commercial process. egon, Washington, and Long Island in EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. the State of New York (7 CFR part 929). 28, 2006, § 926.11 was suspended indefinitely, effective Dec. 29, 2006. EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. 28, 2006, § 926.6 was suspended indefinitely, effective Dec. 29, 2006. § 926.12 Producer-handler. Producer-handler means any person § 926.7 Producer. who is a producer of cranberries for Producer is synonymous with grower market and handles such cranberries. and means any person who produces EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. cranberries for market and has a pro- 28, 2006, § 926.12 was suspended indefinitely, prietary interest therein. effective Dec. 29, 2006.

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§ 926.13 Processor. information with respect to fresh cran- Processor means any person who re- berries and cranberry products ac- ceives or acquires fresh or frozen cran- quired and disposed of by such entity berries or cranberries in the form of as may be necessary to meet the objec- concentrate from handlers, producer- tives of the Act. handlers, importers, brokers or other EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. processors and uses such cranberries or 28, 2006, § 926.16 was suspended indefinitely, concentrate, with or without other in- effective Dec. 29, 2006. gredients, in the production of a product for market. § 926.17 Reporting requirements. Handlers, producer-handlers, import- EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. 28, 2006, § 926.13 was suspended indefinitely, ers, processors, and brokers not subject effective Dec. 29, 2006. to the Federal cranberry marketing order (7 CFR Part 926) shall be required § 926.14 Broker. to submit four times annually, for each Broker means any person who acts as fiscal period reports regarding sales, an agent of the buyer or seller and ne- acquisitions, movement for further gotiates the sale or purchase of cran- processing, and dispositions of fresh berries or cranberry products. cranberries and cranberry products using forms supplied by the Com- EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. mittee. An Importer Cranberry Inven- 28, 2006, § 926.14 was suspended indefinitely, effective Dec. 29, 2006. tory Report Form shall be required to be completed by importers and brokers. § 926.15 Importer. This report shall indicate the name, Importer means any person who address, variety acquired, the amount causes cranberries or cranberry prod- sold to and received by brokers, proc- ucts produced outside the United essors, and handlers, and the beginning States to be brought into the United and ending inventories of cranberries States with the intent of entering the held by the importer for each applica- cranberries or cranberry products into ble fiscal period. A Handler/Processor the current of commerce. Cranberry Inventory Report Form shall be completed by handlers, pro- EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. ducer-handlers, and processors and 28, 2006, § 926.15 was suspended indefinitely, shall indicate the name, address, vari- effective Dec. 29, 2006. ety acquired, domestic/foreign sales, § 926.16 Reports. acquisitions, and beginning and ending inventories. (a) Each handler, producer-handler, processor, broker, and importer en- EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. gaged in handling or importing cran- 28, 2006, § 926.17 was suspended indefinitely, berries or cranberry products who is effective Dec. 29, 2006. not subject to the reporting require- § 926.18 Records. ments of the Federal cranberry marketing order, (7 CFR Part 926) shall, in Each handler, producer-handler, accordance with Sec. 926.17, file processor, broker, and importer shall promptly with the Committee reports maintain such records of all fresh cran- of sales, acquisitions, and inventory in- berries and cranberry products ac- formation on fresh cranberries and quired, imported, handled, withheld cranberry products using forms sup- from handling, and otherwise disposed plied by the Committee. of during the fiscal period to substan- (b) Upon the request of the Com- tiate the required reports. All such mittee, with the approval of the Sec- records shall be maintained for not less retary, each handler, producer-handler, than three years after the termination processor, broker, and importer en- of the fiscal year in which the trans- gaged in handling or importing cran- actions occurred or for such lesser pe- berries or cranberry products who is riod as the Committee may direct. not subject to the Federal cranberry EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. marketing order (7 CFR Part 926) shall 28, 2006, § 926.18 was suspended indefinitely, furnish to the Committee such other effective Dec. 29, 2006.

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§ 926.19 Confidential information. PART 927—PEARS GROWN IN All reports and records furnished or OREGON AND WASHINGTON submitted pursuant to this part which include data or information consti- Subpart—Order Regulating Handling tuting a trade secret or disclosing the DEFINITIONS trade position or financial condition, or business operations from whom re- Sec. 927.1 Secretary. ceived, shall be in the custody and con- 927.2 Act. trol of the authorized agents of the 927.3 Person Committee, who shall disclose such in- 927.4 Pears. formation to no person other than the 927.5 Size. Secretary. 927.6 Grower. 927.7 Handler. EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. 927.8 Ship or handle. 28, 2006, § 926.19 was suspended indefinitely, 927.9 Fiscal period. effective Dec. 29, 2006. 927.10 Production area. 927.11 District. § 926.20 Verification of reports and 927.12 Export market. records. 927.13 Subvariety. 927.14 Processor. For the purpose of assuring compli- 927.15 Process. ance and checking and verifying records and reports required to be filed ADMINISTRATIVE BODIES by handlers, producer-handlers, proc- 927.20 Establishment and membership. essors, brokers, and importers, USDA 927.21 Nomination and selection of members or the Committee, through its duly au- and their respective alternates. thorized agents, shall have access to 927.22 Meetings for elections of nominees. any premises where applicable records 927.23 Voting. 927.24 Eligibility for membership. are maintained, where cranberries and 927.25 Failure to nominate. cranberry products are received, ac- 927.26 Qualifications. quired, stored, handled, and otherwise 927.27 Term of office. disposed of and, at any time during 927.28 Alternates for members. reasonable business hours, shall be per- 927.29 Vacancies. mitted to inspect such handler, pro- 927.30 Compensation and expenses. ducer-handler, processor, broker, and 927.31 Powers. 927.32 Duties. importer premises, and any and all 927.33 Procedure. records of such handlers, producer-han- 927.34 Right of the Secretary. dlers, processors, brokers, and import- 927.35 Funds and other property. ers. The Committee’s authorized EXPENSES AND ASSESSMENTS agents shall be the manager of the Committee and other staff under the 927.40 Expenses. supervision of the Committee manager. 927.41 Assessments. 927.42 Accounting. EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. 927.43 Use of funds. 28, 2006, § 926.20 was suspended indefinitely, 927.44 [Reserved]. effective Dec. 29, 2006. 927.45 Contributions.

RESEARCH AND DEVELOPMENT § 926.21 Suspension or termination. 927.47 Research and development. The provisions of this part shall be suspended or terminated whenever REGULATION OF SHIPMENTS there is no longer a Federal cranberry 927.50 Marketing policy. marketing order in effect. 927.51 Issuance of regulations; and modification, suspension, or termination thereof. EFFECTIVE DATE NOTE: At 71 FR 78046, Dec. 927.52 Prerequisites to recommendations. 28, 2006, § 926.21 was suspended indefinitely, 927.53 Notification. effective Dec. 29, 2006. 927.54 [Reserved].

INSPECTION 927.60 Inspection and certification.

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EXCEPTIONS reenacted and amended by the Agricul- 927.65 Exemption from regulation. tural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 MISCELLANEOUS PROVISIONS U.S.C. 601 et seq.). 927.70 Reports. 927.71 Compliance. § 927.3 Person. 927.72 Duration of immunities. Person means an individual partner- 927.73 Separability. 927.74 Derogation. ship, corporation, association, legal 927.75 Liability. representative, or any other business 927.76 Agents. unit. 927.77 Effective time. 927.78 Termination. § 927.4 Pears. 927.79 Proceedings after termination. 927.80 Amendments. (a) Pears means and includes any and all varieties or subvarieties of pears Subpart—Rules and Regulations with the genus Pyrus that are produced in the production area and are classi- DEFINITIONS fied as: 927.100 Terms. (1) Summer/fall pears including Bart- 927.101 [Reserved] lett and Starkrimson pears; 927.102 Order. (2) Winter pears including Beurre 927.103 Organically produced pears. D’Anjou, Beurre Bosc, Doyenne du COMMUNICATIONS Comice, Concorde, Forelle, Winter 927.105 Communications. Nelis, Packham, Seckel, and Taylor’s Gold pears; and EXEMPTIONS AND SAFEGUARDS (3) Other pears including any or all 927.120 Pears for charitable or byproduct other varieties or subvarieties of pears purposes. not classified as summer/fall or winter 927.121 Pears for gift purposes. pears. 927.122 [Reserved] (b) The Fresh Pear Committee and/or 927.123 Interest and late payment charges. the Processed Pear Committee, with REPORTS the approval of the Secretary, may recognize new or delete obsolete varieties 927.125 Fresh pear reports. 927.126 Processed pear reports. or subvarieties for each category. 927.142 [Reserved] 927.236 Fresh pear assessment rate. § 927.5 Size. 927.237 Processed pear assessment rate. Size means the number of pears which 927.316 Handling regulation. can be packed in a 44-pound net weight AUTHORITY: 7 U.S.C. 601–674. standard box or container equivalent, SOURCE: 70 FR 29392, May 20, 2005, unless or as ‘‘size’’ means the greatest trans- otherwise noted. verse diameter of the pear taken at right angles to a line running from the Subpart—Order Regulating stem to the blossom end, or such other Handling specifications more specifically defined in a regulation issued under this part. DEFINITIONS § 927.6 Grower. § 927.1 Secretary. Grower is synonymous with producer Secretary means the Secretary of Ag- and means any person engaged in the riculture of the United States, or any production of pears, either as owner or officer or employee of the Department as tenant. of Agriculture who has been delegated, or to whom authority may hereafter be § 927.7 Handler. delegated, the authority to act for the Handler is synonymous with shipper Secretary. and means any person (except a common or contract carrier transporting § 927.2 Act. pears owned by another person) who, as Act means Public Act No. 10, 73d Con- owner, agent, broker, or otherwise, gress (May 12, 1933), as amended and as ships or handles pears, or causes pears

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to be shipped or handled by rail, truck, in the Wenatchee District or in the boat, or any other means whatsoever. Mid-Columbia District. (b) For the purpose of committee rep- § 927.8 Ship or handle. resentation, administration and appli- Ship or handle means to sell, deliver, cation of provisions of this subpart as consign, transport or ship pears within applicable to pears for processing, dis- the production area or between the tricts shall be defined as follows: production area and any point outside (1) The State of Washington. thereof, including receiving pears for (2) The State of Oregon. processing: Provided, That the term (c) The Secretary, upon recommenda- ‘‘handle’’ shall not include the transpor- tion of the Fresh Pear Committee or tation of pear shipments within the the Processed Pear Committee, may production area from the orchard reestablish districts within the produc- where grown to a packing facility lo- tion area. cated within the production area for preparation for market or delivery for § 927.12 Export market. processing. Export market means any destination which is not within the 50 states, or the § 927.9 Fiscal period. District of Columbia, of the United Fiscal period means the period begin- States. ning July 1 of any year and ending June 30 of the following year or such § 927.13 Subvariety. may be approved by the Secretary pur- Subvariety means and includes any suant to a joint recommendation by mutation, sport, or other derivation of the Fresh Pear Committee and the any of the varieties covered in § 927.4 Processed Pear Committee. which is recognized by the Fresh Pear Committee or the Processed Pear Com- § 927.10 Production area. mittee and approved by the Secretary. Production area means and includes Recognition of a subvariety shall in- the States of Oregon and Washington. clude classification within a varietal group for the purposes of votes con- § 927.11 District. ducted under § 927.52. District means the applicable one of the following-described subdivisions of § 927.14 Processor. the production area covered by the pro- Processor means any person who as visions of this subpart: owner, agent, broker, or otherwise, (a) For the purpose of committee rep- commercially processes pears in the resentation, administration and appli- production area. cation of provisions of this subpart as applicable to pears for the fresh mar- § 927.15 Process. ket, districts shall be defined as fol- Process means to can, concentrate, lows: freeze, dehydrate, press or puree pears, (1) Medford District shall include all or in any other way convert pears com- the counties in the State of Oregon ex- mercially into a processed product. cept for Hood River and Wasco counties. ADMINISTRATIVE BODIES (2) Mid-Columbia District shall include Hood River and Wasco counties in the § 927.20 Establishment and member- State of Oregon, and the counties of ship. Skamania and Klickitat in the State of There are hereby established two Washington. committees to administer the terms (3) Wenatchee District shall include and provisions of this subpart as spe- the counties of King, Chelan, cifically provided in §§ 927.20 through Okanogan, Douglas, Grant, Lincoln, 927.35: and Spokane in the State of Wash- (a) A Fresh Pear Committee, con- ington, and all other counties in Wash- sisting of 13 individual persons as its ington lying north thereof. members is established to administer (4) Yakima District shall include all of order provisions relating to the han- the State of Washington, not included dling of pears for the fresh market. Six

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members of the Fresh Pear Committee § 927.21 Nomination and selection of shall be growers, six members shall be members and their respective alter- handlers, and one member shall rep- nates. resent the public. For each member Grower members and their respective there shall be two alternates, des- alternates for each district shall be se- ignated as the ‘‘first alternate’’ and the lected by the Secretary from nominees ‘‘second alternate,’’ respectively. Each elected by the growers in such district. district shall be represented by one Handler members and their respective grower member and one handler mem- alternates for each district shall be se- ber, except that the Mid-Columbia Dis- lected by the Secretary from nominees trict and the Wenatchee District shall elected by the handlers in such dis- be represented by two grower members trict. Processor members and their respective alternates shall be selected by and two handler members. the Secretary from nominees elected (b) A Processed Pear Committee con- by the processors. Public members for sisting of 10 members is established to each committee shall be nominated by administer order provisions relating to the Fresh Pear Committee and the the handling of pears for processing. Processed Pear Committee, each inde- Three members of the Processed Pear pendently, and selected by the Sec- Committee shall be growers, three retary. The Fresh Pear Committee and members shall be handlers, three mem- the Processed Pear Committee may, bers shall be processors, and one mem- each independently, prescribe such ad- ber shall represent the public. For each ditional qualifications, administrative member there shall be two alternates, rules and procedures for selection for designated as the ‘‘first alternate’’ and each candidate as it deems necessary the ‘‘second alternate,’’ respectively. and as the Secretary approves. District 1, the State of Washington, shall be represented by two grower § 927.22 Meetings for election of nominees. members, two handler members and two processor members. District 2, the (a) Nominations for members of the State of Oregon, shall be represented Fresh Pear Committee and their alter- by one grower member, one handler nates shall be made at meetings of growers and handlers held in each of member and one processor member. the districts designated in § 927.11 at (c) The Secretary, upon recommenda- such times and places designated by tion of the Fresh Pear Committee or the Fresh Pear Committee. the Processed Pear Committee may re- (b) Nominations for grower and han- apportion members among districts, dler members of the Processed Pear may change the number of members Committee and their alternates shall and alternates, and may change the be made at meetings of growers and composition by changing the ratio of handlers held in each of the districts members, including their alternates. In designated in § 927.11 at such times and recommending any such changes, the places designated by the Processed following shall be considered: Pear Committee. Nominations for (1) Shifts in pear acreage within dis- processor members of the Processed tricts and within the production area Pear Committee and their alternates during recent years; shall be made at a meeting of proc- (2) The importance of new pear pro- essors at such time and place des- duction in its relation to existing dis- ignated by the Processed Pear Com- tricts; mittee. (3) The equitable relationship be- § 927.23 Voting. tween membership and districts; Only growers in attendance at meet- (4) Economies to result for growers in ings for election of nominees shall par- promoting efficient administration due ticipate in the nomination of grower to redistricting or reapportionment of members and their alternates, and only members within districts; and handlers in attendance at meetings for (5) Other relevant factors. election of nominees shall participate in the nomination of handler members

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and their alternates, and only proc- Provided, That the terms of office of essors in attendance for election of one-half the initial members and alter- nominees shall participate in the nominates shall end June 30, 2006; and that nation of processor members and their beginning with the 2005–2006 fiscal pe- alternates. A grower may participate riod, no member shall serve more than only in the election held in the district three consecutive two-year terms un- in which he or she produces pears, and less specifically exempted by the Sec- a handler may participate only in the retary. Members and alternate mem- election held in the district in which he bers shall serve in such capacities for or she handles pears. Each person may the portion of the term of office for vote as a grower, handler or processor, which they are selected and have quali- but not a combination thereof. Each fied and until their respective succes- grower, handler and processor shall be sors are selected and have qualified. entitled to cast one vote, on behalf of The terms of office of successor mem- himself, his agents, partners, affiliates, bers and alternates shall be so deter- subsidiaries, and representatives, for mined that one-half of the total com- each nominee to be elected. mittee membership ends each June 30. § 927.24 Eligibility for membership. § 927.28 Alternates for members. Each grower member and each of his or her alternates shall be a grower, or The first alternate for a member an officer or employee of a corporate or shall act in the place and stead of the LLC grower, who grows pears in the member for whom he or she is an alter- district in which and for which he or nate during such member’s absence. In she is nominated and selected. Each the event of the death, removal, res- handler member and each of his or her ignation, or disqualification of a mem- alternates shall be a handler, or an of- ber, his or her first alternate shall act ficer or employee of a handler, han- as a member until a successor for the dling pears in the district in and for member is selected and has qualified. which he or she is nominated and se- The second alternate for a member lected. Each processor member and shall serve in the place and stead of the each of their alternates shall be a proc- member for whom he or she is an alter- essor, or an officer or employee of a nate whenever both the member and processor, who processes pears in the his or her first alternate are unable to production area. serve. In the event that a member of the Fresh Pear Committee or the Proc- § 927.25 Failure to nominate. essed Pear Committee and both that In the event nominations are not member’s alternates are unable to at- made pursuant to §§ 927.21 and 927.22 on tend a meeting, the member may des- or before June 1 of any year, the Sec- ignate any other alternate member retary may select members and alter- from the same group (handler, proc- nates for members without regard to essor, or grower) to serve in that mem- nominations. ber’s place and stead.

§ 927.26 Qualifications. § 927.29 Vacancies. Any person prior to or within 15 days To fill any vacancy occasioned by the after selection as a member or as an al- failure of any person selected as a ternate for a member of the Fresh Pear member or as an alternate for a mem- Committee or the Processed Pear Com- ber of the Fresh Pear Committee or the mittee shall qualify by filing with the Processed Pear Committee to qualify, Secretary a written acceptance of the or in the event of death, removal, res- person’s willingness to serve. ignation, or disqualification of any qualified member or qualified alternate § 927.27 Term of office. for a member, a successor for his or her The term of office of each member unexpired term shall be nominated and and alternate member of the Fresh selected in the manner set forth in Pear Committee and the Processed §§ 927.20 to 927.35. If nominations to fill Pear Committee shall be for two years any such vacancy are not made within beginning July 1 and ending June 30: 20 days after such vacancy occurs, the

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Secretary may fill such vacancy with- such other times as the Fresh Pear out regard to nominations. Committee or the Processed Pear Com- mittee may deem necessary or as the § 927.30 Compensation and expenses. Secretary may request, and to file with The members and alternates for the Secretary copies of any and all members shall serve without com- audit reports made; pensation, but may be reimbursed for (f) To appoint such employees agents, expenses necessarily incurred by them and representatives as it may deem in the performance of their respective necessary, and to determine the com- duties. pensation and define the duties of each; (g) To give the Secretary, or the des- § 927.31 Powers. ignated agent of the Secretary, the The Fresh Pear Committee and the same notice of meetings as is given to Processed Pear Committee shall have the members of the Fresh Pear Com- the following powers to exercise each mittee or the Processed Pear Com- independently: mittee; (a) To administer, as specifically pro- (h) To select a chairman of the Fresh vided in §§ 927.20 to 927.35, the terms Pear Committee or the Processed Pear and provisions of this subpart: Committee and, from time to time, (b) To make administrative rules and such other officers as it may deem ad- regulations in accordance with, and to visable and to define the duties of each; effectuate, the terms and provisions of and this subpart; and (i) To submit to the Secretary as (c) To receive, investigate, and report soon as practicable after the beginning to the Secretary complaints of viola- of each fiscal period, a budget for such tions of the provisions of this subpart. fiscal year, including a report in explanation of the items appearing therein § 927.32 Duties. and a recommendation as to the rate of The duties of the Fresh Pear Com- assessment for such period. mittee and the Processed Pear Com- mittee, each independently, shall be as § 927.33 Procedure. follows: (a) Quorum and voting. A quorum at a (a) To act as intermediary between meeting of the Fresh Pear Committee the Secretary and any grower, handler or the Processed Pear Committee shall or processor; consist of 75 percent of the number of (b) To keep minutes, books, and committee members, or alternates records which will reflect clearly all of then serving in the place of any mem- the acts and transactions. The min- bers, respectively. Except as otherwise utes, books, and records shall be sub- provided in § 927.52, all decisions of the ject at any time to examination by the Fresh Pear Committee or the Proc- Secretary or by such person as may be essed Pear Committee at any meeting designated by the Secretary; shall require the concurring vote of at (c) To investigate, from time to time, least 75 percent of those members and to assemble data on the growing, present, including alternates then serv- harvesting, shipping, and marketing ing in the place of any members. conditions relative to pears, and to fur- (b) Mail voting. The Fresh Pear Com- nish to the Secretary such available in- mittee or the Processed Pear Com- formation as may be requested; mittee may provide for members vot- (d) To perform such duties as may be ing by mail, telecopier or other elec- assigned to it from time to time by the tronic means, telephone, or telegraph, Secretary in connection with the ad- upon due notice to all members. ministration of section 32 of the Act to Promptly after voting by telephone or amend the Agricultural Adjustment telegraph, each member thus voting Act, and for other purposes, Public Act shall confirm in writing, the vote so No. 320, 74th Congress, approved August cast. 24, 1935 (49 Stat. 774), as amended; (e) To cause the books to be audited § 927.34 Right of the Secretary. by one or more competent accountants The members and alternates for at the end of each fiscal year and at members and any agent or employee

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appointed or employed by the Fresh § 927.41 Assessments. Pear Committee or the Processed Pear (a) Assessments will be levied only Committee shall be subject to removal upon handlers who first handle pears. or suspension by the Secretary at any Each handler shall pay assessments on time. Each and every regulation, deci- all pears handled by such handler as sion, determination, or other act shall the pro rata share of the expenses be subject to the continuing right of which the Secretary finds are reason- the Secretary to disapprove of the able and likely to be incurred by the same at any time, and, upon such dis- Fresh Pear Committee or the Proc- approval, shall be deemed null and essed Pear Committee during a fiscal void, except as to acts done in reliance period. The payment of assessments for thereon or in compliance therewith the maintenance and functioning of the prior to such disapproval by the Sec- Fresh Pear Committee or the Proc- retary. essed Pear Committee may be required under this part throughout the period § 927.35 Funds and other property. such assessments are payable irrespective of whether particular provisions (a) All funds received pursuant to thereof are suspended or become inop- any of the provisions of this subpart erative. shall be used solely for the purposes (b)(1) Based upon a recommendation specified in this subpart, and the Sec- of the Fresh Pear Committee or other retary may require the Fresh Pear available data, the Secretary shall fix Committee or the Processed Pear Com- three base rates of assessment for pears mittee and its members to account for that handlers shall pay on pears han- all receipts and disbursements. dled for the fresh market during each (b) Upon the death, resignation, re- fiscal period. Such base rates shall in- moval, disqualification, or expiration clude one rate of assessment for any or of the term of office of any member or all varieties or subvarieties of pears employee, all books, records, funds, classified as summer/fall; one rate of and other property in his or her posses- assessment for any or all varieties or sion belonging to the Fresh Pear Com- subvarieties of pears, classified as winter; and one rate of assessment for any mittee or the Processed Pear Com- or all varieties or subvarieties of pears mittee shall be delivered to his or her classified as other. Upon recommenda- successor in office or to the Fresh Pear tion of the Fresh Pear Committee or Committee or Processed Pear Com- other available data, the Secretary mittee, and such assignments and may also fix supplemental rates of as- other instruments shall be executed as sessment on individual varieties or may be necessary to vest in such suc- subvarieties categorized within the as- cessor or in the Fresh Pear Committee sessment classifications in this para- or Processed Pear Committee full title graph (b)(1) to secure sufficient funds to all the books, records, funds, and to provide for projects authorized other property in the possession or under § 927.47. At any time during the under the control of such member or fiscal period when it is determined on employee pursuant to this subpart. the basis of a Fresh Pear Committee recommendation or other information EXPENSES AND ASSESSMENTS that different rates are necessary for fresh pears or for any varieties or sub- § 927.40 Expenses. varieties, the Secretary may modify The Fresh Pear Committee and the those rates of assessment and such new Processed Pear Committee are author- rate shall apply to any or all varieties ized, each independently, to incur such or subvarieties that are shipped during expenses as the Secretary finds may be the fiscal period for fresh market. necessary to carry out their functions (2) Based upon a recommendation of the Processed Pear Committee or other under this subpart. The funds to cover available data, the Secretary shall fix such expenses shall be acquired by the three base rates of assessment for pears levying of assessments as provided in that handlers shall pay on pears han- § 927.41. dled for processing during each fiscal

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period. Such base rates shall include make advance payments of assess- one rate of assessment for any or all ments, which advance payments shall varieties or subvarieties of pears clas- be credited to such handlers and the as- sified as summer/fall; one rate of assessments of such handlers shall be ad- sessment for any or all varieties or justed so that such assessments are subvarieties of pears, classified as win- based upon the quantity of each vari- ter; and one rate of assessment for any ety or subvariety of pears handled by or all varieties or subvarieties of pears such handlers during such season. Fur- classified as other. Upon recommenda- ther, payment discounts may be au- tion of the Processed Pear Committee thorized by the Fresh Pear Committee or other available data, the Secretary or the Processed Pear Committee upon may also fix supplemental rates of as- the approval of the Secretary to han- sessment on individual varieties or dlers making such advance assessment subvarieties categorized within the as- payments. sessment classifications defined in paragraph (b)(1) of this section to se- § 927.42 Accounting. cure sufficient funds to provide for (a) If, at the end of a fiscal period, projects authorized under § 927.47. At the assessments collected are in excess any time during the fiscal period when of expenses incurred, the Fresh Pear it is determined on the basis of a Proc- Committee or the Processed Pear Com- essed Pear Committee recommendation mittee may carryover such excess into or other information that different subsequent fiscal periods as a reserve: rates are necessary for pears for proc- Provided, That funds already in the re- essing or for any varieties or subvari- serve do not exceed approximately one eties, the Secretary may modify those fiscal period’s expenses. Such reserve rates of assessment and such new rate may be used to cover any expense au- shall apply to any or all varieties or thorized under this part and to cover subvarieties of pears that are shipped necessary expenses of liquidation in during the fiscal period for processing. the event of termination of this part. (c) Based on the recommendation of Any such excess not retained in a re- the Fresh Pear Committee, the Proc- serve or applied to any outstanding ob- essed Pear Committee or other avail- ligation of the person from whom it able data, the Secretary may establish was collected shall be refunded propor- additional base rates of assessments, or tionately to the persons from whom it change or modify the base rate classi- was collected. Upon termination of this fications defined in paragraphs (a) and part, any funds not required to defray (b) of this section. the necessary expenses of liquidation (d) The Fresh Pear Committee or the shall be disposed of in such manner as Processed Pear Committee may impose the Secretary may determine to be ap- a late payment charge on any handler propriate: Provided, That to the extent who fails to pay any assessment within practical, such funds shall be returned the time prescribed. In the event the pro rata to the persons from whom handler thereafter fails to pay the such funds were collected. amount outstanding, including the late (b) All funds received pursuant to the payment charge, within the prescribed provisions of this part shall be used time, the Fresh Pear Committee or the solely for the purpose specified in this Processed Pear Committee may impose part and shall be accounted for in the an additional charge in the form of in- manner provided in this part. The Sec- terest on such outstanding amount. retary may at any time require the The Fresh Pear Committee or the Fresh Pear Committee or the Proc- Processed Pear Committee, with the essed Pear Committee and its members approval of the Secretary, shall pre- to account for all receipts and dis- scribe the amount of such late pay- bursements. ment charge and rate of interest. (e) In order to provide funds to carry § 927.43 Use of funds. out the functions of the Fresh Pear From the funds acquired pursuant to Committee or the Processed Pear Com- § 927.41 the Fresh Pear Committee and mittee prior to commencement of ship- the Processed Pear Committee, each ments in any season, handlers may independently, shall pay the salaries of

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its employees, if any, and pay the ex- and processed form, which are competi- penses necessarily incurred in the per- tive to the marketing of pears; formance of the duties of the Fresh (3) Prospective exports of pears and Pear Committee or the Processed Pear imports of pears from other producing Committee. areas; (4) Probable harvesting period for § 927.44 [Reserved] each variety or subvariety of pears; (5) The trend and level of consumer § 927.45 Contributions. income; The Fresh Pear Committee or the (6) General economic conditions; and Processed Pear Committee may accept (7) Other relevant factors. voluntary contributions, but these (b) On or before August 1 of each shall only be used to pay expenses in- year, the Fresh Pear Committee shall curred pursuant to § 927.47. Further- recommend regulations to the Sec- more, such contributions shall be free retary if it finds, on the basis of the in- from any encumbrances by the donor, vestigations specified in this section, and the Fresh Pear Committee or the that such regulation as is provided in Processed Pear Committee shall retain § 927.51 will tend to effectuate the de- complete control of their use. clared policy of the act. (c) In the event the Fresh Pear Com- RESEARCH AND DEVELOPMENT mittee at any time finds that by reason of changed conditions any regulation § 927.47 Research and development. issued pursuant to § 927.51 should be The Fresh Pear Committee or the modified, suspended, or terminated, it Processed Pear Committee, with the shall so recommend to the Secretary. approval of the Secretary, may establish or provide for the establishment of § 927.51 Issuance of regulations; and production and post-harvest research, modification, suspension, or termi- or marketing research and develop- nation thereof. ment projects designed to assist, im- (a) Whenever the Secretary finds, prove, or promote the marketing, dis- from the recommendations and infor- tribution, and consumption of pears. mation submitted by the Fresh Pear Such projects may provide for any Committee, or from other available inform of marketing promotion, includ- formation, that regulation, in the man- ing paid advertising. The expense of ner specified in this section, of the such projects shall be paid from funds shipment of fresh pears would tend to collected pursuant to §§ 927.41 and effectuate the declared policy of the 927.45. Expenditures for a particular va- act, he or she shall so limit the ship- riety or subvariety of pears shall ap- ment of such pears during a specified proximate the amount of assessments period or periods. Such regulation may: and voluntary contributions collected (1) Limit the total quantity of any for that variety or subvariety of pears. grade, size, quality, or combinations thereof, of any variety or subvariety of REGULATION OF SHIPMENTS pears grown in any district and may prescribe different requirements appli- § 927.50 Marketing policy. cable to shipments to different export (a) It shall be the duty of the Fresh markets; Pear Committee to investigate, from (2) Limit, during any period or peri- time to time, supply and demand con- ods, the shipment of any particular ditions relative to pears and each grade, size, quality, or any combina- grade, size, and quality of each variety tion thereof, of any variety or sub- or subvariety thereof. Such investiga- variety, of pears grown in any district tions shall be with respect to the fol- or districts of the production area; and lowing: (3) Provide a method, through rules (1) Estimated production of each va- and regulation issued pursuant to this riety or subvariety of pears and of each part, for fixing markings on the con- grade, size, and quality thereof; tainer or containers, which may be (2) Prospective supplies and prices of used in the packaging or handling of pears and other fruits, both in fresh pears, including appropriate logo or

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other container markings to identify practical after the beginning of each the contents thereof. fiscal period on either: (b) Whenever the Secretary finds, (1) The basis of one vote for each from the recommendations and infor- 25,000 boxes (except 2,500 boxes for vari- mation submitted by the Fresh Pear eties or subvarieties with less than Committee, or from other available in- 200,000 standard boxes or container formation, that a regulation should be equivalents) of the average quantity of modified, suspended, or terminated such variety or subvariety produced in with respect to any or all shipments of the particular district and shipped fresh pears grown in any district in therefrom during the immediately pre- order to effectuate the declared policy ceding three fiscal periods; or of the act, he or she shall so modify, (2) Such other basis as the Fresh suspend, or terminate such regulation. Pear Committee or the Processed Pear If the Secretary finds, from the rec- Committee may recommend and the ommendations and information sub- Secretary may approve. The votes so mitted by the Fresh Pear Committee, allotted to a member may be cast by or from other available information, such member on each recommendation that a regulation obstructs or does not relative to the variety or subvariety of tend to effectuate the declared policy pears on which such votes were com- of the act, he or she shall suspend or puted. terminate such regulation. On the § 927.53 Notification. same basis and in like manner, the Sec- retary may terminate any such modi- (a) The Fresh Pear Committee shall fication or suspension. give prompt notice to growers and handlers of each recommendation to the § 927.52 Prerequisites to recommenda- Secretary pursuant to the provisions of tions. § 927.50. (a) Decisions of the Fresh Pear Com- (b) The Secretary shall immediately mittee or the Processed Pear Com- notify the Fresh Pear Committee of mittee with respect to any rec- the issuance of each regulation and of ommendations to the Secretary pursu- each modification, suspension, or ter- ant to the establishment or modifica- mination of a regulation and the Fresh tion of a supplemental rate of assess- Pear Committee shall give prompt no- ment for an individual variety or sub- tice thereof to growers and handlers. variety of pears shall be made by af- § 927.54 [Reserved] firmative vote of not less than 75 percent of the applicable total number of INSPECTION votes, computed in the manner described in paragraph (b) of this section, § 927.60 Inspection and certification. of all members. Decisions of the Fresh (a) Handlers shall ship only fresh Pear Committee pursuant to the provi- pears inspected by the Federal-State sions of § 927.50 shall be made by an af- Inspection Service or under a program firmative vote of not less than 80 per- developed by the Federal-State Inspec- cent of the applicable total number of tion Service: except, that such inspec- votes, computed in the manner pre- tion and certification of shipments of scribed in paragraph (b) of this section, pears may be performed by such other of all members. inspection service as the Fresh Pear (b) With respect to a particular vari- Committee, with the approval of the ety or subvariety of pears, the applica- Secretary, may designate. Promptly ble total number of votes shall be the after shipment of any pears, the han- aggregate of the votes allotted to the dler shall submit, or cause to be sub- members in accordance with the fol- mitted, to the Fresh Pear Committee a lowing: Each member shall have one copy of the inspection certificate vote as an individual and, in addition, issued on such shipment. shall have a vote equal to the percent- (b) Any handler may ship pears, on age of the vote of the district rep- any one conveyance and in such quan- resented by such member; and such dis- tity as the committee, with the ap- trict vote shall be computed as soon as proval of the Secretary, may prescribe,

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exempt from the inspection and certifi- will not be disclosed. Compilations of cation requirements of paragraph (a) of general reports from data submitted by this section. handlers are authorized subject to the (c) The Fresh Pear Committee may, prohibition of disclosure of individual with the approval of the Secretary, handler’s identities or operations. prescribe rules and regulations modi- (c) Each handler shall maintain for fying or eliminating the requirement at least two succeeding years such for mandatory inspection and certifi- records of the pears received and of cation of shipments: Provided, That an pears disposed of, by such handler as adequate method of ensuring compli- may be necessary to verify reports pur- ance with quality and size require- suant to this section. ments is developed. § 927.71 Compliance. EXCEPTIONS Except as provided in § 927.65, no handler shall ship any pears contrary to § 927.65 Exemption from regulation. the applicable restrictions and limita- (a) Nothing contained in this subpart tions specified in, or effective pursuant shall limit or authorize the limitation to, the provisions of this subpart. of shipment of pears for consumption by charitable institutions or distribu- § 927.72 Duration of immunities. tion by relief agencies, nor shall any The benefits, privileges, and immuni- assessment be computed on pears so ties conferred by virtue of this subpart shipped. The Fresh Pear Committee or shall cease upon termination hereof, the Processed Pear Committee may except with respect to acts done under prescribe regulations to prevent pears and during the existence of this sub- shipped for either of such purposes part. from entering commercial channels of trade contrary to the provisions of this § 927.73 Separability. subpart. If any provision of this subpart is de- (b) The Fresh Pear Committee or the clared invalid, or the applicability Processed Pear Committee may pre- thereof to any person, circumstance, or scribe rules and regulations, to become thing is held invalid, the validity of the effective upon the approval of the Sec- remaining provisions and the applica- retary, whereby quantities of pears or bility thereof to any other person, cir- types of pear shipments may be ex- cumstance, or thing shall not be af- empted from any or all provisions of fected thereby. this subpart. § 927.74 Derogation. MISCELLANEOUS PROVISIONS Nothing contained in this subpart is or shall be construed to be in deroga- § 927.70 Reports. tion of, or in modification of, the (a) Upon the request of the Fresh rights of the Secretary or of the United Pear Committee or the Processed Pear States to exercise any powers granted Committee, and subject to the approval by the act or otherwise, or, in accord- of the Secretary, each handler shall ance with such powers, to act in the furnish to the aforesaid committee, re- premises whenever such action is spectively, in such manner and at such deemed advisable. times as it prescribes, such information as will enable it to perform its du- § 927.75 Liability. ties under this subpart. No member or alternate for a mem- (b) All such reports shall be held ber of the Fresh Pear Committee or the under appropriate protective classifica- Processed Pear Committee, nor any tion and custody by the Fresh Pear employee or agent thereof, shall be Committee or the Processed Pear Com- held personally responsible, either in- mittee, or duly appointed employees dividually or jointly with others, in thereof, so that the information con- any way whatsoever, to any party tained therein which may adversely af- under this subpart or to any other per- fect the competitive position of any son for errors in judgment, mistakes, handler in relation to other handlers or other acts, either of commission or

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omission, as such member, alternate the end of any fiscal period in which for a member, agent or employee, ex- the Secretary has found that continu- cept for acts of dishonesty, willful mis- ance of this subpart is not favored by conduct, or gross negligence. producers who, during a representative period determined by the Secretary, § 927.76 Agents. have been engaged in the production of The Secretary may name, by designa- fresh pears for market or pears for tion in writing, any person, including processing in the production area: Pro- any officer or employee of the Govern- vided, That termination of the order ment or any bureau or division in the shall be effective only if announced on Department of Agriculture to act as or before the last day of the then cur- his or her agent or representative in rent fiscal period. connection with any of the provisions (e) The provisions of this part shall, of this subpart. in any event, terminate whenever the § 927.77 Effective time. provisions of the act authorizing them cease to be in effect. The provisions of this subpart and of any amendment thereto shall become § 927.79 Proceedings after termination. effective at such time as the Secretary may declare, and shall continue in (a) Upon the termination of this sub- force until terminated in one of the part, the members of the Fresh Pear ways specified in § 927.78. Committee or the Processed Pear Com- mittee then functioning shall continue § 927.78 Termination. as joint trustees for the purpose of liq- (a) The Secretary may at any time uidating all funds and property then in terminate this subpart. the possession or under the control of (b) The Secretary shall terminate or the Fresh Pear Committee or the Proc- suspend the operation of any or all of essed Pear Committee, including the provisions of this subpart whenever claims for any funds unpaid or prop- he or she finds that such operation ob- erty not delivered at the time of such structs or does not tend to effectuate termination. the declared policy of the act. (b) The joint trustees shall continue (c) The Secretary shall terminate the in such capacity until discharged by provisions of this subpart applicable to the Secretary; from time to time ac- fresh pears for market or pears for count for all receipts and disburse- processing at the end of any fiscal pe- ments; deliver all funds and property riod whenever the Secretary finds, by on hand, together with all books and referendum or otherwise, that such ter- records of the Fresh Pear Committee mination is favored by a majority of or the Processed Pear Committee and growers of fresh pears for market or of the joint trustees, to such person as pears for processing, respectively: Pro- the Secretary shall direct; and, upon vided, That such majority has during such period produced more than 50 per- the request of the Secretary, execute cent of the volume of fresh pears for such assignments or other instruments market or pears for processing, respec- necessary and appropriate to vest in tively, in the production area. Such such person full title and right to all of termination shall be effective only if the funds, property, or claims vested in announced on or before the last day of the Fresh Pear Committee or the Proc- the then current fiscal period. essed Pear Committee or in said joint (d) The Secretary shall conduct a ref- trustees. erendum within every six-year period (c) Any funds collected pursuant to beginning on May 21, 2005, to ascertain this subpart and held by such joint whether continuance of the provisions trustees or such person over and above of this subpart applicable to fresh pears the amounts necessary to meet out- for market or pears for processing are standing obligations and the expenses favored by producers of pears for the necessarily incurred by the joint trust- fresh market and pears for processing, ees or such other person in the per- respectively. The Secretary may termi- formance of their duties under this nate the provisions of this subpart at subpart, as soon as practicable after

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the termination hereof, shall be re- COMMUNICATIONS turned to the handlers pro rata in proportion to their contributions thereto. § 927.105 Communications. (d) Any person to whom funds, prop- Unless otherwise prescribed in this erty, or claims have been transferred subpart or in the order, or required by or delivered by the Fresh Pear Com- the Fresh Pear Committee or the Proc- mittee or the Processed Pear Com- essed Pear Committee, all reports, ap- mittee or its members, upon direction plications, submittals, requests, in- of the Secretary, as provided in this spection certificates, and communica- section, shall be subject to the same tions in connection with the order obligations and duties with respect to shall be forwarded to: Fresh Pear Com- said funds, property, or claims as are mittee, 4382 SE International Way, imposed upon the members or upon Suite A, Milwaukie OR 97222–4635 and said joint trustees. or the Processed Pear Committee, 105 South 18th Street, Suite 205, Yakima § 927.80 Amendments. WA 98901. Amendments to this subpart may be [71 FR 7676, Feb. 14, 2006] proposed from time to time by the Fresh Pear Committee or the Proc- EXEMPTIONS AND SAFEGUARDS essed Pear Committee or by the Sec- retary. § 927.120 Pears for charitable or by- product purposes. Subpart—Rules and Regulations Pears which do not meet the requirements of the then effective grade, size, SOURCE: 70 FR 59625, Oct. 13, 2005, unless or quality regulations shall not be otherwise noted. shipped or handled for consumption by any charitable institution or for dis- DEFINITIONS tribution by any relief agency or for conversion into any by-product, unless § 927.100 Terms. there first shall have been delivered to Each term used in this subpart shall the manager of the Fresh Pear Com- have the same meaning as when used in mittee a certificate executed by the in- the marketing order. tended receiver and user of said pears showing, to the manager’s satisfaction, [70 FR 59625, Oct. 13, 2005, as amended at 71 FR 7676, Feb. 14, 2006] that said pears actually will be used for one or more of the aforesaid purposes. § 927.101 [Reserved] [70 FR 59625, Oct. 13, 2005, as amended at 71 FR 7676, Feb. 14, 2006] § 927.102 Order. Order means Marketing Order No. § 927.121 Pears for gift purposes. 927, as amended (§§ 927.1 to 927.81), regu- There are exempted from the provi- lating the handling of pears grown in sions of the order any and all pears the States of Oregon and Washington. which, in individual gift packages, are [71 FR 7676, Feb. 14, 2006] shipped directly to, or which are shipped for distribution without resale § 927.103 Organically produced pears. to, an individual person as the con- Organically produced pears means sumer thereof, and any and all pears pears that have been certified by an or- which, in individual gift packages are ganic certification organization cur- shipped directly to, or are shipped for rently registered with the Oregon or distribution without resale to, a pur- Washington State Departments of Ag- chaser who will use these pears solely riculture, or such certifying organiza- for gift purposes and not for sale. tion accredited under the National Or- [70 FR 59625, Oct. 13, 2005, as amended at 71 ganic Program. FR 7676, Feb. 14, 2006]

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§ 927.122 [Reserved] (3) The quantity of each variety or subvariety loose in storage; § 927.123 Interest and late payment (4) The quantity of the packout in charges. controlled atmosphere (C.A.) storage Payments received more than 45 days and the quantity in C.A. storage which after the date on which they are due is sold; shall be considered delinquent and sub- (5) The quantity of each variety or ject to a late payment charge of $25.00 subvariety shipped; or 2 percent of the total due, whichever (6) The name and address of such is greater. Payments received more handler; and than 60 days after the date on which (7) Other information as may be re- they are due shall be subject to a 11⁄2 quested by the Fresh Pear Committee. percent interest charge per month, (c) Each handler shall furnish to the until final payment is made and inter- Fresh Pear Committee, upon request, est shall be applied to the total unpaid the ‘‘Pear Size and Grade Storage Re- balance, including the late payment port’’ containing the quantity of spe- charge and any accumulated interest. cific grades and sizes of fresh pears in Any amount paid shall be credited regular and C.A. storage by variety or when the payment is received in the subvariety, and such other information Fresh Pear Committee or Processed as may be requested from the Fresh Pear Committee office. Pear Committee for the time period specified. [70 FR 59625, Oct. 13, 2005, as amended at 71 FR 7676, Feb. 14, 2006] (d) Each handler who has shipped less than 2,500 44-pound net weight standard REPORTS boxes or container equivalents of fresh pears during any reporting period of § 927.125 Fresh pear reports. the shipping season may, in lieu of re- (a) Each handler shall furnish to the porting as provided in (a) and (b) of Fresh Pear Committee, as of every this section, report as follows: other Friday or at such other times es- (1) At completion of harvest, on the tablished by the Fresh Pear Com- next reporting date, furnish to the mittee, a ‘‘Handler’s Statement of Fresh Pear Committee a ‘‘Handlers Fresh Pear Shipments’’ containing the Packout Report’; following information: (2) After unreported shipments total (1) The quantity of each variety or 2,500 44-pound net weight standard subvariety of fresh pears shipped by boxes or container equivalents of fresh that handler during the preceding two pears, furnish to the Fresh Pear Com- weeks; mittee a ‘‘Handler’s Statement of Fresh (2) The assessment payment due and Pear Shipments’’ and a ‘‘Handler’s enclosed; Packout Report’’ on the next reporting (3) The date of each shipment; date; (4) The ultimate destination by city (3) After completion of all shipments and state or city and country; from regular storage (i.e. non-C.A. (5) The name and address of such storage), furnish to the Fresh Pear handler; and Committee a ‘‘Handler’s Statement of (6) Other information as may be re- Fresh Pear Shipments’’ and a ‘‘Han- quested by the Fresh Pear Committee. dler’s Packout Report’’ on the next re- (b) Each handler shall furnish to the porting date; Fresh Pear Committee, each Friday (4) At mid-season for C.A. storage, at during the shipping season or at such a date established by the Fresh Pear other times established by the Fresh Committee, furnish to the Fresh Pear Pear Committee, a ‘‘Handler’s Packout Committee a ‘‘Handler’s Statement of Report’’ containing the following infor- Fresh Pear Shipments’’, and a ‘‘Han- mation: dler’s Packout Report’; and (1) The projected total quantity of (5) At the completion of all seasonal the packout of each variety or sub- pear shipments, furnish to the Fresh variety; Pear Committee a ‘‘Handler’s State- (2) The quantity to date of the ment of Fresh Pear Shipments’’ and a packout of each variety or subvariety; ‘‘Handler’s Packout Report’’, on the 229

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next reporting date. Each of these re- (c) $0.000 per 44-pound net weight ports shall be marked ‘‘final report’’ and standard box or container equivalent include an explanation of the actual for any or all varieties or subvarieties shipments versus the original estimate, of fresh pears classified as ‘‘other’’. if different. (e) Each handler shall specify on each [71 FR 7677, Feb. 14, 2006] bill of lading covering each shipment, § 927.237 Processed pear assessment the variety or subvariety and quantity rate. of all pears included in that shipment. On or after July 1, 2009, the following [71 FR 7677, Feb. 14, 2006] base rates of assessment for pears for processing are established for the Proc- § 927.126 Processed pear reports. essed Pear Committee: (a) Each handler shall furnish to the (a) $8.41 per ton for any or all vari- Processed Pear Committee annually on eties or subvarieties of pears for can- a date established by the Processed ning classified as ‘‘summer/fall’’ exclud- Pear Committee the ‘‘Processed Pear ing pears for other methods of proc- Assessment Report’’ containing the fol- essing; lowing information: (1) The name of the processor(s) or (b) $0.00 per ton for any or all vari- firm(s) to whom pears were sold; eties or subvarieties of pears for proc- (2) The quantity of each variety or essing classified as ‘‘winter’’; and subvariety of pears shipped by that (c) $0.00 per ton for any or all vari- handler; eties or subvarieties of pears for proc- (3) The crop year covered in the re- essing classified as ‘‘other’’. port; [71 FR 7677, Feb. 14, 2006, as amended at 74 (4) The assessment payment due and FR 52667, Oct. 14, 2009] enclosed; (5) The name and address of such § 927.316 Handling regulation. handler; and During the period August 15 through (6) Other information as may be re- November 1, no person shall handle any quested by the Processed Pear Com- fresh Beurre D’Anjou variety of pears mittee. for shipments to North America (Conti- (b) Each handler shall specify on each nental United States, Mexico, or Can- bill of lading covering each shipment, ada), unless such pears meet the fol- the variety or subvariety and quantity lowing requirements: of all pears included in that shipment. (a) Fresh Beurre D’Anjou variety of [71 FR 7677, Feb. 14, 2006] pears shall have a certification by the Federal-State Inspection Service, § 927.142 [Reserved] issued prior to shipment, showing that ASSESSMENT RATE the core/pulp temperature of such pears has been lowered to 35 degrees Fahr- § 927.236 Fresh pear assessment rate. enheit or less and any such pears have On and after July 1, 2005, the fol- an average pressure test of 14 pounds or lowing base rates of assessment for less. The handler shall submit, or cause fresh pears are established for the to be submitted, a copy of the certifi- Fresh Pear Committee: cate issued on the shipment to the (a) $0.366 per 44-pound net weight Fresh Pear Committee. standard box or container equivalent (b) Each handler may ship on any one for any or all varieties or subvarieties conveyance 8,800 pounds or less of fresh of fresh pears classified as ‘‘summer/ Beurre D’Anjou variety of pears with- fall’’; out regard to the quality and inspec- (b) $0.501 per 44-pound net weight tion requirements in paragraph (a) of standard box or container equivalent this section. for any or all varieties or subvarieties [71 FR 7677, Feb. 14, 2006] of fresh pears classified as ‘‘winter’’; and 230

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PART 929—CRANBERRIES GROWN 929.54 Withholding. 929.55 Interhandler transfer. IN STATES OF MASSACHUSETTS, 929.56 Special provisions relating to with- RHODE ISLAND, CONNECTICUT, held (restricted) cranberries. NEW JERSEY, WISCONSIN, 929.57 Outlets for restricted cranberries. MICHIGAN, MINNESOTA, OR- 929.58 Exemption. EGON, WASHINGTON, AND 929.59 Excess cranberries. LONG ISLAND IN THE STATE OF REPORTS AND RECORDS NEW YORK 929.60 Handling for special purposes. 929.61 Outlets for excess cranberries. Subpart—Order Regulating Handling 929.62 Reports. 929.63 Records. DEFINITIONS 929.64 Verification of reports and records. Sec. 929.65 Confidential information. 929.1 Secretary. 929.2 Act. MISCELLANEOUS PROVISIONS 929.3 Person. 929.66 Compliance. 929.4 Production area. 929.67 Right of the Secretary. 929.5 Cranberries. 929.6 Fiscal period. 929.68 Effective time. 929.7 Committee. 929.69 Termination. 929.8 Grower. 929.70 Proceedings after termination. 929.9 Handler. 929.71 Effect of termination or amendment. 929.10 Handle. 929.72 Duration of immunities. 929.11 To can, freeze, or dehydrate. 929.73 Agents. 929.12 Acquire. 929.74 Derogation. 929.13 Sales history. 929.75 Personal liability. 929.14 Marketable quantity. 929.76 Separability. 929.15 Annual allotment. 929.17 Barrel. Subpart—Rules and Regulations

ADMINISTRATIVE BODY 929.101 Minimum exemption. 929.102 Procedure to determine quantity of 929.20 Establishment and membership. screened cranberries in unscreened lots. 929.21 Term of office. 929.103 Inspection procedure. 929.22 Nomination. 929.23 Selection. 929.104 Outlets for excess cranberries. 929.24 Failure to nominate. 929.105 Reporting. 929.25 Acceptance. 929.106 Fiscal period. 929.26 Vacancies. 929.110 Transfers or sales of cranberry acre- 929.27 Alternate members. age. 929.28 Redistricting and Reapportionment. 929.125 Committee review procedures. 929.30 Powers. 929.142 Reserve. 929.31 Duties. 929.149 Determination of sales history 929.32 Procedure. 929.150 Transfer or assignment of sales his- 929.33 Expenses and compensation. tory. 929.152 Delinquent assessments. EXPENSES AND ASSESSMENTS 929.158 Exemptions. 929.40 Expenses. 929.160 Public member eligibility require- 929.41 Assessments. ments and nomination procedures. 929.42 Accounting. 929.161 Nomination and balloting procedures for candidates other than the RESEARCH major cooperative marketing organization. 929.45 Research and development.

REGULATIONS Subpart—Assessment Rate 929.46 Marketing policy. 929.236 Assessment rate. 929.48 Sales history. 929.250 Marketable quantity and allotment 929.49 Marketable quantity, allotment per- percentage for the 2000–2001 crop year. centage, and annual allotment. 929.251 Marketable quantity and allotment 929.50 Transfers. percentage for the 2001–2002 crop year. 929.51 Recommendations for regulation. AUTHORITY: 7 U.S.C. 601–674. 929.52 Issuance of regulations. 929.53 Modification, suspension, or termi- SOURCE: 27 FR 8101, Aug. 15, 1962, unless nation of regulations. otherwise noted.

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Subpart—Order Regulating cranberries for market and who has a Handling proprietary interest therein.

DEFINITIONS § 929.9 Handler. Handler means any person who han- § 929.1 Secretary. dles cranberries. Secretary means the Secretary of Ag- riculture of the United States, or any § 929.10 Handle. officer or employee of the United (a) Handle means: States Department of Agriculture to (1) To can, freeze, or dehydrate cran- whom authority has heretofore been berries within the production area or; delegated, or to whom authority may (2) To sell, consign, deliver, or trans- hereafter be delegated, to act in his port (except as a common or contract stead. carrier of cranberries owned by another § 929.2 Act. person) fresh cranberries or in any other way to place fresh cranberries in means Public Act No. 10, 73d Con- Act the current of commerce within the gress (May 12, 1933), as amended, and as production area or between the produc- reenacted and amended by the Agricul- tion area and any point outside there- tural Marketing Agreement Act of 1937, of. as amended (secs. 1–19, 48 Stat. 31, as (b) The term handle shall not in- amended; 7 U.S.C. 601–674). clude: § 929.3 Person. (1) The sale of non harvested cranberries; Person means an individual, partnership, corporation, association, or any (2) The delivery of cranberries by the other business unit. grower thereof to a handler having packing or processing facilities located § 929.4 Production area. within the production area; Production area means the States of (3) The transportation of cranberries Massachusetts, Rhode Island, Con- from the bog where grown to a packing necticut, New Jersey, Wisconsin, or processing facility located within Michigan, Minnesota, Oregon, Wash- the production area; or ington, and Long Island in the State of (4) The cold storage or freezing of ex- New York. cess or restricted cranberries for the purpose of temporary storage during § 929.5 Cranberries. periods when an annual allotment per- Cranberries means all varieties of the centage and/or a handler withholding fruit Vaccinium Macrocarpon, known program is in effect prior to their dis- as cranberries, grown in the production posal, pursuant to §§ 929.54 or 929.59. area. [57 FR 38748, Aug. 27, 1992, as amended at 70 FR 7640, Feb. 15, 2005] § 929.6 Fiscal period. Fiscal period is synonymous with fis- § 929.11 To can, freeze, or dehydrate. cal year and crop year and means the 12- To can, freeze, or dehydrate means to month period beginning September 1 of convert cranberries into canned, fro- 1 year and ending August 31 of the fol- zen, or dehydrated cranberries or other lowing year. cranberry products by any commercial [33 FR 11640, Aug. 16, 1968] process.

§ 929.7 Committee. § 929.12 Acquire. Committee means the Cranberry Mar- Acquire means to obtain cranberries keting Committee established pursu- by any means whatsoever for the pur- ant to § 929.20. pose of handling such cranberries.

§ 929.8 Grower. § 929.13 Sales history. Grower is synonymous with producer Sales history means the number of and means any person who produces barrels of cranberries established for a

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grower by the committee pursuant to hereafter provided, members and alter- § 929.48. nate members shall be growers or em- [57 FR 38748, Aug. 27, 1992] ployees, agents, or duly authorized representatives of growers. § 929.14 Marketable quantity. (b) The committee shall include one Marketable quantity means for a crop public member and one public alter- year the number of pounds of cran- nate member nominated by the com- berries necessary to meet the total mittee and selected by the Secretary. market demand and to provide for an The public member and public alter- adequate carryover. nate member shall not be a cranberry grower, processor, handler, or have a fi- [33 FR 11640, Aug. 16, 1968] nancial interest in the production, sales, marketing or distribution of § 929.15 Annual allotment. cranberries or cranberry products. The A grower’s annual allotment for a committee, with the approval of the particular crop year is the number of Secretary, shall prescribe qualifica- barrels of cranberries determined by tions and procedures for nominating multiplying such grower’s sales history the public member and public alternate by the allotment percentage estab- member. lished pursuant to § 929.49 for such crop (c) Members shall represent each of year. the following subdivisions of the pro- [57 FR 38748, Aug. 27, 1992] duction areas in the number specified in Table 1. Members shall reside in the § 929.17 Barrel. designated district of the production Barrel means a quantity of cran- area from which they are nominated berries equivalent to 100 pounds of and selected. Provided, that there shall cranberries. also be one member-at-large who may [57 FR 38748, Aug. 27, 1992] be nominated from any of the marketing order districts. ADMINISTRATIVE BODY District 1: The States of Massachusetts, § 929.20 Establishment and member- Rhode Island, and Connecticut; ship. District 2: The State of New Jersey and Long Island in the State of New York. (a) There is hereby established a District 3: The States of Wisconsin, Michi- Cranberry Marketing Committee con- gan, and Minnesota. sisting of 13 grower members, and 9 District 4: The States of Oregon and Wash- grower alternate members. Except as ington.

TABLE 1

Other than Other than Major Major major major Districts cooperative cooperative 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 produc- (e) The committee may establish, tion. All grower nominees and alter- with the approval of the Secretary, nate grower nominees of the com- rules and regulations for the imple- mittee shall disclose any financial in- mentation and operation of this sec- terest in the production of cranberries tion. that are not subject to regulation by [69 FR 18806, Apr. 9, 2004] this part.

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§ 929.21 Term of office. nations in accordance with this sec- (a) The term of office for each mem- tion. ber and alternate member of the com- (c) Whenever any cooperative mar- mittee shall be for two years, begin- keting organization handles more than ning on August 1 of each even-num- fifty percent of the total volume of bered year and ending on the second cranberries produced during the fiscal period in which nominations for mem- succeeding July 31. Provided, That following adoption of this amendment, bership on the committee are made, the term of office for the initial mem- such cooperative or growers affiliated bers and alternates shall also include therewith shall nominate: any time served prior to August 1 of (1) Six qualified persons for members the first even numbered year served. and four qualified persons for alternate Members and alternate members shall members of the committee. These serve the term of office for which they members and alternate members shall are selected and have been qualified or be referred to as the major cooperative until their respective successors are se- members and alternate members. lected and have been qualified. Nominee(s) for major cooperative (b) Beginning on August 1 of the member and major cooperative alter- even-numbered year following the nate member shall represent growers adoption of this amendment, com- from each of the marketing order dis- mittee members shall be limited to tricts designated in § 929.20. three consecutive terms. This limita- (2) A seventh major cooperative tion on tenure shall not include service member shall be referred to as the on the committee prior to the adoption major cooperative member-at-large. of this amendment or service on the The major cooperative member-at- committee by the initial members large may be nominated from any of prior to August 1 of the first even-num- the marketing order districts. bered year served and shall not apply (3) Six qualified persons for members to alternate members. and four qualified persons for alternate (c) Members who have served three members of the committee shall be consecutive terms must leave the com- nominated by those growers who mar- mittee for at least one full term before ket their cranberries through entities becoming eligible to serve again unless other than the major cooperative mar- specifically exempted by the Secretary. keting organization. Nominees for The consecutive terms of office for al- member and alternate member rep- ternate members shall not be so lim- resenting entities other than the major ited. cooperative marketing organization shall represent growers from each of [69 FR 18806, Apr. 9, 2004] the marketing order districts as designated in § 929.20(c). § 929.22 Nomination. (d) Whenever any major cooperative (a) Initial members. As soon as prac- marketing organization handles 50 per- ticable after adoption of this amend- cent or less of the total volume of cran- ment, the committee shall hold nomi- berries produced during the fiscal pe- nations in accordance with this sec- riod in which nominations for member- tion. The names and addresses of all ship on the committee are made, the nominees shall be submitted to the major cooperative or growers affiliated Secretary for selection as soon as the therewith, shall nominate: nomination process is complete. Nomi- (1) Six qualified persons for major co- nees selected for the initial Com- operative members and four qualified mittee, following adoption of this persons for major cooperative alter- amendment, shall serve a minimum of nate members of the committee. Nomi- one two-year term beginning on Au- nees for member and alternate member gust 1 of the first even-numbered year shall represent growers from each of served. the marketing order districts as des- (b) Successor members. Beginning on ignated in § 929.20(c). June 1 of the even-numbered year fol- (2) Six qualified persons for members lowing the adoption of this amend- and four qualified persons for alternate ment, the committee shall hold nomi- members of the committee shall be

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nominated by those growers who mar- tities other than the major cooperative ket their cranberries through entities marketing organization from that dis- other than the major cooperative mar- trict. The nominee receiving the third keting organization. Nominees for highest number of votes cast in dis- member and alternate member shall tricts one and three shall be the alter- represent growers from each of the nate member representing entities marketing order districts as designated other than the major cooperative marin § 929.20(c). keting organization from that district. (3) A seventh member nominee shall (f) Nominations for the member-at- be referred to as the member-at-large large representing entities other than representing entities other than the the major cooperative marketing orga- major cooperative marketing organiza- nization shall be made through a call tion. The member-at-large may be for nominations sent to all eligible nominated from any of the marketing growers residing within the marketing order districts. order districts. The call for such nomi- (e) Nominations of qualified member nations shall be by such means as rec- nominees representing entities other ommended by the committee and ap- than the major cooperative marketing proved by the Secretary. organization shall be made through a (1) Election of the member-at-large call for nominations sent to all eligible shall be held by mail ballot sent to all growers residing within each of the eligible growers in the marketing order marketing order districts. The call for districts by such date and in such form such nominations shall be by such as recommended by the committee and means as are recommended by the approved by the Secretary. committee and approved by the Sec- (2) Eligible growers casting ballots retary. may vote for a member-at-large nomi- (1) The names of all eligible nominees nee from marketing order districts from each district received by the com- other than where they produce cran- mittee, by such date and in such form berries. as recommended by the committee and (3) When voting for the member-at- approved by the Secretary, will appear large nominee, each eligible grower on the nomination ballot for that dis- shall be entitled to cast one vote on be- trict. half of him/herself. (2) Election of the member nominees (4) The nominee receiving the highest and alternate member nominees shall number of votes cast shall be des- be conducted by mail ballot. ignated the member-at-large nominee (3) Eligible growers shall participate representing entities other than the in the election of nominees from the major cooperative marketing organiza- district in which they reside. tion. The nominee receiving the second (4) When voting for member nomi- highest number of votes cast shall be nees, each eligible grower shall be enti- declared the alternate member-at-large tled to cast one vote on behalf of him/ nominee representing entities other herself. than the major cooperative marketing (5) The nominee receiving the highest organization. number of votes cast in districts two (g) The committee may request that and four shall be the member nominee growers provide their federal tax iden- representing entities other than the tification number(s) in order to deter- major cooperative marketing organiza- mine voting eligibility. tion from that district. The nominee (h) The names and addresses of all receiving the second highest number of successor member nominees shall be votes cast in districts two and four submitted to the Secretary for selec- shall be the alternate member rep- tion no later than July 1 of each even- resenting entities other than the major numbered year. cooperative marketing organization (i) The committee, with the approval from that district. of the Secretary, may issue rules and (6) The nominees receiving the high- regulations to carry out the provisions est and second highest number of votes or to change the procedures of this sec- cast in districts one and three shall be tion. the member nominees representing en- [69 FR 18807, Apr. 9, 2004]

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§ 929.23 Selection. § 929.25 Acceptance. (a) From nominations made pursuant Any person selected by the Secretary to § 929.22(b), the Secretary shall select as a member or as an alternate member members and alternate members to the of the committee shall qualify by filing committee on the basis of the represen- a written acceptance with the Sec- tation provided for in § 929.20 and in retary promptly after being notified of paragraph (b) or (c) of this section. such selection. (b) Whenever any cooperative mar- § 929.26 Vacancies. keting organization handles more than 50 percent of the total volume of cran- To fill any vacancy occasioned by the berries produced during the fiscal year failure of any person selected as a in which nominations for membership member or as an alternate member of on the committee are made, the Sec- the committee to qualify, or in the retary shall select: event of the death, removal, resignation, or disqualification of any member (1) Six major cooperative members or alternate member of the committee, and four major cooperative alternate a successor for the unexpired term of members from nominations made pur- such member or alternate member of suant to § 929.22(c)(1). the committee shall be nominated and (2) One major cooperative member- selected in the manner specified in at-large from nominations made pursu- §§ 929.22 and 929.23. If the names of ant to § 929.22(c)(2), and nominees to fill any such vacancy are (3) Six members and four alternate not made available to the Secretary members from growers who market within a reasonable time after such va- their cranberries through other than cancy occurs, the Secretary may fill the major cooperative marketing orga- such vacancy without regard to nomi- nization made pursuant to § 929.22(c)(3). nations, which selection shall be made (c) Whenever any major cooperative on the basis of representation provided marketing organization handles 50 per- for in §§ 929.20 and 929.23. cent or less of the total volume of cranberries produced during the fiscal year § 929.27 Alternate members. in which nominations for membership An alternate member of the com- on the committee are made, the Sec- mittee shall act in the place and stead retary shall select: of a member during the absence of such (1) Six major cooperative members member and may perform such other and four major cooperative alternate duties as assigned. In the event of the members from nominations made pur- death, removal, resignation, or dis- suant to § 929.22(d)(1). qualification of a member, an alternate shall act for him/her until a successor (2) Six members and four alternate for such member is selected and has members from nominations made pur- qualified. In the event both a member suant to § 929.22(d)(2). and alternate member from the same (3) One member-at-large representing marketing order district are unable to entities other than the major coopera- attend a committee meeting, the com- tive marketing organization from mittee may designate any other alter- nominations made pursuant to nate member to serve in such member’s § 929.22(d)(3). place and stead at that meeting provided that: [69 FR 18808, Apr. 9, 2004] (a) An alternate member rep- § 929.24 Failure to nominate. resenting the major cooperative shall not serve in place of a member rep- If nominations are not made within resenting other than the major cooper- the time and in the manner prescribed ative or the public member. in § 929.22, the Secretary may, without (b) An alternate member rep- regard to nominations, select the mem- resenting other than the major cooper- bers and alternate members of the ative shall not serve in place of a major committee on the basis of representa- cooperative member or the public tion provided for in §§ 929.20 and 929.23. member.

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(c) A public alternate member shall in and a recommendation as to the rate not serve in place of any industry of assessment for such period; member. (d) To keep minutes, books, and [69 FR 18808, Apr. 9, 2004] records which will reflect all of the acts and transactions of the committee § 929.28 Redistricting and Reappor- and which shall be subject to examina- tionment. tion by the Secretary; (a) The committee, with the approval (e) To prepare periodic statements of of the Secretary, may reestablish dis- the financial operations of the com- tricts within the production area and mittee and to make copies of each such reapportion membership among the statement available to growers and districts. In recommending such handlers for examination at the office changes, the committee shall give con- of the committee; sideration to: (f) To cause its books to be audited (1) The relative volume of cranberries by a competent public accountant at produced within each district. least once each fiscal year and at such (2) The relative number of cranberry times as the Secretary may request; producers within each district. (g) To act as intermediary between (3) Cranberry acreage within each the Secretary and any grower or han- district. dler; (4) Other relevant factors. (h) To investigate and assemble data (b) The committee may establish, on the growing, handling, and mar- with the approval of the Secretary, keting conditions with respect to cran- rules and regulations for the imple- berries; mentation and operation of this sec- (i) To submit to the Secretary the tion. same notice of meetings of the com- [70 FR 7641, Feb. 15, 2005] mittee as is given to its members; (j) To submit to the Secretary such § 929.30 Powers. available information as he may re- The committee shall have the fol- quest; and lowing powers: (k) To investigate compliance with (a) To administer the provisions of the provisions of this part. this part in accordance with its terms; (b) To receive, investigate, and report § 929.32 Procedure. to the Secretary complaints of viola- (a) Ten members of the committee, tions of the provisions of this part; or alternates acting for members, shall (c) To make and adopt rules and reg- constitute a quorum. All actions of the ulations to effectuate the terms and committee shall require at least ten provisions of this part; and concurring votes: Provided, if the pub- (d) To recommend to the Secretary lic member or the public alternate amendments to this part. member acting in the place and stead of the public member, is present at a § 929.31 Duties. meeting, then eleven members shall The committee shall have, among constitute a quorum. Any action of the others, the following duties: committee on which the public mem- (a) To select a chairman and such ber votes shall require eleven concur- other officers as may be necessary, and ring votes. If the public member ab- to define the duties of such officers; stains from voting on any particular (b) To appoint such employees, matter, ten concurring votes shall be agents, and representatives as it may required for an action of the com- deem necessary and to determine the mittee. compensation and to define the duties (b) The committee may vote by mail, of each: telephone, fax, telegraph, or other elec- (c) To submit to the Secretary as tronic means; Provided that any votes soon as practicable after the beginning cast by telephone shall be confirmed of each fiscal period a budget for such promptly in writing. Voting by proxy, fiscal period, including a report in ex- mail, telephone, fax, telegraph, or planation of the items appearing there- other electronic means shall not be

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permitted at any assembled meeting of (b) The Secretary shall fix the rate of the committee. assessment to be paid by each handler (c) All assembled meetings of the during a fiscal period in an amount committee shall be open to growers designated to secure funds sufficient to and handlers. The committee shall pub- cover the expenses which may be in- lish notice of all meetings in such man- curred during such period and to accu- ner as it deems appropriate. mulate and maintain a reserve fund equal to approximately one fiscal peri- [69 FR 18808, Apr. 9, 2004] od’s expenses. At any time during or after the fiscal period, the Secretary § 929.33 Expenses and compensation. may increase the assessment rate in The members of the committee, and order to secure funds sufficient to alternates when acting as members, cover any later finding by the Sec- shall serve without compensation but retary relative to the expenses which shall be reimbursed for necessary ex- may be incurred. Such increase shall be penses, as approved by the committee, applied to all cranberries acquired dur- incurred by them in the performance of ing the applicable fiscal period. In their duties under this part. The com- order to provide funds for the adminis- mittee at its discretion may request tration of the provisions of this part the attendance of one or more alter- during the first part of a fiscal year, nates at any or all meetings, notwith- before sufficient operating income is standing the expected or actual pres- available from assessments, the com- ence of the respective members, and mittee may accept the payment of as- may pay expenses, as aforesaid. sessments in advance and may also borrow money for such purposes. EXPENSES AND ASSESSMENTS (c) If a handler does not pay such assessment within the period of time pre- § 929.40 Expenses. scribed by the committee, the assess- The committee is authorized to incur ment may be increased by either a late such expenses as the Secretary finds payment charge, or an interest charge, are reasonable and likely to be in- or both, at rates prescribed by the com- curred by the committee for its main- mittee, with the approval of the Sec- tenance and functioning and to enable retary. it to exercise its powers and perform [57 FR 38748, Aug. 27, 1992] its duties in accordance with the provisions hereof. The funds to cover such § 929.42 Accounting. expenses shall be paid to the com- (a) If, at the end of a fiscal period, mittee by handlers in the manner pre- the assessments collected are in excess scribed in § 929.41. of expenses incurred, the committee, with the approval of the Secretary, § 929.41 Assessments. may carryover such excess into subse- (a) As a handler’s pro rate share of quent fiscal periods as a reserve: Pro- the expenses which the Secretary finds vided, That funds already in the reserve are reasonable and likely to be in- do not exceed approximately one fiscal curred by the committee during a fis- period’s expenses. Such reserve funds cal period, a handler shall pay to the may be used (1) to cover any expenses committee assessments on all cran- authorized by this part and (2) to cover berries acquired as the first handler necessary expenses of liquidation in thereof during such period, except as the event of termination of this part. If provided in § 929.55: Provided, That no any such excess is not retained in a re- handler shall pay assessments on ex- serve, it shall be refunded proportion- cess cranberries as provided in § 929.57. ately to the handlers from whom the The payment of assessments for the excess was collected. Upon termination maintenance and functioning of the of this part, any funds not required to committee may be required under this defray the necessary expenses of liq- part throughout the period it is in ef- uidation shall be disposed of in such fect, irrespective of whether particular manner as the Secretary may deter- provisions thereof are suspended or be- mine to be appropriate; Provided, That come inoperative. to the extent practical, such funds

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shall be returned pro rata to the per- (e) The recommended desirable total sons from whom such funds were col- marketable quantity of cranberries in- lected. cluding a recommended adequate car- (b) All funds received by the com- ryover into the following crop year of mittee pursuant to the provisions of frozen cranberries and other cranberry this part shall be used solely for the products; purpose specified in this part and shall (f) Other factors having a bearing on be accounted for in the manner pro- the marketing of cranberries. vided in this part. The Secretary may [70 FR 7641, Feb. 15, 2005] at any time require the committee and its members to account for all receipts § 929.48 Sales history. and disbursements. (a) A sales history for each grower shall be computed by the committee in RESEARCH the following manner: (1) For growers with acreage with 6 § 929.45 Research and development. or more years of sales history, the (a) The committee, with the approval sales history shall be computed using of the Secretary, may establish or pro- an average of the highest four of the vide for the establishment of produc- most recent six years of sales. tion research, marketing research, and (2) For growers with 5 years of sales market development projects, includ- history from acreage planted or re- ing paid advertising, designed to assist, planted 2 years prior to the first har- improve, or promote the marketing, vest on that acreage, the sales history distribution, consumption, or efficient is computed by averaging the highest 4 production of cranberries. The expense of the 5 years. of such projects shall be paid from (3) For growers with 5 years of sales funds collected pursuant to § 929.41, or history from acreage planted or re- from such other funds as approved by planted 1 year prior to the first harvest the Secretary. on that acreage, the sales history is (b) The committee may, with the ap- computed by averaging the highest 4 of proval of the Secretary, establish rules the 5 years and in a year prior to a year and regulations as necessary for the of a producer allotment volume regula- implementation and operation of this tion shall be adjusted as provided in section. paragraph (a)(6) of this section. (4) For a grower with 4 years or less [57 FR 38748, Aug. 27, 1992, as amended at 70 of sales history, the sales history shall FR 7641, Feb. 15, 2005] be computed by dividing the total sales from that acreage by 4 and in a year REGULATIONS prior to a year of a producer allotment § 929.46 Marketing policy. volume regulation shall be adjusted as provided in paragraph (a)(6) of this sec- Each season prior to making any rection. ommendation pursuant to § 929.51, the (5) For growers with acreage having committee shall submit to the Sec- no sales history, or for the first harvest retary a report setting forth its mar- of replanted acres, the sales history keting policy for the crop year. Such will be the average first year yields marketing policy shall contain the fol- (depending on whether first harvested 1 lowing information for the current or 2 years after planting or replanting) crop year: as established by the committee and (a) The estimated total production of multiplied by the number of acres. cranberries; (6) In a year prior to a year of a pro- (b) The expected general quality of ducer allotment volume regulation, in such cranberry production; addition to the sales history computed (c) The estimated carryover, as of in accordance with paragraphs (a)(3) September 1, of frozen cranberries and and (a)(4) of this section, additional other cranberry products; sales history shall be assigned to grow- (d) The expected demand conditions ers using the formula x=(a¥b)c. The for cranberries in different market out- letter ‘‘x’’ constitutes the additional lets; number of barrels to be added to the

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grower’s sales history. The value ‘‘a’’ is for catastrophic events that impact the the expected yield for the forthcoming grower’s crop. year harvested acreage as established [70 FR 7641, Feb. 15, 2005] by the committee. The value ‘‘b’’ is the total sales from that acreage as estab- 929.49 Marketable quantity, allotment lished by the committee divided by percentage, and annual allotment. four. The value ‘‘c’’ is the number of acres planted or replanted in the speci- (a) Marketable quantity and allot- fied year. For acreage with five years ment percentage. If the Secretary of sales history: a = the expected yield finds, from the recommendation of the for the forthcoming sixth year har- committee or from other available in- vested acreage (as established by the formation, that limiting the quantity committee); b = an average of the most of cranberries purchased from or han- recent 4 years of expected yields (as es- dled on behalf of growers during a crop tablished by the committee); and c = year would tend to effectuate the de- the number of acres with 5 years of clared policy of the Act, the Secretary sales history. shall determine and establish a mar- (b) A new sales history shall be cal- ketable quantity for that crop year. culated for each grower after each crop (b) The marketable quantity shall be year, using the formulas established in apportioned among growers by apply- paragraph (a) of this section, or such ing the allotment percentage to each other formula(s) as determined by the grower’s sales history, established pur- committee, with the approval of the suant to § 929.48. Such allotment per- Secretary. centage shall be established by the (c) The committee, with the approval Secretary and shall equal the market- of the Secretary, may adopt regula- able quantity divided by the total of all tions to change the number and iden- growers’ sales histories including the tity of years to be used in computing estimated total sales history for new sales histories, including the number of growers. Except as provided in para- years to be used in computing the aver- graph (g) of this section, no handler age. The committee may establish, shall purchase or handle on behalf of with the approval of the Secretary, any grower cranberries not within such rules and regulations necessary for the grower’s annual allotment. implementation and operation of this (c) In any crop year in which the pro- section. duction of cranberries is estimated by (d) Sales histories, starting with the the committee to be equal to or less crop year following adoption of this than its recommended marketable part, shall be calculated separately for quantity, the committee may rec- fresh and processed cranberries. The ommend that the Secretary increase or amount of fresh fruit sales history may suspend the allotment percentage ap- be calculated based on either the deliv- plicable to that year. In the event it is ered weight of the barrels paid for by found that market demand is greater the handler (excluding trash and unus- than the marketable quantity pre- able fruit) or on the weight of the fruit viously set, the committee may rec- paid for by the handler after cleaning ommend that the Secretary increase and sorting for the retail market. Han- such quantity. dlers using the former calculation shall (d) Issuance of annual allotments. The allocate delivered fresh fruit subse- committee shall require all growers to quently used for processing to growers’ qualify for such allotment by filing processing sales. Fresh fruit sales his- with the committee a form wherein tory, in whole or in part, may be added growers include the following informa- to process fruit sales history with the tion: approval of the committee in the event (1) The amount of acreage which will that the grower’s fruit does not qualify be harvested; as fresh fruit at delivery. (2) A copy of any lease agreement (e) The committee may recommend covering cranberry acreage; rules and regulations, with the ap- (3) The name of the handler(s) to proval of the Secretary, to adjust a whom their annual allotment will be grower’s sales history to compensate delivered;

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(4) Such other information as may be (i) Growers who decide not to grow a necessary for the implementation and crop, during any crop year in which a operation of this section. volume regulation is in effect, may (e) On or before such date as deter- choose not to assign their allotment to mined by the committee, with the ap- a handler. proval of the Secretary, the committee (j) The committee may establish, shall issue to each grower an annual al- with the approval of the Secretary, lotment determined by applying the al- rules and regulations necessary for the lotment percentage established pursu- implementation and operation of this ant to paragraph (b) of this section to section. the grower’s sales history. [70 FR 7641, Feb. 15, 2005] (f) On or before such date as determined by the committee, with the ap- § 929.50 Transfers of Sales Histories proval of the Secretary, in which an al- and Annual Allotments. lotment percentage is established by (a) Leases and sales of cranberry acre- the Secretary, the committee shall no- age—(1) Total or partial lease of cran- tify each handler of the annual allot- berry acreage. When total or partial ment that can be handled for each lease of cranberry acreage occurs, sales grower whose total crop will be deliv- history attributable to the acreage ered to that handler. In cases where a being leased shall remain with the les- grower delivers a crop to more than sor. one handler, the grower must specify (2) Total sale of cranberry acreage. how the annual allotment will be ap- When there is a sale of a grower’s total portioned among the handlers. If a cranberry producing acreage, the com- grower does not specify how their an- mittee shall transfer all owned acreage nual allotment is to be apportioned and all associated sales history to such among the handlers, the Committee acreage to the buyer. The seller and will apportion such annual allotment buyer shall file a sales transfer form equally among those handlers they are providing the committee with such in- delivering their crop to. formation as may be requested so that (g) Growers who do not produce cran- the buyer will have immediate access berries equal to their computed annual to the sales history computation proc- allotment shall transfer their unused ess. allotment to such growers’ handlers (3) Partial sale of cranberry acreage. unless it is transferred to another When less than the total cranberry pro- grower in accordance with § 929.50(b) or ducing acreage is sold, sales history as- if it is not assigned in accordance with sociated with that portion of the acre- paragraph (i) of this section. The han- age being sold shall be transferred with dler shall equitably allocate the unused the acreage. The seller shall provide annual allotment to growers with ex- the committee with a sales transfer cess cranberries who deliver to such form containing, but not limited to the handler. Unused annual allotment re- distribution of acreage and the per- maining after all such transfers have centage of sales history, as defined in occurred shall be reported and trans- § 929.48(a)(1), attributable to the acre- ferred to the committee by such date age being sold. as established by the committee with (4) No sale of cranberry acreage shall the approval of the Secretary. be recognized unless the committee is (h) Handlers who receive cranberries notified in writing. more than the sum of their growers’ (b) Allotment transfers. During a year annual allotments have ‘‘excess cran- of volume regulation, a grower may berries,’’ pursuant to § 929.59, and shall transfer all or part of his/her allotment so notify the committee. Handlers who to another grower. If a lease is in effect have remaining unused allotment pur- the lessee shall receive allotment from suant to paragraph (g) of this section lessor attributable to the acreage are ‘‘deficient’’ and shall so notify the leased. Provided, That the transferred committee. The committee shall allo- allotment shall remain assigned to the cate unused allotment to all handlers same handler and that the transfer having excess cranberries, proportional shall take place prior to a date to be to each handler’s total allotment. recommended by the Committee and

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approved by the Secretary. Transfers of § 929.52 Issuance of regulations. allotment between growers having dif- (a) The Secretary shall regulate, in ferent handlers may occur with the the manner specified in this section, consent of both handlers. the handling of cranberries whenever (c) The committee may establish, the Secretary finds, from the rec- with the approval of the Secretary, ommendations and information sub- rules and regulations, as needed, for mitted by the committee, or from the implementation and operation of other available information, that such this section. regulation will tend to effectuate the [70 FR 7642, Feb. 15, 2005] declared policy of the Act. Such regulation shall limit the total quantity of § 929.51 Recommendations for regula- cranberries which may be handled dur- tion. ing any fiscal period by fixing the free (a) Except as otherwise provided in and restricted percentages, applied to paragraph (b) of this section, if the cranberries acquired by handlers in ac- committee deems it advisable to regu- cordance with § 929.54, and/or by estab- late the handling of cranberries in the lishing an allotment percentage in ac- manner provided in § 929.52, it shall so cordance with § 929.49. recommend to the Secretary by the fol- (b) The committee shall be informed lowing appropriate dates: immediately of any such regulation (1) An allotment percentage regula- issued by the Secretary, and the com- tion must be recommended by no later mittee shall promptly give notice than March 1; thereof to handlers. (2) A handler withholding program [70 FR 7643, Feb. 15, 2005] must be recommended by not later than August 31. Such recommendation § 929.53 Modification, suspension, or shall include the free and restricted termination of regulations. percentages for the crop year; (a) In the event the committee at any (3) If both programs are rec- time finds that, by reason of changed ommended in the same year, the Com- conditions, any regulations issued pur- mittee shall submit with its rec- suant to § 929.52 should be modified, ommendation an economic analysis to suspended, or terminated, it shall so the USDA prior to March 1 of the year recommend to the Secretary. in which the programs are rec- (b) Whenever the Secretary finds, ommended. from the recommendations and infor- (b) An exception to the requirement mation submitted by the committee or in paragraph (a)(1) of this section may from other available information, that be made in a crop year in which, due to a regulation should be modified, sus- unforeseen circumstances, a producer pended, or terminated in order to effec- allotment regulation is deemed nec- tuate the declared policy of the act, he essary subsequent to the March 1 dead- shall modify, suspend, or terminate line. such regulation: Provided, That no such (c) In arriving at its recommenda- modification shall increase the re- tions for regulation pursuant to para- stricted percentage previously estab- graph (a) of this section, the com- lished for the then current fiscal year. mittee shall give consideration to cur- If the Secretary finds that a regulation rent information with respect to the obstructs or does not tend to effectuate factors affecting the supply of and de- the declared policy of the act, he shall mand for cranberries during the period suspend or terminate such regulation. when it is proposed that such regulation should be imposed. With each such § 929.54 Withholding. recommendation for regulation, the (a) Whenever the Secretary has fixed committee shall submit to the Sec- the free and restricted percentages for retary the data and information on any fiscal period, as provided for in which such recommendation is based § 929.52(a), each handler shall withhold and any other information the Sec- from handling a portion of the cran- retary may request. berries acquired during such period. [70 FR 7642, Feb. 15, 2005] The withheld portion shall be equal to

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the restricted percentage multiplied by § 929.55 Interhandler transfer. the volume of marketable cranberries (a) Transfer of cranberries from one acquired. Such withholding require- handler to another may be made with- ments shall not apply to any lot of out prior notice to the committee, ex- cranberries for which such withholding cept during a period when a volume requirement previously has been met regulation has been established. If such by another handler in accordance with transfer is made between handlers who § 929.55. have packing or processing facilities (b) The committee, with the approval located within the production area, the of the Secretary, shall prescribe the assessment and withholding obliga- manner in which, and date or dates tions provided under this part shall be during the fiscal period by which, han- assumed by the handler who agrees to dlers shall have complied with the meet such obligation. If such transfer withholding requirements specified in is to a handler whose packing or proc- paragraph (a) of this section. essing facilities are outside of the pro- (c) Withheld cranberries may meet duction area, such assessment and such standards of grade, size, quality, withholding obligation shall be met by or condition as the committee, with the handler residing within the produc- the approval of the Secretary, may pre- tion area. scribe. The Federal or Federal-State (b) All handlers shall report all such Inspection Service may inspect all transfers to the committee on a form such cranberries. A certificate of such provided by the committee four times inspection shall be issued which shall a year or at other such times as may be include the name and address of the recommended by the committee and handler, the number and type of con- approved by the Secretary. tainers in the lot, the location where (c) The committee may establish, the lot is stored, identification marks with the approval of the Secretary, (including lot stamp, if used), and the rules and regulations necessary for the quantity of cranberries in such lot that implementation and operation of this meet the prescribed standards. Prompt- section. ly after inspection and certification, each such handler shall submit to the [38 FR 29801, Oct. 29, 1973, as amended at 57 committee a copy of the certificate of FR 38750, Aug. 27, 1992] inspection issued with respect to such § 929.56 Special provisions relating to cranberries. withheld (restricted) cranberries. (d) Any handler who withholds from handling a quantity of cranberries in (a) A handler shall make a written excess of that required pursuant to request to the committee for the re- paragraph (a) of this section shall have lease of all or part of the cranberries such excess quantity credited toward that the handler is withholding from the next fiscal year’s withholding obli- handling pursuant to § 929.54(a). Each gation, if any—provided that such cred- request shall state the quantity of it shall be applicable only if the re- cranberries for which release is restricted percentage established pursu- quested and shall provide such addi- ant to § 929.52 was modified pursuant to tional information as the committee § 929.53; to the extent such excess was may require. Handlers may replace the disposed of prior to such modification; quantity of withheld cranberries re- and after such handler furnishes the quested for release as provided under either paragraph (b) or (c) of this sec- committee with such information as it tion. prescribes regarding such withholding and disposition. (b) The handler may contract with another handler for an amount of free (e) The Committee, with the approval cranberries to be converted to re- of the Secretary, may establish rules stricted cranberries that is equal to the and regulations necessary and inci- volume of cranberries that the handler dental to the administration of this wishes to have converted from his own section. restricted cranberries to free cran- [70 FR 7643, Feb. 15, 2005] berries.

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(1) The handlers involved in such an cranberries, it shall give notice to han- agreement shall provide the committee dlers of the new amount and the effec- with such information as may be re- tive period thereof. Each determina- quested prior to the release of any re- tion as to the amount of deposit shall stricted cranberries. be on the basis of the committee’s eval- (2) The committee shall establish uation of the following factors: guidelines to ensure that all necessary (1) The prices at which growers are documentation is provided to the com- selling cranberries to handlers, mittee, including but not limited to, (2) The prices at which handlers are the amount of cranberries being con- selling fresh market cranberries to verted and the identities of the han- dealers, dlers assuming the responsibility for (3) The prices at which cranberries withholding and disposing of the free are being sold for processing in prod- cranberries being converted to re- ucts, stricted cranberries. (4) The prices at which handlers are (3) Cranberries converted to replace selling cranberry concentrate, released cranberries may be required to be inspected and meet such standards (5) The prices the committee has paid as may be prescribed for withheld cran- to purchase cranberries to replace re- berries prior to disposal. leased cranberries in accordance with (4) Transactions and agreements ne- this section, and gotiated between handlers shall include (6) The costs incurred by growers in all costs associated with such trans- producing cranberries. actions including the purchase of the (7) Each request for release of with- free cranberries to be converted to re- held cranberries shall include, in addi- stricted cranberries and all costs asso- tion to all other information as may be ciated with inspection (if applicable) prescribed by the committee, the quan- and disposal of such restricted cran- tity of cranberries the release is re- berries. No costs shall be incurred by quested and shall be accompanied by a the committee other than for the nor- deposit (a cashier’s or certified check mal activities associated with the im- made payable to the Cranberry Mar- plementation and operation of a vol- keting Committee) in an amount equal ume regulation program. to the twenty percent of the amount (5) Free cranberries belonging to one determined by multiplying the number handler and converted to restricted of barrels stated in the request by the cranberries on the behalf of another then effective amount per barrel as de- handler shall be reported to the com- termined in paragraph (c). mittee in such manner as prescribed by (8) Subsequent deposits equal to, but the committee. not less than, the ten percent of the re- (c) Except as otherwise directed by maining outstanding balance shall be the Secretary, as near as practicable to payable to the committee on a month- the beginning of the marketing season ly basis commencing on January 1, and of each fiscal period with respect to concluding by no later than August 31 which the marketing policy proposes of the fiscal period. regulation pursuant to § 929.52(a), the (9) If the committee determines such committee shall determine the amount a release request is properly filled out, per barrel each handler shall deposit is accompanied by the required deposit, with the committee for it to release to and contains a certification that the him, in accordance with this section, handler is withholding such cran- all or part of the cranberries he is berries, it shall release to such handler withholding; and the committee shall the quantity of cranberries specified in give notice of such amount of deposit his request. to handlers. Such notice shall state the (d) Funds deposited for the release of period during which such amount of de- withheld cranberries, pursuant to para- posit shall be in effect. Whenever the graph (c) of this section, shall be used committee determines that, by reason by the committee to purchase from of changed conditions or other factors, handlers unrestricted (free percentage) a different amount should therefore be cranberries in an aggregate amount as deposited for the release of withheld nearly equal to, but not in excess of,

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the total quantity of the released cran- tive to outlets for unrestricted (free berries as it is possible to purchase to percentage) cranberries. replace the released cranberries. (b) The storage and disposition of all (e) All handlers shall be given an cranberries withheld from handling equal opportunity to participate in shall be subject to the supervision and such purchase of unrestricted (free per- accounting control of the committee. centage) cranberries. If a larger quantity is offered than can be purchased, § 929.58 Exemptions. the purchases shall be made at the low- (a) Upon the basis of the rec- est price possible. If two or more han- ommendation and information sub- dlers offer unrestricted (free percent- mitted by the committee, or from age) cranberries at the same price, pur- other available information, the Sec- chases from such handlers shall be in retary may relieve from any or all re- proportion to the quantity of their requirements pursuant to this part the spective offerings insofar as such divi- handling of cranberries in such min- sion is practicable. The committee imum quantities as the committee, shall dispose of cranberries purchased with the approval of the Secretary, as restricted cranberries in accordance may prescribe. with § 929.57. Any funds received by the (b) Upon the basis of the rec- committee for cranberries so disposed ommendation and information sub- of, which are in excess of the costs in- mitted by the committee, or from curred by the committee in making other available information, the Sec- such disposition, will accrue to the retary may relieve from any or all re- committee’s general fund. (f) In the event any portion of the quirements pursuant to this part the funds deposited with the committee handling of such forms or types of pursuant to paragraph (c) of this sec- cranberries as the committee, with the tion cannot, for reasons beyond the approval of the Secretary, may pre- committee’s control, be expended to scribe. Forms of cranberries could in- purchase unrestricted (free percentage) clude cranberries intended for fresh cranberries to replace those withheld sales or organically grown cranberries. cranberries requested to be released, (c) The committee, with the approval such unexpended funds shall, after de- of the Secretary, shall prescribe such ducting expenses incurred by the com- rules, regulations, and safeguards as it mittee, be refunded to the handler who may deem necessary to ensure that deposited the funds. The handler shall cranberries handled under the provi- equitably distribute such refund among sions of this section are handled only the growers delivering to such handler. as authorized. (g) Inspection for restricted (with- [70 FR 7644, Feb. 15, 2005] held) cranberries released to a handler is not required. § 929.59 Excess cranberries. (h) The committee may establish, (a) Whenever the Secretary estab- with the approval of the Secretary, lishes an allotment percentage pursu- rules and regulations for the imple- ant to § 929.52, handlers shall be noti- mentation of this section. Such rules fied by the committee of such allot- and regulations may include, but are ment percentage and shall withhold not limited to, revisions in the pay- from handling such cranberries in ex- ment schedule specified in paragraphs cess of the total of their growers’ an- (c)(7) and (c)(8) of this section. nual allotments obtained during such [70 FR 7643, Feb. 15, 2005] period. Such withheld cranberries shall be defined as ‘‘excess cranberries’’ after § 929.57 Outlets for restricted cran- all unused allotment has been allo- berries. cated. (a) Except as provided in this section (1) Excess cranberries received by a and in § 929.56, cranberries withheld handler shall be made available for in- from handling may be disposed of only spection by the committee or its rep- through diversion to such outlets as resentatives from the time they are re- the committee, with the approval of ceived until final disposition is com- the Secretary, finds are noncompeti- pleted. Such excess cranberries shall be

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identified in such manner as the com- (b) Noncompetitive outlets. Excess mittee may specify in its rules and reg- cranberries may be sold in outlets that ulations with the approval of the Sec- the committee finds, with the approval retary. of the Secretary, are noncompetitive (2) All matters dealing with handler- with established markets for regulated held excess cranberries shall be in ac- cranberries and meet the requirements cordance with such rules and regula- outlined in paragraph (c) of this sections established by the committee, tion. Noncompetitive outlets include with the approval of the Secretary. but are not limited to: (b) Prior to January 1, or such other (1) Any nonhuman food use; and date as recommended by the com- (2) Other outlets established by the mittee and approved by the Secretary, committee with the approval of the handlers holding excess cranberries Secretary. shall submit to the committee a writ- (c) Requirements. The handler dis- ten plan outlining procedures for the posing of or selling excess cranberries systematic disposal of such cranberries into noncompetitive or noncommercial in the outlets prescribed in § 929.61. outlets shall meet the following re- (c) Prior to March 1, or such other quirements, as applicable: date as recommended by the com- (1) Charitable institutions. A state- mittee and approved by the Secretary, ment from the charitable institution all excess cranberries shall be disposed shall be submitted to the committee of pursuant to § 929.61. showing the quantity of cranberries received and certifying that the institu- [57 FR 38750, Aug. 27, 1992] tion will consume the cranberries; (2) REPORTS AND RECORDS Research and development projects. A report shall be given to the com- § 929.60 Handling for special purposes. mittee describing the project, quantity of cranberries contributed, and date of Regulations in effect pursuant to disposition; § § 929.10, 929.41, 929.47, 929.48, 929.49, (3) Nonhuman food use. Notification 929.51, 929.52, or 929.53 or any combina- shall be given to the committee at tion thereof, may be modified, sus- least 48 hours prior to such disposition; pended, or terminated to facilitate (4) Other outlets established by the com- handling of excess cranberries for the mittee with the approval of the Secretary. following purposes: A report shall be given to the com- (a) Charitable institutions; mittee describing the project, quantity (b) Research and development of cranberries contributed, and date of projects described pursuant to § 929.61; disposition. (c) Any nonhuman food use; (d) The storage and disposition of all (d) Foreign markets, except Canada; excess cranberries withheld from han- and dling shall be subject to the super- (e) Other purposes which may be rec- vision and accounting control of the ommended by the committee and ap- committee. proved by the Secretary. (e) The committee, with the approval [57 FR 38750, Aug. 27, 1992] of the Secretary, may establish rules and regulations for the implementation § 929.61 Outlets for excess cranberries. and operation of this section. (a) Noncommercial outlets. Excess [70 FR 7644, Feb. 15, 2005] cranberries may be disposed of in noncommercial outlets that the com- § 929.62 Reports. mittee finds, with the approval of the (a) Grower report. Each grower shall Secretary, meet the requirements out- file a report with the committee by lined in paragraph (c) of this section. January 15 of each crop year, or such Noncommercial outlets include, but other date as determined by the com- are not limited to: mittee, with the approval of the Sec- (1) Charitable institutions; and retary, indicating the following: (2) Research and development (1) Total acreage harvested and projects. whether owned or leased.

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(2) Total commercial cranberry sales rules and regulations for the imple- in barrels from such acreage. mentation and operation of this sec- (3) Amount of acreage either in pro- tion. duction, but not harvested or taken out [70 FR 7644, Feb. 15, 2005] of production and the reason(s) why. (4) Amount of new or replanted acre- § 929.63 Records. age coming into production. Each handler shall maintain such (5) Name of the handler(s) to whom records of all cranberries acquired, commercial cranberry sales were made. withheld from handling, handled, and (6) Such other information as may be otherwise disposed of as will substan- needed for implementation and oper- tiate the required reports and as may ation of this section. be prescribed by the committee. All (b) Inventory. Each handler engaged such records shall be maintained for in the handling of cranberries or cran- not less than three years after the ter- berry products shall, upon request of mination of the crop year in which the the committee, file promptly with the transactions occurred or for such lesser committee a certified report, showing period as the committee may direct. such information as the committee shall specify with respect to any cran- [27 FR 8101, Aug. 15, 1962. Redesignated at 57 berries and cranberry products which FR 38750, Aug. 27, 1992] were held by them on such date as the § 929.64 Verification of reports and committee may designate. records. (c) Receipts. Each handler shall, upon request of the committee, file prompt- The committee, through its duly au- ly with the committee a certified re- thorized agents, during reasonable port as to each quantity of cranberries business hours, shall have access to acquired during such period as may be any handler’s premises where applicable records are maintained for the pur- specified, and the place of production. pose of assuring compliance and check- (d) Handling reports. Each handler ing and verifying records and reports shall, upon request of the committee, filed by such handler. file promptly with the committee a certified report as to the quantity of [70 FR 7645, Feb. 15, 2005] cranberries handled during any designated period or periods. § 929.65 Confidential information. (e) Withheld and excess cranberries. All reports and records furnished or Each handler shall, upon request of the submitted by handlers to the com- committee, file promptly with the mittee and its authorized agents which committee a certified report showing, include data or information consti- for such period as the committee may tuting a trade secret or disclosing the specify, the total quantity of cran- trade position, financial condition, or berries withheld from handling or held business operations of the particular in excess, in accordance with §§ 929.49 handler from whom received, shall be and 929.54, the portion of such withheld received by and at all times kept in the or excess cranberries on hand, and the custody and under the control of one or quantity and manner of disposition of more employees of the committee, who any such withheld or excess cran- shall disclose such information to no berries disposed of. person other than the Secretary. (f) Other reports. Upon the request of [27 FR 8101, Aug. 15, 1962. Redesignated at 57 the committee, with the approval of FR 38750, Aug. 27, 1992] the Secretary, each handler shall furnish to the committee such other infor- MISCELLANEOUS PROVISIONS mation with respect to the cranberries and cranberry products acquired and § 929.66 Compliance. disposed of by such person as may be Except as provided in this part, no necessary to enable the committee to person shall handle cranberries, the exercise its powers and perform its du- handling of which has been prohibited ties under this part. by the Secretary in accordance with (g) The committee may establish, the provisions of this part; and no per- with the approval of the Secretary, son shall acquire or handle cranberries

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except in conformity with the provi- duction area. Such termination shall sions of this part and the regulations become effective on the last day of issued hereunder. July subsequent to the announcement thereof by the Secretary. [27 FR 8101, Aug. 15, 1962. Redesignated at 57 FR 38750, Aug. 27, 1992] (d) The Secretary shall conduct a referendum during the month of May 1975 § 929.67 Right of the Secretary. to ascertain whether continuance of The members of the committee (in- this part is favored by the growers as cluding successors and alternates), and set forth in paragraph (c) of this sec- any agents, employees, or representation. The Secretary shall conduct such tives thereof, shall be subject to re- a referendum during the month of May moval or suspension by the Secretary of every fourth year thereafter. (e) The provisions of this part shall, at any time. Each and every regula- in any event, terminate whenever the tion, decision, determination, or other provisions of the act authorizing them act of the committee shall be subject cease to be effective. to the continuing right of the Sec- retary to disapprove of the same at any [27 FR 8101, Aug. 15, 1962, as amended at 33 time. Upon such disapproval, the dis- FR 11642, Aug. 16, 1968. Redesignated at 57 FR approved action of the committee shall 38750, Aug. 27, 1992] be deemed null and void, except as to § 929.70 Proceedings after termination. acts done in reliance thereon or in accordance therewith prior to such dis- (a) Upon the termination of the pro- approval by the Secretary. visions of this part, the committee shall, for the purpose of liquidating the [27 FR 8101, Aug. 15, 1962. Redesignated at 57 affairs of the committee, continue as FR 38750, Aug. 27, 1992] trustees of all the funds and property § 929.68 Effective time. then in its possession, or under its control, including claims for any funds un- The provisions of this part, and of paid or property not delivered at the any amendment thereto, shall become time of such termination. effective at such time as the Secretary (b) The said trustees shall (1) con- may declare above his signature and tinue in such capacity until discharged shall continue in force until termi- by the Secretary; (2) from time to time nated in one of the ways specified in account for all receipts and disburse- § 929.68. ments and deliver all property on hand, [27 FR 8101, Aug. 15, 1962. Redesignated at 57 together with all books and records of FR 38750, Aug. 27, 1992] the committee and of the trustees, to such persons as the Secretary may di- § 929.69 Termination. rect; and (3) upon the request of the (a) The Secretary may at any time Secretary, execute such assignments or terminate the provisions of this part other instruments necessary or appro- by giving at least one day’s notice by priate to vest in such person full title means of a press release or in any other and right to all of the funds, property, manner in which he may determine. and claims vested in the committee or (b) The Secretary shall terminate or the trustees pursuant thereto. suspend the operation of any or all of (c) Any person to whom funds, prop- the provisions of this part whenever he erty, or claims have been transferred finds that such provisions do not tend or delivered, pursuant to this section, to effectuate the declared policy of the shall be subject to the same obligation act. imposed upon the committee and upon (c) The Secretary shall terminate the the trustees. provisions of this part whenever he [27 FR 8101, Aug. 15, 1962. Redesignated at 57 finds by referendum or otherwise that FR 38750, Aug. 27, 1992] such termination is favored by a majority of the growers: Provided, That § 929.71 Effect of termination or such majority has, during the current amendment. fiscal year, produced more than 50 per- Unless otherwise expressly provided cent of the volume of the cranberries by the Secretary, the termination of which were produced within the pro- this part or of any regulation issued

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pursuant to this part, or the issuance whatsoever, to any person for errors in of any amendment to either thereof, judgment, mistakes, or other acts, ei- shall not (a) affect or waive any right, ther of commission or ommission, as duty, obligation, or liability which such member, alternate, employee, or shall have arisen or which may there- agent, except for acts of dishonesty, after arise in connection with any pro- willful misconduct, or gross neg- vision of this part or any regulation ligence. issued hereunder, or (b) release or ex- [27 FR 8101, Aug. 15, 1962. Redesignated at 57 tinguish any violation of this part or FR 38750, Aug. 27, 1992] any regulation issued hereunder, or (c) affect or impair any rights or remedies § 929.76 Separability. of the Secretary or of any other person with respect to any such violation. If any provision of this part is declared invalid or the applicability [27 FR 8101, Aug. 15, 1962. Redesignated at 57 thereof to any person, circumstance, or FR 38750, Aug. 27, 1992] thing is held invalid, the validity of the remainder of this part or the applica- § 929.72 Duration of immunities. bility thereof to any other person, cir- The benefits, privileges, and immuni- cumstance, or thing shall not be af- ties conferred upon any person by vir- fected thereby. tue of this part shall cease upon its termination, except with respect to acts [27 FR 8101, Aug. 15, 1962. Redesignated at 57 FR 38750, Aug. 27, 1992] done under and during the existence of this part. Subpart—Rules and Regulations [27 FR 8101, Aug. 15, 1962. Redesignated at 57 FR 38750, Aug. 27, 1992] § 929.101 Minimum exemption. § 929.73 Agents. The requirements of § 929.41 Assess- ments and § 929.54 Withholding shall not The Secretary may, by designation in apply to any handler in a fiscal year writing, name any officer or employee during which the handler handles of the United States, or name any notmore than a total of 300 barrels of agency or division in the United States cranberries. Department of Agriculture, to act as his agent or representative in connec- [53 FR 12374, Apr. 14, 1988] tion with any of the provisions of this part. § 929.102 Procedure to determine quantity of screened cranberries in [27 FR 8101, Aug. 15, 1962. Redesignated at 57 unscreened lots. FR 38750, Aug. 27, 1992] The determination pursuant to § 929.74 Derogation. § 929.54 of the quantity of screened cranberries contained in an unscreened Nothing contained in this part is, or lot shall be made in accordance with shall be construed to be, in derogation the following procedure and on the or in modification of the rights of the basis of a sample of representative Secretary or of the United States (a) to boxes comprising no less than 2 percent exercise any powers granted by the act of the cranberries in the lot: or otherwise, or (b) in accordance with (a) The cranberries in the sample are such powers, to act in the premises cleaned to remove chaff, and the boxes whenever such action is deemed advis- of cleaned berries are weighed. The able. weight of the boxes themselves is then [27 FR 8101, Aug. 15, 1962. Redesignated at 57 deducted to determine the weight of FR 38750, Aug. 27, 1992] the cleaned berries. The weight of the cleaned berries is divided by the num- § 929.75 Personal liability. ber of boxes in the sample to obtain the No member or alternate member of net weight of cleaned cranberries per the committee and no employee or box. The net weight is multiplied by agent of the committee shall be held the number of boxes in the lot to ob- personally responsible, either individ- tain the net weight of the berries in ually or jointly with others, in any way the unscreened lot.

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(b) The cleaned berries are run § 929.104 Outlets for excess cran- through a separator, having a 9⁄32 inch berries. screen, and with the bounce boards in (a) In accordance with § 929.61, excess the lowest position. cranberries may be disposed of only in (c) The berries from the lower three the following noncommercial or non- bounce boards are rerun through the competitive outlets, but only if the re- separator. quirements in paragraph (b) of this sec- (d) The berries from the upper four tion are complied with: bounce boards are thoroughly mixed (1) Foreign countries, except Canada. and a random cupful (approximately 1 (2) Charitable institutions. pint) is used to determine, from a (3) Any nonhuman food use. count of the sound and unsound ber- (4) Research and development ries, the percentage of sound berries in projects approved by the committee the lot. dealing with the development of for- (e) Such percentage is adjusted by in- eign and domestic markets, including, creasing it by 5 percentage points but but not limited to dehydration, radi- not to exceed a total of 100 percent. ation, freeze drying, or freezing of (This increase makes the sample com- cranberries. parable to lots of screened cranberries, (b) Excess cranberries may not be as such lots generally contain an aver- converted into canned, frozen, or dehy- age of 5 percent unsound berries.) drated cranberries or other cranberry (f) The net weight, as determined in products by any commercial process. accordance with paragraph (a) of this Handlers may divert excess cranberries section, of the berries in the in the outlets listed in paragraph (a) of unscreened lot, is multiplied by the ad- this section only if they meet the di- justed percentage to obtain the quan- version requirements specified in tity of screened cranberries in the § 929.61(c). unscreened lot. [65 FR 42614, July 11, 2000, as amended at 66 FR 34351, June 27, 2001] [28 FR 11611, Oct. 31, 1963] § 929.105 Reporting. § 929.103 Inspection procedure. (a) Each report required to be filed (a) Inspection of withheld cranberries with the committee pursuant to §§ 929.6 shall be limited to any plant, storage and 929.48 shall be mailed to the com- facility, or other location, within the mittee office or delivered to that of- production area where facilities suit- fice. If the report is mailed, it shall be able to the inspection service are avail- deemed filed when postmarked. able for sampling, weighing, and in- (b) Certified reports shall be filed spection of cranberries. with the committee, on a form pro- (b) The handler offering any lot of vided by the committee, by each han- cranberries for inspection shall furnish dler not later than January 20, May 20, the necessary labor and pay the costs and August 20 of each fiscal period and of moving, weighing, and otherwise by September 20 of the succeeding fis- making available the sample the in- cal period showing: spector chooses for inspection. The size (1) The total quantity of cranberries of the sample shall be determined by the handler acquired and the total the inspector. In the case of inspection quantity of cranberries and Vaccinium of a lot of unscreened cranberries, the oxycoccus cranberries the handler han- sample shall be screened by the handler dled from the beginning of the report- under the supervision of the inspector ing period indicated through December and the inspection certificate shall 31, April 30, July 31, and August 31, re- show the quantity of cranberries in spectively, and such lot which meets the requirements (2) The respective quantities of cran- established for withheld cranberries berries and Vaccinium oxycoccus cran- pursuant to § 929.54(c). berries and cranberry products and Vaccinium oxycoccus cranberry products [28 FR 11611, Oct. 31, 1963] held by the handler on January 1, May

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1, August 1, and August 31 of each fis- ever, the sales history attributed to cal period. each portion shall not exceed the total [53 FR 12374, Apr. 14, 1988, as amended at 61 sales history, as determined by the FR 30498, June 17, 1996; 62 FR 916, Jan. 7, 1997; committee, for such acreage at the 75 FR 20516, Apr. 20, 2010] time of transfer. (d) During a year of regulation, all § 929.106 Fiscal period. transfers of growers’ sales histories for The fiscal period specified in § 929.6 of partial or total leases of acreage shall this part which began September 1, be received in the Committee office by 1968, and ends on August 31, 1969, is close of business on July 31. changed to include the period of Au- gust 1, through August 31, 1968. There- [59 FR 36023, July 15, 1994, as amended at 66 FR 34351, June 27, 2001] after, the fiscal period will begin on September 1 and end on August 31 of § 929.125 Committee review proce- the following year. dures. [33 FR 16492, Nov. 13, 1968] Growers may request, and the Com- mittee may grant, a review of deter- § 929.110 Transfers or sales of cranberry acreage. minations made by the Committee pursuant to section 929.48, in accordance (a) Sales or transfers of cranberry with the following procedures: acreage shall be reported by the trans- (a) If a grower is dissatisfied with a feror and transferee to the committee, determination made by the Committee in writing, on forms provided by the committee. Completed forms shall be which affects such grower, the grower sent to the committee office not later may submit to the Committee within than 30 days after the transaction has 30 days after receipt of the Commit- occurred. tee’s determination of sales history, a (b) Upon transfer of all or a portion request for a review by an appeals sub- of a growers’ acreage, the committee committee composed of two inde- shall be provided with certain informa- pendent and two cooperative represent- tion on the forms it will provide to the atives, as well as a public member. parties. The transferor and transferee Such appeals subcommittee shall be must provide the following informa- appointed by the Chairman of the Com- tion: mittee. Such grower may forward with (1) Crop records for the acreage in- the request any pertinent material for volved; consideration of such grower’s appeal. (2) Annual production and sales for (b) The subcommittee shall review each crop year on the acreage involved, the information submitted by the either in total, or for each individual grower and render a decision within 30 parcel; and days of receipt of such appeal. The sub- (3) Such other information as the committee shall notify the grower of committee deems necessary. its decision, accompanied by the rea- (c) Cranberry acreage sold or trans- sons for its conclusions and findings. ferred shall be recognized in connec- (c) The grower may further appeal to tion with the issuance of sales history the Secretary, within 15 days after no- as follows: (1) If a grower sells all of the acreage tification of the subcommittee’s find- comprising the entity, all prior sales ings, if such grower is not satisfied history shall accrue to the purchaser; with the appeals subcommittee’s deci- (2) If a grower sells only a portion of sion. The Committee shall forward a the acreage comprising the entity from file with all pertinent information re- which prior sales have been made, the lated to the grower’s appeal. The Sec- purchaser and the seller must agree as retary shall inform the grower and all to the amount of sales history attrib- interested parties of the Secretary’s uted to each portion and shall provide, decision. All decisions by the Secretary on a form provided by the committee, are final. sufficient information so that sales are [66 FR 34351, June 27, 2001] shown separately by crop year. How-

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§ 929.142 Reserve. planted or re-planted in 1999 and first harvested in 2001. (a) It is necessary and appropriate to (d) In addition to the sales history establish and maintain a reserve in an computed in accordance with para- amount not to exceed approximately graphs (a) and (b) of this section, addi- one fiscal period’s operational expenses tional sales history shall be assigned to to be used in accordance with the pro- growers with acreage planted in 1995 or visions of § 929.42 of the marketing later. The additional sales histories de- agreement and this part, and pending on the date the acreage is (b) Assessments collected for each of planted are shown in Table 1. the fiscal periods ended July 31, 1963; July 31, 1965; July 31, 1966; and July 31, TABLE 1—ADDITIONAL SALES HISTORY 1967, were in excess of expenses for such ASSIGNED TO ACREAGE periods. The committee is hereby authorized to place excess funds in said Additional 2001 sales reserve. Date planted history per acre [28 FR 11052, Oct. 16, 1963, as amended at 32 FR 13253, Sept. 20, 1967. Redesignated at 44 1995 ...... 49 FR 73011, Dec. 17, 1979] 1996 ...... 117 1997 ...... 157 1998 ...... 183 § 929.149 Determination of sales his- 1999 ...... 156 tory. 2000 ...... 75 A sales history for each grower shall be computed by the Committee in the (e) Fresh fruit sales shall be deducted following manner. from the sales histories. The sales his- (a) For each grower with acreage tory assigned to each grower shall rep- with 7 or more years of sales history, a resent processed sales only. new sales history shall be computed (f) If a grower’s fruit does not qualify using an average of the highest 4 of the as fresh fruit upon delivery to the han- most recent 7 years of sales. If the dler, and it is converted to processed grower has acreage with 6 years sales fruit, the handler shall give priority to history, a new sales history shall be this grower when allocating unused al- computed by averaging the highest 4 of lotment if the grower does not have the 6 years. If the grower has acreage sufficient processed sales history to with 5 years of sales history and such cover the converted fruit. acreage was planted prior to 1995, a [66 FR 34351, June 27, 2001] new sales history shall be computed by averaging the highest 4 of the 5 years. § 929.150 Transfer or assignment of (b) For growers whose acreage has 5 sales history. years of sales history and was planted (a) If indebtedness is incurred with in 1995 or later, the sales history shall regard to the acreage to which the be computed by averaging the highest 4 cranberries are attributed, and on of the 5 years and shall be adjusted as which a sales history is established, provided in paragraph (d). For growers the sales history holder may transfer whose acreage has 4 years of sales his- or assign the sales history solely as se- tory, the sales history shall be com- curity for the loan. During the exist- puted by averaging all 4 years and shall ence of such indebtedness no further be adjusted as provided in paragraph transfer or assignment of sales history (d). For growers whose acreage has 1 to by the sales history holder shall be rec- 3 years of sales history, the sales his- ognized by the committee unless the tory shall be computed by dividing the lender agrees thereto: Provided, That a total years sales by 4 and shall be ad- copy of such loan agreement or assign- justed as provided in paragraph (d). ment shall be filed with the committee (c) For growers with acreage with no before any right expressed therein, sales history or for the first harvest of with regard to the sales history, shall replanted acres, the sales history will be recognized by the committee under be 75 barrels per acre for acres planted this paragraph (a). or re-planted in 2000 and first harvested (b) This regulation shall not in any in 2001 and 156 barrels per acre for acres way be construed to affect the right of

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the Secretary of Agriculture to amend, packed-out fresh or organic cranberry modify or terminate this regulation, or sales on the grower acquisition form. the marketing order under which it is issued as provided by law. [66 FR 34351, June 27, 2001] [34 FR 705, Jan. 17, 1969, as amended at 59 FR § 929.160 Public member eligibility re- 36023, July 15, 1994] quirements and nomination procedures. § 929.152 Delinquent assessments. (a) Public member and alternate There shall be a late payment charge member candidates shall not represent of five percent and an interest charge an agricultural interest and shall not of 11⁄2 percent per month applied to any have a financial interest in, or be asso- assessment not received at the com- ciated with the production, processing, mittee’s office before the end of the financing, or marketing of cranberries. month in which such assessment was (b) Public member and alternate first invoiced to the handler: Provided, member candidates should be able to That if an assessment is first invoiced devote sufficient time to attend com- later than the 15th of the month, no mittee activities regularly and to fa- late payment or interest charge shall miliarize themselves with the back- be levied if such assessment is received ground and economies of the cranberry at the committee office by the end of industry. the following month in which the as- (c) Names of candidates together sessment was first invoiced to the han- with evidence of qualification for pub- dler. lic membership on the Cranberry Mar- [60 FR 2, Jan. 3, 1995] keting Committee shall be submitted to the committee at its business office. § 929.158 Exemptions. (d) Questionnaires shall be sent by If fresh and organically-grown cran- the committee to those persons sub- berries are exempted from the volume mitted as candidates to determine regulation as recommended by the their eligibility and interest in becom- Committee and approved by the Sec- ing a public member. retary, the following provisions to (e) The names of persons nominated these exemptions shall apply: by the committee for the public mem- (a) Sales of packed-out cranberries ber and alternate positions shall be intended for sales to consumers in submitted to the Secretary with such fresh form shall be exempt from vol- information as deemed pertinent by ume regulation provisions. Fresh cran- the committee or as requested by the berries are also sold dry in bulk boxes Secretary. generally weighing less than 30 pounds. (f) Public members shall serve a two- Fresh cranberries intended for retail year term which coincides with the markets are not sold wet. If any such fresh cranberries are diverted into term of office of industry members of processing outlets, the exemption no the committee. longer applies. Growers who intend to [44 FR 16884, Mar. 20, 1979, as amended at 53 handle fresh fruit shall notify the com- FR 12374, Apr. 14, 1988] mittee of their intent to sell over 300 EDITORIAL NOTE: After January 1, 1979, barrels of fresh fruit. ‘‘Budget of Expenses and Rate of Assessment’’ (b) Sales of organically-grown cran- regulations (e.g. sections .200 through .299) berries are exempt from volume regula- and ‘‘Handling’’ regulations (e.g. sections .300 tion provisions. In order to receive an through .399) which are in effect for a year or exemption for organic cranberry sales, less, will not be carried in the Code of Fed- such cranberries must be certified as eral Regulations. For FEDERAL REGISTER ci- such by a third party organic certi- tations affecting these regulations, see the fying organization acceptable to the List of CFR Sections Affected, which appears committee. in the Finding Aids section of the printed (c) Handlers shall qualify for the ex- volume and at www.fdsys.gov. emptions in paragraphs (a) and (b) of this section by filing the amount of

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§ 929.161 Nomination and balloting § 929.251 Marketable quantity and al- procedures for candidates other lotment percentage for the 2001– than the major cooperative mar- 2002 crop year. keting organization. The marketable quantity for the (a) During the nomination process, 2001–2002 crop year is set at 4.6 million each eligible candidate shall indicate if barrels and the allotment percentage is he/she is seeking a position on the designated at 65 percent. Fresh and or- Committee as a member or alternate ganically grown fruit shall be exempt member. from the volume regulation provisions (b) Ballots provided by the Com- of this section. mittee shall include the names of those [66 FR 34352, June 27, 2001] candidates seeking member positions on the Committee and those seeking PART 930—TART CHERRIES GROWN alternate member positions. IN THE STATES OF MICHIGAN, (c) All ballots shall be received by a NEW YORK, PENNSYLVANIA, OR- date designated by the Committee of- EGON, UTAH, WASHINGTON, fice staff. Votes for member positions AND WISCONSIN and alternate member positions shall be tabulated separately. In districts en- Subpart—Order Regulating Handling titled to one member, the successful candidate shall be the person receiving DEFINITIONS the highest number of votes as a mem- Sec. ber or alternate member. In districts 930.1 Act. entitled to two members, the success- 930.2 Board. 930.3 Cherries. ful candidates shall be those receiving 930.4 Crop year. the highest and second highest number 930.5 Department or USDA. of votes as members or alternate mem- 930.6 District. bers. Those names shall then be for- 930.7 Fiscal period. warded to the Secretary for selection. 930.8 Free market tonnage percentage cherries. [75 FR 18395, Apr. 12, 2010] 930.9 Grower. 930.10 Handle. 930.11 Handler. Subpart—Assessment Rate 930.12 Person. 930.13 Primary inventory reserve. § 929.236 Assessment rate. 930.14 Production area. On and after September 1, 2006, an as- 930.15 Restricted percentage cherries. 930.16 Sales constituency. sessment rate of $.28 per barrel is es- 930.17 Secondary inventory reserve. tablished for cranberries. 930.18 Secretary.

[72 FR 14654, Mar. 29, 2007] ADMINISTRATIVE BODY § 929.250 Marketable quantity and al- 930.20 Establishment and membership. lotment percentage for the 2000– 930.21 Reestablishment. 2001 crop year. 930.22 Term of office. 930.23 Nomination and election. The marketable quantity for the 930.24 Appointment. 2000–2001 crop year is set at 5.468 mil- 930.25 Failure to nominate. lion barrels and the allotment percent- 930.26 Acceptance. 930.27 Vacancies. age is designated at 85 percent. The 930.28 Alternate members. marketable quantity may be adjusted 930.29 Eligibility for membership on Cherry to retain the 85 percent allotment per- Industry Administrative Board. centage if the total industry sales his- 930.30 Powers. tory increases due to established grow- 930.31 Duties. ers receiving additional sales history 930.32 Procedure. 930.33 Expenses and compensation. on acreage with four years sales or less. EXPENSES AND ASSESSMENTS [65 FR 42615, July 11, 2000] 930.40 Expenses. 930.41 Assessments.

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930.42 Accounting. AUTHORITY: 7 U.S.C. 601–674

QUALITY CONTROL SOURCE: 61 FR 49942, Sept. 24, 1996, unless otherwise noted. 930.44 Quality control.

RESEARCH, MARKET DEVELOPMENT AND Subpart—Order Regulating PROMOTION Handling 930.48 Research, market development and promotion. DEFINITIONS

REGULATIONS § 930.1 Act. 930.50 Marketing policy. Act means Public Act No. 10, 73d Con- 930.51 Issuance of volume regulations. gress (May 12, 1933), as amended, and as 930.52 Establishment of districts subject to reenacted and amended by the Agricul- volume regulations. tural Marketing Agreement Act of 1937, 930.53 Modification, suspension, or termination of regulations. as amended (48 Stat. 31, as amended, 68 930.54 Prohibition on the use or disposition Stat. 906, 1047; 7 U.S.C. 601 et seq.). of inventory reserve cherries. 930.55 Primary inventory reserves. § 930.2 Board. 930.56 Off-premise inventory reserve. Board means the Cherry Industry Ad- 930.57 Secondary inventory reserve. ministrative Board established pursu- 930.58 Grower diversion privilege. 930.59 Handler diversion privilege. ant to § 930.20. 930.60 Equity holders. 930.61 Handler compensation. § 930.3 Cherries. 930.62 Exempt uses. Cherries means all tart/sour cherry 930.63 Deferment of restricted obligation. varieties grown in the production area REPORTS AND RECORDS classified botanically as Prunus cerasas, or hybrids of Prunus cerasas by Prunus 930.70 Reports. avium, or Prunus cerasas by Prunus 930.71 Records. fruticosa. 930.72 Verification of reports and records. 930.73 Confidential information. § 930.4 Crop year. MISCELLANEOUS PROVISIONS Crop year means the 12-month period 930.80 Compliance. beginning on July 1 of any year and 930.81 Right of the Secretary. ending on June 30 of the following 930.82 Effective time. year, or such other period as the Board, 930.83 Termination. with the approval of the Secretary, 930.84 Proceedings after termination. may establish. 930.85 Effect of termination or amendment. 930.86 Duration of immunities. 930.87 Agents. § 930.5 Department or USDA. 930.88 Derogation. Department or USDA means the 930.89 Personal liability. United States Department of Agri- 930.90 Separability. culture. 930.91 Amendments. 930.100 Grower diversion certificates. § 930.6 District. 930.107 Fiscal period. 930.120 Board membership. District means one of the subdivisions of the production area described in Subpart—Administrative Rules and § 930.20(c), or such other subdivisions as Regulations may be established pursuant to § 930.21, or any subdivision added pursuant to 930.133 Compensation rate. 930.141 Delinquent assessments. § 930.52. 930.158 Grower diversion and grower diversion certificates. § 930.7 Fiscal period. 930.159 Handler diversion. Fiscal period is synonymous with fis- 930.162 Exemptions. cal year and means the 12-month pe- 930.163 Deferment of restricted obligation. riod beginning on July 1 of any year and ending on June 30 of the following Subpart—Assessment Rates year, or such other period as the Board, 930.200 Assessment rates. with the approval of the Secretary,

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may establish: Provided, that the ini- (d) The sale or transportation of tial fiscal period shall begin on the ef- cherries by a grower to a handler of fective date of this part. record within the production area. (e) The sale of cherries in the fresh § 930.8 Free market tonnage percent- market in an unpitted condition. age cherries. Free market tonnage percentage cher- § 930.11 Handler. ries means that proportion of cherries Handler means any person who first handled in a crop year which are free handles cherries or causes cherries to to be marketed in normal commercial be handled for his or her own account. outlets in that crop year under any § 930.12 Person. volume regulation established pursuant to § 930.50 or § 930.51 and, in the ab- Person means an individual, partner- sence of a restricted percentage being ship, corporation, association, or any established for a crop year pursuant to other business unit. § 930.50 or § 930.51, means all cherries re- § 930.13 Primary inventory reserve. ceived by handlers in that crop year. Primary inventory reserve means that § 930.9 Grower. portion of handled cherries that are placed into handlers’ inventories in ac- Grower is synonymous with producer cordance with any restricted percent- and means any person who produces age established pursuant to § 930.50 or cherries to be marketed in canned, fro- § 930.51. zen, or other processed form and who has a proprietary interest therein: Pro- § 930.14 Production area. vided that, the term grower shall not Production area means the States of include a person who produces cherries Michigan, New York, Pennsylvania, Or- to be marketed exclusively for the egon, Utah, Washington and Wisconsin. fresh market in an unpitted condition. § 930.15 Restricted percentage cher- § 930.10 Handle. ries. Handle means the process to brine, Restricted percentage cherries means can, concentrate, freeze, dehydrate, that proportion of cherries handled in a pit, press or puree cherries, or in any crop year which must be either placed other way convert cherries commer- into handlers’ inventories in accord- cially into a processed product, or di- ance with § 930.55 or § 930.57 or other- vert cherries pursuant to § 930.59 or ob- wise diverted in accordance with tain grower diversion certificates § 930.59 and thereby withheld from mar- issued pursuant to § 930.58, or otherwise keting in normal commercial outlets place cherries into the current of com- under any volume regulation estab- merce within the production area or lished pursuant to § 930.50 or § 930.51. from the area to points outside thereof: Provided, That the term handle shall § 930.16 Sales constituency. not include: Sales constituency means a common (a) The brining, canning, concen- marketing organization or brokerage trating, freezing, dehydration, pitting, firm or individual representing a group pressing or the converting, in any of handlers and growers. An organiza- other way, of cherries into a processed tion which receives consignments of product for home use and not for re- cherries and does not direct where the sale. consigned cherries are sold is not a (b) The transportation within the sales constituency. production area of cherries from the [66 FR 35896, July 10, 2001] orchard where grown to a processing facility located within such area for § 930.17 Secondary inventory reserve. preparation for market. Secondary inventory reserve means any (c) The delivery of such cherries to portion of handled cherries voluntarily such processing facility for such prepa- placed into inventory by a handler ration. under § 930.57.

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§ 930.18 Secretary. (c) Upon the adoption of this part, the production area shall be divided Secretary means the Secretary of Ag- into the following described subdivi- riculture of the United States, or any sions for purposes of this section: officer or employee of the U.S. Depart- ment of Agriculture to whom authority District 1—Northern Michigan: that portion has heretofore been delegated, or to of the State of Michigan which is north of whom authority may hereafter be dele- a line drawn along the northern boundary gated, to act in the Secretary’s stead. of Mason County and extended east to Lake Huron. ADMINISTRATIVE BODY District 2—Central Michigan: that portion of the State of Michigan which is south of § 930.20 Establishment and member- District 1 and north of a line drawn along ship. the northern boundary of Allegan County and extended east to Lake St. Clair. (a) There is hereby established a District 3—Southern Michigan: That portion Cherry Industry Administrative Board, of the State of Michigan not included in the membership of which shall be cal- Districts 1 and 2. culated in accordance with paragraph District 4—The State of New York. (b) of this section. The number of District 5—The State of Oregon. Board members may vary, depending District 6—The State of Pennsylvania. upon the production levels of the dis- District 7—The State of Utah. tricts. All but one of these members District 8—The State of Washington. shall be qualified growers and handlers District 9—The State of Wisconsin. selected pursuant to this part, each of (d) The ratio of grower to handler whom shall have an alternate having representation in districts with three the same qualifications as the member members shall alternate each time the for whom the person is an alternate. term of a Board member from the rep- One member of the Board shall be a resentative group having two seats ex- public member who, along with his or pires. During the initial period of the her alternate, shall be elected by the order, the ratio shall be as designated Board from the general public. in paragraph (b) of this section. (b) District representation on the (e) Board members from districts Board shall be based upon the previous with one seat may be either grower or three-year average production in the handler members and will be nomi- district and shall be established as fol- nated and elected as outlined in § 930.23. lows: (f) If the 3-year average production of (1) Up to and including 10 million a district changes so that a different pounds shall have 1 member; number of seats should be allocated to (2) Greater than 10 and up to and in- the district, then the Board will be re- cluding 40 million pounds shall have 2 established by the Secretary, and such members; seats will be filled according to the ap- (3) Greater than 40 and up to and in- plicable provisions of this part. Each cluding 80 million pounds shall have 3 district’s 3-year average production members; and shall be recalculated annually as soon (4) Greater than 80 million pounds as possible after each season’s final shall have 4 members; and production figures are known. (5) Allocation of the seats in each dis- (g) In order to achieve a fair and bal- trict shall be as follows but subject to anced representation on the Board, and the provisions of paragraphs (d), (e) and to prevent any one sales constituency (f) of this section: from gaining control of the Board, not more than one Board member may be Grower Handler District type members or members from, or affiliated with, a single sales constituency in those districts having Up to and including 10 million more than one seat on the Board; Pro- pounds ...... 1 1 More than 10 and up to 40 mil- vided, That this prohibition shall not lion pounds ...... 1 1 apply in a district where such a con- More than 40 and up to 80 mil- flict cannot be avoided. There is no lion pounds ...... 1 2 prohibition on the number of Board More than 80 million pounds ..... 2 2 members from differing districts that

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may be elected from a single sales con- one fiscal year, and one-half of such stituency which may have operations initial members and alternates shall in more than one district. However, as serve two fiscal years (determination provided in § 930.23, a handler or grower of which of the initial members and may only nominate Board members their alternates shall serve for 1 fiscal and vote in one district. year, 2 fiscal years, or 3 fiscal years, in (h) Subject to the approval of the both instances, shall be by lot). Mem- Secretary, the Board shall at its first bers and alternate members shall serve meeting and annually thereafter elect in such capacity for the portion of the from among any of its members a term of office for which they are se- chairperson and a vice-chairperson and may elect other appropriate officers. lected and have qualified until their re- (i) The Board, with the approval of spective successors are selected, have the Secretary, may establish rules and qualified and are appointed. The con- regulation’s necessary and incidental secutive terms of office of grower, han- to the administration of this section. dler and public members and alternate members shall be limited to two 3-year [61 FR 49942, Sept. 24, 1996, as amended at FR 51713, Aug. 8, 2002; 75 FR 33677, June 15, 2010] terms, excluding any initial term last- ing less than 3 years. The term of office § 930.21 Reestablishment. of a member and alternate member for Districts, subdivisions of districts, the same seat shall be the same. If this and the distribution of representation part becomes effective on a date such among growers and handlers within a that the initial fiscal period is less respective district or subdivision there- than six months in duration, then the of, or among the subdivision of dis- tolling of time for purposes of this sub- tricts, may be reestablished by the Sec- section shall not begin until the begin- retary, subject to the provisions of ning of the first 12-month fiscal period. § 930.23, based upon recommendations by the Board. In recommending any § 930.23 Nomination and election. such changes, the Board shall consider: (a) Forms and ballots. Nomination and (a) The relative importance of pro- election of initial and successor mem- ducing areas; bers and alternate members of the (b) Relative production; Board shall be conducted through peti- (c) The geographic locations of producing areas as they would affect the tion forms and election ballots distrib- efficiency of administration of this uted to all eligible growers and han- part; dlers via the U.S. Postal Service or (d) Shifts in cherry production within other means, as determined by the Sec- the districts and the production area; retary. Similar petition forms and (e) Changes in the proportion and election ballots shall be used for both role of growers and handlers within the members and alternate members and districts; and any requirements for election of a (f) Other relevant factors. member shall apply to the election of an alternate. § 930.22 Term of office. (b) Nomination. (1) In order for the The term of office of each member name of a grower nominee to appear on and alternate member of the Board an election ballot, the nominee’s name shall be for three fiscal years: Provided must be submitted with a petition that, of the nine initial members and form, to be supplied by the Secretary alternates from the combination of or the Board, which, except in District Districts 1, 2 and 3, one-third of such 8, contains at least five signatures of initial members and alternates shall growers, other than the nominee, from serve only one fiscal year, one-third of the nominee’s district who are eligible such members and alternates shall to vote in the referendum. Grower peti- serve only two fiscal years, one-third of tion forms in District 8 must be signed such members and alternates shall by only two growers, other than the serve three fiscal years; and one-half of the initial members and alternates nominee, from the nominee’s district. from Districts 4 and 7 shall serve only

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(2) In order for the name of a handler second district in the same election nominee to appear on an election bal- cycle. If a person is a grower and a lot, the nominee’s name must be sub- grower-handler only because some or mitted with a petition form, to be sup- all of his or her cherries were custom plied by the Secretary or the Board, packed, but he or she does not own or which contains the signature of one or lease and operate a processing facility, more handler(s), other than the nomi- such person may vote only as a grower. nee, from the nominee’s district who is (5) In districts entitled to only one or are eligible to vote in the election Board member, both growers and han- and that handle(s) a combined total of dlers may be nominated for the dis- no less than five percent (5%) of the av- trict’s Board seat. Grower and handler erage production, as that term is used nominations must follow the petition § 930.20, handled in the district. Pro- procedures outlined in paragraphs vided, that this requirement shall not (b)(1) and (b)(2) of this section. apply if its application would result in (6) All eligible growers and handlers a sales constituency conflict as pro- in all districts may submit the names vided in § 930.20(g). The requirement of the nominees for the public member that the petition form be signed by a and alternate public member of the handler other than the nominee shall Board. not apply in any district where fewer (7) After the appointment of the ini- than two handlers are eligible to vote. tial Board, the Secretary or the Board (3) Only growers, including duly au- shall announce at least 180 days in ad- thorized officers or employees of grow- vance when a Board member’s term is ers, who are eligible to serve as grower expiring and shall solicit nominations members of the Board shall participate for that position in the manner de- in the nomination of grower members scribed in this section. Nominations for and alternate grower members of the such position should be submitted to Board. No grower shall participate in the Secretary or the Board not less the submission of nominees in more than 120 days prior to the expiration of than one district during any fiscal pe- such term. riod. If a grower produces cherries in (c) Election. (1) After receiving nomi- more than one district, that grower nations, the Secretary or the Board may select in which district he or she shall distribute ballots via the U.S. wishes to participate in the nomina- Postal Service or other means, as de- tions and election process and shall no- termined by the Secretary, to all eligi- tify the Secretary or the Board of such ble growers and handlers containing selection. A grower may not partici- the names of the nominees by district pate in the nomination process in one for the respective seats on the Board, district and the election process in a excluding the public voting member second district in the same election seat. The ballots will clearly indicate cycle. that growers and handlers may only (4) Only handlers, including duly au- rank or otherwise vote for nominees in thorized officers or employees of han- their own district. dlers, who are eligible to serve as han- (2) Except as provided in paragraph dler members of the Board shall par- (c)(4) of this section, only growers, in- ticipate in the nomination of handler cluding duly authorized officers or em- members and alternate handler mem- ployees of growers, who are eligible to bers of the Board. No handler shall par- serve as grower members of the Board ticipate in the selection of nominees in shall participate in the election of more than one district during any fis- grower members and alternate grower cal period. If a handler handles cherries members of the Board. No grower shall in more than one district, that handler participate in the election of Board may select in which district he or she members in more than one district dur- wishes to participate in the nomina- ing any fiscal period. If a grower pro- tions and election process and shall no- duces cherries in more than one dis- tify the Secretary or the Board of such trict, the grower must vote in the same selection. A handler may not partici- district in which he or she chose to pate in the nominations process in one participate in the nominations process district and the elections process in a under paragraph (b)(3) of this section.

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However, if the grower did not partici- this section or from other persons nom- pate in the nominations process, he or inated by the Board. The persons se- she may select in which district he or lected shall be subject to appointment she wishes to vote and shall notify the by the Secretary under § 930.24. Secretary or the Board of such selec- (e) The Board, with the approval of tion. the Secretary, may establish rules and (3)(i) Except as provided in paragraph regulations necessary and incidental to (c)(4) of this section, only handlers, in- the administration of this section. cluding duly authorized officers or employees of handlers, who are eligible to [61 FR 49942, Sept. 24, 1996, as amended at 75 FR 33677, June 15, 2010] serve as handler members of the Board shall participate in the election of han- § 930.24 Appointment. dler members and alternate handler members of the Board. No handler shall The selection of nominees made pur- participate in the election of Board suant to elections conducted under members in more than one district dur- § 930.23(c) shall be submitted to the Sec- ing any fiscal period. If a handler does retary in a format which indicates the handle cherries in more than one dis- nominees by district, with the nominee trict, he or she must vote in the same receiving the highest number of votes district in which the handler elected to at the top and the number of votes re- participate in the nominations process ceived being clearly indicated. The under paragraph (b)(4) of this section. Secretary shall appoint from those However, if a handler did not partici- nominees or from other qualified indi- pate in the nominations process, that viduals, the grower and handler mem- handler may select in which district he bers of the Board and an alternate for or she chooses to vote and shall notify each such member on the basis of the the Secretary or the Board of such se- representation provided for in § 930.20 lection. If a person is a grower and a or as provided for in any reapportion- grower-handler only because some or ment or reestablishment undertaken all of his or her cherries were custom pursuant to § 930.21. The public member packed, but he or she does not own or and alternate public member are nomi- lease and operate a processing facility, nated by the Board pursuant to such person may vote only as a grower. § 930.23(d) and shall also be subject to (ii) To be seated as a handler rep- appointment by the Secretary. The resentative in any district, the success- Secretary shall appoint from nominees ful candidate must receive the support by the Board or from other qualified of handler(s) that handled a combined individuals the public member and the total of no less than five percent (5%), alternate public member. of the average production, as that term § 930.25 Failure to nominate. is used in § 930.20, handled in the district; Provided, that this paragraph If nominations are not made within shall not apply if its application would the time and in the manner prescribed result in a sales constituency conflict in § 930.23, the Secretary may, without as provided in § 930.20(g). regard to nominations, select the mem- (4) In districts entitled to only one bers and alternate members of the Board member, growers and handlers Board on the basis of the representa- may vote for either the grower or han- tion provided for in § 930.20 or as pro- dler nominee(s) for the single seat allo- vided for in any reapportionment or re- cated to those districts. establishment undertaken pursuant to (d) The members of the Board ap- § 930.21. pointed by the Secretary pursuant to § 930.24 shall, at the first meeting and § 930.26 Acceptance. whenever necessary thereafter, by at Each person to be appointed by the least a two-thirds vote of the entire Secretary as a member or as an alter- Board, select individuals to serve as nate member of the Board shall, prior the public member and alternate public to such appointment, qualify by advis- member of the Board from the list of ing the Secretary that he/she agrees to nominees received from growers and serve in the position for which nomi- handlers pursuant to paragraph (b) of nated for selection.

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§ 930.27 Vacancies. ployee of a handler, who owns, or leases, and operates a cherry proc- To fill any vacancy occasioned by the essing facility in the district for which failure of any person appointed as a nominated or appointed. member or as an alternate member of (c) The public member and alternate the Board to qualify, or in the event of public member of the Board shall be the death, removal, resignation, or dis- prohibited from having any financial qualification of any member or alter- interest in the cherry industry and nate member of the Board, a successor shall possess such additional qualifica- for the unexpired term of such member tions as may be established by regula- or alternate member of the Board shall tion. be appointed by the Secretary from the most recent list of nominations for the § 930.30 Powers. Board made by growers and handlers, from nominations made by the Board, The Board shall have the following or from other qualified individuals. powers: Any nominations made by the Board to (a) To administer this part in accord- fill a vacancy must be received by the ance with its terms and provisions; (b) To make rules and regulations to Secretary within 90 days of the effec- effectuate the terms and provisions of tive date of the vacancy. Board mem- this part; bers wishing to resign from the Board (c) To receive, investigate, and report must do so in writing to the Secretary. to the Secretary complaints of viola- § 930.28 Alternate members. tions of this part; and (d) To recommend to the Secretary An alternate member of the Board, amendments to this part. during the absence of the member for whom that member serves as an alter- § 930.31 Duties. nate, shall act in the place and stead of The Board shall have, among others, such member and perform such other the following duties: duties as assigned. However, if a mem- (a) To select such officers, including ber is in attendance at a meeting of the a chairperson and vice-chairperson, as Board, an alternate member may not may be necessary, and to define the du- act in the place and stead of such mem- ties of such officers and the duties of ber. In the event a member and his or the chairperson and the vice-chair- her alternate are absent from a meet- person; ing of the Board, such member may (b) To employ or contract with such designate, in writing and prior to the persons or agents as the Board deems meeting, another alternate to act in necessary and to determine the duties his or her place: Provided, that such al- and compensation of such persons or ternate represents the same group agents; (grower or handler) as the member. In (c) To select such committees and the event of the death, removal, res- subcommittees as may be necessary; ignation or disqualification of a mem- (d) To adopt bylaws and to adopt ber, the alternate shall act for the such rules for the conduct of its busi- member until a successor is appointed ness as it may deem advisable; and has qualified. (e) To submit to the Secretary a [67 FR 51714, Aug. 8, 2002] budget for each fiscal period, prior to the beginning of such period, including § 930.29 Eligibility for membership on a report explaining the items appearing Cherry Industry Administrative therein and a recommendation as to Board. the rates of assessments for such pe- (a) Each grower member and each riod; grower alternate member of the Board (f) To keep minutes, books, and shall be a grower, or an officer or em- records which will reflect all of the ployee of a grower, in the district for acts and transactions of the Board and which nominated or appointed. which shall be subject to examination (b) Each handler member and each by the Secretary; handler alternate member of the Board (g) To prepare periodic statements of shall be a handler, or an officer or em- the financial operations of the Board

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and to make copies of each statement cost thereof with funds collected available to growers and handlers for through assessments pursuant to examination at the office of the Board; § 930.41 and income from such assess- (h) To cause its financial statements ments. Contracts or agreements for to be audited by a certified public ac- any plan or project shall provide that: countant at least once each fiscal year (1) The contractors shall develop and and at such times as the Secretary submit to the Board a plan or project may request. Such audit shall include together with a budget(s) which shall an examination of the receipt of assess- show the estimated cost to be incurred ments and the disbursement of all for such plan or project; funds. The Board shall provide the Sec- (2) Any contract or agreement for a retary with a copy of all audits and plan or project and any plan or project shall make copies of such audits, after adopted by the Board shall only be- the removal of any confidential indi- come effective upon approval by the vidual grower or handler information Secretary; and that may be contained in them, avail- (3) Every such contracting party able to growers and handlers for exam- shall keep accurate records of all of its ination at the offices of the Board; transactions and make periodic reports (i) To act as intermediary between to the Board of activities conducted the Secretary and any grower or han- and an accounting for funds received dler with respect to the operations of and expended, and such other reports this part; as the Secretary or the Board may re- (j) To investigate and assemble data quire. The Secretary or employees of on the growing, handling, and mar- the Board may audit periodically the keting conditions with respect to cher- records of the contracting party; ries; (s) Pending disbursement consistent (k) To apprise the Secretary of all with its budget, to invest, with the ap- Board meetings in a timely manner; proval of the Secretary, and in accord- (l) To submit to the Secretary such ance with applicable Departmental available information as the Secretary policies, funds collected through as- may request; sessments authorized under § 930.41 and (m) To investigate compliance with income from such assessments; the provisions of this part; (t) To establish standards or grade (n) To develop and submit an annual requirements for cherries for frozen marketing policy for approval by the and canned cherry products, subject to Secretary containing the optimum sup- the approval of the Secretary; ply of cherries for the crop year estab- (u) To borrow such funds, subject to lished pursuant to § 930.50 and recom- the approval of the Secretary and not mending such action(s) necessary to to exceed the expected expenses of one achieve such optimum supply; fiscal year, as are necessary for admin- (o) To implement volume regulations istering its responsibilities and obliga- established under § 930.50 and issued by tions under this part; and the Secretary under § 930.51, including (v) To establish, with the approval of the release of any inventory reserves; the Secretary, such rules and proce- (p) To provide thorough communica- dures relative to administration of this tion to growers and handlers regarding subpart as may be consistent with the the activities of the Board and to re- provisions contained in this subpart spond to industry inquiries about and as may be necessary to accomplish Board activities; the purposes of the Act and the effi- (q) To oversee the collection of as- cient administration of this subpart. sessments levied under this part; (r) To enter into contracts or agree- § 930.32 Procedure. ments with such persons and organiza- (a) Two-thirds of the members of the tions as the Board may approve for the Board, including alternates acting for development and conduct of activities, absent members, shall constitute a including research and promotion ac- quorum. For any action of the Board to tivities, authorized under this part or pass, at least two-thirds of the entire for the provision of services required Board must vote in support of such ac- by this part and for the payment of the tion.

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(b) The Board may provide through Board, costs of inspection, and any re- its own rules and regulations, subject search, development and promotion ac- to approval by the Secretary, for si- tivities initiated by the Board under multaneous meetings of groups of its § 930.48. members assembled at different loca- (b) Each part of an assessment in- tions and for votes to be conducted by tended to cover the costs of each activ- telephone or other means of commu- ity in paragraph (a) of this section, nication. Votes so cast shall be must be identified and approved by the promptly confirmed in writing. Board and the Secretary, and any noti- (c) All meetings of the Board are fication or other statement regarding open to the public, although the Board assessments provided to handlers must may hold portions of meetings in exec- contain such information. utive session for the consideration of (c) As a pro rata share of the admin- certain business. The Board will estab- istrative, inspection, research, develop- lish, with the approval of the Sec- ment, and promotion expenses which retary, a means of advanced notification of growers and handlers of Board the Secretary finds reasonable and meetings. likely to be incurred by the Board during a fiscal period, each handler shall [61 FR 49942, Sept. 24, 1996, as amended at 67 pay to the Board assessments on all FR 51714, Aug. 8, 2002] cherries handled, as the handler thereof, during such period: Provided, a han- § 930.33 Expenses and compensation. dler shall be exempt from any assess- Except for the public member and al- ment only on the tonnage of handled ternate public member who shall re- cherries that either are diverted by de- ceive such compensation as the Board struction at the handler’s facilities ac- may establish and the Secretary may cording to § 930.59 or are cherries rep- approve, the members of the Board, resented by grower diversion certifi- and alternates when acting as mem- cates issued pursuant to § 930.58(b) and bers, shall serve without compensation acquired by handlers as described in but shall be reimbursed for necessary § 930.59. and reasonable expenses, as approved (d) The Secretary, after consider- by the Board, incurred by them in the ation of the recommendation of the performance of their duties under this Board, shall fix the rate of assessment part. The Board at its discretion may to be paid by each handler during the request the attendance of one or more alternates at any or all meetings, not- fiscal period in an amount designed to withstanding the expected or actual secure sufficient funds to cover the ex- presence of the respective member(s), penses which may be approved and in- and may pay the expenses of such al- curred during such period or subse- ternates. quent period as provided in paragraph (c) of this section. At any time during EXPENSES AND ASSESSMENTS or after the fiscal period, the Secretary may increase the rate of assessment in § 930.40 Expenses. order to secure sufficient funds to The Board is authorized to incur such cover any later finding by the Sec- expenses as the Secretary finds are rea- retary relative to the expenses which sonable and likely to be incurred for its may be incurred. Such increase shall be maintenance and functioning and to applied to all cherries handled during enable it to exercise its powers and per- the applicable fiscal period. In order to form its duties in accordance with the provide funds for the administration of provisions of this part. The funds to the provisions of this part during the cover such expenses shall be acquired first part of a fiscal period before suffi- by the levying of assessments as pro- cient operating income is available vided in § 930.41. from assessments, the Board may accept the payment of assessments in ad- § 930.41 Assessments. vance, and may borrow money for such (a) An assessment may be levied upon purposes. handlers annually under this part to (e) Assessments not paid within a cover the administrative costs of the time prescribed by the Board may be

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made subject to interest or late pay- (b) All funds received by the Board ment charges, or both. The period of pursuant to the provisions of this part time, rate of interest, and late pay- shall be used solely for the purpose ment charge will be as recommended specified in this part and shall be ac- by the Board and approved by the Sec- counted for in the manner provided in retary: Provided, That when interest or this part. The Secretary may at any late payment charges are in effect, time require the Board and its mem- they shall be applied to all assessments bers to account for all receipts and dis- not paid within the prescribed period of bursements. time. (f) Assessments shall be calculated on QUALITY CONTROL the basis of pounds of cherries handled. § 930.44 Quality control. The established assessment rate may be uniform, or may vary dependent on (a) Quality standards. The Board may the product the cherries are used to establish, with the approval of the Sec- manufacture. In recommending annual retary, such minimum quality and in- assessment rates, the Board shall con- spection requirements applicable to sider: cherries as will contribute to orderly marketing or be in the public interest. (1) The differences in the number of If such requirements are adopted, no pounds of cherries utilized for various handler shall process cherries into cherry products; and manufactured products or sell manu- (2) The relative market values of factured products in the current of such cherry products. commerce unless such cherries and/or (g) The Board, with the approval of such cherries used in the manufacture the Secretary, may establish rules and of products meet the applicable re- regulations necessary and incidental to quirements as evidenced by certifi- the administration of this section. cation acceptable to the Board. The [61 FR 49942, Sept. 24, 1996, as amended at 67 Board, with the approval of the Sec- FR 51714, Aug. 8, 2002] retary, may establish rules and regulations necessary and incidental to the § 930.42 Accounting. administration of this section. (b) Inspection and certification. When- (a) If, at the end of a fiscal period, ever the handling of any cherries re- the assessments collected are in excess quires inspection pursuant to this part, of expenses incurred, the Board, with each handler who handles cherries the approval of the Secretary, may shall cause such cherries to be in- carry over all or any portion of such spected by the appropriate division of excess into subsequent fiscal periods as USDA, and certified by it as meeting a reserve. Such reserve funds may be the applicable requirements of such used to cover any expenses authorized regulation: Provided, That inspection by this part, and to cover necessary ex- and certification shall be required for penses of liquidation in the event of cherries which previously have been so termination of this part. If any such inspected and certified only if such excess is not retained in a reserve, it cherries have been regraded, resorted, shall be refunded proportionately to repackaged, or in any other way fur- the handlers from whom the excess was ther prepared for market. Promptly collected. Without an additional re- after inspection and certification, each serve level approved by the Secretary, such handler shall submit, or cause to the amount held in reserve may not ex- be submitted, to the Board a copy of ceed approximately one year’s oper- the certificate of inspection issued ational expenses. Upon termination of with respect to such cherries. this part, any funds not required to defray the necessary expenses of liquida- RESEARCH, MARKET DEVELOPMENT AND tion shall be disposed of in such a man- PROMOTION ner as the Secretary may determine to be appropriate: Provided, That to the § 930.48 Research, market develop- extent practicable, such funds shall be ment and promotion. returned pro rata to the persons from The Board, with the approval of the whom such funds were collected. Secretary, may establish or provide for

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the establishment of production and tonnage would then be divided by the processing research, market research sum of the crop forecast(s) for the reg- and development, and/or promotional ulated districts to obtain a preliminary activities, including paid advertising, restricted percentage, rounded to the designed to assist, improve or promote nearest whole number, for the regu- the efficient production and proc- lated districts. If subtracting the cur- essing, marketing, distribution, and rent crop year requirement, computed consumption of cherries subject to this in the first sentence from the current part. The expense of such projects shall crop forecast, results in a negative be paid from funds collected pursuant number, the Board shall establish a to this part and the income from such preliminary free market tonnage per- funds. centage of 100 percent with a preliminary restricted percentage of zero. The REGULATIONS Board shall announce these preliminary percentages in accordance with § 930.50 Marketing policy. paragraph (h) of this section. (a) Optimum supply. On or about July (c) Interim percentages. Between July 1 of each crop year, the Board shall 1 and September 15 of each crop year, hold a meeting to review sales data, in- the Board may modify the preliminary ventory data, current crop forecasts free market tonnage and restricted per- and market conditions in order to es- centages to adjust to the actual pack tablish an optimum supply level for the occurring in the industry. The Board crop year. The optimum supply volume shall announce any interim percent- shall be calculated as 100 percent of the ages in accordance with paragraph (h) average sales of the prior three years of this section. reduced by average sales that represent (d) Final percentages. No later than dispositions of exempt cherries and re- September 15 of each crop year, the stricted percentage cherries qualifying Board shall review actual production for diversion credit for the same three during the current crop year and make years, unless the Board determines such adjustments as are necessary be- that it is necessary to recommend oth- tween free and restricted tonnage to erwise with respect to sales of exempt achieve the optimum supply and rec- and restricted percentage cherries, to ommend such final free market ton- which shall be added a desirable carry- nage and restricted percentages to the out inventory not to exceed 20 million Secretary and announce them in ac- pounds or such other amount as the cordance with paragraph (h) of this sec- Board, with the approval of the Sec- tion. The difference between any final retary, may establish. This optimum free market tonnage percentage des- supply volume shall be announced by ignated by the Secretary and 100 per- the Board in accordance with para- cent shall be the final restricted per- graph (h) of this section. centage. With its recommendation, the (b) Preliminary percentages. On or Board shall report on its consideration about July 1 of each crop year, the of the factors in paragraph (e) of this Board shall establish a preliminary section. free market tonnage percentage which (e) Factors. When computing prelimi- shall be calculated as follows: from the nary and interim percentages, or deter- optimum supply computed in para- mining final percentages for rec- graph (a) of this section, the Board ommendation to the Secretary, the shall deduct the carry-in inventory to Board shall give consideration to the determine the tonnage requirements following factors: (adjusted to a raw fruit equivalent) for (1) The estimated total production of the current crop year which will be cherries; subtracted from the current year (2) The estimated size of the crop to USDA crop forecast or by an average of be handled; such other crop estimates the Board (3) The expected general quality of votes to use. If the resulting number is such cherry production; positive, this would represent the esti- (4) The expected carryover as of July mated overproduction which would be 1 of canned and frozen cherries and the restricted tonnage. This restricted other cherry products;

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(5) The expected demand conditions (i) Restricted percentages. Restricted for cherries in different market seg- percentage requirements established ments; under paragraphs (b), (c), or (d) of this (6) Supplies of competing commod- section may be fulfilled by handlers by ities; either establishing an inventory re- (7) An analysis of economic factors serve in accordance with § 930.55 or having a bearing on the marketing of § 930.57 or by diversion of product in ac- cherries; cordance with § 930.59. In years where (8) The estimated tonnage held by required, the Board shall establish a handlers in primary or secondary in- maximum percentage of the restricted ventory reserves; and quantity which may be established as a (9) Any estimated release of primary primary inventory reserve such that or secondary inventory reserve cherries the total primary inventory reserve during the crop year. does not exceed 50-million pounds; Pro- (f) Modification. In the event the vided, That such 50-million-pound Board subsequently deems it advisable quantity may be changed upon rec- to modify its marketing policy, be- ommendation of the Board and ap- cause of national emergency, crop fail- proval of the Secretary. Any such ure, or other major change in economic change shall be recommended by the conditions, it shall hold a meeting for Board on or before September 30 of any that purpose, and file a report thereof crop year to become effective for the with the Secretary within 5 days (ex- following crop year, and the quantity clusive of Saturdays, Sundays, and may be changed no more than one time holidays) after the holding of such per crop year. Handlers will be per- meeting, which report shall show the mitted to divert (at plant or with grow- Board’s recommended modification and er diversion certificates) as much of the basis therefor. the restricted percentage requirement (g) Additional tonnage to sell as free as they deem appropriate, but may not tonnage. In addition, the Board, in establish a primary inventory reserve years when restricted percentages are in excess of the percentage established established, shall make available ton- by the Board for restricted cherries. In nage equivalent to an additional 10 per- the event handlers wish to establish in- cent, if available, of the average sales of the prior 3 years, as defined in para- ventory reserve in excess of this graph (a) of this section, for market ex- amount, they may do so, in which case pansion. it will be classified as a secondary in- (h) Publicity. The Board shall prompt- ventory reserve and will be regulated ly give reasonable publicity to growers accordingly. and handlers of each meeting to con- (j) Inventory Reserve Release. In years sider a marketing policy or any modi- when inventory reserve cherries are fication thereof, and each such meeting available and when the expected avail- shall be open to them and to the pub- ability of cherries from the current lic. Similar publicity shall be given to crop plus expected carryin inventory growers and handlers of each mar- does not fulfill the optimum supply, keting policy report or modification the Board shall release not later than thereof, filed with the Secretary and of November 1st of the current crop year the Secretary’s action thereon. Copies such volume from the inventory re- of all marketing policy reports shall be serve as will satisfy the optimum sup- maintained in the office of the Board, ply. where they shall be made available for (k) The Board, with the approval of examination. The Board shall notify the Secretary, may establish rules and handlers, and give reasonable publicity regulations necessary and incidental to to growers, of its computation of the the administration of this section. optimum supply, preliminary percentages, and interim percentages and shall [61 FR 49942, Sept. 24, 1996, as amended at 66 notify handlers of the Secretary’s ac- FR 35896, July 10, 2001; 67 FR 51714, Aug. 8, tion on final percentages by registered 2002; 75 FR 33677, June 15, 2010] or certified mail.

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§ 930.51 Issuance of volume regula- part in the crop year that follows any tions. 3-year period in which the 6-million (a) Whenever the Secretary finds, pound average production requirement from the recommendation and sup- is exceeded in that district. porting information supplied by the (b) Handlers in districts which are Board, that to designate final free mar- not subject to volume regulation would ket tonnage and restricted percentages only be so regulated to the extent that for any cherries acquired by handlers they handled cherries which were during the crop year will tend to effec- grown in a district subject to regula- tuate the declared policy of the Act, tion as specified in paragraph (a) of the Secretary shall designate such per- this section. In such a case, the handler centages. Such regulation designating must place in inventory reserve pursu- such percentage shall fix the free mar- ant to § 930.55 or § 930.57 or divert pursu- ket tonnage and restricted percent- ant to § 930.59 the required restricted ages, totaling 100 percent, which shall percentage of the crop originating in be applied in accordance with this section, §§ 930.55, 930.57 and 930.59 to cher- the regulated district. ries grown in regulated districts, as de- (c) Handlers in districts not meeting termined under § 930.52, and handled the production requirement described during such fiscal period. in paragraph (a) of this section in a (b) The Board shall be informed im- given year would not be subject to vol- mediately of any such regulation ume regulation in the next crop year. issued by the Secretary, and the Board (d) Any district producing a crop shall promptly give notice thereof to which is less than 50 percent of the av- handlers. erage annual processed production in (c) That portion of a handler’s cher- that district in the previous five years ries that are restricted percentage would be exempt from any volume reg- cherries is the product of the restricted ulation if, in that year, a restricted percentage imposed under paragraph percentage is established. (a) of this section multiplied by the (e) The Board, with the approval of tonnage of cherries, originating in a the Secretary, may establish rules and regulated district, handled, including those diverted according to § 930.59, by regulations necessary and incidental to that handler in that fiscal year. the administration of this section. (d) The Board, with the approval of [61 FR 49942, Sept. 24, 1996 as amended at 67 the Secretary, shall develop rules and FR 51714, Aug. 8, 2002] regulations which shall provide guidelines for handlers in complying with § 930.53 Modification, suspension, or any restricted tonnage requirements, termination of regulations. including, but not limited to, a grace (a) In the event the Board at any period of at least 30 days to segregate time finds that, by reason of changed and appropriately document any ton- conditions, any regulations issued pur- nage they wish to place in the inventory reserve and to assemble any appli- suant to §§ 930.44 or 930.51 should be cable diversion certificates. modified, suspended, or terminated, it shall so recommend to the Secretary. [61 FR 49942, Sept. 24, 1996 as amended at 67 (b) Whenever the Secretary finds, FR 51714, Aug. 8, 2002] from the recommendations and infor- § 930.52 Establishment of districts sub- mation submitted by the Board or from ject to volume regulations. other available information, that a reg- (a) The districts in which handlers ulation issued pursuant to §§ 930.44 or shall be subject to any volume regula- 930.51 should be modified, suspended or tions implemented in accordance with terminated with respect to any or all this part shall be those districts in shipments of cherries in order to effec- which the average annual production of tuate the declared policy of the Act, cherries over the prior 3 years has ex- the Secretary shall modify, suspend, or ceeded 6 million pounds. Handlers shall terminate such regulation. become subject to volume regulation implemented in accordance with this

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§ 930.54 Prohibition on the use or dis- portion of the cherries acquired during position of inventory reserve cher- such period. ries. (b) The form of the cherries, frozen, Cherries that are placed in inventory canned in any form, dried, or con- reserve pursuant to the requirements centrated juice, placed in the primary of § 930.50, § 930.51, § 930.55, or § 930.57 inventory reserve is at the option of shall not be used or disposed of by any the handler. The product(s) placed by handler or any other person except as the handler in the primary inventory provided in § 930.50 or in paragraphs (a), reserve must have been produced in ei- (b), or (c) of this section. ther the current or the preceding two (a) If the Board determines that the crop years. Except as may be limited total available supplies for use in com- by § 930.50(i) or as may be permitted mercial outlets are less than the pursuant to §§ 930.59 and 930.62, such in- amount needed to meet the demand in ventory reserve portion shall be equal such outlets, the Board may rec- to the sum of the products obtained by ommend to the Secretary that a por- multiplying the weight or volume of tion or all of the primary and/or sec- the cherries in each lot of cherries ac- ondary inventory reserve cherries be quired during the fiscal period by the released for such use. then effective restricted percentage (b) The Board may recommend to the fixed by the Secretary; Provided, That Secretary that a portion or all of the in converting cherries in each lot to primary and/or secondary inventory re- the form chosen by the handler, the in- serve cherries be released for sale in ventory reserve obligations shall be ad- certain designated markets. Such des- justed in accordance with uniform ignated markets may be defined in rules adopted by the Board in terms of terms of the use or form of the cherries. raw fruit equivalent. (c) Cherries in the primary and/or (c) Inventory reserve cherries shall secondary inventory reserve may be meet such standards of grade, quality, used at any time for uses exempt from or condition as the Board, with the ap- regulation under § 930.62. proval of the Secretary, may establish. (d) Should the volume of cherries All such cherries shall be inspected by held in the primary inventory reserves USDA. A certificate of such inspection and, subsequently, the secondary in- shall be issued which shall show, ventory reserves reach a minimum among other things, the name and ad- amount, which level will be established dress of the handler, the number and by the Secretary upon recommendation type of containers in the lot, the grade from the Board, the products held in of the product, the location where the the respective reserves shall be re- lot is stored, identification marks (can leased from the reserves and made codes or lot stamp), and a certification available to the handlers as free ton- that the cherries meet the prescribed nage. standards. Promptly after inspection [67 FR 51714, Aug. 8, 2002, as amended at 75 and certification, each such handler FR 33678, June 15, 2010] shall submit, or cause to be submitted, to the Board, at the place designated EDITORIAL NOTE: At 66 FR 232, Jan. 3, 2001, by the Board, a copy of the certificate in § 930.54 paragraph (a), the word ‘‘normal’’ was suspended indefinitely. of inspection issued with respect to such cherries. § 930.55 Primary inventory reserves. (d) Handlers shall be compensated for (a) Whenever the Secretary has fixed inspection costs incurred on cherries the free market tonnage and restricted placed in the primary inventory re- percentages for any fiscal period, as serve. All reporting of cherries placed provided for in § 930.51(a), each handler in, rotated in and out, or released from in a regulated district shall place in his an inventory reserve shall be in accord- or her primary inventory reserve for ance with rules and procedures estab- such period, at such time, and in such lished by the Board, with the approval manner, as the Board may prescribe, or of the Secretary. The Board could, with otherwise divert, according to § 930.59, a the approval of the Secretary, also

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limit the number of inspections of re- primary inventory reserve established serve cherries being rotated into inven- under § 930.55 have been released. Any tory reserves for which the Board release of the secondary inventory re- would be financially liable. serve shall be in accordance with the (e) Except as provided in § 930.54, han- annual marketing policy and with dlers may not sell inventory reserve § 930.54. cherries prior to their official release by the Board. Handlers may rotate § 930.58 Grower diversion privilege. cherries in their inventory reserves (a) In general. Any grower may volun- with prior notification to the Board. tarily elect to divert, in accordance All cherries rotated into the inventory with the provisions of this section, all reserve must meet the applicable in- or a portion of the cherries which oth- spection requirements. erwise, upon delivery to a handler, [61 FR 49942, Sept. 24, 1996, as amended at 75 would become restricted percentage FR 33678, June 15, 2010] cherries. Upon such diversion and compliance with the provisions of this sec- § 930.56 Off-premise inventory reserve. tion, the Board shall issue to the di- Any handler may, upon notification verting grower a grower diversion cer- to the Board, arrange to hold inventory tificate which such grower may deliver reserve, of his or her own production or to a handler, as though there were ac- which was purchased, on the premises tual harvested cherries. Any grower di- of another handler or in an approved versions completed in accordance with commercial storage facility in the this section, but which are undertaken same manner as though the inventory in districts subsequently exempted by reserve were on the handler’s own the Board from volume regulation premises. under § 930.52(d), shall qualify for diversion credit. § 930.57 Secondary inventory reserve. (b) Eligible diversion. Grower diversion (a) In the event the inventory reserve certificates shall be issued to growers established under § 930.55 of this part is only if the cherries are diverted in ac- at its maximum volume, and the Board cordance with the following terms and has announced, in accordance with conditions or such other terms and § 930.50, that volume regulation will be conditions that the Board, with the ap- necessary to maintain an orderly sup- proval of the Secretary, may establish. ply of quality cherries for the market, Diversion may take such of the fol- handlers in a regulated district may lowing forms which the Board, with the elect to place in a secondary inventory approval of the Secretary, may des- reserve all or a portion of the cherries ignate: uses exempt under § 930.62; the volume regulation would otherwise nonhuman food uses; or other uses, in- require them to divert in accordance cluding diversion by leaving such cher- with § 930.59. ries unharvested. (b) Should any handler in a regulated (c) Application/mapping. The Board, district exercise his or her right to es- with the approval of the Secretary, tablish a secondary inventory reserve shall develop rules and regulations pro- under paragraph (a) of this section, all viding for the diversion of cherries by costs of maintaining that reserve, as growers. Such regulations may include, well as inspection costs, will be the re- among other things: sponsibility of the individual handler. (1) The form and content of applica- (c) The secondary inventory reserve tions and agreements relating to the shall be established in accordance with diversion, including provisions for su- §§ 930.55 (b) and (c) and such other rules pervision and compensation; and and regulations which the Board, with (2) Provisions for mapping areas in the approval of the Secretary, may es- which cherries will be left unharvested. tablish. (d) Diversion certificate. If the Board (d) The Board shall retain control approves the application it shall so no- over the release of any cherries from tify the applicant and conduct such su- the secondary inventory reserve. No pervision of the applicant’s diversion of cherries may be released from the sec- cherries as may be necessary to assure ondary reserve until all cherries in any that the cherries have been diverted.

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After the diversion has been accom- (c) Notification. The handler electing plished, the Board shall issue to the di- to divert cherries through means au- verting grower a diversion certificate thorized under this section shall first stating the weight of cherries diverted. notify the Board of such election. Such Where diversion is carried out by leav- notification shall describe in detail the ing the cherries unharvested, the Board manner in which the handler proposes shall estimate the weight of cherries to divert cherries including, if the di- diverted on the basis of such uniform version is to be by means of destruc- rule prescribed in rules and regulations tion of the cherries, a detailed descrip- as the Board, with the approval of the tion of the means of destruction and Secretary, may recommend to imple- ultimate disposition of the cherries. It ment this section. shall also contain an agreement that the proposed diversion is to be carried [61 FR 49942, Sept. 24, 1996, as amended at 67 FR 51715, Aug. 8, 2002] out under the supervision of the Board and that the cost of such supervision is § 930.59 Handler diversion privilege. to be paid by the handler. Uniform fees (a) In general. Handlers handling for such supervision may be established cherries harvested in a regulated dis- by the Board, pursuant to rules and trict may fulfill any restricted percent- regulations approved by the Secretary. age requirement in full or in part by (d) Diversion certificate. The Board acquiring diversion certificates or by shall conduct such supervision of the voluntarily diverting cherries or cher- handler’s diversion of cherries under ry products in a program approved by paragraph (c) of this section as may be the Board, rather than placing cherries necessary to assure that the cherries in an inventory reserve. Upon vol- are diverted as authorized. After the untary diversion and compliance with diversion has been completed, the the provisions of this section, the Board shall issue to the diverting han- Board shall issue to the diverting handler a handler diversion certificate in- dler a handler diversion certificate dicating the weight of cherries which may be used to offset any restricted which shall satisfy any restricted per- percentage requirement. centage or diversion requirement to (e) Transfer of certificates. Within such the extent of the Board or Department restrictions as may be prescribed in inspected weight of the cherries di- rules and regulations, including but verted. not limited to procedures for transfer (b) Eligible diversion. Handler diver- of diversion credit and limitations on sion certificates shall be issued to han- the type of certification eligible for dlers only if the cherries are diverted transfer, a handler who acquires diver- in accordance with the following terms sion certificates representing diverted and conditions or such other terms and cherries during any crop year may conditions that the Board, with the ap- transfer such certificates to another proval of the Secretary, may establish. handler or handlers. The Board must be Such diversion may take place in any notified in writing whenever such form which the Board, with the ap- transfers take place during a crop year. proval of the Secretary, may designate. (f) The Board, with the approval of Tart cherry juice and juice concentrate the Secretary, may establish rules and may receive diversion credit but only if regulations necessary and incidental to diverted in forms approved under the the administration of this section. terms of this section. Such forms may include, but are not limited to: [67 FR 51715, Aug. 8, 2002] (1) Contribution to a Board-approved food bank or other approved charitable § 930.60 Equity holders. organization; (a) Inventory reserve ownership. The (2) Use for new product and new mar- inventory reserve shall be the sole re- ket development; sponsibility of the handlers who place (3) Export to designated destinations; products into the inventory reserve. A or handler’s equity in the primary inven- (4) Other uses or disposition, includ- tory reserve may be transferred to an- ing destruction of the cherries at the other person upon notification to the handler’s facilities. Board.

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(b) Agreements with growers. Indi- diversion certificates for such activi- vidual handlers are encouraged to have ties. written agreements with growers who [67 FR 51715, Aug. 8, 2002] deliver their cherries to the handler as to how any restricted percentage cher- § 930.63 Deferment of restricted obli- ries delivered to the handler will be gation. handled and what share, if any, the (a) Bonding. The Board, with the ap- grower will have in the eventual sale of proval of the Secretary, may require any inventory reserve cherries. handlers to secure bonds on deferred (c) Rulemaking authority. The Board, inventory reserve tonnage. Handlers with the approval of the Secretary, may, in order to comply with the re- may adopt rules and regulations nec- quirements of §§ 930.50 and 930.51 and essary and incidental to the adminis- regulations issued thereunder, secure tration of this section. bonds on restricted percentage cherries to temporarily defer the date that in- § 930.61 Handler compensation. ventory reserve cherries must be held Each handler handling cherries from to any date requested by the handler. a regulated district that is subject to This date shall be not later than 60 days prior to the end of that crop year. volume regulations shall be com- Such deferment shall be conditioned pensated by the Board for inspection upon the voluntary execution and de- relating to the primary inventory re- livery by the handler to the Board of a serve as the Board may deem to be ap- written undertaking within thirty (30) propriate. The Board, with the ap- days after the Secretary announces the proval of the Secretary, may establish final restricted percentage under such rules and regulations as are nec- § 930.51. Such written undertaking shall essary and incidental to the adminis- be secured by a bond or bonds with a tration of this section. surety or sureties acceptable to the Board that on or prior to the accept- § 930.62 Exempt uses. able deferred date the handler will (a) The Board, with the approval of have fully satisfied the restricted per- the Secretary, may exempt from the centage amount required by § 930.51. provisions of § 930.41, § 930.44, § 940.51, (b) Rulemaking authority. The Board, § 930.53, or § 930.55 through § 930.57 cher- with the approval of the Secretary, ries for designated uses. Such uses may may adopt rules and regulations nec- include, but are not limited to: essary and incidental to the adminis- (1) New product and new market de- tration of this section. velopment; REPORTS AND RECORDS (2) Export to designated destinations; (3) Experimental purposes; or § 930.70 Reports. (4) For any other use designated by (a) Weekly production, monthly sales, the Board, including cherries processed and inventory data. Each handler shall, into products for markets for which upon request of the Board, file prompt- less than 5 percent of the preceding 5- ly with the Board, reports showing year average production of cherries weekly production data; monthly sales were utilized. and inventory data; and such other in- (b) The Board, with the approval of formation, including the volume of any the Secretary, shall prescribe such cherries placed in or released from a rules, regulations, and safeguards as it primary or secondary inventory re- may deem necessary to ensure that serve or diverted, as the Board shall cherries handled under the provisions specify with respect to any cherries of this section are handled only as au- handled by the handler. Such informa- thorized. tion may be provided to the Board (c) Diversion certificates shall not be members in summary or aggregated issued for cherries which are used for form only without any reference to the exempt purposes; Provided, that grow- individual sources of the information. ers engaging in such activities under (b) Other reports. Upon the request of the authority of § 930.58 shall be issued the Board, with the approval of the

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Secretary, each handler shall furnish who shall disclose such information to to the Board such other information no person other than the Secretary. with respect to the cherries acquired, handled, stored and disposed of by such MISCELLANEOUS PROVISIONS handler as may be necessary to enable § 930.80 Compliance. the Board to exercise its powers and perform its duties under this part. Except as provided in this part, no (c) Protection of proprietary informa- person may handle cherries, the han- tion. Under no circumstances shall any dling of which has been prohibited by information or reports be made avail- the Secretary under this part, and no able to the Board members, or to any person shall handle cherries except in person designated by the Board or by conformity with the provisions of this the Secretary, which will reveal the part and the regulations issued here- proprietary information of an indi- under. No person may handle any cher- vidual handler. ries for which a diversion certificate has been issued other than as provided § 930.71 Records. in §§ 930.58(b) and 930.59(b). Each handler shall maintain such § 930.81 Right of the Secretary. records of all cherries acquired, han- Members of the Board (including suc- dled, stored or sold, or otherwise dis- cessors and alternates), and any posed of as will substantiate the re- agents, employees, or representatives quired reports and as may be pre- thereof, shall be subject to removal or scribed by the Board. All such records suspension by the Secretary at any shall be maintained for not less than time. Each regulation, decision, deter- two years after the termination of the mination, or other act of the Board fiscal year in which the transactions shall be subject to the Secretary’s dis- occurred or for such lesser period as approval at any time. Upon such dis- the Board may direct with the approval approval, the disapproved action of the of the Secretary. Board shall be deemed null and void, except as to acts done in reliance § 930.72 Verification of reports and thereon or in accordance therewith records. prior to such disapproval by the Sec- For the purpose of assuring compli- retary. ance and checking and verifying the reports filed by handlers, the Secretary § 930.82 Effective time. and the Board, through its duly author- The provisions of this part, and of ized agents, shall have access to any any amendment thereto, shall become premises where applicable records are effective at such time as the Secretary maintained, where cherries are re- may declare, and shall continue in ceived, stored, or handled, and, at any force until terminated, or suspended. time during reasonable business hours, shall be permitted to inspect such han- § 930.83 Termination. dlers premises and any and all records (a) The Secretary may, at any time, of such handlers with respect to mat- terminate any or all of the provisions ters within the purview of this part. of this part by giving at least 1 day’s notice by means of a press notice or in § 930.73 Confidential information. any other manner in which the Sec- All reports and records furnished or retary may determine. submitted by handlers to the Board (b) The Secretary shall terminate or and its authorized agents which in- suspend the operation of any or all of clude data or information constituting the provisions of this part whenever a trade secret or disclosing trade posi- the Secretary finds that such provi- tion, financial condition, or business sions do not tend to effectuate the de- operations of the particular handler clared policy of the Act. from whom received, shall be received (c) The Secretary shall terminate the by and at all times kept in the custody provisions of this part whenever the and under the control of one or more Secretary finds by referendum or oth- employees of the Board or its agent, erwise that such termination is favored

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by a majority of the growers and proc- (c) Any person to whom funds, prop- essors: Provided, That such majority erty, and claims have been transferred has, during the current fiscal year, pro- or delivered, pursuant to this section, duced or canned and frozen more than shall be subject to the same obligations 50 percent of the volume of the cherries imposed upon the Board and upon the which were produced or processed with- trustees. in the production area. Such termination shall become effective on the § 930.85 Effect of termination or last day of June subsequent to the an- amendment. nouncement thereof by the Secretary. Unless otherwise expressly provided (d) The Secretary shall conduct a ref- by the Secretary, the termination of erendum within the month of March of this part or of any regulation issued every sixth year after the effective pursuant to this part, or the issuance date of this part to ascertain whether of any amendment to either thereof, continuation of this part is favored by shall not: the growers and processors. The Sec- (a) Affect or waive any right, duty, retary may terminate the provisions of obligation, or liability which shall this part at the end of any fiscal period in which the Secretary has found that have risen or which may thereafter continuance is not favored by a major- arise in connection with any provision ity of growers and processors who, dur- of this part or any regulation issued ing a representative period determined thereunder; by the Secretary, have been engaged in (b) Release or extinguish any viola- the production or processing of tart tion of this part or any regulation cherries in the production area. Such issued thereunder; termination shall be announced on or (c) Affect or impair any rights or before the end of the fiscal period. remedies of the Secretary or any other (e) The provisions of this part shall, person with respect to any such viola- in any event, terminate whenever the tion. provisions of the Act authorizing them cease to be in effect. § 930.86 Duration of immunities. The benefits, privileges, and immuni- § 930.84 Proceedings after termination. ties conferred upon any person by vir- (a) Upon the termination of the pro- tue of this part shall cease upon its ter- visions of this part, the then func- mination, except with respect to acts tioning members of the Board shall, for done under and during the existence of the purpose of liquidating the affairs of this part. the Board, continue as trustees of all the funds and property then in its pos- § 930.87 Agents. session, or under its control, including The Secretary may, by designation in claims for any funds unpaid or prop- writing, name any officer or employee erty not delivered at the time of such of the United States, or name any termination. agency or division in the U.S. Depart- (b) The said trustees shall: (1) continue in such capacity until ment of Agriculture, to act as the Sec- discharged by the Secretary; retary’s agent or representative in con- (2) from time to time account for all nection with any provisions of this receipts and disbursements and deliver part. all property on hand, together with all § 930.88 Derogation. books and records of the Board and of the trustees, to such person as the Sec- Nothing contained in this part is, or retary may direct; and shall be construed to be, in derogation (3) upon the request of the Secretary, or in modification of the rights of the execute such assignments or other in- Secretary or of the United States to struments necessary or appropriate to exercise any powers granted by the Act vest in such person full title and right or otherwise, or, in accordance with to all of the funds, property, and such powers, to act in the premises claims vested in the Board or in the whenever such action is deemed advis- trustees pursuant to this part. able.

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§ 930.89 Personal liability. nage to be placed on the diversion cer- No member or alternate member of tificate. The Board will confirm the the Board and no employee or agent of grower’s production amount with infor- the Board shall be held personally re- mation provided by handlers (to which sponsible, either individually or jointly the grower delivers cherries) on Board with others, in any way whatsoever, to Form Number Two. (3) The grower must agree to allow a any person for errors in judgment, mis- Board compliance officer to visit the takes, or other acts, either of commis- grower’s orchard to confirm that diversion or omission, as such member, al- sion has actually taken place. ternate member, employee, or agent, (c) Calculation of diversion amounts. except for acts of dishonesty, willful The weight of cherries diverted and left misconduct, or gross negligence. unharvested shall be calculated by the § 930.90 Separability. Board after growers furnish the Board with the necessary information con- If any provision of this part is de- cerning their production. After clared invalid or the applicability verification of the volume of cherries thereof to any person, circumstance, or diverted, the Board shall calculate the thing is held invalid, the validity of the amounts of grower diversion tonnage remainder of this part or the applica- to be placed on the diversion certifi- bility thereof to any other person, cir- cates and issue such certificates to cumstance, or thing shall not be af- growers. Such amounts shall be deter- fected thereby. mined as follows: § 930.91 Amendments. (1) For whole block diversion, the weight of a harvested sample of 5 per- Amendments to this subpart may be cent of each diverted block, provided proposed, from time to time, by the by the grower, will be used to calculate Board or by the Secretary. the total volume of diverted cherries to § 930.100 Grower diversion certifi- be credited on the diversion certificate. cates. For example, a grower farms 1,000 acres and elects to whole block divert a 200 (a) In accordance with paragraph (b) acre block. If 5 percent of the harvested of this section, the Board may, for the trees in the block diverted yield 80,000 1997 crop year, issue diversion certifi- pounds of cherries, the grower would cates to growers, in districts subject to receive a diversion certificate for volume regulation (Northwest Michi- 1,600,000 pounds (80,000 pounds divided gan, Central Michigan, New York, and by 5 percent (.05) yields 1,600,000 Utah) who have voluntarily elected to pounds). The rest of the block would divert in the orchard all or a portion of remain unharvested. their 1997 tart cherry production which (2) For random row diversion, such otherwise, upon delivery to handlers, estimated volume would be calculated would become restricted percentage by applying the percentage of the cherries. Growers may offer the diver- grower’s production diverted to the ac- sion certificate to handlers in lieu of tual average volume per acre of cher- delivering cherries. (b) Terms and conditions. To be eligi- ries produced and harvested. For exam- ble to receive diversion credit, growers ple, a grower farms 1,000 acres and voluntarily choosing to divert cherries elects to divert 20 percent of the har- must meet the following terms and vestable acreage (200 acres). The grow- conditions: er harvests the remaining 800 acres and (1) In order to receive a certificate, a obtains 6,400,000 pounds of cherries, grower must demonstrate, to the satis- which represents a yield per acre of faction of the Board, that rows or trees 8,000 pounds. Such grower would re- which were selected for diversion were ceive a diversion certificate for not harvested. Trees six years old or 1,600,000 pounds of cherries (8,000 lbs younger do not qualify for diversion. multiplied by the 20 percent of the (2) The grower must furnish the total acreage diverted; in this instance, Board with a total harvested produc- 200 acres). tion amount so the Board can calculate [62 FR 44883, Aug. 25, 1997, as amended at 63 the amount of grower diversion ton- FR 20023, Apr. 22, 1998]

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§ 930.107 Fiscal period. (b) [Reserved] Pursuant to § 930.7, fiscal period shall [62 FR 55150, Oct. 23, 1997, as amended at 63 mean the period beginning October 1 FR 14024, Mar. 24, 1998] and ending September 30 of each year. § 930.158 Grower diversion and grower [73 FR 75929, Dec. 15, 2008] diversion certificates. (a) Grower diversion certificates. The § 930.120 Board membership. Board may issue diversion certificates When the production level from a dis- to growers in districts subject to vol- trict falls below the thresholds stated ume regulation who have voluntarily in § 930.20(b)(5), members of the specific elected to divert in the orchard all or a district will make a recommendation portion of their tart cherry production to the Board as to who should be re- which otherwise, upon delivery to han- moved from the Board and the Board dlers, would become restricted percent- shall submit a recommendation to the age cherries. Growers may offer the di- Secretary for approval. If the rec- version certificate to handlers in lieu of delivering cherries. Handlers may ommendation is not made by the Board redeem diversion certificates with the within a reasonable time, the Sec- Board through November 1 of each crop retary may select the member and al- year. After November 1 of the crop year ternate to be removed. that crop year’s grower diversion cer- [71 FR 16985, Apr. 5, 2006] tificates are no longer valid. Cherries that have reached a harvestable, mar- Subpart—Administrative Rules and ketable condition will be eligible for diversion. Diversion will not be granted Regulations to growers whose fruit was destroyed before it set and/or matured on the § 930.133 Compensation rate. tree, or whose fruit is unmarketable. If A compensation rate of $250 per marketable fruit were to be damaged meeting shall be paid to the public or destroyed by acts of nature such as member and to the alternate public storms or hail diversion credit could be member when attending Board meet- granted. ings. Such compensation is a per meet- (b) Application and mapping for diver- ing rate. For example, if a Board meet- sion. Any grower desiring to divert ing is convened and lasts one or two cherries using methods other than in- days or only four hours, the public orchard tank shall submit a map of the member and/or alternate public mem- orchard or orchards to be diverted, ber attending the meeting would re- along with a completed Grower Diver- ceive $250 each. sion Application, to the Board by April 15 of each crop year. The application [63 FR 33528, June 19, 1998] includes a statement which must be signed by the grower which states that § 930.141 Delinquent assessments. the grower agrees to comply with the (a) Pursuant to § 930.41, the Board regulations established for a tart cher- shall impose an interest charge on any ry diversion program. Each map shall handler whose assessment payment has contain the grower’s name and number not been received by October 1 of each assigned by the Board, the grower’s ad- crop year. The interest rate shall be a dress, block name or number when ap- rate of one percent per month and shall propriate, location of orchard or or- be applied to the unpaid assessment chards and other information which balance not paid by the October 1 due may be necessary to accomplish the de- date. In addition to the interest sired diversion. On or before July 1, the charge, the Board shall impose a late grower should inform the Board of such payment charge on any handler whose grower’s intention to divert in-orchard assessment payment has not been re- and what type of diversion will be used. ceived within 90 days from the due date The four types of diversion are random of October 1. The late payment charge row diversion, whole block diversion, shall be 10 percent of the unpaid bal- partial block diversion and in-orchard ance. tank diversion. A grower who informs

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the Board about the type of diversion uprooted or died. If a block has 5 rows he or she wishes to use by July 1 can or less, or 200 or less tree sites, 3 rows elect to use any diversion method or would be randomly chosen to be sam- combination of diversion methods. pled, if a block has 6 to 15 rows, or 201– Only random row or in-orchard tank 400 tree sites, 4 rows would be ran- diversion methods may be used if the domly chosen to be sampled, and if a Board is not so informed by July 1. block has 16 or more rows and greater Trees that are four years or younger do than 400 tree sites, 5 rows would be ran- not qualify for diversion. Annual re- domly chosen to be sampled. The submissions of either the map or appli- Board’s compliance officer will apply cation will no longer be required. the sampling procedure (based on the Growers will only submit a new appli- number of rows or the number of tree cation and map if they are partici- sites) which results in the fewest num- pating in the grower diversion program ber of tree sites required to be sampled. for the first time. Growers will need From each of the rows to be sampled, only to submit a new orchard map if ten contiguous tree sites will be sam- he/she adds a new block of trees to the pled. Only trees more than five years orchard or changes the orchard layout old will be harvested for the sample. differently from the map previously For example, if it is determined that submitted to the Board. five rows are to be sampled, 10 contig- (1) Random row diversion. Using the uous tree sites in each of the five rows orchard map furnished by the grower, will be subject to harvest. Trees within the Board will randomly select rows of the 10 sites which are more than five trees within the orchard to be diverted. years old will be harvested. The har- The amount of cherries to be diverted vested tonnage will be converted to a will be based on the preliminary re- volume that represents the entire stricted percentage amount established block of cherries. If, for example, a pursuant to § 930.50. A grower may elect total of 4,600 pounds is harvested from a different percentage amount; how- the sample tree sites and this total is ever, the grower needs to inform the divided by 50 tree sites a yield of 92 Board as soon as possible after the pre- pounds per tree site is obtained. To liminary percentages are announced of this other amount, but in no event find the total yield for the block, the 92 shall this be less than seven days in ad- pounds per tree site yield is multiplied vance of harvest. The designated rows by the 880 tree sites that were mapped indicated by the map must not be har- in the block and that equals 80,960 vested. After completing harvest of the pounds for that block. The compliance remaining rows in the orchard, the officer would be allowed access to the grower must notify the Board and/or block to oversee the sampling process the Board’s compliance officer. A com- and to confirm that the block has been pliance officer will then be allowed to diverted. observe the grower’s orchard to assure (3) Partial block diversion. Partial that the selected rows have not been block diversion will also be accom- harvested. The grower must inform the plished using maps supplied by the Board of the total production of the or- grower. Sampling will be done as in chard to calculate the tonnage that whole block diversion except that only was diverted. partial blocks would be selected and (2) Whole block diversion. Based on sampled. Growers may divert up to five maps supplied by the grower, a sam- partial blocks, or 50 percent of a grow- pling procedure will be used to deter- er’s total number of blocks per year. mine the amount of cherries in the or- Such block(s) must be mapped and will chard to be diverted. A block is defined be sampled as described under whole as rows that run in the same direction, block diversion. Rows used in partial are similar in age, and have definable block diversion must be contiguous. boundaries. The Board will require a (4) In-orchard tank diversion. Growers number of tree sites to be sampled de- wishing to in-orchard tank divert must pending on the size of the block. A tree pick the cherries to be diverted and site is a planted tree or an area where place them in harvesting tanks. A com- a tree was planted and may have been pliance officer would then probe the

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tanks for volume measurement and ob- Board shall multiply by two the dif- serve the destruction of the cherries on ference between the original diversion the grower’s premises. Growers wishing amount and the actual diverted to take advantage of this option must amount. The Board shall subtract that have at least 10 tanks ready for diver- amount from the diversion application sion. The compliance officer has up to amount. Thus, the grower would re- five days to come to the grower’s prem- ceive a grower diversion certificate ises to observe the diversion after equal to a portion of the originally re- being contacted. quested amount. If the grower does not (c) Compliance. Growers who volun- inform the Board of such errors, the tarily participate in the grower diver- grower will not receive a diversion cer- sion program must sign and file with tificate. the Board a Grower Diversion Applica- tion. By signing the application, a [63 FR 33528, June 19, 1998, as amended at 64 grower agrees to the terms and condi- FR 30232, June 7, 1999;; 71 FR 66098, Nov. 13, tions of the grower diversion program 2006] as contained in these regulations. To be eligible to receive diversion credit, § 930.159 Handler diversion. growers voluntarily choosing to divert (a) Methods of diversion. Handlers may cherries must meet the following terms divert cherries by redeeming grower di- and conditions: version certificates, by destroying (1) In order to receive a certificate, a cherries at handlers’ facilities (at- grower must demonstrate, to the satis- plant), by diverting cherry products ac- faction of the Board, that rows or trees cidentally or voluntarily destroyed, by which were selected for diversion were donating cherries or cherry products to not harvested. Trees four years old or charitable organizations or by using younger do not qualify for diversion. cherries or cherry products for exempt (2) The grower must furnish the purposes under § 930.162, including ex- Board with a total harvested produc- port to countries other than Canada, tion amount so the Board can calculate and Mexico. Once diversion has taken the amount of grower diversion ton- place, handlers will receive diversion nage to be placed on the diversion cer- certificates stating the weight of cher- tificate. The Board will confirm the ries diverted. Diversion credit may be grower’s production amount with infor- used to fulfill any restricted percent- mation provided by handlers (to which age requirement in full or in part. Any the grower delivers cherries) on Board information of a confidential and/or form Number Two. proprietary nature included in this ap- (3) The grower must agree to allow a plication would be held in confidence Board compliance officer to visit the pursuant to § 930.73 of the order. grower’s orchard to confirm that diversion has actually taken place. If the (b) Board notification and handler terms and conditions for whole block, plan. Any handler intending to divert partial block or in-orchard tank diver- cherries or cherry products pursuant to sion are not completed, the Board shall § 930.59 of the order (except through ex- not issue the grower a diversion certifi- empt uses under § 930.62 of the order) cate. If a grower who chooses random must notify the Board of such intent row diversion harvests rows that were and provide a plan by November 1 designated not to be harvested, the which shows how the handler intends grower should inform the Board imme- to meet the restricted percentage obli- diately of the error. The grower will gation, except that, for the 1997–98 sea- then be required to divert twice the son only, the deadline is February 5, amount (rows or trees) incorrectly har- 1998. The Board may extend this date vested to correct the mistake. The in individual cases pursuant to a writ- grower will still receive a diversion ten request showing good cause why certificate equal to the original re- the plan cannot be provided by the due quested amount. However, in instances date. A handler will have one year to where a grower is at the end of har- fulfill such plan. The details of the plan vesting the orchard and fails to divert shall include, but not be limited to, the a complete block or specified rows, the name and address of the handler, the

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total product processed at-plant, prod- Board agent or employee who witnesses uct diverted at-plant, in-orchard diver- the disposition of the accidentally or sion certificates redeemed, anticipated voluntarily destroyed product. Prod- donations to charitable outlets, dis- ucts will be considered as accidentally position to exempt outlets or uses and destroyed if they sustain damage which detailed plans for how and where such renders them unacceptable in normal disposition will be made, and inventory market channels. Products which are reserve amount. It shall also contain voluntarily destroyed must have dete- an agreement that the proposed diver- riorated in condition to such an extent sion is to be carried out under the su- that they are not acceptable for use in pervision of the Board and that the normal market channels. cost of such supervision is to be paid by the handler. Supervision of diversion (e) Contributions to approved charitable by means other than destruction of the organizations. When diverting by donat- cherries at a handler’s facility will be ing cherries or cherry products to char- subject to supervision as found nec- itable organizations, handlers should essary by the Board. USDA inspectors follow the requirements specified here- or Board employees will supervise di- in. For contributions to qualify for diversion of cherry products at the cur- version credit, the contributed product rent hourly rate under USDA’s inspec- should be marked clearly ‘‘NOT FOR tion fee schedule (7 CFR 52.42). Any RESALE’’. The receiving organization cherries not diverted in accordance must be approved by the Board as a with the handler’s plan will be placed qualified recipient of contributions of into the secondary inventory reserve or tart cherry products. Such organiza- the primary inventory reserve if a sections must be tax-exempt, must not ondary inventory reserve has not been sell the donated products and must be established. noncompetitive with other tart cherry (c) At-plant diversion. Diversion by industry sales outlets. Once products disposal at-plant may take place prior are donated to an organization, the to placing the cherries into the proc- Board must receive satisfactory docu- essing line, or after processing, but before a finished product is manufac- mentation of the transaction. Handlers tured. Such diversion will take place should provide the Board with informa- under the supervision of USDA Inspec- tion on how the product was used and tion Service or Board employee inspec- the volume of product used. tors. USDA inspectors or Board em- (f) Grower diversion certificates. To sat- ployees or Board agents will supervise isfy restricted percentage obligations diversion of cherry products at-plant at by redeeming grower diversion certifi- the current hourly rate under USDA’s cates handlers must present to the inspection fee schedule (7 CFR 52.42). Board grower diversion certificates ob- (d) Diversion of finished products. Han- tained from growers who have diverted dlers may be granted diversion credit cherries by non-harvest, and who have for finished tart cherry products that been issued diversion certificates by are accidentally destroyed or volun- the Board in accordance with the appli- tarily destroyed by the handler. To re- cable rules and regulations governing ceive diversion credit under this option the issuance of grower diversion cer- the cherry products must be owned by tificates. For this crop year July 1, the handler at the time of accidental or 1997, through June 30, 1998, grower di- voluntary destruction, be a marketable version certificates will be valid until product at the time of processing, be February 5, 1998. included in the handler’s end of the year handler plan, and have been as- [63 FR 404, Jan. 6, 1998, as amended at 63 FR signed a Raw Product Equivalent 20019, Apr. 22, 1998; 64 FR 9268, Feb. 25, 1999; (RPE) by the handler to determine the 64 FR 33009, June 21, 1999; 65 FR 35267, June volume of cherries. In addition, the ac- 2, 2000; 69 FR 41385, July 9, 2004; 71 FR 16985, cidental or voluntary destruction and Apr. 5, 2006] disposition of the product must be verified by either a USDA inspector or

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§ 930.162 Exemptions. sold. The term ‘‘market expansion’’, in- (a) General. Tart cherries which are cludes activities that incrementally used for the purpose of new product de- expand the sale of either tart cherries velopment, for new market develop- or the products in which tart cherries ment and market expansion, for the de- are an ingredient, such as, but not lim- velopment of export markets, for ex- ited to: Expansions of the geographic perimental purposes, for export to areas into which tart cherries or tart countries other than Canada, and Mex- cherry products are marketed; product ico, or which are donated to charitable line extensions; significant improve- organizations may be granted an ex- ments to or revisions of existing prod- emption by the Board and will be ex- ucts; packaging innovations; segmenta- empt from §§ 930.41, 930.44, 930.51, 930.53, tion of markets along geographic, de- and §§ 930.55 through 930.57, subject to mographic, or other definable charac- the following terms and conditions. teristics; and product repositionings. Any information received of a con- (3) Development of export markets. The fidential and/or proprietary nature in- sale of cherries or cherry products, included in this application will be pro- cluding the development of sales for tected from disclosure pursuant to new or different tart cherry products § 930.73 of the order. or the expansion of sales for existing (b) Definitions. The terms in para- tart cherry products, to countries graph (a) of this section shall have the other than Canada, and Mexico. following meaning: (4) Experimental purposes. The use of (1) New product development. This cherries or cherry products in prelimi- term includes the development of new nary and/or developmental activities tart cherry products or of foods or intended to result in new products, new other products in which tart cherries applications and/or new markets for or tart cherry products are incor- tart cherry products. Any exemption porated which are not presently being for experimental work shall be limited produced on a commercial basis. New in scope, duration and volume based on product development can also include information supplied by the applicant the production or processing of a tart at the time a request for exemption is cherry product using a technique not made. In no case shall an individual ex- presently being utilized commercially emption for experimental purposes last in the tart cherry industry; an end longer than five years or exceed 100,000 product of the processing of raw tart pounds raw product equivalent of tart cherries done by the industry at pack cherries. time either for resale or for re-manu- (c) Obtaining approval for exempt uses. facturing which has not been manufac- In order to receive exemptions for tured previously by the industry; or a cherries or cherry products utilized for processed, value-added item that in- exempt purposes, handlers must apply cludes tart cherry products as an ingre- to the Board for a new exemption or for dient which has never been marketed renewal of an existing exemption by to consumers either by a handler with- November 1 for the next succeeding in the industry or by a food manufac- year, except for the 1997 year only, turer. In addition, the maximum dura- handlers may apply through February tion of any credit activity is three 5, 1998. A handler shall have one crop years from the first date of shipment. year to dispose of cherries or cherry (2) New market development and market products to exempt outlets approved by expansion. This includes the develop- the Board, unless granted a renewal. ment of markets for tart cherry prod- Handlers applying to the Board for a ucts which are not commercially estab- new exemption or for renewal of an ex- lished markets and which are not com- isting exemption are subject to the fol- petitive with commercial outlets pres- lowing conditions: ently utilized by the tart cherry indus- (1) When applying to the Board for an try (including the development of new exemption for new product develop- export markets): Provided, That these ment, handlers must detail the nature markets are a geographic area into of their new product, how it differs which tart cherries or products derived from current, existing products and the from them have not been previously anticipated short and long term sales

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volume for the exemption. It will be activities. This involvement must be the Board staff’s responsibility to ana- demonstrated and established to the lyze and investigate any request and satisfaction of the Board by the han- upon completion of that analysis au- dler requesting the exemptions. thorize or deny the exemption. (d) Review of applications. A Board ap- (2) When applying to the Board for an pointed subcommittee of three persons exemption for new market develop- which shall include the manager (or a ment, handlers must detail the nature Board member acting in the Manager’s of their new market, how it differs stead), the public member and one in- from current, existing markets and the dustry person who is not on the Board, anticipated short and long term sales shall review applications for exemption volume for the exemption. It will be or renewal of exemption and either ap- the Board staff’s responsibility to ana- prove or deny the exemption. Any de- lyze and investigate any request and nial of an application for exemption or upon completion of that analysis au- renewal of an existing exemption shall thorize or deny the exemption. be served on the applicant by certified (3) When applying to the Board for an mail and shall state the reasons for the exemption for the development of ex- denial. Within 10 days after the receipt port markets for tart cherries or cher- of a denial, the applicant may file an ry products (including juice and juice appeal, in writing, with the Deputy Ad- concentrate) in countries other than ministrator, Fruit and Vegetable Pro- Canada and Mexico, including the ex- grams, supported by any arguments pansion of sales in existing export mar- and evidence the applicant may wish to kets, handlers must detail the nature offer as to why the application for ex- of their product, specify whether such emption or renewal of exemption product differs from current products should have been approved. The Deputy being sold in export markets, and esti- Administrator upon consideration of mate the anticipated short and long such appeal will take such action as term sales volumes for the requested deemed appropriate with respect to the exemption. application for exemption or renewal of (4) When applying to the Board for an exemption. exemption for experimental purposes, (e) Progress report. Each handler that handlers must indicate the preliminary is granted an exemption must submit and/or developmental experimental ac- to the Board an annual progress report, tivity. Such experimental purposes due May 1 of each crop year. The should be intended to result in new progress report shall include the re- products, new applications and/or new sults of the exemption activity (com- markets for existing tart cherry prod- parison of intended activity with ac- ucts. Any exemption for experimental tual activity) for the year in its en- work shall be limited in scope, dura- tirety, the volume of exempted fruit, tion and volume which the proposing an analysis of the success of the ex- party shall specify at the time a re- emption program, and such other infor- quest for exemption is made. In no case mation as the Board may request. shall an exemption for experimental (f) Diversion credit; failure to meet purposes last longer than five years or terms and conditions of exemption. Han- exceed 100,000 pounds raw product dler diversion certificates for exempt equivalent per handler of tart cherries uses shall be issued to handlers pro- during the duration of the experiment. vided that terms and conditions appli- (5) To be eligible for new product, cable to exempt uses are satisfied. Di- new market development and market version certificates will not be issued expansion diversion exemptions, a han- to handlers for any volume of tart dler must demonstrate involvement in cherry products for which such terms the activity for which the exemptions and conditions are not satisfied and are sought. The requesting handler such cherries would be subject to all of must either be or have been involved in the terms and conditions of §§ 930.41, development of the product, the mar- 930.44, 930.51, 930.53, and §§ 930.55 ket, or market expansion activities for through 930.57. which the exemptions are sought or (g) Failure to meet terms and conditions have had financial involvement in the for exemption. Upon termination of an

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exemption, any volume of tart cherry Subpart—Assessment Rates products that were granted an exemption but were not utilized for the au- § 930.200 Assessment rate. thorized exempt purpose would be sub- On and after October 1, 2010, the as- ject to all of the terms and conditions sessment rate imposed on handlers of §§ 930.41, 930.44, 930.51, 930.53, and shall be $0.0075 per pound of tart cher- §§ 930.55 through 930.57. ries grown in the production area and utilized in the production of tart cher- [63 FR 405, Jan. 6, 1998, as amended at 65 FR ry products. Included in this rate is 35267, June 2, 2000; 66 FR 39413, July 31, 2001; 69 FR 34553, June 22, 2004; 71 FR 16986, Apr. 5, $0.005 per pound of cherries to cover the 2006] cost of the research and promotion program and $0.0025 per pound of cherries § 930.163 Deferment of restricted obli- to cover administrative expenses. gation. [75 FR 57163, Sept. 20, 2010] A handler may obtain a surety bond on restricted percentage cherries to be PART 932—OLIVES GROWN IN posted to temporarily defer the date CALIFORNIA that inventory reserves must be held. The surety bond must be posted at two Subpart—Order Regulating Handling times the market value of the quantity DEFINITIONS of cherries for which the holding obligation is being deferred. The Board can Sec. 932.1 Secretary. temporarily defer the date inventory 932.2 Act. reserve cherries must be held to any 932.3 Person. date requested by the handler. How- 932.4 Area. ever, this date shall not be later than 932.5 Olives. 60 days prior to the end of the crop 932.6 Variety group 1. 932.7 Variety group 2. year. The deferment shall be condi- 932.8 Natural condition olives. tioned on the execution and delivery by 932.9 Packaged olives. the handler to the Board of a written 932.10 Lot. undertaking within 30 days after the 932.11 Grade. Secretary announces the final re- 932.12 Size. stricted percentage under § 930.51. The 932.13 Size-grade. 932.14 Process. written undertaking (required to be se- 932.15 Handler. cured by a bond or bonds with a surety 932.16 Handle. or sureties acceptable to the Board) 932.17 Producer. must guarantee that on or prior to the 932.18 Committee. deferment date requested by the han- 932.19 Crop year and fiscal year. 932.20 Part and subpart. dler the handler will have fully satis- 932.21 District. fied the restricted percentage obliga- 932.22 Sublot. tion. On or prior to the deferment date 932.23 Undersize olives and limited use size requested by the handler, the handler olives. will have to fully satisfy the restricted 932.23a Limited use. 932.24 Noncanning use. percentage obligation. In the event, a handler has posted the surety bond, OLIVE ADMINISTRATIVE COMMITTEE reached the deferment date deadline 932.25 Establishment and membership. and does not have cherries in the in- 932.26 Term of office. ventory reserve to cover his/her inven- 932.27 Selection. tory reserve obligation, the bond will 932.28 Eligibility. be forfeited to the Board. The Board 932.29 Nominations. 932.30 Alternates. will then buy cherries to fulfill that 932.31 Failure to nominate. handler’s obligation. 932.32 Acceptance. 932.33 Vacancies. [66 FR 35891, July 10, 2001] 932.34 Powers. 932.35 Duties. 932.36 Procedure. 932.37 Compensation and expenses.

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EXPENSES AND ASSESSMENTS Subpart—Assessment Rates 932.38 Expenses. 932.230 Assessment rate. 932.39 Assessments. 932.40 Accounting. AUTHORITY: 7 U.S.C. 601–674.

RESEARCH AND DEVELOPMENT SOURCE: 30 FR 12629, Oct. 2, 1965, unless otherwise noted. 932.45 Production research and marketing research and development projects. Subpart—Order Regulating REGULATIONS Handling 932.50 Report of marketing policy. 932.51 Incoming regulations. DEFINITIONS 932.52 Outgoing regulations. 932.53 Inspection and certification. § 932.1 Secretary. 932.54 Transfers. Secretary means the Secretary of Ag- 932.55 Exemption. riculture of the United States, or any REPORTS AND RECORDS officer or employee of the U.S. Depart- 932.60 Reports of acquisitions, sales, uses, ment of Agriculture who is or who may shipments and creditable brand adver- hereafter be authorized to exercise the tising. powers or to perform the duties of the 932.61 Records. Secretary of Agriculture. 932.62 Verification of reports. 932.63 Confidential information. § 932.2 Act.

MISCELLANEOUS PROVISIONS Act means Public Act No. 10, 73d Con- gress (May 12, 1933) as amended and as 932.65 Compliance. 932.66 Right of the Secretary. reenacted and amended by the Agricul- 932.67 Effective time. tural Marketing Agreement Act of 1937, 932.68 Termination. as amended (48 Stat. 31, as amended; 7 932.69 Proceedings after termination. U.S.C. 601–674). 932.70 Effect of termination or amendment. 932.71 Duration of immunities. § 932.3 Person. 932.72 Agents. 932.73 Derogation. Person includes an individual, part- 932.74 Personal liability. nership, corporation, association, or 932.75 Separability. any other business unit.

Subpart—Rules and Regulations § 932.4 Area. 932.108 Noncanning olives. Area means the State of California. 932.109 Canned ripe olives of the tree-ripened type. § 932.5 Olives. 932.121 Producer districts. Olives means the fruit of any variety 932.125 Producer representation on the com- of the species olea europaea, whether mittee. or not processed, grown within the 932.129 Nomination procedures for producer members. area. 932.130 Public member and alternate public member eligibility requirements and § 932.6 Variety group 1. nomination procedures. Variety group 1 means the following 932.139 Late payment and interest charges. varieties and any mutations, sports, or 932.149 Modified minimum quality require- other derivations of such varieties: ments for specified styles of canned ol- Aghizi Shami, Amellau, Ascolano, ives of the ripe type. 932.150 Modified minimum quality require- Ascolano dura, Azapa, Balady, Barouni, ments for canned green ripe olives. Carydolia, Cucco, Gigante di Cerignola, 932.151 Incoming regulations. Gordale, Grosane, Jahlut, Polymorpha, 932.152 Outgoing regulations. Prunara, Ropades, Sevillano, Saint 932.153 Establishment of minimum quality Agostino, Tafahi, and Touffahi. and size requirements for processed olives for limited uses. § 932.7 Variety group 2. 932.154 Handler transfer. 932.155 Special purpose shipments. Variety group 2 means the following 932.159 Reallocation of handler membership. varieties and any mutations, sports, or 932.161 Reports. other derivations of such varieties:

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Manzanillo, Mission, Nevadillo, Obliza, area, or (d) ship packaged olives from Redding Picholine. the area to any point outside thereof or within the area: Provided, This term § 932.8 Natural condition olives. shall not include natural condition ol- Natural condition olives means olives ives acquired and (1) used for olive oil, in their fresh harvested state, whether salt cured oil coated olives (also var- or not placed in a water or other pre- iously referred to as ‘‘Greek Olives,’’ serving medium. ‘‘Greek Style Olives,’’ or ‘‘Oil Cured Ol- ives’’), or Silician Style Olives, or (2) [33 FR 11266, Aug. 8, 1968] shipped to fresh market outlets. § 932.9 Packaged olives. [36 FR 20356, Oct. 21, 1971] Packaged olives means (a) processed olives in hermetically sealed con- § 932.17 Producer. tainers and heat sterilized under pres- Producer means any person engaged sure, otherwise known as canned ripe in a proprietary capacity in the pro- olives and including the three distinct duction of olives for market as pack- types, ripe, green ripe, and tree-ripened; aged olives. or (b) olives, packed in brine, and which have been fermented and cured, § 932.18 Committee. otherwise known as green olives. Committee means the California Olive Committee established pursuant to § 932.10 Lot. § 932.25. Lot means the total net weight of natural condition olives of any one va- [47 FR 32906, July 30, 1982] riety delivered to a handler at any one § 932.19 Crop year and fiscal year. time. (a) Crop year means the 12-month pe- § 932.11 Grade. riod beginning on August 1 of each year Grade means the classification of ol- and ending on July 31 of the following ives as to quality according to the year or such other period that may be grading specifications established pur- recommended by the committee and suant to the provisions of this part. approved by the Secretary. (b) Fiscal year means the 12-month § 932.12 Size. period beginning on January 1 and end- Size means the number of whole ol- ing on December 31 of each year or ives contained in a pound and may be such other period that may be rec- referred to in terms of size ranges. ommended by the committee and approved by the Secretary. § 932.13 Size-grade. [47 FR 32906, July 30, 1982] Size-grade means to classify olives, or to cause olives to be classified, by sam- § 932.20 Part and subpart. ple or otherwise, into separate size des- Part means the Order Regulating the ignations. Handling of Olives Grown in California and all rules and regulations, and sup- § 932.14 Process. plementary orders issued thereunder. Process means to change olives in any The aforesaid Order Regulating the way from their natural condition by Handling of Olives Grown in California any commercial process. shall be a subpart of such part.

§ 932.15 Handler. § 932.21 District. Handler means any person who han- District means any of the following dles olives. geographical areas of the State of Cali- fornia: § 932.16 Handle. (a) District 1 shall include the coun- Handle means to: (a) Size-grade ol- ties of Glenn, Tehama, and Shasta. ives, (b) process olives, or (c) use proc- (b) District 2 shall include the coun- essed olives in the production of pack- ties of Mono, Mariposa, Merced, San aged olives, within the production Benito, Monterey, Madera, Fresno,

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Tulare, and all counties to the south OLIVE ADMINISTRATIVE COMMITTEE thereof. (c) District 3 shall include all counties § 932.25 Establishment and member- not included in Districts 1 and 2. ship. A California Olive Committee con- § 932.22 Sublot. sisting of 16 members, is hereby estab- Sublot means a quantity of olives re- lished to administer the terms and pro- sulting from the separation by the han- visions of this part. Each member shall dler of a lot into two or more parts. have an alternate who meets the same qualifications as the member. Eight of [36 FR 20356, Oct. 21, 1971] the members and their alternates shall be producers or officers or employees of § 932.23 Undersize olives and limited use size olives. producers, and eight of the members and their alternates shall be handlers Undersize olives means olives of a size or directors, officers, or employees of which, pursuant to § 932.51(a)(3), shall handlers. The eight members of the be disposed of in noncanning use; and committee who are producers or offi- limited use size olives means processed cers or employees of producers are re- olives of any size which, pursuant to ferred to in this subpart as ‘‘producer § 932.52(a)(3), is authorized for limited members’’ of the committee; and the use. eight members of the committee who [36 FR 20356, Oct. 21, 1971, as amended at 47 are handlers or directors, officers, or FR 32906, July 30, 1982] employees of handlers are referred to in this subpart as ‘‘handler members’’ of § 932.23a Limited use. the committee. The committee may be Limited use means the use of proc- increased by one public member who essed olives in the production of pack- shall not be a producer or handler of ol- aged olives of the halved, segmented ives nor an officer or employee or di- (wedged), sliced, or chopped styles, as rector of any producer or handler of ol- defined in the U.S. Standards for ives. District representation of the pro- Grades of Canned Ripe Olives (7 CFR ducer members shall be two from Dis- part 52) or subsequent amendments trict 1, four from District 2, and two thereto, including modifications of the from District 3. Allocation of the han- requirements for such styles pursuant dler members shall be four members to to this part, and such additional styles represent cooperative marketing orga- (and the requirements applicable there- nizations, herein referred to as ‘‘coop- to) as may be specified pursuant to erative handlers’’, and four members to § 932.52(a)(7). represent handlers who are not cooperative marketing organizations, herein [47 FR 32906, July 30, 1982] referred to as ‘‘independent handlers’’: Provided, That whenever during the § 932.24 Noncanning use. crop year in which nominations are Noncanning use means the use of ol- made and in the preceding crop year, ives other than in the production of the cooperative handlers or the inde- canned ripe olives, and is the author- pendent handlers handled as first han- ized outlet for undersize olives and the dler 65 percent or more of the total limited use size olives which, pursuant quantity of olives so handled by all to § 932.52(b), are not permitted for lim- handlers, allocation shall be five mem- ited use in any crop year in which lim- bers to represent the group which so ited use is restricted to less than the handled 65 percent or more of such ol- available quantity of limited use size ives and three members to represent olives. the group which handled 35 percent or [36 FR 20356, Oct. 21, 1971] 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

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Secretary, provide such other alloca- director, member, or employee of any tion of producer or handler member- firm engaged in such activities. ship, or both, as may be necessary to [47 FR 32907, July 30, 1982] assure equitable representation. [47 FR 32907, July 30, 1982] § 932.29 Nominations. (a) Producer members. (1) Nominations § 932.26 Term of office. for producer members of the com- The term of office of members and al- mittee, and their respective alternates, ternate members of the committee may be conducted according to the fol- shall be 2 years beginning on June 1 lowing procedures, or other procedures and ending on May 31 of odd numbered recommended by the committee and years: Provided, That the term of office approved by the Secretary: of initial members and alternate mem- (i) Meetings shall be held in each pro- bers shall begin on the effective date of ducer district for the purpose of selecting candidates for the member and al- this subpart. Each such member and alternate member nominations; ternate member shall serve during that (ii) Those candidates selected at the portion of the term of office for which producer meetings shall be nominated he is selected and has qualified and by mail balloting of producers in that shall continue to serve until his suc- district; cessor is selected and has qualified. (iii) The committee shall adopt, with approval of the Secretary, appropriate § 932.27 Selection. procedures to be observed for con- Selection of members of the com- ducting producer nominations by mail: mittee, and their respective alternates, Provided, That the names of nominees shall be made in the appropriate num- shall be submitted to the Secretary bers specified in § 932.25 by the Sec- prior to April 16 of the year in which retary from nominees nominated pur- nominations are made. suant to this part or, in the discretion (2) Only producers, including duly au- of the Secretary, from other persons el- thorized officers or employees of pro- igible for nominations for such posi- ducers, shall participate in the nominations. tion of producer members and alternate members. Each producer shall be § 932.28 Eligibility. entitled to cast only one vote for each Each producer member of the com- nominee to be selected in the district mittee shall, at the time of selection in which the producer produces olives. and during the member’s term of office, No producer shall participate in the selection of nominees in more than one be a producer in the district for which district. If a producer produces olives selected, and except for producers who in more than one district, such pro- are members of cooperative handlers ducer shall select the district in which shall not be engaged in the handling of such producer will so participate and olives either in a proprietary capacity, notify the committee of such choice. or as a director, officer, or employee. (b) Handler members. (1) At a meeting Each handler member of the com- or meetings called by the committee, mittee shall, at the time of selection the cooperative handlers shall nomi- and during the member’s term of office, nate a qualified person for each mem- be a handler in the group that the ber position and a qualified person for member represents or a director, offi- each alternate member position allo- cer, or employee of such handler. The cated to cooperative handlers as pro- public member and alternate public vided in § 932.25. member of the committee shall not at (2) At a meeting or meetings called the time of selection and during the by the committee, the independent term of office be engaged in or have a handlers shall nominate a qualified financial interest in the commercial person for each member position and a production, marketing, buying, grad- qualified person for each alternate ing, or processing of olives, nor shall member position allocated to inde- such member or alternate be an officer, pendent handlers as provided in § 932.25.

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(3) Each handler shall be entitled to § 932.33 Vacancies. cast only one vote for each nominee for To fill any vacancy occasioned by the cooperative handler member or alter- failure of any person selected as a nate member or independent handler member, or as an alternate member of member or alternate member, as the the committee to qualify, or in the case may be, which vote shall be event of the removal, resignation, dis- weighed by the tonnages of olives han- qualification, or death of any member dled by such handler during the crop or alternate member, a successor for year in which nominations are made such person’s unexpired term shall be and in the previous crop year. nominated and selected in the manner (c) Public member. Nominations for set forth in § 932.29 insofar as such pro- the public member and alternate public visions are applicable. If nomination to member of the committee shall be sub- fill any such vacancy is not made with- mitted to the Secretary prior to April in 60 calendar days after such vacancy 16 of the year in which nominations are occurs, the Secretary may fill such va- made. The committee shall prescribe cancy without regard to nominations, procedures for the selection and voting but on the basis of the applicable rep- for each candidate. resentations and qualifications set forth in §§ 932.25, 932.27, and 932.28. [33 FR 11266, Aug. 8, 1968, as amended at 47 FR 32907, July 30, 1982] § 932.34 Powers. § 932.30 Alternates. The committee shall have the following powers: An alternate for a member of the (a) To administer this subpart in ac- committee shall act in the place and cordance with its terms and provisions; stead of such member (a) during such (b) To make rules and regulations to member’s absence, and (b) in the event effectuate the terms and provisions of of such member’s removal, resignation, this subpart; disqualification or death, until a suc- (c) To receive, investigate, and report cessor for such member’s unexpired to the Secretary complaints of viola- term has been selected and has quali- tions of the provisions of this subpart; fied. Except as otherwise specifically and provided in this subpart, the provisions (d) To recommend to the Secretary of this part applicable to members also amendments to this subpart. apply to alternate members. The committee or the chariman of the com- § 932.35 Duties. mittee may request one or more alter- The committee shall have, among nates to attend any or all meetings others, the following duties: notwithstanding the expected or actual (a) To act as intermediary between attendance of the respective member the Secretary and any producer or han- or members. dler; [47 FR 32907, July 30, 1982] (b) To keep minutes, books, and other records, which shall clearly re- § 932.31 Failure to nominate. flect all of its acts and transactions, and such minutes, books, and other If nominations for any position on records shall be subject to examination the committee are not received by the by the Secretary at any time; Secretary by May 1 of the year in (c) To make, subject to approval by which nominations are to be made, the the Secretary, scientific and other Secretary may select an eligible indi- studies, and assemble data on the pro- vidual without regard to nomination. ducing, handling, shipping, and marketing conditions relative to olives, § 932.32 Acceptance. which are necessary in connection with Any person selected by the Secretary the performance of its official duties; as a member or as an alternate member (d) To submit to the Secretary such of the committee shall qualify by filing available information with respect to a written acceptance with the Sec- olives as he may request or as the com- retary promptly after being notified of mittee may deem desirable and perti- such selection. nent;

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(e) To select, from among its mem- § 932.36 Procedure. bers, a chairman and other officers, Decisions of the committee shall be and to adopt such rules and regulations by majority vote of the members for the conduct of its business as it present and voting, and a quorum must may deem advisable; be present: Provided, That decisions re- (f) To appoint or employ such other quiring a recommendation to the Sec- persons as it may deem necessary, and retary on matters pertaining to grade to determine the salaries and define and size regulations shall require at the duties of each such person; least 10 affirmative votes, at least 5 of (g) To submit to the Secretary, prior which must be from producer members to the beginning of each fiscal year and and at least 5 of which must be from not later than December 15, a budget of handler members and, if the committee the anticipated expenses of the com- is increased by the addition of a public mittee and the proposed assessment member, at least 11 affirmative votes rate for such fiscal year, together with shall be required, at least 5 of which a report thereon. must be from producer members and at (h) To cause the books of the com- least 5 of which must be from handler mittee to be audited by one or more members. A quorum shall consist of at certified public accountants at least least 10 members of whom at least 5 once each fiscal year, and at such other shall be producer members and at least times as the committee may deem nec- 5 shall be handler members and, if the essary or as the Secretary may re- committee is increased by the addition quest. The report of each such audit of a public member, a quorum shall shall show, among other things, the re- consist of at least 11 members of which ceipts and expenditures of funds, and at at least 5 shall be producer members least two copies of each such audit re- and at least 5 shall be handler mem- port shall be submitted to the Sec- bers. Except in case of an emergency, a retary. minimum of 5 days advance notice (i) To prepare monthly statements of shall be given with respect to any its financial operations and make such meeting of the committee. In case of statements, together with the minutes an emergency, to be determined within of its meetings, available at the office the discretion of the chairman of the of the committee for inspection by any committee, as much advance notice of producer or handler, and to submit cop- a meeting as is practicable in the cir- ies of such statements and minutes to cumstances shall be given. The com- the Secretary; mittee may vote by mail or telegram (j) To give reasonable advance notice upon due notice to all members, but of each meeting by mail addressed to any proposition to be so voted upon each member, and such notice shall be first shall be explained accurately, given as widespread publicity as prac- fully, and identically by mail or tele- ticable. The same notice of meetings gram to all members. When voted on given to members shall be given to the by such method, at least 14 affirmative Secretary; votes, of which seven shall be producer member votes and seven shall be han- (k) With the approval of the Sec- dler member votes, shall be required retary, to redefine the districts into for adoption and, if the committee is which the area has been divided in increased by the addition of a public § 932.21 and to reapportion the member- member, votes by mail or telegram ship in accordance therewith: Provided, shall require at least 15 affirmative That any such changes reflect insofar votes, of which at least 7 shall be pro- as practicable shifts in olive acreage ducer member votes and at least 7 shall within the districts and area, the num- be handler member votes. The com- bers of growers in the districts, the mittee may recommend for the Sec- tonnage produced, and are equitable as retary’s approval changes in the num- to producers; and ber of affirmative votes required for (l) To investigate compliance with adoption of any proposition voted upon the provisions of this part. by means of a mail or telegram ballot: [30 FR 12629, Oct. 2, 1965, as amended at 33 FR Provided, That the number of affirma- 11266, Aug. 8, 1968; 47 FR 32907, July 30, 1982] tive votes required for adoption shall

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not be less than ten, and in any case an sions thereof are suspended or become equal number of producer member and inoperative. handler member votes shall be required (b) The Secretary shall fix the rate of for adoption and, if the committee is assessment to be paid by each such increased by the addition of a public handler during a fiscal year in an member, the number of affirmative amount designed to secure sufficient votes required for adoption shall be in- funds to cover the expenses which may creased by one. be incurred during such period. At any time during or after the fiscal year, the [47 FR 32908, July 30, 1982] Secretary may increase the rate of assessment in order to secure sufficient § 932.37 Compensation and expenses. funds to cover any later finding by the The members of the committee and Secretary relative to the expenses alternates when acting as members or which may be incurred. Such increase at the request of the committee or its shall be applied to all olives handled chairman shall serve without com- during the applicable crop year. In pensation, but shall be reimbursed for order to provide funds for the adminis- necessary expenses, as approved by the tration of the provisions of this part committee, incurred by them in the during the first part of a fiscal year be- performance of their duties under this fore sufficient operation income is part. available from assessments, the committee may accept the payment of as- [47 FR 32908, July 30, 1982] sessments in advance, and may also borrow money for such purpose. EXPENSES AND ASSESSMENTS (c) Any assessment not paid by a handler within a period of time pre- § 932.38 Expenses. scribed by the committee may be sub- The committee is authorized to incur ject to an interest or late payment such expenses as the Secretary finds charge, or both. The period of time, are reasonable and likely to be in- rate of interest and late payment curred by the committee for its main- charge shall be as recommended by the tenance and functioning and to enable committee and approved by the Sec- it to exercise its powers and perform retary. Subsequent to such approval, its duties in accordance with the provi- all assessments not paid within the sions of this part. The funds to cover presecribed period of time shall be sub- such expenses shall be acquired in the ject to an interest or late payment manner prescribed in § 932.39. charge or both. [47 FR 32908, July 30, 1982, as amended at 47 § 932.39 Assessments. FR 51093, Nov. 12, 1982] (a) As each handler’s pro rata share of the expenses which the Secretary § 932.40 Accounting. finds are reasonable and likely to be in- (a) If, at the end of a fiscal year, the curred by the committee during a fis- assessments collected are in excess of cal year, each handler who first han- expenses incurred, such excess shall be dles olives during the current crop year accounted for in accordance with one shall pay to the committee, upon de- of the following: mand, assessments less any amounts (1) If such excess is not retained in a which may be credited pursuant to reserve as provided in paragraph (a)(2) § 932.45, on all olives to be used in the of this section, the committee shall re- production of packaged olives, includ- fund or credit to handler accounts the ing olives to be used in canned ripe ol- aforesaid excess. Each handler’s share ives of the ‘‘tree-ripened’’ type or green of such excess funds shall be the olives when such are regulated as pack- amount of assessments such handler aged olives pursuant to § 932.52. The has paid in excess of such handler’s pro payment of assessments for mainte- rata share of the actual net expenses of nance and functioning of the com- the committee for such fiscal year. Ex- mittee may be required under this part cess funds may be used temporarily by throughout the period it is in effect ir- the committee to defray expenses of respective of whether particular provi- the subsequent fiscal year: Provided,

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That each handler’s share of such ex- search and development projects de- cess shall be made available to the signed to assist, improve or promote handler by the committee within five the marketing, distribution, and con- months after the end of the fiscal year. sumption or efficient production of (2) The committee, with the approval California olives. Such projects may of the Secretary, may carry over such provide for any marketing research and excess into subsequent fiscal years as a development projects designed to as- reserve: Provided, That funds already in sist, improve, or promote the mar- the reserve do not exceed approxi- keting, distribution, and consumption mately one fiscal year’s expenses. Such or efficient production of California ol- reserve funds may be used for any ex- ives. Such projects may provide for any penses authorized pursuant to § 932.38 form of marketing promotion including and for necessary expenses of liquida- paid advertising. The expenses of such tion in the event of termination of this part. Upon such termination, any funds research and projects shall be paid not required to defray the necessary from funds collected pursuant to expenses of liquidation shall be dis- § 932.39 or from voluntary contribu- posed of in such manner as the Sec- tions. Voluntary contributions may be retary may determine to be appro- accepted by the committee only to pay priate: Provided, That to the extent the expenses of such projects: Provided, practicable, such funds shall be re- That the committee shall retain com- turned pro rata to the persons from plete control over the use of such con- whom such funds were collected. tributions which shall be free from any (b) All funds received by the com- encumbrances. mittee pursuant to the provisions of (2) The committee, with the approval this part shall be used solely for the of the Secretary, may provide for cred- purpose specified in this part and shall iting a portion of a handler’s direct ex- be accounted for in the manner pro- penditures for paid brand advertising vided in this part. The Secretary may for olives. Such expenditures may in- at any time require the committee and clude, but are not limited to, money its members to account for all receipts spent for advertising space in maga- and disbursements. zines, newspapers, outdoor media and (c) Upon the removal or expiration of transit or time charges for radio and the term of office of any member of the television. No handler shall receive committee, such member shall account credit in excess of such handler’s pro for all receipts and disbursements and rata share of the total monies allotted deliver all property and funds in his possession to the committee, and shall by the committee for brand advertising execute such assignments and other in- credit. Each advertisement must be struments as may be necessary or ap- published, broadcast or displayed dur- propriate to vest in the committee full ing the fiscal year for which credit is title to all of the property, funds, and requested. Before any creditable brand claims vested in such member pursuant advertising may be undertaken pursu- to this part. ant to this paragraph (a)(2) of this section, the Secretary, upon recommenda- [30 FR 12629, Oct. 2, 1965, as amended at 47 FR 32908, July 30, 1982] tion by the committee, shall prescribe appropriate rules and regulations as RESEARCH AND DEVELOPMENT are necessary to effectively regulate such activity. § 932.45 Production research and mar- (b) In recommending marketing re- keting research and development search and development projects pursu- projects. ant to this section, the committee (a) The following activities of the shall give consideration to the fol- committee are authorized under this lowing factors: section. (1) The expected supply of olives in (1) The committee may, with the ap- relation to market requirements; proval of the Secretary, establish or provide for the establishment of pro- (2) The supply situation among com- duction research, and marketing re- peting areas and commodities; and

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(3) The need for marketing research changed supply, demand, or other con- with respect to any marketing develop- ditions, the committee shall formulate ment activity and the need for a co- a new policy and shall submit a report ordinated effort with USDA’s Plentiful thereon to the Secretary. In developing Food Program. the marketing policy, the committee (c) In recommending production re- shall give consideration to the handler search projects pursuant to this sec- carryover, production, probable quality tion, the committee shall give consid- and composition of olive sizes in the eration to the extent and need for as- crop, trade demand, probable imports, sistance to, and improvement of Cali- whether producer prices are likely to fornia olive production. exceed parity, the probable assessable (d) If the committee should conclude tonnage and such other factors as may that a program of production research, have a bearing on the marketing of ol- marketing research, or development should be undertaken or continued pur- ives or the administration of this part. suant to this section in any fiscal year, Notice of the committee’s marketing it shall submit the following for the ap- policy, and of any modifications there- proval of the Secretary: of, shall be given promptly by reason- (1) Its recommendations as to funds able publicity to producers and han- to be obtained pursuant to § 932.39 or dlers. voluntary contributions; [30 FR 12629, Oct. 2, 1965, as amended at 47 FR (2) Its recommendations as to any 32908, July 30, 1982] production research or marketing research project; and § 932.51 Incoming regulations. (3) Its recommendation as to promotion activity and paid advertising. (a) Minimum standards for natural con- (e) The committee shall, as soon as dition olives. (1) Except as otherwise practicable, prepare and mail reports provided in this section, no handler on current production research and shall process any lot of natural condi- marketing research and development tion olives for use in the production of projects to the Secretary and make a packaged olives which has not first copy of such reports available at the been: committee office for examination by (i) Weighed on scales sealed by the producers, handlers, or other interested State of California Department of parties. Weights and Measures, an official cer- [36 FR 20356, Oct. 21, 1971, as amended at 47 tified weight certificate issued thereon, FR 32908, July 30, 1982; 47 FR 51093, Nov. 12, and a copy of such certificate furnished 1982] to the Federal or Federal-State Inspec- tion Service and the committee; and REGULATIONS (ii) Size-graded, either by sample or § 932.50 Report of marketing policy. by lot, under the supervision of any such inspection service and classified At least 14 days prior to the start of into separate size designations and a each crop year (except that this period certification issued with respect there- may be shortened by the committee to by such inspection service. Such size not more than 5 days if warranted), the designations shall be in accordance committee shall hold a meeting for the purpose of formulating a marketing with those set forth in the U.S. Stand- policy for the coming crop year: Pro- ards for Grades of Canned Ripe Olives vided, That with respect to the 1982–83 (7 CFR part 52) or subsequent amend- crop year the committee shall hold a ments thereto, or such sizes as may be meeting for such purpose as soon as recommended by the committee and practicable. The committee shall pre- established by the Secretary: Provided, pare and submit to the Secretary That, for the purpose of this part, the promptly after each such meeting, a re- size designations in said standards port setting forth its recommended shall be deemed to include the fol- marketing policy for the ensuing crop lowing additional size designations. year. In the event it becomes advisable to modify such policy, because of

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Ap- may be established as recommended by proximate Average count the committee and approved by the Designation(s) count range (per pound) Secretary; (per pound) (ii) When limited use size olives are not authorized for limited use styles Subpetite ...... 181 and up. Petite ...... 160 141–180, inclusive. during any crop year, any lot of the Extra Large Sevillano ‘‘L’’ ..... 82 76–88, inclusive. minimum canning size olives may be Extra Large Sevillano ‘‘C’’ .... 70 65–75, inclusive. used in the production of packaged olives for limited use styles without an Provided further, That the additional outgoing inspection for size if such ol- size designations may be renamed and/ ives are within the following average or modified as recommended by the count range for that variety group, and committee and approved by the Sec- meet such further size requirements as retary. Such certification shall show, recommended by the committee with in addition to the quantities by weight approval of the Secretary: of the olives in the lot that are classified as being in each size or size des- Variety Average count ignation the quantity of olives classi- range (per pound) fied as culls by the handler: Provided, Group 1, except Ascolano, Barouni, 65–75, inclusive. That when the Secretary, upon the rec- and St. Agostino. ommendation of the committee, issues Group 1, Ascolano, Barouni and St. 65–88, inclusive. a definition of and classification for Agostino. culls , the aforesaid quantity of culls Group 2, except Obliza ...... 128–140, inclusive. ‘‘ ’’ Group 2, Obliza ...... 106–121, inclusive. shall be determined on the basis of such definition and in accordance with such classification. Provided, That for whole and whole pit- (2) Each handler may satisfy the in- ted styles of olives an additional size coming and outgoing size requirements grading is required after processing, for any lot of olives under the condi- prior to canning, and those olives that tions set forth in subdivisions (i), (ii), fail to meet the requirements in § 932.52 and (iii) of this paragraph: Provided, may be used in limited use styles. Pro- That any such lot shall be kept intact vided further, That the varietal under surveillance by the inspection groupings, average count ranges, and/ services: or other size requirements may be (i) When the Secretary authorizes use changed or modified as recommended of limited size olives for limited use by the committee and approved by the styles during any crop year, any lot of Secretary; limited use size olives may be used in (iii) The committee may recommend, the production of packaged olives for subject to approval by the Secretary, limited use styles without an outgoing size certification procedures for olives inspection if such olives are within the used in the production of canned whole following average count range for that or pitted styles of olives: Provided, variety group, and meet such further That if size certification for canned size requirements as recommended by whole or pitted styles is implemented, the committee with the approval of the marketing order sizes shall be adopted Secretary: and size requirements in the U.S. Average count Grade Standards shall not apply. Size Variety range (per pound) certification of such styles shall be ap- Group 1, except Ascolano, Barouni, 76–88, inclusive. plicable to any or all sizes of olives rec- and St. Agostino. ommended by the committee and ap- Group 1, Ascolano, Barouni and St. 89–140, inclusive. proved by the Secretary pursuant to Agostino. Group 2, except Obliza ...... 141–180, inclusive. § 932.52(a)(2). Size certification proce- Group 2, Obliza ...... 128–140, inclusive. dures recommended to the Secretary may include but are not limited to the Provided, That the varietal groupings establishment of average count ranges, and/or average count ranges may be acceptable count ranges, and approxi- changed, and additional size certifi- mate counts (midpoints) for each vari- cation procedures and requirements ety or variety group.

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(3) Each handler shall, under the su- ceiving such a lot or making such a pervision of any such inspection serv- separation; (2) the identity of all such ice, dispose of into noncanning use an lots and sublots of olives is maintained aggregate quantity of olives, com- by keeping them separate and apart parable in size and characteristics and from other olives he receives; (3) the equal to the quantities shown on the packaged olives produced from such certification for each lot to be: lots and sublots after processing are (i) Variety Group 1 olives, except the canned ripe olives of the ‘‘tree-ripened’’ Ascolano, Barouni, and St. Agostino type or green olives; and (4) there are varieties, of a size which individually no outgoing regulations pursuant to weigh less than 1⁄90 pound; § 932.52 then applicable to packaged ol- (ii) Variety Group 1 olives of the ives that are canned ripe olives of the Ascolano, Barouni, and St. Agostino ‘‘tree-ripened’’ type or green olives. varieties of a size which individually [30 FR 12629, Oct. 2, 1965, as amended at 33 FR 1 weigh less than ⁄140 pound; 11267, Aug. 8, 1968; 36 FR 20356, Oct. 21, 1971; (iii) Variety Group 2 olives, except 47 FR 32909, July 30, 1982] the Obliza variety, of a size which indi- EFFECTIVE DATE NOTE: At 56 FR 49669, Oct. 1 vidually weigh less than ⁄180 pound; 1, 1991, in § 932.51, paragraphs (a)(3) (i), (ii), (iv) Variety Group 2 olives of the (iii), (iv) and the words ‘‘for the foregoing va- Obliza variety of a size which individ- riety groups’’ in paragraph (a)(3)(v) were sus- ually weigh less than 1⁄140 pound; pended indefinitely. (v) Such other sizes for the foregoing variety groups as are not authorized § 932.52 Outgoing regulations. for limited use pursuant to § 932.52; and (a) Minimum standards for packaged ol- (vi) Olives classified as culls. ives. No handler shall use processed ol- (4) Notwithstanding the provisions of ives in the production of packaged ol- paragraph (a)(3) of this section, a han- ives or ship such packaged olives un- dler may (i) meet any deficit in such less they have first been inspected as handler’s undersize obligation in one required pursuant to § 932.53 and meet variety by disposing of, under super- each of the following applicable revision of the inspection service, as quirements: other than canned ripe olives, an equal (1) Canned ripe olives, other than quantity of undersize olives, of any those of the ‘‘tree-ripened’’ type, shall other variety, or by so disposing of an grade at least U.S. Grade C as such equal quantity of olives of that or any grade is defined in the U.S. Standards other variety of sizes larger than for Grades of Canned Ripe Olives (7 undersize of a quality better than culls, CFR part 52) or subsequent amend- and (ii) meet any deficit in such han- ments thereto, or as modified by the dler’s cull obligation in one variety by committee, with approval of the Sec- so disposing of an equal quantity of retary, for purposes of this part. cull olives of any other variety, or by (2) Except as provided in § 932.51(a) (1) so disposing of an equal quantity of ol- and (2), canned whole ripe olives, other ives of any variety of sizes larger than than those of the ‘‘tree-ripened’’ type, undersize of a quality better than culls. shall conform to the single size des- (5) Each handler shall hold at all ignations set forth in the U.S. Stand- times a quantity of olives equal to the ards for Grades of Canned Ripe Olives quantities required in paragraph (a)(3) (7 CFR part 52) or subsequent amend- of this section, less any quantity pre- ments thereto, or as modified by the viously disposed of as specified in such committee, with the approval of the subparagraph. Secretary, and shall be of a size not (b) Whenever a handler receives a lot smaller than the following applicable of natural condition olives, or makes a size requirements, tolerances and per- separation resulting in a sublot, solely centages: Provided, That the Secretary, for use in the production of green ol- on the basis of a recommendation of ives or canned ripe olives of the ‘‘tree- the committee or other available infor- ripened’’ type, he may handle such lot mation, may change such sizes, toler- or sublot without regard to the provi- ances or percentages: sions of this section and § 932.52 only if (i) With respect to variety group 1 ol- (1) he notifies the committee upon re- ives, except the Ascolano, Barouni, and

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St. Agostino varieties, the individual be used in the production of canned pit- fruits shall each weigh no less than 1⁄75 ted ripe olives, other than those of the pound, except that (A) for olives of the ‘‘tree-ripened’’ type, shall meet the extra large size designation, not more same requirements as prescribed pursu- than 25 percent, by count, of such ol- ant to paragraph (a)(2) of this section: ives may weigh less than 1⁄75 pound Provided, That olives smaller than each including not more than 10 per- those so prescribed, as recommended cent, by count, of such olives that annually by the committee and ap- weigh less than 1⁄82 pound each; and (B) proved by the Secretary, may be au- for olives of any designation except the thorized for limited use but any such extra large size, not more than 5 per- limited use size olives so used shall be cent, by count, of such olives may not smaller than the following applica- weigh less than 1⁄75 pound each; ble minimum size: Provided further, (ii) With respect to variety group 1 That each such minimum size may also olives of the Ascolano, Barouni and St. include a size tolerance (specified as a Agostino varieties, the individual percent) as recommended by the com- fruits shall each weigh not less than 1⁄88 mittee and approved by the Secretary. pound except that (A) for olives of the (i) Variety Group 1 olives, except the extra large size designation, not more Ascolano, Barouni, and St. Agostino than 25 percent, by count, of such ol- varieties, of a size which individually ives may weigh less than 1⁄88 pound weigh 1⁄90 pound; each including not more than 10 per- (ii) Variety Group 1 olives of the cent, by count, of such olives that Ascolano, Barouni, or St. Agostino va- weigh less than 1⁄98 pound each, and (B) rieties, of a size which individually for olives of any size designation, ex- weigh 1⁄140 pound; cept the extra large size, not more than (iii) Variety Group 2 olives, except 5 percent, by count, of such olives may the Obliza variety, of a size which indi- weigh less than 1⁄88 pound each; vidually weigh 1⁄180 pound; (iii) With respect to variety group 2 (iv) Variety Group 2 olives of the olives, except the Obliza variety, the Obliza variety, of a size which individ- individual fruits shall each weigh not ually weigh 1⁄140 pound. less than 1⁄140 pound except that (A) for (4) The Secretary may, upon rec- olives of the small size designation, not ommendation of the committee, re- more than 35 percent, by count, of such strict the total quantity of limited use olives may weigh less than 1⁄140 pound size olives for limited use during any each including not more than 7 per- crop year. Such restricted quantity cent, by count, of such olives that shall be apportioned among the han- weigh less than 1⁄160 pound each; and (B) dlers by applying a percentage, estab- for olives of any size designation, ex- lished annually by the Secretary upon cept the small size, not more than 5 recommendation by the committee, to percent, by count, of such olives may each handler’s total receipts of limited weigh less than 1⁄140 pound each; and use size olives during such crop year. (iv) With respect to Variety Group 2 (5) Canned ripe olives of the ‘‘tree-rip- olives of the Obliza variety, the indi- ened’’ type and green olives shall meet vidual fruits shall each weigh not less such grade, size, and pack require- than 1⁄121 pound except that (a) for ol- ments as may be established by the ives of the medium size designation, Secretary based upon the recommenda- not more than 35 percent, by count, of tion of the committee or other avail- such olives may weigh less than 1⁄121 able information. pound each including not more than 7 (6) The size designations used in this percent, by count, of such olives that section mean the size designations de- weigh less than 1⁄135 pound each; and (b) scribed in (a)(1)(ii) of § 932.51. for olives of any size designation, ex- (7) For the purposes of this part the cept the medium size, not more than 5 committee may, with the approval of percent, by count, of such olives may the Secretary, specify the styles of ol- weigh less than 1⁄121 pound each. ives, including the requirements with (3) Subject to the provisions set forth respect thereto, for limited use. in paragraph (a)(4) of this section and (b) Disposition requirements for limited § 932.51(a) (1) and (2), processed olives to use size olives. (1) The requirements of

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this paragraph are in addition to and cept that the disposition of olives, not in substitution of the requirements other than as canned ripe olives, in ac- of § 932.51(a)(5). cordance with the requirements of (2) Each handler shall, under the su- § 932.51(a)(3) may be under the super- pervision of the Processed Products vision of any of such inspection serv- Branch, USDA, or the Federal or Fed- ices. A copy of each certification by eral-State Inspection Service, dispose the said inspection services, pursuant of limited use size olives into limited to the provisions of this section, shall use or into noncanning use: Provided, be furnished to the committee. That whenever a handler’s use of lim- (b) The committee may enter into an ited use size olives is restricted pursu- agreement with either or both of said ant to § 932.52(a)(4), such handler shall inspection services with respect to the dispose of into noncanning use that costs of the inspection required by this quantity of such limited use size olives section and may collect from handlers which is in excess of the quantity per- their respective pro rata share of such mitted for limited use. costs. (3) Notwithstanding the provisions of paragraph (b)(2) of this section, a han- [30 FR 12629, Oct. 2, 1965, as amended at 47 FR dler may meet any deficit in his obliga- 32910, July 30, 1982] tion to dispose of limited use size olives into noncanning use pursuant to § 932.54 Transfers. this paragraph by disposing of, under Transfers within the area of olives supervision of the inspection service, from one handler to another for further an equivalent quantity of olives of a handling within the area are per- size larger than the limited use size mitted. Whenever such a transfer of ol- and of a quality better than culls. ives is made, the transferring handler (4) Each handler shall hold at all shall comply with all applicable regu- times a quantity of olives eligible to lations up to the time of such transfer, meet the disposition requirements of and the receiving handler shall comply this paragraph less any quantity pre- with all applicable regulations subse- viously disposed of as specified in para- quent to such transfer: Provided, That graphs (b) (2) and (3) of this section. the disposition obligations referable to [36 FR 20357, Oct. 21, 1971, as amended at 47 transferred natural condition olives FR 32910, July 30, 1982] pursuant to § 932.51(a)(3) may be trans- EFFECTIVE DATE NOTE: At 56 FR 49669, Oct. ferred along with the olives, in which 1, 1991, in § 932.52, in paragraph (a)(3) intro- event the receiving handler shall com- ductory text and paragraphs (a)(3)(i) through ply with the disposition obligations. (a)(3)(iv) the words ‘‘but any such limited use Transfers of olives from within the size olives so used shall be not smaller than the following applicable minimum size: Pro- area to any point outside the area shall vided further, That each such minimum size be subject to such requirements with may also include a size tolerance (specified respect to inspection, holding, disposi- as a percent) as recommended by the com- tion, and reporting as may be estab- mittee and approved by the Secretary’’ were lished by the Secretary on the basis of suspended indefinitely. recommendations by the committee or other available information. § 932.53 Inspection and certification. (a) Each handler shall have the olives [33 FR 11267, Aug. 8, 1968, as amended at 36 such handler handles inspected and cer- FR 20357, Oct. 21, 1971; 47 FR 32910, July 30, tified as for conformance with all ap- 1982] plicable requirements pursuant to § 932.55 Exemption. §§ 932.51 and 932.52 with respect to such handling. Inspection and certification (a) The provisions of this subpart for conformance with the requirements shall not be applicable to processed ol- of § 932.51 shall be by the Federal or ives on hand on the effective date of Federal-State Inspection Service, in- this subpart but only if the identity of cluding certification as to size, and in- such olives is maintained and such ol- spection for conformance with the re- ives are not commingled with olives quirements of § 932.52 shall be by the processed after such effective date in Processed Products Branch, USDA, ex- the production of packaged olives.

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However, olives on hand on such effec- the crop year in which the transaction tive date that are commingled with ol- occurred. The committee, with the ap- ives processed after such date and are proval of the Secretary, may prescribe used in the production of packaged ol- rules and regulations to include under ives shall be subject to all relevant pro- this section handler records that detail visions applicable to the handling of advertising and promotion activities packaged olives. which the committee may need to per- (b) Upon the basis of the rec- form its functions under § 932.45(a). ommendation submitted by the committee or from other available infor- [47 FR 51094, Nov. 12, 1982] mation, the Secretary may relieve from any or all requirements under § 932.62 Verification of reports. this part the handling of olives in such For the purpose of checking and minimum quantities, in such types of verifying reports filed by handlers, the shipments, or for such specified pur- committee, through its duly authorized poses (including shipments to facilitate representatives, shall have access to the conduct of marketing research and any handler’s premises during regular development projects established pursuant to § 932.45) as the committee with business hours, and shall be permitted the approval of the Secretary may pre- at any such time to: (a) Inspect such scribe. premises and any olives held by such (c) The committee, with the approval handler, and any and all records of the of the Secretary, shall prescribe rules, handler with respect to such handler’s regulations, and safeguards as it may acquisition, sales, uses and shipments deem necessary to ensure that olives of olives; and (b) inspect any and all exempted under the provisions of this records of such handler with respect to section are handled only as authorized. advertising and promotion activities subject to § 932.45(a) and maintained by [30 FR 12629, Oct. 2, 1965, as amended at 33 FR 11267, Aug. 8, 1968] the handler pursuant to § 932.61. Each handler shall furnish all labor and REPORTS AND RECORDS equipment necessary to make such inspections. § 932.60 Reports of acquisitions, sales, uses, shipments and creditable [47 FR 51094, Nov. 12, 1982] brand advertising. (a) Each handler shall file such re- § 932.63 Confidential information. ports of his acquisitions, sales, uses, All reports and information sub- and shipments of olives, as may be re- mitted by handlers pursuant to the quested by the committee. provisions of this part shall be received (b) Upon the request of the com- by, and at all times be in the custody mittee, each handler shall furnish such of one or more designated employees of other reports and information as are the committee. No such employees needed to enable the committee to per- shall disclose to any person, other than form its functions under this part. the Secretary upon request therefor, (c) Each handler shall file such re- data, or information obtained or exports of creditable brand advertising as tracted from such reports and records recommended by the committee and approved by the Secretary. which might affect the trade position, financial condition, or business oper- [30 FR 12629, Oct. 2, 1965, as amended at 47 FR ation of the particular handler from 51094, Nov. 12, 1982] whom received: Provided, That such § 932.61 Records. data and information may be combined, and made available in the form Each handler shall maintain such of general reports in which the identi- records of olives acquired, held, and ties of the individual handlers fur- disposed of by such handler as may be nishing the information is not dis- prescribed by the committee and needed by it to perform its functions under closed. this subpart. Such records shall be retained for at least two years beyond

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MISCELLANEOUS PROVISIONS market as packaged olives: Provided, That such majority have during such § 932.65 Compliance. representative period produced for Except as provided in this part, no market more than 50 percent of the person shall handle olives, the handling volume of such olives produced for of which has been prohibited by the market, but such termination shall be Secretary in accordance with the pro- effective only if announced on or before visions of this part, and no person shall July 15 of the then current crop year. handle olives except in conformity [30 FR 12629, Oct. 2, 1965, as amended at 47 FR with the provisions of this part and the 32910, July 30, 1982] regulations issued hereunder. § 932.69 Proceedings after termination. § 932.66 Right of the Secretary. (a) Upon the termination of the pro- The members of the committee (in- visions of this subpart, the members of cluding successors and alternates) and the committee then functioning shall any agents or employees appointed or continue as joint trustees, for the pur- employed by the committee, shall be pose of liquidating the affairs of the subject to removal or suspension at committee, of all funds and property any time by the Secretary. Each and then in the possession or under the every order, regulation, determination, control of the committee including decision, or other act of the committee claims for any funds unpaid or prop- shall be subject to the continuing right erty not delivered at the time of such of the Secretary to disapprove of the termination. Action by such trustee same at any time. Upon such dis- shall require the concurrence of a ma- approval, such disapproved action shall jority of the trustees. be deemed null and void except as to (b) Said trustees shall continue in acts done in reliance thereon or in such capacity until discharged by the compliance therewith prior to such dis- Secretary; shall, from time to time, ac- approval by the Secretary. count for all receipts and disbursements, and deliver all property on § 932.67 Effective time. hand, together with all books and The provisions of this subpart, as records of the committee and the joint well as any amendments to this sub- trustees, to such person as the Sec- part, shall become effective at such retary may direct; and shall, upon the time as the Secretary may declare, request of the Secretary, execute such above his signature, and shall continue assignments or other instruments nec- in force until terminated in one of the essary or appropriate to vest in such ways specified in § 932.68. person full title and right to all of the funds, property, and claims vested in § 932.68 Termination. the committee or the joint trustees. (a) The Secretary may, at any time, (c) Any person to whom funds, prop- terminate the provisions of this sub- erty, or claims have been transferred part by giving at least one day’s notice or delivered by the committee or the by means of a press release or in any joint trustees, pursuant to this section, other manner which he may determine. shall be subject to the same obligations (b) The Secretary shall terminate or imposed upon the members of the said suspend the operation of any or all of committee and upon said joint trust- the provisions of this subpart whenever ees. he finds such provisions do not tend to effectuate the declared policy of the § 932.70 Effect of termination or act. amendment. (c) The Secretary shall terminate the Unless otherwise expressly provided provisions of this subpart at the end of by the Secretary, the termination of any crop year whenever the Secretary this subpart or any regulation issued finds that such termination is favored pursuant thereto, or the issuance of by a majority of producers who, during any amendment to either thereof, shall a representative period determined by not (a) affect or waive any right, duty, the Secretary, have been engaged in obligation, or liability which shall the area in the production of olives for have arisen, or which may thereafter

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arise, in connection with any provision Subpart—Rules and Regulations of this subpart, or any regulation issued thereunder; (b) release or extin- § 932.108 Noncanning olives. guish any violation of this subpart or Noncanning olives means those olives of any regulation issued thereunder; or which, pursuant to the requirements of (c) affect or impair any rights or rem- § 932.51(a)(2), are to be disposed of as edies of the Secretary or any other per- other than canned ripe olives. son with respect to any such violation. [31 FR 12634, Sept. 27, 1966] § 932.71 Duration of immunities. The benefits, privileges, and immuni- § 932.109 Canned ripe olives of the tree-ripened type. ties conferred upon any person by virtue of this subpart shall cease upon the (a) Canned ripe olives of the tree-rip- termination of this subpart, except ened type means packaged olives, not with respect to acts done under and oxidized in processing, that are pre- during the existence of this subpart. pared from a lot or sublot of natural condition olives of advanced maturity § 932.72 Agents. which: The Secretary may, by a designation (1) Range in color from pinkish red, in writing, name any person, including with some greenish cast, to black; and any officer or employee of the U.S. (2) Have not more than 10 percent, by Government or name any service or di- count, of off-color olives (off-color vision in the U.S. Department of Agri- means those olives whose greenish cast culture, to act as his agent or rep- covers more than 50 percent of the sur- resentative in connection with any of face of the individual olives). the provisions of this subpart. (b) [Reserved] [40 FR 38146, Aug. 27, 1975] § 932.73 Derogation. Nothing contained in this subpart is § 932.121 Producer districts. or shall be construed to be, in deroga- Pursuant to the authority in tion or in modification of the rights of § 932.35(k), commencing with the term the Secretary or of the United States of office beginning June 1, 2005, district to exercise any powers granted by the means any of the following geo- act or otherwise, or, in accordance graphical areas of the State of Cali- with such powers, to act in the prem- fornia: ises whenever such action is deemed (a) District 1 shall include the coun- advisable. ties of Alpine, Tuolumne, Stanislaus, Santa Clara, Santa Cruz, and all coun- § 932.74 Personal liability. ties north thereof. No member or alternate member of (b) District 2 shall include the coun- the committee or any employee or ties of Mono, Mariposa, Merced, San agent thereof shall be held personally Benito, Monterey and all counties responsible, either individually or south thereof. jointly with others, in any way whatsoever, to any person, for errors in judg- [70 FR 6326, Feb. 7, 2005] ment, mistakes, or other acts either of § 932.125 Producer representation on commission or omission, as such mem- the committee. ber, alternate member, employee, or agent, except for acts of dishonesty. Pursuant to the authority in §§ 932.25 and 932.35(k), commencing with the § 932.75 Separability. term of office beginning June 1, 2005, If any provision of this subpart is de- representation shall be apportioned as clared invalid or the applicability follows: thereof to any person, circumstance, or (a) District 1 shall be represented by thing is held invalid, the validity of the three producer members and alter- remainder of this subpart or the appli- nates. cability thereof to any other person, (b) District 2 shall be represented by circumstance, or thing shall not be af- five producer members and alternates. fected thereby. [70 FR 6326, Feb. 7, 2005]

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§ 932.129 Nomination procedures for that delivered olives during that crop producer members. year in each district. Members and alternate members on (i) A producer who produces olives in the Committee who represent pro- more than one district must choose the ducers shall be nominated in accord- district in which the producer will vote ance with the procedures specified in and notify the Committee of that either paragraph (a) or paragraph (b) of choice. If the Committee is not notified this section as the Committee may de- and more than one ballot is received termine. from such a producer, the first ballot (a) Mail ballot voting. (1) The Com- received will be counted. Candidates mittee shall schedule a meeting, prior may only vote in the district in which to March 1 of each odd-numbered year, they are seeking nomination. in each producing district for the pur- (ii) Each ballot will list separately pose of selecting candidates for mem- the names of candidates for the member and alternate member nomina- ber positions and the names of can- tions. A notice of such meetings will be didates for the alternate member posi- mailed to each producer of record in tions for said district. each district. The nomination process (iii) A ballot will be mailed to pro- is as follows: ducers of record to give them an oppor- (i) Any person who produces olives in tunity to vote. Committee records will a particular district may offer the be used to determine the list of pro- name of any producer from that dis- ducers eligible to cast ballots. How- trict as a candidate for either a mem- ever, any producer who is not identi- ber or alternate member position in fied in such records may receive a bal- said district. lot if the Committee determines that (ii) A producer, who produces olives such producer is eligible to participate in more than one district, can be se- in nominations in that district. lected as a candidate for a member or (iv) A producer may cast a vote for as alternate member position in only one many candidates as there are member district. or alternate positions in said district. (iii) The Committee will notify by (v) The candidate on each list, as pre- mail producers who are selected as can- scribed in paragraph (a)(2)(ii) of this didates but are not in attendance at section, who receives the most votes such meetings. Such producers have will be the nominee for the first posi- the right to decline such listing on the tion, and until all positions for that ballot within 7 days of mailing such no- district are filled, the candidates re- tice. ceiving the second, third and fourth (iv) In the event a producer cannot highest number of votes will be the attend a meeting but wishes to be in- nominees for the second, third and cluded on the ballot, that producer fourth position respectively. may notify the Committee office in (vi) In the event of a tie which would writing no later than 7 days after the result in elimination of a tied can- date of the nomination meeting for the didate, a second ballot with the names producer’s district and request that the of those tied candidates will be mailed producer’s name be included on the bal- to producers in said district for an- lot. other vote. (v) In the event that no candidates or (b) Nomination meetings. In lieu of the an insufficient number of candidates mail ballot nomination procedure spec- are selected at such meetings for the ified in paragraph (a) of this section, producer members and alternates in the Committee may schedule nomina- the respective districts, the Committee tion meetings. In such an event, the will give written notice to producers in following procedure will apply: said district that additional names (1) Prior to March 15 of each odd- may be submitted for the specified po- numbered year, the Committee shall sition(s). schedule a nomination meeting to be (2) Following such meetings, and no held in each district for the purpose of later than March 15 of each odd-num- obtaining nominees for producer mem- bered year, the Committee shall pre- bers and alternate members for such pare and mail a ballot to each producer district.

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(2) Nominations for members and bal- member shall not be a producer, han- loting thereon shall precede nomina- dler, or family member (husband, wife, tions and balloting for alternate mem- son or daughter) of a producer or han- bers. dler of olives and shall have no direct (3) The candidate for each position financial interest in, nor be engaged in, who receives the highest number of the commercial production, marketing, votes shall be the nominee for the posi- buying, grading or processing of olives; tion: Provided, That such candidate re- nor shall they be either an officer, di- ceives a majority of the ballots cast. If rector, or employee, or family member no candidate receives such a majority, of an officer, director, or employee of the two candidates who received the any firm engaged in such activities. highest number of votes shall participate in a run-off balloting to determine (2) The public member and alternate which is the nominee. public member should be able to devote (c) For the purposes of this section, a sufficient time and must express a will- producer is a person engaged in a pro- ingness to attend subcommittee and prietary capacity as a single business committee activities regularly and to unit in the production of olives for familiarize themselves with the back- market as packaged olives and includes ground and economics of the olive in- an individual (owner-operated), part- dustry. nership, corporation, association, insti- (3) The public member and alternate tution, or other legal business unit. public member must be residents of (d) Determination of producer eligi- California. bility. (1) Only producers (including (b) Nomination procedures. (1) Prior to duly authorized officers or employees April 16 of the year in which nomina- of producers) who produced olives with- tions are made, the Committee will in the district shall participate in the recommend to the Secretary a public nomination and election of producer member and alternate public member members and alternates. for the Committee for a two-year term (2) Each producer (as defined in para- of office beginning June 1 and ending graph (c) of this section) shall be enti- May 31 of odd numbered years. tled to cast only one vote for each position. (2) The Committee will solicit, inter- (3) A producer having olive acreage in view and recommend to the Secretary more than one district may participate its nominees for public member and al- in nominations and elections in only ternate public member. one district. The district in which the (3) A majority vote is required in producer wishes to participate shall be Committee actions concerning the the producer’s choice. nomination of the public member and (4) Any member of a producer’s fam- alternate public member. ily (husband, wife, son or daughter) [48 FR 24313, June 1, 1983] may vote on behalf of an owner-operated, landlord-tenant, family enter- § 932.139 Late payment and interest prise, or other farming unit. charges. (5) Any authorized officer or employee of a corporation which is a pro- (a) The committee shall impose a ducer may vote. late payment charge on any handler (6) Any authorized member of a part- whose assessment has not been re- nership which is a producer may vote. ceived in the committee’s office, or the (7) Power of attorney (proxies) for envelope containing the payment leg- voting purposes are not accepted. ibly postmarked by the U.S. Postal Service, within 30 days of the invoice [48 FR 24312, June 1, 1983, as amended at 54 FR 46222, Nov. 2, 1989] date shown on the handler’s assessment statement. The late payment § 932.130 Public member and alternate charge shall be five percent of the un- public member eligibility require- paid balance. ments and nomination procedures. (b) In addition to that specified in (a) Eligibility requirements. (1) The paragraph (a) of this section, the com- public member and alternate public mittee shall impose an interest charge

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on any handler whose assessment pay- identifiable pit caps, end slices, or ment has not been received in the com- slices); and, mittee’s office, or the envelope con- (4) Canned broken pitted olives of the taining the payment legibly post- ripe type shall meet the minimum marked by the U.S. Postal Service, quality requirements as prescribed in within 30 days of the invoice date. The table 4 of this section; interest charge shall be the current (5) A lot of canned ripe olives is con- commerical prime rate of the commit- sidered to meet the requirements of tee’s bank plus two percent which shall this section if all or most of the sample be applied to the unpaid balance and units meet the requirements specified late payment charge for the number of in tables 1 through 4 of this section: days all or any part of the assessment Provided, That the number of sample specified in the handler’s assessment units which do not meet the require- statement is delinquent beyond the 30 ments specified in tables 1 through 4 of day payment period. this section does not exceed the accept- (c) The committee, upon receipt of a ance number prescribed for in the sam- late payment equal to or greater than ple size provided in table I of 7 CFR the assessment specified on the han- 52.38: Provided further, That there is no dler’s assessment statement, shall off flavor in any sample unit. promptly notify the handler (by registered mail) of any late payment TABLE 1—WHOLE AND PITTED STYLE charge and/or interest due as provided [Defects by count per 50 olives] in paragraphs (a) and (b) of this section. If such charges are not paid, or FLAVOR ...... Reasonably good; no ‘‘off’’ flavor FLAVOR (Green Ripe Free from objectionable flavors of the envelope containing payment is not Type) any kind legibly postmarked by the U.S. Postal SALOMETER ...... Acceptable Range in degrees: 3.0 to Service, within 30 days of the date on 14.0 COLOR ...... Reasonably uniform with not less such notification, late payment and in- than 60% having a color equal or terest charges as provided in para- darker than the USDA Composite graphs (a) and (b) of this section will Color Standard for Ripe Type accrue on the unpaid amount. CHARACTER ...... Not more than 5 soft units or 2 excessively soft units [49 FR 29210, July 19, 1984] UNIFORMITY OF 60%, by visual inspection, of the SIZE most uniform in size. The diameter of the largest does not exceed the § 932.149 Modified minimum quality smallest by more than 4mm requirements for specified styles of DEFECTS: canned olives of the ripe type. Pitter Damage 15 (a) Except as otherwise provided in (Pitted Style Only). this section, the minimum quality re- Major Blemishes 5 quirements prescribed in § 932.52(a)(1) Major Wrinkles .... 5 are modified as follows, for specified Pits and Pit Frag- Not more than 1.3% average by ments (Pitted count styles of canned olives of the ripe type: Style Only). (1) Canned whole and pitted olives of Major Stems ...... Not more than 3 the ripe type shall meet the minimum HEVM ...... Not more than 1 unit per sample quality requirements as prescribed in Mutilated ...... Not more than 3 Mechanical Dam- Not more than 5 table 1 of this section; age. (2) Canned sliced, segmented Split Pits or Mis- Not more than 5 (wedged), and halved olives of the ripe shapen. type shall meet the minimum quality requirements as prescribed in table 2 of TABLE 2—SLICED, SEGMENTED (WEDGED), AND this section; HALVED STYLES (3) Canned chopped olives of the ripe [Defects by count per 255 grams] type shall meet the minimum quality requirements as prescribed in table 3 of FLAVOR ...... Reasonably good; no ‘‘off’’ flavor SALOMETER ...... Acceptable Range in degrees: 3.0 to this section; and shall be practically 14.0 free from identifiable units of pit caps, COLOR ...... Reasonably uniform with no units end slices, and slices (‘‘practically free lighter than the USDA Composite from identifiable units’’ means that not Color Standard for Ripe Type CHARACTER ...... Not more than 13 grams excessively more than 10 percent, by weight, of the soft unit of chopped style olives may be DEFECTS:

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TABLE 2—SLICED, SEGMENTED (WEDGED), AND spect to color and blemishes of such ol- HALVED STYLES—Continued ives. [Defects by count per 255 grams] [62 FR 1244, Jan. 9, 1997] Pits and Pit Frag- Average of not more than 1 by count ments. per 300 grams § 932.151 Incoming regulations. Major Stems ...... Not more than 3 HEVM ...... Not more than 2 units per sample (a) Inspection stations. Natural condi- Broken Pieces Not more than 125 grams by weight tion olives shall be sampled and size- and End Caps. graded only at inspection stations which shall be a plant of a handler or TABLE 3—CHOPPED STYLE other place having facilities for sam- [Defects by count per 255 grams] pling and size-grading such olives: Pro- vided, That such location and facilities FLAVOR ...... Reasonably good; no ‘‘off’’ flavor are satisfactory to the Inspection Serv- SALOMETER ...... Acceptable Range in degrees: 3.0 to 14.0 ice and the committee: Provided fur- COLOR ...... Reasonably uniform with no units ther, That upon prior application to, lighter than the USDA Composite and approval by, the committee, a han- Color Standard for Ripe Type dler may have olives size-graded at an DEFECTS: Pits and Pit Frag- Average of not more than 1 by count inspection station other than the one ments. per 300 grams where the lot was sampled. Major Stems ...... Not more than 3 (b) Lot identification. Immediately HEVM ...... Not more than 2 units per sample upon receipt of each lot of natural condition olives for which inspection is re- TABLE 4—BROKEN PITTED STYLE quired, the handler shall complete [Defects by count per 255 grams] Form COC 3A or 3C, weight and grade report or such other lot identification FLAVOR ...... Reasonably good; no ‘‘off’’ flavor form as may be approved by the com- SALOMETER ...... Acceptable Range in degrees: 3.0 to 14.0 mittee, which shall contain at least the COLOR ...... Reasonably uniform with no units following: (1) Lot number; (2) date; (3) lighter than the USDA Composite variety; and (4) number and type con- Color Standard for Ripe Type tainers. Pending completion of size- CHARACTER ...... Not more than 13 grams excessively soft grading of such lot, or the sampling of DEFECTS: such lot if it is to be size-graded by Pits and Pit Frag- Average of not more than 1 by count sample, the handler shall maintain ments. per 300 grams identity of such lot of olives with its Major Stems ...... Not more than 3 corresponding lot weight and grade re- HEVM ...... Not more than 2 units per sample port. (b) Terms used in this section shall (c) Weighing. Each lot of natural con- have the same meaning as are given to dition olives for which inspection is re- the respective terms in the current quired shall be separately weighed to U.S. Standards for Grades of Canned determine the net weight of olives. If Ripe Olives (7 CFR part 52): Provided, the lot is to be size-graded by sample, That the definition of ‘‘broken pitted the lot shall be weighed upon receipt olives’’ is as follows: ‘‘Broken pitted ol- by the hanlder. If the lot is to be size- ives’’ consist of large pieces that may graded by lot, the net weight shall be have been broken in pitting but have determined after size-grading by not been sliced or cut. weighing all of the component parts resulting from the size-grading oper- [62 FR 1242, Jan. 9, 1997] ations (including culls), and totaling such weights. § 932.150 Modified minimum quality (d) Incoming inspection—(1) General. requirements for canned green ripe The handler is responsible for the prop- olives. er performance of all actions connected The minimum quality requirements with the identification of lots of olives, prescribed in § 932.52 (a)(1) of this part the weighing of boxes or bins, the tak- are hereby modified with respect to ing of samples, the size-grading of sam- canned green ripe olives so that no re- ples, and the furnishing of necessary quirements shall be applicable with re- personnel for the carrying out of such

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actions. All such actions shall be per- (3) Time period for disposition. All re- formed under the supervision of the In- quired disposition of noncanning olives spection Service. shall be completed not later than Sep- (2) Certification. For each lot of olives tember 30 of the crop year following that are size-graded, the handler shall the one in which the obligation is incomplete Form COC–3A or 3C weight curred or such later date that a han- and grade report, which shall contain dler may specify in a notice filed with at least the following: (i) Name of han- the committee at least 15 days prior to dler; (ii) name of producer; (iii) county September 15 of such subsequent crop of production; (iv) applicable lot num- year: Provided, That such notice shows ber; (v) weight certificate number; (vi) that such handler has a sufficient net weight; (vii) number and type of quantity of olives held in storage to containers; (viii) date received; (ix) meet his obligation and such later date time received; (x) method of size-grade is not later than the date when he will determination (sample or lot); (xi) have completed his disposition of ol- weight of sample, if size-graded by ives of the crop year of obligation. sample; and (xii) the quantity of olives (4) Olives not subject to incoming in- in each size designation. The com- spection. Except as otherwise prescribed pleted Form COC–3A or 3C shall be fur- in § 932.51(b), any lot of olives to be nished to the Inspection Service which used solely in the production of green shall certify thereon that the lot was olives or canned ripe olives of the ‘‘tree size-graded as required by § 932.51 if in ripened’’ type shall not be subject to in- accordance with the facts. coming inspection: Provided, That the (e) Disposition of noncanning olives— applicable requirements of § 932.51(b) (1) Notification and inspection of noncan- are met and the handler notifies the In- ning olives. Prior to disposition of non- spection Service, in writing, that such canning olives the handler shall com- lot is to be so used. Notice may be plete Form COC–5, report of limited given by writing on the weight certifi- and undersize and cull olives inspection cate ‘‘Lot to be used solely for use in and disposition, which shall contain the production of green olives or tree the following: (i) Type and number of ripened olives’’ and a copy of such containers; (ii) type of olives (undersize weight certificate given to the Inspec- or culls); (iii) net weight; (iv) variety; tion Service. (v) outlet (green olives, olive oil, etc.); (f) Partially exempted lots. (1) Pursu- and (vi) consignee. Before disposition ant to § 932.55, any handler may process of such olives, the completed Form any lot of natural condition olives for COC–5 shall be furnished to the Inspec- use in the production of packaged ol- tion Service which shall inspect the olives which has not first been weighed ives for conformance with the informa- and size-graded as an individual lot as tion contained thereon, and, if correct, required by § 932.51(a) (i) and (ii), but so certify in the space provided there- was combined with any other lot or on. lots of natural condition olives, only if (2) Control and surveillance. Noncan- (i) all the olives in the combined lot ning olives that have been reported on are delivered to the handler in the Form COC–5 and inspected by the In- same day, (ii) the total net weight of spection Service shall, unless such ol- the olives delivered to the handler by ives are disposed of immediately after any person in such day does not exceed being inspected under supervision of 500 pounds, (iii) each such person had the inspector, be identified by fixing to authorized combination of his lot with each bin or pallet of boxes an COC con- other lots, and (iv) the combined lot of trol card which may be obtained from the natural condition olives is weighed the committee. Such olives shall be and size-graded as required by kept separate and apart from other ol- § 932.51(a) (i) and (ii) prior to processing ives in the handler’s possession and the olives. shall be disposed of only in the outlet (2) Whenever the natural condition shown on Form COC–5 and under the olives in partially exempt individual supervision of an inspector of the In- lots are combined with other such ol- spection Service. ives as provided in paragraph (f)(1) of

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this section, the provision of the sec- (iii) Can size; tion applicable on individual lots shall (iv) Can code; apply instead to a combined lot. (v) Variety; (3) Each such handler shall file with (vi) Fruit size; and the committee a weekly report show- (vii) Style. ing for each day of the week the respec- (2) The Inspection Service shall issue tive quantity in combined lots together for each day’s pack a signed certificate with each person’s authorization for covering the quantities of such pack- combining lots. The report shall be aged olives which meet all applicable filed upon a form supplied by the com- minimum quality and size require- mittee. ments. Each such certificate shall con- (g) Additional Marketing Order Size tain at least the following: Designations. Pursuant to the authority (i) Date; in § 932.51(a)(1)(ii), the following addi- (ii) Place of inspection; tional size designations are estab- (iii) Name and address of handler; lished: (iv) Can code; (v) Variety; Ap- proxi- (vi) Fruit size; mate Average count (vii) Can size; Designation(s) count range (per pound) (per (viii) Style; pound) (ix) Total number of cases; Subpetite ...... 181 and up. (x) Number of cans per case; Petite ...... 166 141–180, inclusive. (xi) And statement that packaged ol- Extra Large Sevillano ‘‘L’’ ...... 86 76–90, inclusive. ives meet the effective minimum qual- Extra Large Sevillano ‘‘C’’ ..... 70 65–75, inclusive. ity requirements for canned ripe olives as warranted by the facts. [31 FR 12635, Sept. 27, 1966, as amended at 33 (d) Olives which fail to meet minimum FR 15631, Oct. 23, 1968; 34 FR 15389, Oct. 2, 1969; 49 FR 34440, Aug. 31, 1984; 49 FR 44448, quality and size requirements. (1) When- Nov. 7, 1984; 52 FR 38224, Oct. 15, 1987; 52 FR ever any portion of a handler’s daily 49346, Dec. 31, 1987] pack of packaged olives fails to meet all applicable minimum quality and § 932.152 Outgoing regulations. size requirements, the Inspection Serv- (a) Inspection stations. Processed ol- ice shall issue a signed report covering ives shall be sampled and inspected such olives. Each such report shall con- only at an inspection station which tain at least the following: shall be any olive processing plant hav- (i) Date; ing facilities for in-line or lot inspec- (ii) Place of inspection; tion which are satisfactory to the In- (iii) Name and address of handler; spection Service and the Committee; or (iv) Can code; an olive processing plant which has an (v) Variety; approved Quality Assurance Program (vi) Fruit size; in effect. (vii) Can size; (b) Inspection—General. Inspection of (viii) Style; packaged olives for conformance with (ix) Total number of cases; § 932.52 shall be by a Quality Assurance (x) Number of cans per case; and Program approved by the Processed (xi) Reason why the applicable re- Products Branch (PPB), USDA; or by quirements were not met. in-line or lot inspection. A PPB ap- (2) All such packaged olives shall be proved Quality Assurance Program kept separate and apart from other shall be pursuant to a Quality Assur- packaged olives and shall be so identi- ance contract as referred to in § 52.2. fied by control cards or other means (c) Certification. (1) Each handler satisfactory to the Inspection Service shall furnish daily to the Inspection and the committee that their identity Service a copy of a pack report for the is readily apparent. Such packaged ol- preceding work day which shall con- ives may be reprocessed under super- tain at least the following: vision of the Inspection Service. Any (i) The total number of cases of pack- such packaged olives that are not so aged olives; reprocessed may be disposed of only in (ii) Number of cans per case; accordance with § 932.155.

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(e) Examination of certain olives re- of natural condition olives and keep ceived for use in the production of canned them separate and apart from other ol- ripe olives of the tree-ripened type. Pur- ives received. Such identification and suant to § 932.51(b), whenever a handler separation shall be maintained receives a lot of natural condition ol- throughout the processing and produc- ives or makes a separation resulting in tion of such olives as canned ripe olives a sublot, solely for use in the produc- of the tree-ripened type. tion of canned ripe olives of the tree- (f) Size designations. (1) In lieu of the ripened type he shall, at the time of re- size designations specified in ceiving such lot or making such sepa- § 932.52(a)(2), except as provided in ration, notify the committee or the In- spection Service of the lot so received § 932.51(a) (1) and (2), canned whole ripe or the sublot so created which shall olives, other than those of the ‘‘tree- then be subject to examination by the ripened’’ type, shall conform to the committee, or by the Inspection Serv- marketing order size designations list- ice if so designated by the committee, ed in table 1 contained herein, and to assure that the olives in such lot or shall be of a size not smaller than the sublot comply with the specifications applicable size requirements, toler- set forth in § 932.109. Each such handler ances, and percentages listed in para- shall identify all such lots and sublots graph (h) of this section.

TABLE I—CANNED WHOLE RIPE OLIVE SIZES AVERAGE COUNT RANGES [Per Pound]

Variety group 1 Variety group 2 Except Size designation Ascolano, Ascolano, Except Barouni, St. Barouni, St. Obliza Obliza Agostino Agostino

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 ol- (i) Variety group 1 olives, except ives shall conform with the applicable Ascolano, Barouni, and St. Agostino count per pound range indicated in varieties, shall be at least ‘‘Extra table I of paragraph (f)(1) of this sec- Large;’’ tion. When the count per pound of (ii) Variety group 1 olives of the whole olives falls between two count Ascolano, Barouni, and St. Agostino ranges, the size designation shall be varieties shall be at least ‘‘Large;’’ that of the smaller size. The average (iii) Variety group 2 olives, except count for canned whole ripe olives is the Obliza variety, shall be at least determined from all containers in the ‘‘Small;’’ sample and is calculated on the basis of (iv) Variety group 2 olives of the the drained weight of the olives. Obliza variety shall be at least ‘‘Me- (3) Pitted olives must meet the size dium.’’ requirements for canned whole olives (g) Size Certification. (1) When lim- specified in paragraphs (f)(1) and (f)(2) ited-use size olives for limited-use of this section prior to pitting, or must styles are authorized during a crop meet the size designations specified in year and a handler elects to have olives § 52.3754 of the U.S. Standards for sized pursuant to § 932.51(a)(2)(i), any Grades of Canned Ripe Olives subse- lot of limited-use size olives may be quent to pitting, subject to the fol- used in the production of packaged ol- lowing minimum size requirements: ives for limited-use styles if such olives

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are within the average count range in (2) When limited-use size olives are table II contained herein for that vari- not authorized for limited-use styles ety group, and meet such further mid- during a crop year and a handler elects point or acceptable count requirements to have olives sized pursuant to for the average count range in each § 932.51(a)(2)(ii), any lot of canning- size as approved by the committee. sized olives may be used in the production of packaged olives for whole, pit- TABLE II—LIMITED USE SIZE OLIVES ted, or limited-use styles if such olives

Variety Average count range (per are within the average count range in pound) table III contained herein for that vari- Group 1, except Ascolano, 76–90, inclusive. ety group, and meet such further mid- Barouni, and St. Agostino. point or acceptable count requirements Group 1, Ascolano, Barouni, 106–140, inclusive. and St. Agostino. for the average count range in each Group 2, except Obliza ...... 141–180, inclusive. size as approved by the committee. Group 2, Obliza ...... 128–140, inclusive.

TABLE III—CANNED WHOLE RIPE OLIVE SIZES AVERAGE COUNT RANGES [Per Pound]

Variety group 1 Variety group 2 Except Size designation Ascolano, Ascolano, Except Barouni, St. Barouni, St. Obliza Obliza Agostino Agostino

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 (i) For olives of the large size des- than those of the ‘‘tree-ripened’’ type, ignation, not more than 25 percent, by shall be of a size not smaller than the count, of such olives may weigh less following applicable size requirements, than 1/105 pound each including not tolerances and percentages: more than 10 percent, by count, of such (1) With respect to variety group 1 ol- olives that weigh less than 1/116 pound ives, except Ascolano, Barouni, and St. each; and Agostino varieties, the individual (ii) For olives of any designation ex- fruits shall each weigh no less than 1/75 cept the large size, not more than 5 pound, except that percent, by count, of such olives may (i) For olives of the extra large size weigh less than 1/105 pound each; designation, not more than 25 percent, (3) With respect to variety group 2 ol- by count, of such olives may weigh less ives, except the Obliza variety, the in- than 1/75 pound each including not dividual fruits shall each weigh not more than 10 percent, by count, of such less than 1/140 pound, except that olives that weigh less than 1/82 pound (i) For olives of the small size des- each; and ignation, not more than 35 percent by (ii) For olives of any designation ex- count, of such olives may weigh less cept the extra large size, not more than than 1/140 pound each including not 5 percent, by count, of such olives may more than 7 percent, by count, of such weigh less than 1/75 pound each; olives that weigh less than 1/160 pound (2) With respect to variety group 1 ol- each; and ives of the Ascolano, Barouni, and St. (ii) For olives of any designation ex- Agostino varieties, the individual cept the small size, not more than 5 fruits shall each weigh not less than 1/ percent, by count, of such olives may 105 pound, except that weigh less than 1/140 pound each;

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(4) With respect to variety group 2 ol- (4) Variety Group 2 olives, except the ives of the Obliza variety, the indi- Obliza variety, shall be of a size which vidual fruit shall each weigh not less individually weigh at least 1⁄205 pound: than 1/127 pound, except that Provided, That not to exceed 35 percent (i) For olives of the medium size des- of the olives in any lot or sublot may ignation, not more than 35 percent, by be smaller than 1⁄205 pound. count, of such olives may weigh less (5) Variety Group 2 olives of the than 1/127 pound each including not Obliza variety shall be of a size which more than 7 percent, by count, of such individually weigh at least 1⁄180 pound: olives that weigh less than 1/135 pound Provided, That not to exceed 35 percent each; and of the olives in any lot or sublot may (ii) For olives of any designation ex- be smaller than 1⁄180 pound. cept the medium size, not more than 5 percent, by count, of such olives may [61 FR 40510, Aug. 5, 1996, as amended at 62 weigh less than 1/127 pound each. FR 1244, Jan. 9, 1997] [31 FR 12635, Sept. 27, 1966, as amended at 33 § 932.154 Handler transfer. FR 15632, Oct. 23, 1968; 36 FR 24795, Dec. 23, 1971; 48 FR 54212, Dec. 1, 1983; 52 FR 38224, (a) Except as hereinafter provided in Oct. 15, 1987; 52 FR 49346, Dec. 31, 1987; 57 FR paragraph (b) of this section, Form 36353, Aug. 13, 1992; 59 FR 38106, July 27, 1994; COC–6 ‘‘Report of Interhandler Trans- 59 FR 55341, Nov. 7, 1994; 62 FR 1244, Jan. 9, fer’’ shall be completed by the trans- 1997] fering handler for all lots of processed, but not packaged, olives transferred to § 932.153 Establishment of minimum quality and size requirements for another handler within the area and processed olives for limited uses. for all lots and sublots of natural condition olives transferred to another (a) On Minimum quality requirements. handler within the area or shipped to or after August 1, 1996, any handler destinations outside the area except may use processed olives of the respec- fresh market outlets. For natural con- tive variety group in the production of dition and processed, but not packaged, limited use styles of canned ripe olives olives transferred between handlers if such olives were processed after July 31, 1996, and meet the minimum quality within the area, two completed copies requirements specified in § 932.52(a)(1) of said form, signed by the transferring as modified by § 932.149. handler, shall accompany the lot or (b) Sizes. On and after August 1, 1996, sublot to the receiving handler who any handler may use processed olives shall certify on both copies as to rein the production of limited-use styles ceipt of the olives and forward one of canned ripe olives if such olives were copy to the committee within 10 days harvested after August 1, 1996, and following receipt of the olives. For nat- meet the following requirements: ural condition olives transferred by a (1) The processed olives shall be iden- handler to a destination outside the tified and kept separate and apart from area, except fresh market outlets, two any olives harvested before August 1, copies of said form shall be completed 1996. by the transferring handler with the (2) Variety Group 1 olives, except the words Outside the Area included in the Ascolano, Barouni, or St. Agostino va- upper right corner of the form and one rieties, shall be of a size which individ- copy shall be returned to the com- ually weigh at least 1⁄105 pound: Pro- mittee within 10 days following trans- vided, That no more than 35 percent of fer of the olives. The completed form the olives in any lot or sublot may be shall contain at least the following in- smaller than 1⁄105 pound. formation: (1) Name and address of (3) Variety Group 1 olives of the both the transferor and transferee; (2) Ascolano, Barouni, or St. Agostino va- date of transfer; (3) condition (natural, rieties shall be of a size which individ- processed but not packaged); (4) ually weigh at least 1⁄180 pound: Pro- weight, number and size of each type of vided, That no more than 35 percent of container; (5) variety; and (6) other the olives in any lot or sublot may be identification (undersize olives, culls, smaller than 1⁄180 pound. style, etc.).

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(b) Undersize or cull olives that are (C) The quantity, in cases, the vari- transferred from one handler to an- ety, size, can size, and can code of the other and for which the transferring packaged olives; and handler desires credit toward satisfac- (D) A certification from the chari- tion of his obligation under § 932.51(a)(2) table organization that such olives will need only be accompanied by two cop- be used by the organization and will ies of Form COC–5, report of limited not be sold. and undersize and cull olives inspection (ii) Prior to approval, the committee and disposition: Provided, That such shall perform such verification of the transfers are carried out under the su- accuracy of the information on the ap- pervision of the Inspection Service. plication as it deems necessary. The (c) No handler may ship any lot or committee may deny any application if sublot of natural condition olives to a it finds that the required information destination outside the area, except is incomplete or incorrect, or has rea- fresh market outlets, unless such ol- son to believe that the intended re- ives have first been size-graded and ceiver is not a charitable organization, meet the disposition and holding re- or that the handler or the organization quirements applicable under para- has disposed of packaged olives con- graphs (a) (2) and (4) of § 932.51. The size trary to a previously approved applica- of such transferred olives shall be tion. The committee shall notify the verified, prior to transfer, by certifi- applicant and the organization in writ- cation issued to the transferring han- ing of its approval, or denial, of the ap- dler by the appropriate inspection serv- plication. Any such approval shall con- ice (Federal or Federal-State Inspec- tinue in effect so long as the packaged tion Service or the Processed Products olives covered thereby are disposed of Branch, USDA). consistent with this section. The committee shall notify the handler and the [31 FR 12636, Sept. 27, 1966, as amended at 36 organization of each such termination FR 24795, Dec. 23, 1971; 49 FR 34440, Aug. 31, 1984; 49 FR 44448, Nov. 7, 1984] of approval. The handler shall furnish the committee, upon demand, such evi- § 932.155 Special purpose shipments. dence of disposition of the packaged olives covered by an approved applica- (a) The disposition of packaged olives tion as may be satisfactory to the com- covered by § 932.152(d) which are not re- mittee. processed, and new packaged olive (b) In accordance with the provisions products covered under paragraph (b) of § 932.55(b), packaged olives to be used of this section which have not been dis- in marketing development projects posed of by the end of the test market may be handled without regard to period, shall be handled in conformity § 932.149 provided the following condi- with the applicable provisions of this tions are met. Such olives must be paragraph. identified to the satisfaction of the In- (1) Under the supervision of the In- spection Service and kept separate spection Service, such packaged olives from other packaged olives. The han- may be disposed of for use in the pro- dler shall submit to the committee for duction of olive oil or dumped. its approval ‘‘COC Form 155’’ at least 10 (2) Such packaged olives may be dis- working days prior to the shipment of posed of to a charitable organization such packaged olives to test markets, for use by such organization, provided and report progress or changes to the the following conditions are met: committee, as requested. The applicant (i) Any handler who wishes to so dis- handler shall provide the following in- pose of olives shall first file a written formation on COC Form 155: application with, and obtain written (1) The quantity of olives to be uti- approval thereof, from the committee. lized (limited to not more than five Each such application shall contain at percent of the handler’s crop year ac- least: quisitions); (A) The name and address of the han- (2) Specific market outlet; dler and the charitable organization; (3) Flavorings or other ingredients (B) The physical location of the char- added to the olives; itable organization’s facilities; (4) Style of olives used;

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(5) Type of olives used, either black year in which nominations are made or green ripe; and in the preceding crop year shall (6) Container sizes; each be represented by four members (7) Varieties used, whether Ascolano, and four alternate members. Barouni, Manzanillo, Mission, [65 FR 62994, Oct. 20, 2000] Sevillano, etc.; (8) Sizes of olives utilized; § 932.161 Reports. (9) Approximate dates when the new product will be packaged; (a) Reports of olives received. Each (10) Name and address of requesting handler shall submit to the committee, handler; on a form provided by the committee, (11) Place of inspection; for each week (Sunday through Satur- (12) Certification that all assessment day, or such other 7-day period for and reporting requirements in effect which the handler has submitted a re- under the marketing order will be met quest and received approval from the prior to shipment; committee) and not later than the (13) Certification that all such fruit fourth day after the close of such week, will be kept separate from other pack- a report showing by size designation aged olives and will be so identified by and culls the respective quantities of control cards or other means accept- each variety of olives received. In addi- able to the Inspection Service; tion thereto, he shall also report the (14) Purpose and nature of the re- seasonal totals to date of the report. quest, whether for test marketing, (b) Sales reports. (1) Each handler evaluation, market research, etc.; and shall submit to the committee, on COC (15) An estimate of the amount of Form 21 as provided by the committee, time required to complete the test. The for each month and not later than the committee shall promptly approve or 15th day following the end of that deny the application, and may add lim- month, a report showing the handler’s itations to any such approval. Upon ap- total sales of packaged olives to com- proval, the applicant handler shall no- mercial outlets in the United States, to tify the Inspection Service. Packaged governmental agencies, and to foreign olives so identified and remaining un- countries. Such sales shall be reported used at the end of the approved test- in the following categories: market period shall be disposed of ac- (i) Whole and whole pitted styles of cording to paragraph (a) of this sec- canned ripe olives in consumer size tion. containers; (c) In accordance with the provisions (ii) Whole and whole pitted styles of of § 932.55(b), any handler may use proc- canned ripe olives in institutional size essed olives in the production of pack- containers; aged olives for repackaging, and ship (iii) Chopped style of canned ripe ol- packaged olives for repackaging, if the ives in all types of containers; and packaged olives meet the minimum (iv) Halved, segmented (wedged), and quality requirements, except for the re- sliced styles of canned ripe olives in all quirement that the packaged olives types of containers. possess a reasonably good flavor: Pro- The quantity in each category shall be vided, That the failure to possess a rea- reported in terms of the equivalent sonably good flavor is due only to ex- number of cases of 24 No. 300 (300×407) cessive sodium chloride. size cans. [33 FR 15632, Oct. 23, 1968, as amended at 39 (2) Each handler shall submit to the FR 38221, Oct. 30, 1974; 62 FR 1244, Jan. 9, 1997; committee, on a form provided by the 65 FR 4575, Jan. 31, 2000] committee, for each month and not more than 15 days after the end of such § 932.159 Reallocation of handler mem- month, a report showing the total bership. quantity of packaged olives of the ripe Pursuant to § 932.25, handler represen- and green ripe types sold during the tation on the Committee is reallocated month. Such reports shall include the to provide that the two handlers who following information, as applicable: handled the largest and second largest (i) With respect to the whole, pitted, total volume of olives during the crop and broken pitted styles of packaged

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olives of the ripe or green ripe type, that the committee may require such each style shall be reported separately reporting in terms of the equivalent on COC Form 29a in terms of the quan- number of cases of 24 No. 300 (300×407) tity of each size of olives as designated size cans. Each handler shall report on the form. Such quantity, or quan- separately the total quantity of any tities, shall be reported in terms of the packaged olives of the green ripe type total amount packaged in each of the held in storage at all locations. container sizes listed on said form ex- (2) Halved, sliced, segmented cept that the committee may require (wedged), and chopped styles of pack- such reporting in terms of the equiva- aged olives of the ripe or green ripe lent number of cases of 24 No. 300 type shall be reported in terms of the (300×407) size cans. Each handler shall quantity of each style packaged in report separately the total monthly each of the container sizes listed on sales of packaged olives of the green COC Form 27b except that the com- ripe type. mittee may require such reporting in (ii) Limited use styles of packaged terms of the equivalent number of olives of the ripe or green ripe type cases of 24 No. 300 (300×407) size cans. shall be reported in terms of the quan- (e) Processed olive bulk inventory re- tity of each style packaged in each of ports. Each handler shall submit an in- the container sizes listed on COC Form ventory report to the committee, on a 29b except that the committee may re- form provided by the committee, not quire such reporting in terms of the later than the 15th day of each month equivalent number of cases of 24 No. 300 showing the total quantity of processed (300×407) size cans. olives of the ripe and green ripe types (c) Report of handler’s utilization of held in bulk storage at all locations on limited size olives. Each handler shall the last day of the preceding month. submit to the committee, on a form Such reports shall contain the fol- provided by the committee, upon com- lowing information, as applicable: pletion of the handler’s canning season, (1) The total tonnage of processed ol- but not later than August 1st of each ives of the ripe and green ripe types, crop year, a report showing the quan- held in storage by the handler, which tities of limited canning size olives are of any size that may be used in the used in (1) halved; (2) segmented production of packaged olives of the (wedged); (3) sliced; (4) chopped; (5) whole or the pitted styles shall be re- acidified; (6) Spanish olives; (7) Sicilian ported on COC Form 27c in terms of the style olives; (8) Greek style olives; (9) total quantity of each size designated olive oil; (10) olives dumped; and (11) on the form. any other use (specify such use). (2) The total tonnage of processed ol- (d) Packaged olive inventory reports. ives of the ripe and green ripe types, Each handler shall submit an inven- held in storage by the handler, which tory report to the committee, on a are of sizes that may be used in the form provided by the committee, not production of packaged olives of the later than the 15th day of each month halved, sliced, segmented (wedged), or showing the total quantity of packaged chopped style shall be reported on COC olives of the ripe and green ripe types Form 27b. held in storage at all locations on the (f) Packout reports. Each handler shall last day of the preceding month. Such submit to the committee, on a form reports shall contain the following in- provided by the committee, for each formation, as applicable: month and not more than 15 days after (1) With respect to the whole, pitted, the end of such month, a report show- and broken pitted styles of packaged ing the total production of packaged ripe or green ripe type olives, each olives of the ripe and green ripe types. style shall be reported separately on Such reports shall include the fol- COC Form 27a in terms of the packaged lowing information, as applicable: quantity of each size designated on the (1) With respect to the whole, pitted, form. Such quantity, or quantities, and broken pitted styles of packaged shall be reported in terms of the total olives of the ripe or the green ripe amount packaged in each of the con- types, each style shall be reported sep- tainer sizes listed on said form except arately on COC Form 28a in terms of

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the total quantity of each size of olives riety plums (fresh prunes), and table as designated on the form. Such quan- grapes regulated under section 8e of the tity, or quantities, shall be reported in Agricultural Marketing Agreement Act terms of the total amount packaged in of 1937, as amended. 944.401 Olive Regulation 1. each of the container sizes listed on 944.503 Table Grape Import Regulation 4. said form except that the committee 944.550 Kiwifruit import regulation. may require such reporting in terms of 944.700 Fresh prune import regulation. the equivalent number of cases of 24 No. 300 (300×407) size cans. Each handler AUTHORITY: 7 U.S.C. 601–674. shall report separately the total EDITORIAL NOTE: After January 1, 1979, Im- monthly production of packaged olives port regulations which are in effect for a of the green ripe type. year or less, will not be carried in the Code (2) Halved, sliced, segmented of Federal Regulations. For FEDERAL REG- ISTER citations affecting these regulations, (wedged), and chopped styles of pack- see the List of CFR Sections Affected, which aged olives of the ripe or green ripe appears in the Finding Aids section of the type shall be reported in terms of the printed volume and at www.fdsys.gov. quantity of each style packaged in each of the container sizes listed on § 944.28 Avocado Import Grade Regu- COC Form 28b except that the com- lation. mittee may require such reporting in (a) Pursuant to section 8e of the act terms of the equivalent number of and Part 944-Fruits; Import Regula- cases of 24 No. 300 (300×407) size cans. tions, the importation into the United [33 FR 15632, Oct. 23, 1968, as amended at 36 States of any avocados is prohibited on FR 24795, Dec. 23, 1971; 47 FR 13118, Mar. 29, and after May 28, 1985, unless such avo- 1982; 49 FR 34440, 34441, Aug. 31, 1984; 49 FR cados grade at least U.S. No. 2, as such 44448, Nov. 7, 1984] grade is defined in the United States Standards for Florida Avocados (7 CFR § 932.230 Assessment rate. 51.3050 through 51.3069). Such grade re- On and after January 1, 2010, an as- quirement is the same as that specified sessment rate of $44.72 per ton is estab- in § 915.306 for avocados grown in South lished for California olives. Florida under M.O. 915 (7 CFR part 915). [75 FR 22213, Apr. 29, 2010] (b) The Federal or Federal-State In- spection Service, Fruit and Vegetable EDITORIAL NOTE: After January 1, 1979, Division, Agricultural Marketing Serv- ‘‘Budget of Expenses and Rate of Assessment’’ regulations (e.g., sections .200 through .299) ice, United States Department of Agri- and ‘‘Handling’’ regulations (e.g., sections .300 culture, is designated as the govern- through .399) which are in effect for a year or ment inspection service for certifying less, will not be carried in the Code of Fed- the grade, size, quality, and maturity eral Regulations. For FEDERAL REGISTER ci- of avocados that are imported into the tations affecting these regulations, see the United States. Inspection by the Fed- List of CFR Sections Affected, which appears eral or Federal-State Inspection Serv- in the Finding Aids section of the printed volume and at www.fdsys.gov. ice with evidence thereof in the form of an official inspection certificate, issued by the respective service, applicable to PART 944—FRUITS; IMPORT the particular shipment of avocados, is REGULATIONS required on all imports. The inspection and certification services will be avail- Sec. able upon application in accordance 944.28 Avocado Import Grade Regulation. 944.31 Avocado import maturity regulation. with the rules and regulations gov- 944.106 Grapefruit import regulation. erning inspection and certification of 944.312 Orange import regulation. fresh fruits, vegetables, and other prod- 944.350 Safeguard procedures for avocados, ucts (7 CFR part 51) and in accordance grapefruit, kiwifruit, olives, oranges, with the regulations designating in- prune variety plums (fresh prunes), and spection services and procedure for ob- table grapes, exempt from grade, size, taining inspection and certification (7 quality, and maturity requirements. 944.400 Designated inspection services and CFR 944.400). procedure for obtaining inspection and (c) The term importation means re- certification of imported avocados, lease from custody of the United States grapefruit, kiwifruit, oranges, prune va- Customs Service. The term commercial

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processing into products means the man- Agreement Act of 1937, as amended [7 ufacture of avocado product which is U.S.C 601–674], and Part 944—Fruits; preserved by any recognized commer- Import Regulations, the importation cial process, including canning, freez- into the United States of any avocados, ing, dehydrating, drying, the addition except the Hass, Fuerte, Zutano, and of chemical substances, or by fer- Edranol varieties, is prohibited unless: mentation. (1) Any portion of the skin of the in- (d) Any person may import up to 55 dividual avocados has changed to the pounds of avocados exempt from the re- color normal for that fruit when ma- quirements specified in this section. ture for those varieties which normally (e) Any lot or portion thereof which change color to any shade of red or fails to meet the import requirements, purple when mature, except for the and is not being imported for purposes Linda variety; or of consumption by charitable institu- (2) Such avocados meet the minimum tions, distribution by relief agencies, weight or diameter requirements for seed, or commercial processing into the Monday nearest each date speci- products; prior to or after recondi- fied, through the Sunday immediately tioning may be exported or disposed of prior to the nearest Monday of the under the supervision of the Federal or specified date in the next column, for Federal-State Inspection Service with each variety listed in the following the costs of certifying the disposal of table I: Provided, that avocados may such lot borne by the importer. not be handled prior to the earliest (f) The grade, size, and quality re- date specified in column A of such quirements of this section shall not be table for the respective variety; Pro- applicable to avocados imported for vided further, There are no restrictions consumption by charitable institu- on size or weight on or after the date tions, distribution by relief agencies, specified in column D; Provided fur- seed, or commercial processing into ther, That up to a total of 10 percent, products, but shall be subject to the by count to the individual fruit in each safeguard provisions contained in lot may weigh less than the minimum § 944.350. specified or be less than the specified [50 FR 21032, May 22, 1985, as amended at 58 diameter, except that no such avocados FR 69185, Dec. 30, 1993] shall be over 2 ounces lighter than the minimum weight specified for the vari- § 944.31 Avocado import maturity reg- ety: Provided further, That up to dou- ulation. ble such tolerance shall be permitted (a) Pursuant to section 8e [7 U.S.C. for fruit in an individual container in a 608e–1] of the Agricultural Marketing lot.

TABLE 1

A Min. Min. B Min. Min. C Min. Min. D Variety date wt. diam. date wt. diam. date wt. diam. date

Dr. Dupuis #2 ...... 5–30 16 37⁄16 6–13 14 35⁄16 7–04 12 32⁄16 7–18 Simmons ... 6–20 16 39⁄16 7–04 14 37⁄16 7–18 12 31⁄16 8–01 Pollock ...... 6–20 18 311⁄16 7–04 16 37⁄16 7–18 14 34⁄16 8–01 Hardee ...... 6–27 16 32⁄16 7–04 14 214⁄16 7–11 12 ...... 7–25 Nadir ...... 6–27 14 33⁄16 7–04 12 31⁄16 7–11 10 214⁄16 7–18 Ruehle ...... 7–04 18 311⁄16 7–11 16 39⁄16 8–01 12 35⁄16 8–15 7–18 14 3 7⁄16 8–08 10 3 3⁄16 Bernecker .. 7–18 18 36⁄16 8–01 16 35⁄16 8–15 14 34⁄16 8–29 Miguel (P) 7–18 22 313⁄16 8–01 20 312⁄16 8–15 18 310⁄16 8–29 Nesbitt ...... 7–18 22 312⁄16 8–01 16 35⁄16 8–08 14 33⁄16 8–22 Tonnage .... 8–01 16 36⁄16 8–15 14 34⁄16 8–22 12 30⁄16 8–29 Waldin ...... 8–01 16 39⁄16 8–15 14 37⁄16 8–29 12 34⁄16 9–12 Tower II ..... 8–01 14 36⁄16 8–15 12 34⁄16 8–29 10 32⁄16 9–05 Beta ...... 8–08 18 38⁄16 8–15 16 35⁄16 8–29 14 33⁄16 9–05 Lisa (P) ..... 8–08 12 32⁄16 8–15 11 30⁄16 ...... 8–22 Black Prince .... 8–15 28 41⁄16 8–29 23 314⁄16 9–12 16 39⁄16 10–03 Loretta ...... 8–22 30 43⁄16 9–05 26 315⁄16 9–19 22 312⁄16 9–26 Booth 8 ..... 8–29 16 39⁄16 9–12 14 36⁄16 9–26 12 33⁄16 10–24 10–10 10 3 1⁄16

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TABLE 1—Continued

A Min. Min. B Min. Min. C Min. Min. D Variety date wt. diam. date wt. diam. date wt. diam. date

Booth 7 ..... 8–29 18 313⁄16 9–12 16 310⁄16 9–26 14 38⁄16 10–10 Booth 5 ..... 9–05 14 39⁄16 9–19 12 36⁄16 ...... 10–03 Choquette 9–26 28 44⁄16 10–17 24 41⁄16 10–31 20 314⁄16 11–14 Hall ...... 9–26 26 314⁄16 10–10 20 39⁄16 10–24 18 38⁄16 11–07 Lula ...... 10–03 18 311⁄16 10–10 14 36⁄16 10–31 12 33⁄16 11–14 Monroe ...... 11–07 26 43⁄16 11–21 24 41⁄16 12–05 20 314⁄16 1–02 12–19 16 3 9⁄16 Arue ...... 5–16 16 ...... 5–30 14 33⁄16 6–20 12 ...... 7–04 Donnie 5–23 16 35⁄16 6–06 14 34⁄16 6–20 12 ...... 7–04 Fuchs ...... 6–06 14 33⁄16 6–20 12 30⁄16 ...... 7–04 K–5 ...... 6–13 18 35⁄16 6–27 14 33⁄16 ...... 7–11 West Indian Seedling 1 6–20 18 ...... 7–18 16 ...... 8–22 14 ...... 9–19 Gorham ..... 7–04 29 45⁄16 7–18 27 43⁄16 ...... 8–15 Biondo ...... 7–11 13 ...... 8–15 Petersen .... 7–11 14 38⁄16 7–18 12 35⁄16 7–25 10 32⁄16 8–08 232 ...... 7–18 14 ...... 8–01 12 ...... 8–15 Pinelli ...... 7–18 18 312⁄16 8–01 16 310⁄16 ...... 8–15 Trapp ...... 7–18 14 310⁄16 8–01 12 37⁄16 ...... 8–15 K–9 ...... 8–01 16 ...... 8–22 Christina .... 8–01 11 214⁄16 ...... 8–22 Catalina ..... 8–15 24 ...... 8–29 22 ...... 9–19 Blair ...... 8–29 16 38⁄16 9–12 14 35⁄16 ...... 10–03 Guatemalan Seedling 2 9–05 15 ...... 10–03 13 ...... 12–05 Marcus ...... 9–05 32 412⁄16 9–19 24 45⁄16 ...... 10–31 Brooks 1978 ...... 9–05 12 34⁄16 9–12 10 31⁄16 9–19 8 214⁄16 10–10 Rue ...... 9–12 30 43⁄16 9–19 24 315⁄16 10–03 18 39⁄16 10–17 Collinson ... 9–12 16 310⁄16 ...... 10–10 Hickson ..... 9–12 12 31⁄16 9–26 10 30⁄16 ...... 10–10 Simpson .... 9–19 16 39⁄16 ...... 10–10 Chica ...... 9–19 12 37⁄16 10–03 10 34⁄16 ...... 10–17 Leona ...... 9–26 18 310⁄16 10–03 16 ...... 10–10 Melendez .. 9–26 26 314⁄16 10–10 22 311⁄16 10–24 18 37⁄16 11–07 Herman ..... 10–03 16 39⁄16 10–17 14 36⁄16 ...... 10–31 Pinkerton (CP) ...... 10–03 13 33⁄16 10–17 11 30⁄16 10–31 9 ...... 11–14 Taylor ...... 10–10 14 35⁄16 10–24 12 32⁄16 ...... 11–07 Ajax (B–7) 10–10 18 314⁄16 ...... 10–31 Booth 3 ..... 10–10 16 38⁄16 10–17 14 36⁄16 ...... 10–31 Semil 34 .... 10–17 18 310⁄16 10–31 16 38⁄16 11–14 14 35⁄16 11–28 Semil 43 .... 10–24 18 310⁄16 11–7 16 38⁄16 11–21 14 35⁄16 12–05 Booth 1 ..... 11–14 16 312⁄16 11–28 12 36⁄16 ...... 12–12 Zio (P) ...... 11–14 12 31⁄16 11–28 10 214⁄16 ...... 12–12 Gossman ... 11–28 11 31⁄16 ...... 12–26 Brookslate 12–05 18 313⁄16 12–12 16 310⁄16 1–02 12 35⁄16 1–30 12–19 14 3 8⁄16 1–16 10 Meya (P) ... 12–12 13 32⁄16 12–26 11 30⁄16 1–09 Reed (CP) 12–12 12 34⁄16 12–26 10 33⁄16 1–09 9 30⁄16 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 (b) The term diameter means the maturity requirements specified in this greatest dimension measured at a right section must be maintained under the angle to a straight line from the stem supervision of the Federal or Federal- to the blossom end of the fruit. State Inspection Service using the (c) The term importation means re- Positive Lot Identification program, lease from custody of the United States and when presented for reinspection, Customs Service. The term commercial must meet the maturity requirements processing into products means the man- which correspond to the date of the ufacture of avocado product which is original inspection.

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preserved by any recognized commer- and is not being imported for purposes cial process, including canning, freez- of consumption by charitable institu- ing, dehydrating, drying, the addition tions, distribution by relief agencies, of chemical substances, or by fer- seed, or commercial processing into mentation. products; prior to or after recondi- (d) Any person may import up to 55 tioning may be exported or disposed of pounds of avocados exempt from the re- under the supervision of the Federal or quirements specified in this section. Federal-State Inspection Service with (e) The Federal or Federal-State In- the costs of certifying the disposal of spection Service, Fruit and Vegetable such lot borne by the importer. Division, Agricultural Marketing Serv- (g) The maturity requirements of ice, United States Department of Agri- this section shall not be applicable to culture, is designated as the govern- avocados imported for consumption by mental inspection service for certi- charitable institutions, distribution by fying the grade, size, quality, and ma- relief agencies, seed, or commercial turity of avocados imported into the processing into products, but such avo- United States. Inspection by the Fed- cados shall be subject to the safeguard eral or Federal-State Inspection Serv- provisions contained in § 944.350. ice with evidence thereof in the form of an official inspection certificate, issued [59 FR 30871, June 16, 1994, as amended at 61 by the respective service, applicable to FR 13058, Mar. 26, 1996; 64 FR 53186, Oct. 1, the particular shipment of avocados, is 1999; 73 FR 26945, May 12, 2008] required on all such imports. The inspection and certification services will § 944.106 Grapefruit import regulation. be available upon application in ac- (a) Pursuant to Section 8e [7 U.S.C. cordance with the Regulations Gov- Section 608e–1] of the Agricultural erning Inspection, Certification and Marketing Agreement Act of 1937, as Standards of Fresh Fruits, Vegetables, amended [7 U.S.C. 601–674], and Part and Other Products (7 CFR part 51), 944—Fruits; Import Regulations, the and in accordance with the regulation importation into the United States of designating inspection services and any grapefruit is prohibited unless procedure for obtaining inspection and such grapefruit meet the following certification (7 CFR 944.400). minimum grade and size requirements (f) Any lot or portion thereof which for each specified grapefruit classifica- fails to meet the import requirements, tion:

Minimum Grapefruit classification Regulation period Minimum grade diameter (1) (2) (3) (inches) (4)

Seedless, red ...... On and after 11/13/00 ...... U.S. No. 1 ...... 35⁄16 Seedless, except red ...... On and after 9/01/94 ...... U.S. No. 1 ...... 35⁄16

(b) The term grapefruit is defined as turity of grapefruit imported into the citrus paradisi, MacFadyen. United States. Inspection by the Fed- (c) Terms and tolerances pertaining eral or Federal-State Inspection Serv- to grade and size requirements, which ice with evidence thereof in the form of are defined in the United States Stand- an official inspection certificate, issued ards for Grades of Florida Grapefruit (7 by the respective service, applicable to CFR 51.750–51.784), and in Marketing the particular shipment of grapefruit, Order No. 905 (7 CFR §§ 905.18 and is required on all such imports. The in- 905.306), shall be applicable herein. spection and certification services will (d) The Federal or Federal-State In- be available upon application in ac- spection Service, Fruit and Vegetable cordance with the Regulations Gov- Division, Agricultural Marketing Serv- erning Inspection, Certification and ice, United States Department of Agri- Standards of Fresh Fruits, Vegetables, culture, is designated as the govern- and Other Products (7 CFR part 51), mental inspection service for certi- and in accordance with the regulation fying the grade, size, quality, and ma- designating inspection services and

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procedure for obtaining inspection and least U.S. No. 2, and they are at least certification (7 CFR 944.400). 26⁄16 inches in diameter. Effective July 1 (e) Any lot or portion thereof which through August 31 of each year this fails to meet the import requirements, parageaph is suspended. and is not being imported for purposes (b) The term oranges is defined as Cit- of consumption by charitable institu- rus sinensis, Osbeck. tions, distribution by relief agencies, (c) The term importation means re- animal feed, or commercial processing lease from custody of the United States into canned or frozen products or into Customs Service. The term processing a beverage base; prior to or after recon- means the manufacture of any orange ditioning may be exported or disposed product which has been converted into of under the supervision of the Federal sectioned fruit or into fresh juice, or or Federal-State Inspection Service preserved by any commercial process, with the costs of certifying the dis- including canning, freezing, dehy- posal of said lot borne by the importer. drating, drying, and the addition of (f) Any person may import up to 15 chemical substances, or by fermenta- standard packed cartons (12 bushels) of tion. grapefruit exempt from the require- (d) Terms and tolerances pertaining ments specified in this section. to grade and size requirements, which (g) Any grapefruit which fail to meet are defined in the United States Stand- the import requirements prior to or ards for Grades of Oranges (Texas and after reconditioning may be exported States other than Florida, California, or disposed of under the supervision of and Arizona) (7 CFR 51.680–51.714), shall the Federal or Federal-State Inspec- be applicable herein. tion Service with the costs of certi- (e) Any person may import up to 400 fying the disposal of such grapefruit pounds a day of oranges exempt from borne by the importer. the requirements specified in this sec- (h) The Secretary has determined tion. that grapefruit imported into the (f) The Federal or Federal-State In- United States are in most direct com- spection Service, Fruit and Vegetable petition with grapefruit grown in Flor- Division, Agricultural Marketing Serv- ida regulated under Marketing Order ice, United States Department of Agri- No. 905 (7 CFR part 905). culture, is designated as the govern- (i) The grade, size, quality, and matu- mental inspection service for certi- rity requirements of this section shall fying the grade, size, quality, and ma- not be applicable to grapefruit im- turity of oranges imported into the ported for consumption by charitable United States. Inspection by the Fed- institutions, distribution by relief eral or Federal-State Inspection Serv- agencies, animal feed, or commercial ice with evidence thereof in the form of processing into canned or frozen prod- an official inspection certificate, issued ucts or into a beverage base, but shall by the respective service, applicable to be subject to the safeguard provisions the particular shipment of oranges, is contained in § 944.350. required on all such imports. The inspection and certification services will [58 FR 39430, July 23, 1993 as amended at 58 be available upon application in ac- FR 59934, Nov. 12, 1993; 58 FR 69185, Dec. 30, 1993; 59 FR 56380, Nov. 14, 1994; 60 FR 58499, cordance with the Regulations Gov- Nov. 28, 1995; 61 FR 64253, Dec. 4, 1996; 63 FR erning Inspection, Certification and 62923, Nov. 10, 1998; 64 FR 58762, Nov. 1, 1999; Standards of Fresh Fruits, Vegetables, 66 FR 229, Jan. 3, 2001; 68 FR 53024, Sept. 10, and Other Products (7 CFR part 51), 2003; 74 FR 15644, Apr. 7, 2009] and in accordance with the regulation designating inspection services and § 944.312 Orange import regulation. procedure for obtaining inspection and (a) Pursuant to section 8e (7 U.S.C. certification (7 CFR 944.400). 608e–1) of the Agricultural Marketing (g) Any oranges which fail to meet Agreement Act of 1937, as amended (7 the import requirements, and are not U.S.C 601–674), and part 944—Fruits; Im- being imported for purposes of con- port Regulations, the importation into sumption by charitable institutions, the United States of any oranges is distribution by relief agencies, or proc- prohibited unless such oranges grade at essing into products; prior to or after

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reconditioning may be exported or dis- AMS, USDA with a postmark no later posed of under the supervision of the than two days after the date of impor- Federal or Federal-State Inspection tation and a third copy shall accom- Service with the costs of certifying the pany the lot to the exempt outlet spec- disposal of such oranges borne by the ified on the form. Any lot offered for importer. inspection and, all or a portion thereof, (h) The grade, size, quality, and ma- subsequently imported as exempt turity requirements of this section under this provision shall be reported shall not be applicable to oranges im- on an ‘‘Importer’s Exempt Commodity ported for consumption by charitable Form’’ and such form, accompanied by institutions, distribution by relief a copy of the applicable inspection cer- agencies, or processing into products, tificate, shall be mailed to the Mar- but shall be subject to the safeguard keting Order Administration Branch. provisions contained in § 944.350, Pro- vided that: oranges, imported as exempt (b) Each person who receives an ex- under this regulation, cannot be empt commodity for the purposes spec- shipped to processors who have facili- ified in paragraph (a) of this section ties, equipment, or outlets to repack or shall also receive a copy of the same sell fruit in fresh form. numbered Importer’s Exempt Com- (i) The Secretary has determined modity Form filed by the importer or that oranges imported into the United customs broker and shall certify, by States are in most direct competition completing and signing Section II of with oranges grown in Texas regulated the form and mailing the form to the under Marketing Order No. 906. Marketing Order Administration Branch within two days of receipt of [59 FR 25792, May 18, 1994, as amended at 60 FR 33679, June 29, 1995; 61 FR 13059, Mar. 26, the exempt lot, that such lot has been 1996] received and will be utilized in the exempt outlet. § 944.350 Safeguard procedures for av- (c) It is the responsibility of the im- ocados, grapefruit, kiwifruit, olives, porter to notify the Marketing Order oranges, prune variety plums (fresh prunes), and table grapes, exempt Administration Branch of any lot of from grade, size, quality, and matu- exempt commodity rejected by a re- rity requirements. ceiver, shipped to an alternative ex- (a) Each person who imports: empt receiver, exported, or otherwise (1) Avocados, grapefruit, kiwifruit, destroyed. In such cases, a second ‘‘Im- limes, olives, oranges, and prune vari- porter’s Exempt Commodity Form’’ ety plums (fresh prunes) for consump- must be filed by the importer providing tion by charitable institutions or dis- sufficient information to determine ul- tribution by relief agencies; timate disposition of the exempt lot (2) Avocados, grapefruit, kiwifruit, and such disposition shall be so cer- oranges, prune variety plums (fresh tified by the final receiver. prunes), and table grapes for proc- (d) All FV–6 forms and other cor- essing; respondence regarding entry of 8e com- (3) Olives for processing into oil; modities must be mailed to the Mar- (4) Grapefruit for animal feed; or keting Order Administration Branch, (5) Avocados for seed shall obtain an USDA, AMS, P.O. Box 96456, room 2523– ‘‘Importer’s Exempt Commodity Form’’ S, Washington, D.C. 20090–6456, tele- (FV–6 form) from the Marketing Order phone (202)–720–4607. FV–6 forms sub- Administration Branch, Fruit and Veg- mitted by fax must be followed by a etable Division, AMS, USDA, and shall mailed, original copy of the FV–6 form. show the completed ‘‘Importer’s Ex- Fax transmissions may be sent to the empt Commodity Form’’ to the U.S. MOAB at (202) 720–5698. Customs Service Regional Director or District Director, as applicable, at the [61 FR 13059, Mar. 26, 1996, as amended at 61 port at which the customs entry is FR 40958, Aug. 7, 1996; 68 FR 10346, Mar. 5, filed. One copy shall be mailed to the 2003] Marketing Order Administration Branch, Fruit and Vegetable Division,

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§ 944.400 Designated inspection serv- In Jacksonville, Florida, Officer In Charge, ices and procedure for obtaining in- Unit 8, 3335 N. Edgewood Ave., Jackson- spection and certification of im- ville, FL 32205, PH: 904–354–5983, or ported avocados, grapefruit, In Miami, Florida, Officer In Charge, 1350 kiwifruit, oranges, prune variety N.W. 12th Ave., RM. 530, Miami FL 33136, plums (fresh prunes), and table PH: 305–324–6116, or grapes regulated under section 8e In Maryland, Officer In Charge, Maryland of the Agricultural Marketing Wholesale Produce Market—Building B Agreement Act of 1937, as amended. Unit 13, Jessup, MD 20794, PH: 301–799–5899, or (a) The Federal or Federal-State In- In Massachusetts, Officer In Charge, Boston spection Service, Fruit and Vegetable Terminal Market, Room 1, 34 Market Division, Agricultural Marketing Serv- Street, Everett, MA 02149, PH: 617–389–2480, ice, United States Department of Agri- or culture is hereby designated as the In Buffalo, New York, Officer In Charge, 176 governmental inspection service for Niagara Frontier Food Terminal—Rm. 7, Buffalo, NY 14206, PH: 716–824–1585, or the purpose of certifying the grade, In New Jersey, Officer In Charge, Federal size, quality, and maturity of avocados, Building, RM. 839, 970 Broad Street, New- grapefruit, nectarines, oranges, prune ark, NJ 07102, PH: 201–645–2208, or variety plums (fresh prunes), and table In New York, New York, Officer In Charge, grapes that are imported into the Room 28–A, Hunts Point Market, Bronx, United States. Agriculture and Agri- NY 10474, PH: 212–991–7669, or Food Canada is also designated as a In Pennsylvania, Officer In Charge, 293 governmental inspection service for Produce Building, 3301 S. Galloway Street, Philadelphia, PA 19148, PH: 215–336–0845, or the purpose of certifying grade, size, In Virginia, Officer In Charge, 3661 Virginia quality and maturity of prune variety Beach Blvd., Norfolk, VA 23502, PH: 804– plums (fresh prunes) only. Inspection 441–6218, or by the Federal or Federal-State Inspec- In Puerto Rico, Officer In Charge, Post Office tion Service or the Agriculture and Box 9112, Santurce, PR 00908, PH: 809–783– Agri-Food Canada, with appropriate 2230. evidence thereof in the form of an offi- All other Eastern Port of entry: Regional Di- rector Skyline Office Building, 5205 Lees- cial inspection certificate, issued by burg Pike—Suite 806, Falls Church, VA the respective services, applicable to 22041, PH: 703–756–6781. the particular shipment of the specified fruit, is required on all imports. Central Region Inspection and certification by the In Louisiana, Officer In Charge, 5027 U.S. Federal or Federal-State Inspection Postal Service Building, 701 Loyola Ave- Service will be available upon applica- nue, New Orleans, LA 70113, PH: 504–589– tion in accordance with the Regula- 6741, or tions Governing Inspection, Certifi- In Michigan, Officer In Charge, 90 Detroit cation and Standards for Fresh Fruits, Union Produce, 7201 West Fort Street, De- troit, MI 48209, PH: 313–226–6059, or Vegetables, and Other Products (7 CFR In Minnesota, Officer In Charge, Agriculture part 51) but, since inspectors are not Building Room 226, 90 West Plato Boule- located in the immediate vicinity of vard, St. Paul, MN 55107, PH: 612–296–8557, some of the small ports of entry, such or as those in southern California, im- In El Paso, Officer In Charge, 6070 Gateway porters of avocados, grapefruit, nec- East, Suite 410, El Paso, TX 79905, PH: 915– tarines, oranges, prune variety plums 543–7723, or (fresh prunes), and table grapes should In Houston, Texas, Officer In Charge, 3100 Produce Row, Room 14, Houston, TX 77023, make arrangements for inspection PH: 713–923–2557. through the applicable one of the fol- All other Texas Ports: Officer In Charge, lowing offices, at least the specified Post Office Box 107, San Juan, TX 78589, number of the days prior to the time PH: 512–787–4091. when the fruit will be imported: All other Central Ports of Entry: Regional Director, Room 1012, 610 South Canal PORTS, OFFICES AND ADVANCE NOTICE Street, Chicago, IL 60607, PH: 312–353–6225.

Eastern Region Western Region In Alabama, Officer In Charge, Post Office In Arizona, Officer In Charge, Post Office Box 244, Mobile, AL 36601, PH: 205–690–6154, Box 1485, Nogales, AZ 85621, PH: 602–281– or 0783, or

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In Los Angeles, California, Officer In Charge, (6) The principal identifying marks Wholesale Terminal Bldg., Room 271, 784 on the container; South Central Avenue, Los Angeles, CA (7) The railroad car initials and num- 90021, PH: 213–688–2489, or ber, the truck and the trailer license In San Francisco, California, Officer In Charge, P.O. Box 4266, Burlingame, CA number, the name of the vessel, the 94010, PH: 415–876–1093 & 1094, or name of the air carrier, or other identi- In Hawaii, Officer In Charge, P.O. Box 22159, fication of the shipment; and Pawaa Substation, Honolulu, HI 96822, PH: (8) The following statement if the 808–548–7147, or facts warrant: Meets U.S. import re- In Oregon, Officer In Charge, Cascade Plaza, quirements under section 8e of the Ag- Suite 125, 2828 S.W. Corbett, Portland, OR ricultural Marketing Agreement Act of 97201, PH: 503–229–6161, or 1937, as amended. In Washington, Officer In Charge, 5507 Sixth Avenue South, Seattle, WA 98108, PH: 206– [48 FR 44459, Sept. 29, 1983, as amended at 56 764–3500, or FR 10504, Mar. 13, 1991; 61 FR 40958, Aug. 7, In New Mexico, Officer In Charge, New Mex- 1996; 68 FR 10347, Mar. 5, 2003; 74 FR 2808, Jan. ico Market and Development Branch, New 16, 2009] Mexico Department of Agriculture, P.O. Box 5600, Las Cruces, NM 88003, PH: 505–646– § 944.401 Olive Regulation 1. 4929. (a) Definitions. (1) Canned ripe olives All other Western Ports of Entry: Regional Director, P.O. Box 214287, Sacramento, CA means olives in hermetically sealed 95821, PH: 916–484–4952 & 3549. containers and heat sterilized under Headquarters: Washington, DC: Chief, Fresh pressure, of the two distinct types Products Branch, Fruit and Vegetable Di- ‘‘ripe’’ and ‘‘green-ripe’’ as defined in the vision, AMS, Room 2052–S. Bldg., U.S. De- current U.S. Standards for Grades of partment of Agriculture, Washington, DC Canned Ripe Olives. The term does not 20250, PH: 202–447–5870. include Spanish-style green olives. Notification: (2) Spanish-style green olives means olives packed in brine and which have Port Offices—at least one (1) day; been fermented and cured, otherwise Regional Director—at least two (2) days; known as ‘‘green olives.’’ Headquarters—at least three (3) days. (3) Variety group 1 means the fol- (b) Inspection certificates shall cover lowing varieties and any mutations, only the quantity of fruit that is being sports, or other derivations of such va- imported at a particular port of entry rieties: Aghizi Shami, Amellau by a particular importer. Ascolano, Ascolano dura, Azapa, (c) The inspection performed, and Balady, Barouni, Carydolia, Cucco, certificates issued, by the Federal or Gigante di Cerignola, Gordale, Federal-State Inspection Service shall Grosane, Jahlut, Polymorpha, Prunara, be in accordance with the rules and Ropades, Sevillano, St. Agostino, regulations of the Department gov- Tafahi, and Touffahi. erning the inspection and certification (4) Variety group 2 means the fol- of fresh fruits, vegetables, and other lowing varieties and any mutations, products (7 CFR part 51). The cost of sports, or other derivations of such va- any inspection and certification shall rieties: Manzanillo, Mission, Nevadillo, be borne by the applicant therefor. Obliza, and Redding Picholine. (d) Each inspection certificate issued (5) USDA Inspector means an inspec- with respect to any of the specified tor of the Processed Products Branch, fruits to be imported into the United Fruit and Vegetable Division, Agricul- States shall set forth among other tural Marketing Service, U.S. Depart- things: ment of Agriculture, or any other duly (1) The name and place of inspection; authorized employee of the Depart- (2) The name of the shipper, or appli- ment. cant; (6) Importation means release from (3) The Customs entry number per- custody of the U.S. Bureau of Customs. taining to the lot or shipment covered (7) Limited use means the use of proc- by the certificate; essed olives in the production of pack- (4) The commodity inspected; aged olives of the halved, segmented (5) The quantity of the commodity (wedged), sliced, or chopped styles, as covered by the certificate; defined in said standards.

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(8) Terms used in this section shall Provided, That the number of sample have the same meaning as are given to units which do not meet the require- the respective terms in the current ments specified in tables 1 through 4 of U.S. Standards for Grades of Canned this section does not exceed the accept- Ripe Olives (7 CFR part 52) including ance number prescribed for in the sam- the terms size, character, defects and ple size provided in table I of 7 CFR ripe type: Provided, That the definition 52.38: Provided further, That there is no of broken pitted olives is as follows: off flavor in any sample unit. ‘‘Broken pitted olives’’ consist of large pieces that may have been broken in TABLE 1—WHOLE AND PITTED STYLE pitting but have not been sliced or cut. [Defects by count per 50 olives] (b) The importation into the United FLAVOR ...... Reasonably good; no ‘‘off’’ flavor States of any canned ripe olives is pro- FLAVOR (Green Ripe Free from objectionable flavors of hibited unless such olives are inspected Type). any kind and meet the following applicable re- SALOMETER ...... Acceptable range in degrees: 3.0 to 14.0 quirements: Provided, That olives im- COLOR ...... Reasonably uniform with not less ported in bulk form and used in the than 60% having a color equal or production of any canned ripe olives darker than the USDA Composite are subject to such applicable require- Color Standard for Ripe Type CHARACTER ...... Not more than 5 soft units or 2 ex- ments and the additional requirements cessively soft units in paragraph (b)(12) of this section. UNIFORMITY OF 60%, by visual inspection, of the (1) Minimum quality requirements. SIZE. most uniform in size. The diameter of the largest does not exceed the Canned ripe olives shall meet the fol- smallest by more than 4mm lowing quality requirements, except DEFECTS:. that no requirements shall be applica- Pitter Damage 15 ble with respect to color and blemishes (Pitted Style Only). for canned green ripe olives: Major Blemishes 5 (i) Canned whole and pitted olives of Major Wrinkles .... 5 the ripe type shall meet the minimum Pits and Pit Frag- Not more than 1.3% average by ments (Pitted count quality requirements prescribed in Style Only). table 1 of this section; Major Stems ...... Not more than 3 (ii) Canned sliced, segmented HEVM ...... Not more than 1 unit per sample Mutilated ...... Not more than 3 (wedged), and halved olives of the ripe Mechanical Dam- Not more than 5 type shall meet the minimum quality age. requirements prescribed in table 2 of Split Pits or Mis- Not more than 5 this section; shapen. (iii) Canned chopped olives of the ripe type shall meet the minimum quality TABLE 2—SLICED, SEGMENTED (WEDGED), AND requirements prescribed in table 3 of HALVED STYLES this section and shall be practically [Defects by count per 255] free from identifiable units of pit caps, FLAVOR ...... Reasonably good; no ‘‘off’’ flavor end slices, and slices (‘‘practically free SALOMETER ...... Acceptable range in degrees: 3.0 to from identifiable units’’ means that not 14.0 more than 10 percent, by weight, of the COLOR ...... Reasonably uniform with no units unit of chopped style olives may be lighter than the USDA Composite Color Standard for Ripe Type identifiable pit caps, end slices, or CHARACTER ...... Not more than 13 grams excessively slices); and soft (iv) Canned broken pitted olives of DEFECTS: Pits and Pit Frag- Average of not more than 1 by count the ripe type shall meet the minimum ments. per 300 grams quality requirements prescribed in Major Stems ...... Not more than 3 table 4 of this section, Provided, That HEVM ...... Not more than 2 units per sample broken pitted olives consist of large Broken Pieces Not more than 125 grams by weight and End Caps. pieces that may have been broken in pitting but have not been sliced or cut. (v) A lot of canned ripe olives is con- TABLE 3—CHOPPED STYLE sidered to meet the requirements of [Defects by count per 255 grams] this section if all or most of the sample FLAVOR ...... Reasonably good; no ‘‘off’’ flavor units meet the requirements specified SALOMETER ...... Acceptable range in degrees: 3.0 to in tables 1 through 4 of this section: 14.0

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TABLE 3—CHOPPED STYLE—Continued cent, by count, of the olives may weigh [Defects by count per 255 grams] less than 1/135 pound (3.3 grams) each; (6) Canned whole ripe olives not iden- COLOR ...... Reasonably uniform with no units lighter than the USDA Composite tifiable as to variety or variety group Color Standard for Ripe Type shall be of such a size that not more DEFECTS: than 35 percent, by count, of the olives Pits and Pit Frag- Average of not more than 1 by count may weigh less than 1/140 pound (3.2 ments. per 300 grams Major Stems ...... Not more than 3 grams) each except that not more than HEVM ...... Not more than 2 units per sample 7 percent, by count, of the olives may weigh less than 1/160 pound (2.8 grams) each; TABLE 4—BROKEN PITTED STYLE (7) Canned pitted ripe olives of Vari- [Defects by count per 255 grams] ety Group 1, except the Ascolano, FLAVOR ...... Reasonably good; no ‘‘off’’ flavor Barouni, and St. Agostino varieties, SALOMETER ...... Acceptable range in degrees: 3.0 to shall be at least ‘‘Extra Large’’ as de- 14.0 fined in § 52.3754 of the U.S. Standards COLOR ...... Reasonably uniform with no units lighter than the USDA Composite for Grades of Canned Ripe Olives. Color Standard for Ripe Type (8) Canned pitted ripe Variety Group CHARACTER ...... Not more than 13 grams excessively 1 olives of the Ascolano, Barouni, and soft St. Agostino varieties shall be at least DEFECTS: Large as defined in § 52.3754 of the Pits and Pit Frag- Average of not more than 1 by count ‘‘ ’’ ments. per 300 grams U.S. Standards for Grades of Canned Major Stems ...... Not more than 3 Ripe Olives. HEVM ...... Not more than 2 units per sample (9) Canned pitted ripe olives of Vari- ety Group 2, except the Obliza variety, (2) Canned whole ripe olives of Vari- shall be at least ‘‘Small’’ as defined in ety Group 1, except the Ascolano, § 52.3754 of the U.S. Standards for Barouni, and St. Agostino varieties, Grades of Canned Ripe Olives. shall be of such a size that not more (10) Canned pitted ripe Variety Group than 25 percent, by count, of the olives 2 olives of the Obliza variety shall be at may weigh less than 1/75 pound (6.0 least ‘‘Medium’’ as defined in § 52.3754 of grams) each, except that not more than the U.S. Standards for Grades of 10 percent, by count, of the olives may Canned Ripe Olives. weigh less than 1/82 pound (5.5 grams) (11) Canned pitted ripe olives not each; identifiable as to variety or variety (3) Canned whole ripe Variety Group group shall be at least ‘‘Small’’ as de- 1 olives, of the Ascolano, Barouni, and fined in § 52.3754 of the U.S. Standards St. Agostino varieties, shall be of such for Grades of Canned Ripe Olives. size that not more than 25 percent, by (12) Imported bulk olives when used count, of the olives may weigh less in the production of canned ripe olives than 1/105 pound (4.3 grams) each ex- must be inspected and certified as pre- cept that not more than 10 percent, by scribed in this section. Imported bulk count, of the olives may weigh less olives which do not meet the applicable than 1/116 pound (3.9 grams) each; minimum size requirements specified (4) Canned whole ripe olives of Vari- in paragraphs (b)(2) through (b)(11) of ety Group 2, except the Obliza variety, this section may be imported after Au- shall be of such a size that not more gust 1, 1996, for limited-use, but any than 35 percent, by count, of the olives such olives so used shall not be smaller may weigh less than 1/140 pound (3.2 than the following applicable minimum grams) each except that not more than size: 7 percent, by count, of the olives may (i) Whole ripe olives of Variety Group weigh less than 1/160 pound (2.8 grams) 1, except Ascolano, Barouni, or St. each; Agostino varieties, of a size that not (5) Canned whole ripe Variety Group more than 35 percent of the olives, by 2 olives, of the Obliza variety, shall be count, may be smaller than 1⁄105 pound of such a size that not more than 35 (4.3 grams) each. percent, by count, of the olives may (ii) Whole ripe olives of Variety weigh less than 1/127 pound (3.5 grams) Group 1 of the Ascolano, Barouni, or each except that not more than 7 per- St. Agostino varieties, of a size that

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not more than 35 percent of the olives, the time when the olives will be im- by count, may be smaller than 1⁄180 ported. Since inspectors are not lo- pound (2.5 grams) each. cated in the immediate vicinity of (iii) Whole ripe olives of Variety some of the small ports of entry, im- Group 2, except the Obliza variety, of a porters of canned ripe olives shall size that not more than 35 percent of make arrangements for inspection the olives, by count, may be smaller through the following office at least 10 than 1⁄205 pound (2.2 grams) each. days prior to the time when the olives (iv) Whole ripe olives of Variety will be imported: Processed Products Group 2 of the Obliza variety of a size Branch, USDA, AMS, F&V Division, that not more than 35 percent of the ol- P.O. Box 96456, Room 0726–S, Wash- ives, by count, may be smaller than 1⁄180 ington, DC 20090–6456, telephone (202) pound (2.5 grams) each. 720–5021, fax (202) 690–1527. Application (v) Whole ripe olives not identifiable for inspection of processed bulk olives as to variety or variety group of a size shall be made not less than 3 days prior that not more than 35 percent of olives, to use in the production of canned ripe by count, may be smaller than 1⁄205 olives. Such application shall be made pound (2.2 grams) each. through one of the following offices: (c) The Processed Products Branch, Regional Director, Eastern Regional Fruit and Vegetable Division, Agricul- Office, 800 Roosevelt Road, Building A, tural Marketing Service, U.S. Depart- suite 380 Glen Ellyn, IL 60137, tele- ment of Agriculture, is hereby des- phone (708) 790–6937/8/9, fax (708) 469– ignated as the governmental inspection 5162; or Regional Director, Western Re- service for the purpose of certifying the gional Office, 2202 Monterey Street, grade and size of processed olives from suite 102–C, Fresno, CA 93721, telephone imported bulk lots for use in canned (209) 487–5891, fax (209) 487–5900. ripe olives and the grade and size of im- (d) Inspection certificates shall cover ported canned ripe olives. Inspection only (1) the quantity of canned ripe ol- by said inspection service with appro- ives that is being imported at a par- priate evidence thereof in the form of ticular port of entry by a particular an official inspection certificate, issued importer or (2) the quantity of canned by the service and applicable to the ripe olives processed from a lot or particular lot of olives, is required. sublot of imported bulk olives. With respect to imported bulk olives, (e) Inspection shall be performed by inspection and certification shall be USDA inspectors in accordance with completed prior to use as packaged said regulations governing the inspec- ripe olives. With respect to canned ripe tion and certification of processed olives, inspection and certification fruits and vegetables and related prod- shall be completed prior to importa- ucts (part 52 of this title). The cost of tion. Any lot of olives which fails to each such inspection and related cer- meet the import requirements and is tification shall be borne by the appli- not being imported for purposes of con- cant therefore. Applications for inspec- tribution to a charitable organization tion shall be accompanied by, or there or processing into oil may be exported shall be submitted promptly there- or disposed of under the supervision of after, either (1) an ‘‘on board’’ bill of the Processed Products Branch, Fruit lading designating the lots to be en- and Vegetable Division, AMS, USDA, tered as canned ripe olives, (2) a list of with the cost of certifying the disposal such lots by variety and their identi- borne by the importer. Such inspection fying marks, or (3) a list identifying and certification services will be avail- lots by variety of imported bulk olives. able, upon application, in accordance (f) Notwithstanding any other provi- with the applicable regulations gov- sions of this regulation, any importa- erning the inspection and certification tion of canned ripe olives or olives im- of Processed Fruits and Vegetables, ported in bulk for use in the production Processed Products Thereof, and Cer- of canned ripe olives which, in the ag- tain Other Processed Food Products gregate, does not exceed 100 pounds (part 52 of this title). Application for drained weight may be imported with- inspection of canned ripe olives shall out regard to the requirements of this be made not less than 10 days prior to section.

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(g) It is hereby determined, on the § 944.503 Table Grape Import Regula- basis of the information currently tion 4. available, that the minimum quality (a)(1) Pursuant to section 8e of the requirements and size requirements set Act and Part 944—Fruits, Import Regu- forth in this part are comparable to lations, the importation into the those applicable to California canned United States of any variety of Vinif- ripe olives. (h) No provisions of this section shall era species table grapes, except Em- supersede the restrictions or prohibi- peror, Calmeria, Almeria, and Ribier tions on canned ripe olives under the varieties, is prohibited unless such provisions of the Federal Food, Drug, grapes meet the minimum grade and and Cosmetic Act, or any other appli- size requirements specified in 7 CFR cable laws or regulations or the need to 51.884 for U.S. No. 1 Table, as set forth comply with applicable food and sani- in the United States Standards for tary regulations of city, county, State, Grades of Table Grapes (European or or Federal agencies. Vinifera Type, 7 CFR 51.880 through (i) Each inspection certificate issued 51.914), or shall meet all the require- with respect to canned ripe olives to be ments of U.S. No. 1 Institutional with imported into the United States and the exception of the tolerance for canned ripe olives processed from a lot bunch size. Such tolerance shall be 33 or sublot of imported bulk olives shall percent instead of 4 percent as is re- set forth among other things: quired to meet U.S. No. 1 Institutional (1) The date and place of inspection; grade. Grapes meeting these quality re- (2) The name of the shipper or appli- quirements shall not be marked ‘‘Insti- cant; tutional Pack’’, but may be marked (3) The Customs entry number per- ‘‘DGAC No. 1 Institutional.’’ In addi- taining to the lot or shipment covered tion, U.S. No. 1 Table grade grapes may by the certificate; be packed in individual consumer pack- (4) The commodity inspected; ages containing 2 pounds net weight or (5) The quantity of the commodity less: Provided, That not more than 20 covered by the certificate; percent of the weight of such con- (6) The principal identifying marks tainers may consist of single clusters on the container; weighing less than one-quarter pound, (7) The railroad car initials and num- but with at least five berries each. ber, the truck and the trailer license (i) Grapes of the Perlette variety number, the name of the vessel, or shall meet the minimum berry size re- other identification of the shipment; quirement of ten-sixteenths of an inch, (8) The Consumption Entry Number and for Canned Ripe Olives; and (ii) Grapes of the Flame Seedless va- (9) The following statement if the riety shall meet the minimum berry facts warrant: Meets the U.S. import size requirement of ten-sixteenths of requirements under section 8e of the an inch (1.5875 centimeters) and shall Agricultural Marketing Agreement Act be considered mature if the juice meets of 1937, as amended. or exceeds 16.5 percent soluble solids, (j) The minimum quality, size, and or the juice contains not less than 15 maturity requirements of this section percent soluble solids and the soluble shall not be applicable to olives im- solids are equal to or in excess of 20 ported for charitable organizations or parts to every part acid contained in processing for oil, but shall be subject the juice, in accordance with applica- to the safeguard provisions contained ble sampling and testing procedures in § 944.350. specified in sections 1436.3, 1436.5, [47 FR 51349, Nov. 15, 1982, as amended at 49 1436.6, 1436.7, 1436.12, and 1436.17 of Arti- FR 34441, Aug. 31, 1984; 49 FR 44448, Nov. 7, cle 25 of Title 3: California Code of Reg- 1984; 52 FR 38225, Oct. 15, 1987; 56 FR 49671, ulations (CCR). Oct. 1, 1991; 57 FR 36355, Aug. 13, 1992; 58 FR (2) Such minimum maturity stand- 69186, Dec. 30, 1993; 59 FR 38106, July 27, 1994; 59 FR 46910, Sept. 13, 1994; 60 FR 42774, Aug. ards are incorporated by reference, cop- 17, 1995; 61 FR 13059, Mar. 26, 1996; 61 FR 40510, ies of which are available from Ronald Aug. 5, 1996; 62 FR 1244, Jan. 9, 1997; 74 FR L. Cioffi, Chief, Marketing Order Ad- 2808, Jan. 16, 2009] ministration Branch, F&V, AMS,

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USDA, Washington, DC 20090-6456, tele- (e) The grade, size, quality and matu- phone (202) 720–2491. They are also rity requirements of this section shall available for inspection at the National not be applicable to grapes imported Archives and Records Administration for processing, but shall be subject to (NARA). For information on the avail- the safeguard provisions contained in ability of this material at NARA, call § 944.350. 202–741–6030, or go to: http:// [51 FR 12502, Apr. 11, 1986, as amended at 51 www.archives.gov/federallregister/ FR 13209, Apr. 18, 1986; 52 FR 31979, Aug. 25, codeloflfederallregulations/ 1987; 53 FR 22128, June 14, 1988; 58 FR 21537, ibrllocations.html. This incorporation Apr. 22, 1993; 58 FR 69186, Dec. 30, 1993; 59 FR by reference was approved by the Di- 67619, 67620, Dec. 30, 1994; 60 FR 33681, June 29, rector of the Federal Register. These 1995; 63 FR 28480, May 26, 1998; 69 FR 18801, materials are incorporated as they Apr. 9, 2004; 74 FR 3419, Jan. 21, 2009; 74 FR exist on the date of approval and a no- 11277, Mar. 17, 2009; 75 FR 17034, Apr. 5, 2010] tice of any change in these materials § 944.550 Kiwifruit import regulation. will be published in the FEDERAL REG- ISTER. (a) Pursuant to section 8e of the Ag- (3) All regulated varieties of grapes ricultural Marketing Agreement Act of offered for importation shall be subject 1937, as amended, the importation into to the grape import requirements con- the United States of any kiwifruit is tained in this section effective April 10 prohibited unless such kiwifruit meets through July 10. all the requirements of the U.S. No. 1 grade as defined in the United States (b) The Federal or Federal-State In- Standards for Grades of Kiwifruit (7 spection Service, F&V, AMS, USDA, is CFR 51.2335 through 51.2340), except designated as the governmental inspec- that the kiwifruit shall be ‘‘not badly tion service for certifying the grade, misshapen,’’ and an additional toler- size, quality, and maturity of table ance of 7 percent is provided for grapes that are imported into the kiwifruit that is ‘‘badly misshapen,’’ United States. Inspection by the Fed- and except that such kiwifruit shall eral or Federal-State Inspection Serv- have a minimum of 6.2 percent soluble ice with evidence thereof in the form of solids. Such fruit shall be at least Size an official inspection certificate, issued 45, which means there shall be a max- by the respective service, applicable to imum of 55 pieces of fruit and the aver- the particular shipment of table age weight of all samples in a specific grapes, is required on all imports. The lot must weigh at least 8 pounds (3.632 inspection and certification services kilograms), provided that no individual will be available upon application in sample may be less than 7 pounds 12 accordance with the rules and regula- ounces (3.472 kilograms). tions governing inspection and certifi- (b) The Federal or Federal-State In- cation of fresh fruits, vegetables, and spection Service, Fruit and Vegetable other products (7 CFR part 51) and in Division, Agricultural Marketing Serv- accordance with the Procedure for Re- ice, United States Department of Agri- questing Inspection and designating culture, is designated as the govern- the Agencies to Perform Requested In- mental inspection service for certi- spection and Certification (7 CFR fying the quality and size of kiwifruit 944.400). imported into the United States. In- (c) The term importation means re- spection by the Federal or Federal- lease from custody of the United States State Inspection Service with evidence Customs Service. thereof in the form of an official in- (d) Any lot or portion thereof which spection certificate, issued by the re- fails to meet the import requirements, spective service, applicable to a par- and is not being imported for purposes ticular shipment of kiwifruit, is re- of processing, prior to or after recondi- quired on all imports. The inspection tioning may be exported or disposed of and certification services will be avail- under the supervision of the Federal or able upon application in accordance Federal-State Inspection Service with with the rules and regulations gov- the costs of certifying the disposal of erning the inspection and certification said lot borne by the importer. of fresh fruits, vegetables, and other

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products (7 CFR part 51) and in accord- thirds of the surface of the fresh prune ance with the procedure for requesting is required to be purplish in color, and inspection and designating the agen- such fresh prunes measure not less cies to perform required inspection and than 11⁄4 inches in diameter as meas- certification (7 CFR 944.400). ured by a rigid ring: Provided, That the (c) The term importation means re- following tolerances, by count, of the lease from custody of the United States fresh prunes in any lot shall apply in Customs Service. The term commercial lieu of the tolerance for defects pro- processing into products means that the vided in the United States Standards kiwifruit is physically altered in form for Grades of Fresh Plums and Prunes or chemical composition through freez- (7 CFR 51.1520 through 51.1538): A total ing, canning, dehydrating, pulping, of not more than 15 percent for defects, juicing, or heating of the product. The including therein not more than the act of slicing, dicing, or peeling shall following percentage for the defect list- not be considered commercial proc- ed: essing into products. (i) 10 percent for fresh prunes which (d) Any lot or portion thereof which fail to meet the color requirement; fails to meet the import requirements (ii) 10 percent for fresh prunes which and is not being imported for purposes fail to meet the minimum diameter re- of consumption by charitable institu- quirement; tions, distribution by relief agencies, (iii) 10 percent for fresh prunes which or commercial processing into products fail to meet the remaining require- may be reconditioned or exported. Any ments of the grade: Provided, That not failed lot which is not reconditioned or more than one-half of this amount, or exported shall be disposed of under su- 5 percent, shall be allowed for defects pervision of the Federal or Federal- State Inspection Service with the costs causing serious damage, including in of certifying the disposal of said lot the latter amount not more than 1 per- borne by the importer. cent for decay. (e) Any person may import up to 200 (2) [Reserved] pounds of kiwifruit in any one ship- (b) The importation of any individual ment exempt from the requirements of shipment which, in the aggregate, does this section. not exceed 500 pounds net weight, of (f) The grade, size, quality, and matu- fresh prunes of the Stanley or Merton rity requirements of this section shall varieties, or 350 pounds net weight, of not be applicable to kiwifruit imported fresh prunes of any variety other than for consumption by charitable institu- the Stanley or Merton varieties, is ex- tions, distribution by relief agencies, empt from the requirements specified or commercial processing into prod- in this section. ucts, but shall be subject to the safe- (c) The grade, size and quality re- guard provisions contained in § 944.350. quirements of this section shall not be applicable to fresh prunes imported for [56 FR 10504, Mar. 13, 1991, as amended at 57 FR 42688, Sept. 16, 1992; 58 FR 69186, Dec. 30, consumption by charitable institu- 1993; 59 FR 45620, Sept. 2, 1994; 61 FR 13059, tions, distribution by relief agencies, Mar. 26, 1996; 65 FR 54948, Sept. 12, 2000] or commercial processing into products, but such prunes shall be subject § 944.700 Fresh prune import regula- to the safeguard provisions in § 944.350. tion. (d) The term U.S. No. 1 shall have the (a) Pursuant to section 8e of the Ag- same meaning as when used in the ricultural Marketing Agreement Act of United States Standards for Grades of 1937, as amended, the importation into Fresh Plums and Prunes (7 CFR 51.1520 the United States of any fresh prunes, through 51.1538); the term purplish color other than the Brooks variety, during shall have the same meaning as when the period July 15 through September used in the Washington State Depart- 30 of each year is prohibited unless ment of Agriculture Standards for such fresh prunes meet the following Italian Prunes (April 28, 1978), and the requirements: Oregon State Department of Agri- (1) Such fresh prunes grade at least culture Standards for Italian Prunes U.S. No. 1, except that at least two- (October 5, 1977); the term diameter

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means the greatest dimension meas- 945.11 Committee. ured at right angles to a line from the 945.12 Fiscal period. stem to the blossom end of the fruit. 945.13 Grade and size. 945.14 Export. (e) The term Prunes means all vari- 945.15 Pack. eties of plums, classified botanically as 945.16 Container. Prunus domestica, except those of the 945.17 District. President variety. (f) The term importation means re- ADMINISTRATIVE COMMITTEE lease from custody of the United States 945.20 Establishment and membership. Customs Service. 945.21 Term of office. (g) Inspection and certification serv- 945.22 Districts. 945.23 Redistricting and reapportionment. ice is required for imports and will be 945.24 Selection. available in accordance with the regu- 945.25 Nominations. lation designating inspection services 945.26 Failure to nominate. and procedure for obtaining inspection 945.27 Acceptance. and certification (7 CFR 944.400). 945.28 Vacancies. (h) Any lot or portion thereof which 945.29 Alternate members. fails to meet the import requirements, 945.30 Procedure. 945.31 Expenses. and is not being imported for purposes 945.32 Powers. of consumption by charitable institu- 945.33 Duties. tions, distribution by relief agencies, or commercial processing into prod- BUDGET, EXPENSES AND ASSESSMENTS ucts, prior to or after reconditioning 945.40 Expenses. may be exported or disposed of under 945.41 Budget. the supervision of the Federal or Fed- 945.42 Assessments. eral-State Inspection Service with the 945.43 Accounting. 945.44 Excess funds. costs of certifying the disposal of such fresh prunes borne by the importer. REGULATIONS (i) It is determined that fresh prunes 945.50 Marketing policy. imported into the United States shall 945.51 Recommendation for regulations. meet the same minimum grade, size 945.52 Issuance of regulations. and quality requirements as those es- 945.53 Shipments for specified purposes. tablished for fresh prunes under Mar- 945.54 Minimum quantity exemption. keting Order No. 924 (7 CFR part 924). 945.55 Notification of regulation. 945.56 Safeguards. [61 FR 40959, Aug. 7, 1996] INSPECTION AND CERTIFICATION EFFECTIVE DATE NOTE: At 71 FR 26821, May 9, 2006, § 944.700 was suspended indefinitely, 945.65 Inspection and certification. effective May 10, 2006. COMPLIANCE PART 945—IRISH POTATOES 945.70 Compliance. GROWN IN CERTAIN DES- MISCELLANEOUS PROVISIONS IGNATED COUNTIES IN IDAHO, 945.80 Reports. AND MALHEUR COUNTY, OR- 945.81 Right of the Secretary. EGON 945.82 Effective time. 945.83 Termination. 945.84 Proceedings after termination. Subpart—Order Regulating Handling 945.85 Effect of termination or amendments. 945.86 Duration of immunities. DEFINITIONS 945.87 Agents. Sec. 945.88 Derogation. 945.1 Secretary. 945.89 Personal liability. 945.2 Act. 945.90 Separability. 945.3 Person. 945.91 Amendments. 945.4 Production area. 945.5 Potatoes. Subpart—Rules and Regulations 945.6 Varieties. 945.7 Certified seed potatoes. 945.100 Communications. 945.8 Handler. DEFINITIONS 945.9 Ship or handle. 945.10 Producer. 945.110 Order.

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945.111 Fiscal period. § 945.5 Potatoes. 945.112 Terms. Potatoes means all varieties of Irish CERTIFICATE OF PRIVILEGE potatoes grown within the aforesaid 945.120 General. production area. 945.121 Qualification. 945.122 Application. § 945.6 Varieties. 945.123 Approval. Varieties means and includes all clas- 945.124 Reports. sifications or subdivisions of Irish po- 945.125 Disqualification. tatoes according to those definitive Subpart—Assessment Rates characteristics now or hereafter recognized by the United States Department 945.249 Assessment rate. of Agriculture.

Subpart—Handling Regulations § 945.7 Certified seed potatoes. 945.341 Handling regulation. Certified seed potatoes means and includes all potatoes officially certified AUTHORITY: 7 U.S.C. 601–674. and tagged, marked, or otherwise appropriately identified, under the super- Subpart—Order Regulating vision of the official seed potato certi- Handling fying agency of the State in which the potatoes are grown, or other seed cer- SOURCE: 23 FR 5709, July 30, 1958, unless tification agencies which the Secretary otherwise noted. Redesignated at 26 FR 12751, may designate. Dec. 30, 1961. § 945.8 Handler. DEFINITIONS Handler is synonymous with shipper § 945.1 Secretary. and means any person (except a com- Secretary means the Secretary of Ag- mon or contract carrier of potatoes riculture of the United States, or any owned by another person) who ships po- officer or employee of the United tatoes. States Department of Agriculture to whom authority has heretofore been § 945.9 Ship or handle. delegated, or to whom authority may Ship or handle means to pack, sell, hereafter be delegated, to act in his consign, transport or in any other way stead. to place potatoes grown in the production area, or cause such potatoes to be § 945.2 Act. placed, in the current of commerce Act means Public Act No. 10, 73d Con- within the production area or between gress, as amended and as reenacted and the production area and any point out- amended by the Agricultural Mar- side thereof, so as to directly burden, keting Agreement Act of 1937, as obstruct, or affect any such commerce: amended (48 Stat. 31, as amended; 7 Provided, That the definition of ship or U.S.C. 601 et seq.; 68 Stat. 906, 1047). handle shall not include the transportation of ungraded potatoes within the § 945.3 Person. production area for the purpose of hav- Person means an individual, partner- ing such potatoes stored or prepared ship, corporation, association, or any for market, except that the committee other business unit. may impose safeguards pursuant to § 945.53 with respect to such potatoes. § 945.4 Production area. Production area means all territory [60 FR 29726, June 5, 1995] included within Malheur County, Or- egon, and the counties of Adams, Val- § 945.10 Producer. ley, Lemhi, Clark, and Fremont in the Producer means any person engaged State of Idaho, and all of the counties in the production of potatoes for marin Idaho lying south thereof. ket.

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§ 945.11 Committee. § 945.17 District. Committee means the administrative District means each of the geo- committee, called the Idaho-Eastern graphical divisions of the production Oregon Potato Committee, established area established pursuant to § 945.22 or pursuant to § 945.20. as reestablished pursuant to § 945.23.

§ 945.12 Fiscal period. ADMINISTRATIVE COMMITTEE Fiscal period means the period beginning and ending on the dates approved § 945.20 Establishment and member- by the Secretary pursuant to rec- ship. ommendations by the committee. (a) The Idaho-Eastern Oregon Potato Committee is hereby established con- § 945.13 Grade and size. sisting of eight members, of whom four Grade means any one of the officially shall currently be producers of pota- established grades of potatoes, and size toes for the fresh market who produced means any one of the officially estab- such potatoes during at least three of lished sizes of potatoes, as defined and the last five years; at least one member set forth in: shall be a producer predominately of (a) The United States Standards for potatoes for seed during a similar pe- Potatoes issued by the United States riod; and three shall be handlers. For Department of Agriculture (§§ 51.1540 to each member of the committee, there 51.1556 of this title), or amendments shall be an alternate who shall have thereto, or modifications thereof, or the same qualifications as the member. variations based thereon; The number of producer and/or handler (b) The United States Consumer members and alternates on the com- Standards for Potatoes as issued by the mittee may be increased and the com- United States Department of Agri- position of the committee between pro- culture (§§ 51.1575 to 51.1587 of this ducers and handlers may be changed as title), or amendments thereto, or modi- provided in § 945.23. fications thereof, or variations based (b) Each person selected as a com- thereon; or mittee member or alternate to rep- (c) Standards for potatoes issued by resent producers shall be an individual the State from which the potatoes are who is a producer in the district for shipped, or amendments thereto, or which selected or an officer or em- modifications thereof, or variations based thereon. ployee of a producer in such district, and shall be a resident thereof. A pro- § 945.14 Export. ducer who handles potatoes other than of his own production shall qualify as a Export means shipment of potatoes producer under this section, and beyond the boundaries of continental United States. §§ 945.24, 945.25, 945.27, and 945.29, only if the potatoes of his own production con- § 945.15 Pack. stituted 51 percent or more of the total quantity of potatoes handled by him Pack means a quantity of potatoes in during the portion of the then current any type of container and which falls season preceding his nomination. within specific weight limits or within specific grade and/or size limits, or any (c) Each person selected as a com- combination thereof, recommended by mittee member or alternate to rep- the committee and approved by the resent handlers shall be an individual Secretary. who is a handler or an officer or employee of a handler, and shall be a resi- § 945.16 Container. dent of the production area. Container means a sack, box, bag, (d) At least every six years, the com- crate, hamper, basket, carton, package, mittee shall review committee size, barrel, or any other type of receptacle composition, and representation and used in the packaging, transportation, recommend to the Secretary whether sale, or other handling of potatoes.

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changes should be made, as provided in (c) District No. 3: Malheur County, Or- § 945.23. egon, and the remaining designated counties in Idaho included in the pro- [23 FR 5709, July 30, 1958. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 60 FR duction area, and not included in Dis- 29726, June 5, 1995] trict No. 1 or District No. 2. [60 FR 29726, June 5, 1995] § 945.21 Term of office. (a) Except as otherwise provided in § 945.23 Redistricting and reapportion- this section, the term of office of com- ment. mittee members and alternates shall (a) The Secretary, upon recommenda- be for two years beginning June 1 or tion of the committee, may reestablish such other date as recommended by the districts within the production area, committee and approved by the Sec- may reapportion committee member- retary. The term of office of members ship among the various districts, may and alternates shall be so determined increase the number of producer and/or that approximately one-half of the handler members and alternates on the total producer and handler committee committee, and may change the com- membership shall terminate each year. position of the committee by changing (b) Committee members and alter- the ratio between producer and handler nates shall serve during the term of of- members, including their alternates. fice for which they are selected and At least every six years, the committee have qualified and continue until their shall review committee size, composi- successors are selected and have qualified. Beginning with the 1987 term of tion and representation and rec- office, no member or alternate shall ommend to the Secretary whether serve more than three full consecutive changes should be made. In recom- terms: Provided, That an alternate mending any such changes, the com- member may serve up to three consecu- mittee shall give consideration to: tive terms and then serve as a member (1) Shifts in potato acreage within for up to three consecutive terms with- districts and within the production out a break in service. Members serv- area during recent years; ing three consecutive terms could (2) the importance of new potato pro- again become eligible to serve on the duction in its relation to existing dis- committee by not serving for one full tricts; term as either member or alternate (3) the equitable relationship be- member: Provided, That in the event a tween committee membership and disposition would otherwise remain va- tricts; cant for lack of eligible nominees or el- (4) economies to result for producers igible persons willing to serve, the Sec- in promoting efficient administration retary may authorize a member or al- due to redistricting or reapportion- ternate member to serve more than ment of members within districts; and three full consecutive terms. (5) other relevant factors. [53 FR 3188, Feb. 4, 1988] (b) Membership of the committee shall be apportioned among the dis- § 945.22 Districts. tricts of the production area so as to For the purpose of selecting com- provide the following representation or mittee members and alternate mem- such other representation as rec- bers, the following districts of the pro- ommended by the committee and ap- duction area are hereby established: proved by the Secretary: Provided, That these districts may be (1) Three producer members, includ- changed as provided in § 945.23. ing at least one who predominately (a) District No. 1: The counties of Bon- produces seed potatoes, and one han- neville, Butte, Clark, Fremont, Jeffer- dler member, with their respective al- son, Madison, and Teton; ternates, from District No. 1; (b) District No. 2: The counties of Ban- (2) One producer member and one nock, Bear Lake, Bingham, Caribou, handler member, with their respective Franklin, Oneida, and Power; and alternates, from District No. 2; and

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(3) One producer member and one (f) Regardless of the number of dis- handler member, with their respective tricts in which a person produces or alternates, from District No. 3. handles potatoes, each such person is entitled to cast only one vote on behalf [60 FR 29727, June 5, 1995] of himself, his agents, subsidiaries, affiliates, and representatives, in desig- § 945.24 Selection. nating nominees for committee mem- Members and alternates of the com- bers and alternates. In the event a per- mittee shall be selected by the Sec- son is engaged in producing or handling retary on the basis specified in § 945.23 potatoes in more than one district, (b) from nominations made pursuant to such person shall elect the district § 945.25 or from other eligible persons. within which he may participate, as [60 FR 29727, June 5, 1995] aforesaid, in designating nominees. An eligible voter’s privilege of casting § 945.25 Nominations. only one vote, as aforesaid, shall be construed to permit a voter to cast one For the selection by the Secretary of vote for each position to be filled in the the members and alternates of the district in which he elects to vote. Idaho-Eastern Oregon Potato Com- (g) Nominations shall be supplied to mittee, nominations may be made in the Secretary in such manner and form the manner indicated in this section. as the Secretary may prescribe, not Nominations for members and alter- later than May 1 of each year, or such nates may be submitted by producers other date as the Secretary may speci- or handlers, as the case may be, or fy. groups of either thereof, on an elective basis or otherwise. [23 FR 5709, July 30, 1958. Redesignated at 26 (a) In order to provide nominations FR 12751, Dec. 30, 1961, as amended at 53 FR for producer and handler committee 3188, Feb. 4, 1988] members and alternates, the com- § 945.26 Failure to nominate. mittee shall hold, or cause to be held, prior to April 1 of each year, or such If nominations are not made within other date as the Secretary may des- the time and in the manner specified ignate, one or more meetings of pro- by the Secretary pursuant to § 945.25, ducers and of handlers in each district the Secretary may, without regard to to nominate such members and alter- nominations, select the committee nates; or the committee may conduct members and alternates on the basis of nominations by mail in a manner rec- the representation prescribed in this ommended by the committee and ap- subpart. proved by the Secretary. § 945.27 Acceptance. (b) In arranging for such meetings, the committee may, if it deems it to be Any person nominated to serve on desirable, utilize the services and fa- the committee as a member or as an al- cilities of existing organizations and ternate shall qualify by filing a state- agencies, and may combine its meet- ment of willingness to serve with the ings with others. Secretary. (c) At least one nominee shall be des- [53 FR 3189, Feb. 4, 1988] ignated for each position as member and for each position as alternate § 945.28 Vacancies. member on the committee. To fill any vacancy occasioned by the (d) Only producers may participate in failure of any person selected as a com- designating nominees for producer mittee member or as an alternate to members and alternates, and only han- qualify, or in the event of the death, dlers may participate in designating removal, resignation, or disqualifica- nominees for handler members and al- tion of any qualified member or alter- ternates. nate, a successor for his unexpired (e) Each person who is both a handler term may be selected by the Secretary and a producer may vote either as a from nominations made in the manner handler or as a producer and may elect specified in § 945.25 or the Secretary the group in which he will vote. may select such committee member or

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alternate from previously unselected each day or portion thereof, spent in nominees on the current nominee list conducting committee business. from the district involved. If the names [53 FR 3189, Feb. 4, 1988] of nominees to fill any such vacancy are not made available to the Sec- § 945.32 Powers. retary within 30 days after such vacancy occurs, the Secretary may fill The committee shall have the fol- such vacancy without regard to nomi- lowing powers: nations, which selection shall be made (a) To administer the provisions of on the basis of the representation pro- this subpart in accordance with its vided for in § 945.24. terms; (b) To make rules and regulations to § 945.29 Alternate members. effectuate the terms and provisions of An alternate member of the com- this subpart; mittee shall act in the place and stead (c) To receive, investigate, and report of the member for whom he is an alter- to the Secretary complaints of viola- nate during such member’s absence and tion of the provisions of this subpart; may perform such other duties as may and be assigned or requested by the com- (d) To recommend to the Secretary mittee. In the event of the death, re- amendments to this subpart. moval, resignation, or disqualification of a member his alternate shall act for § 945.33 Duties. him until a successor to such member It shall be the duty of the committee: is selected and has qualified. The com- (a) To act as intermediary between mittee may request the attendance of the Secretary and any producer or han- one or more alternates at any or all dler; meetings, notwithstanding the ex- (b) To select a chairman and such pected or actual presence of the respec- other officers as may be necessary, to tive members. select subcommittees of committee members, and to adopt such rules and § 945.30 Procedure. regulations for the conduct of its busi- (a) A simple majority of all members ness as it may deem advisable; of the committee, including alternates (c) To appoint such employees, acting for members, shall be necessary agents, and representatives as it may to constitute a quorum or to pass any deem necessary and to determine the motion or approve any committee ac- salaries and define the duties of each tion, except any motion regarding a such person; change in committee size shall require (d) To investigate, from time to time, a unanimous vote. At any assembled and to assemble data on the growing, meeting, all votes shall be cast in per- harvesting, shipping and marketing son. conditions with respect to potatoes, (b) The committee may provide for and to engage in such research and meetings by telephone, telegraph or service activities which relate to the other means of communication and any handling or marketing of potatoes as vote cast at such meeting shall be con- may be approved by the Secretary; firmed promptly in writing. (e) To furnish to the Secretary such [23 FR 5709, July 30, 1958. Redesignated at 26 available information as he may re- FR 12751, Dec. 30, 1961, as mended at 60 FR quest; 29727, June 5, 1995] (f) To keep minutes, books, and records which clearly reflect all of the § 945.31 Expenses. acts and transactions of the committee Committee members and alternates and such minutes, books, and records shall be reimbursed for reasonable ex- shall be subject to examination at any penses necessarily incurred by them in time by the Secretary or his authorized the performance of their duties and in agent or representative; the exercise of their powers under this (g) To make available to producers subpart, and may receive compensation and handlers the committee voting at a rate determined by the committee, record on recommended regulations and approved by the Secretary, for and on other matters of policy;

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(h) At the beginning of each fiscal pe- ized in § 945.40. The committee shall riod to submit to the Secretary a budg- present such budget promptly to the et of its expenses for such fiscal period, Secretary with an accompanying re- together with a report thereon; port showing the basis for its calcula- (i) To cause the books of the com- tions. mittee to be audited by a competent accountant at least once each fiscal pe- § 945.42 Assessments. riod, and at such other time as the (a) The funds to cover the commit- committee may deem necessary or as tee’s expenses pursuant to § 945.40 shall the Secretary may request. The report be acquired by the levying of assess- of such audit shall show the receipt ments upon handlers as provided in and expenditure of funds collected pur- this subpart. Each handler who ships suant to this subpart; a copy of each potatoes as the first handler thereof such report shall be furnished to the shall pay assessments to the com- Secretary and a copy of each such re- mittee upon demand, which assess- port shall be made available at the ments shall be in payment of such han- principal office of the committee for dler’s pro rata share of such expenses. inspection by producers and handlers; (b) Assessments shall be levied upon and handlers at a rate per hundredweight of (j) To consult, cooperate and ex- potatoes or equivalent established by change information when deemed de- the Secretary. Such rate may be estab- sirable by the committee with other lished upon the basis of the commit- potato marketing committees and tee’s budget recommendations, and other individuals or agencies in con- other available information. nection with all proper committee ac- (c) At any time during or subsequent tivities and objectives under this sub- to a given fiscal period, the committee part. may recommend the approval of an amended budget and an increase in the BUDGET, EXPENSES AND ASSESSMENTS rate of assessment. Upon the basis of such recommendation, or other avail- § 945.40 Expenses. able information, the Secretary may The committee is authorized to incur approve an amended budget and in- such expenses as the Secretary may crease the rate of assessment. Such in- find are reasonable and likely to be increase shall be applicable to all pota- curred during each fiscal period for its toes assessable under this part and maintenance and functioning, and for handled by the first handler thereof such purposes as the Secretary, pursu- during such fiscal period. ant to this subpart, determines to be (d) The committee may impose a late appropriate. Handlers shall share such payment charge or an interest charge, expenses upon the basis of a fiscal pe- or both, on any handler who fails to riod. Each handler’s share of such ex- pay, on or before the due date estab- pense shall be proportionate to the lished by the Secretary, the total as- ratio between the total quantity of po- sessment for which such handler is lia- tatoes handled by him as the first han- ble. Such due date and the late pay- dler thereof during a fiscal period and ment fee and interest rate shall be rec- the total quantity of potatoes handled ommended by the committee and ap- by all handlers as first handlers thereof proved by the Secretary. during the same period. (e) In order to provide funds to carry out its function, after the effective § 945.41 Budget. date of this subpart the committee At the beginning of each fiscal pe- may accept advance assessments from riod, and as may be necessary there- handlers. Advance assessments re- after, the committee shall prepare an ceived from a handler shall be credited estimated budget of income and ex- toward assessments levied against that penditures necessary for the adminis- handler during that fiscal period. In tration of this part. The committee the case of an extreme emergency, the may recommend a rate of assessment committee may also borrow money on calculated to provide adequate funds to a short term basis to provide funds for defray its proposed expenses as author- the administration of this part. Any

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such borrowed money shall only be reserve. Such reserve shall be estab- used to meet the committee’s current lished at an amount not to exceed ap- financial obligations, and the com- proximately one fiscal period’s budg- mittee shall repay all borrowed money eted expenses. Funds in such reserve by the end of the next fiscal period shall be available for use by the com- from assessment income. mittee for expenses authorized under [23 FR 5709, July 30, 1958. Redesignated at 26 § 945.40. FR 12751, Dec. 30, 1961 as amended at 60 FR (b) Funds in excess of those placed in 29727, June 5, 1995] the operating reserve shall be credited proportionately against a handler’s op- § 945.43 Accounting. erations of the following fiscal period, (a) All funds received by the com- except that if the handler demands mittee pursuant to the provisions of payment, such proportionate refund this part shall be used solely for the shall be paid to such handler. purposes specified in this part. (b) The Secretary may at any time (c) Upon termination of this part, require the committee, its members any funds not required to defray the and alternates, employees, agents, and necessary expenses of liquidation shall all other persons to account for all re- be disposed of in such manner as the ceipts and disbursements, funds, prop- Secretary may determine to be appro- erty, and records for which they are re- priate. To the extent practical, such sponsible. Whenever any person ceases funds shall be returned pro rata to the to be a member or alternate of the persons from whom such funds were committee, he shall account for all re- collected. ceipts, disbursements, funds, and property (including but not limited to [23 FR 5709, July 30, 1958. Redesignated at 26 books and other records) pertaining to FR 12751, Dec. 30, 1961, as amended at 53 FR 3189, Feb. 4, 1988] the committee’s activities for which he is responsible, and deliver all such REGULATIONS property and funds in his hands to such successor, agency, or person as may be § 945.50 Marketing policy. designated by the Secretary, and shall execute such assignments and other in- (a) Preparation. Prior to or at the struments as may be necessary or ap- same time as recommendations are propriate to vest in such successor, made pursuant to § 945.51, the com- agency, or designated person, the right mittee shall consider, and prepare, a to all of such property and funds and proposed policy for the marketing of all claims vested in such person. potatoes. In developing its marketing (c) The committee may make rec- policy the committee shall investigate ommendations to the Secretary for one relevant supply and demand conditions or more of the members thereof, or any for potatoes. In such investigations the other person or persons to act as trust- committee shall give appropriate con- ee or trustees for holding records, sideration to the following: funds, or any other committee prop- (1) Market prices for potatoes, in- erty during periods of suspension of cluding prices by grade, size, and qual- this part, or during any period or peri- ity, in different packs, and in different ods when regulations are not in effect containers; and, if the Secretary determines such (2) Supplies of potatoes by grade, action appropriate, he may direct that size, and quality in the production area such person or persons shall act as and in other potato producing areas; trustee or trustees for the committee. (3) The trend and level of consumer § 945.44 Excess funds. income; (a) The funds remaining at the end of (4) Establishing and maintaining or- a fiscal period which are in excess of derly marketing conditions for pota- the expenses necessary for committee toes; operations during such period may be (5) Orderly marketing of potatoes as carried over, with the approval of the will be in the public interest; and Secretary, into following periods as a (6) Other relevant factors.

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(b) Reports. (1) The committee shall may be used in the packaging or han- promptly submit a report to the Sec- dling of potatoes, or both; or retary setting forth the aforesaid mar- (4) Regulate the shipment of potatoes keting policy and shall notify pro- by establishing, in terms of grades, ducers and handlers of the contents of sizes, or both, minimum standards of such report. quality and maturity. (2) In the event it becomes advisable (b) [Reserved] to deviate from such marketing policy because of changed supply and demand [23 FR 5709, July 30, 1958. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 60 FR conditions, the committee shall formu- 29727, June 5, 1995] late a new or revised marketing policy in the manner set forth in this section. § 945.53 Shipments for specified pur- The committee shall promptly submit poses. a report thereon to the Secretary and Whenever the Secretary finds, upon notify producers and handlers of the the basis of the recommendations and contents of such report on the new or information submitted by the com- revised marketing policy. mittee, or from other available infor- § 945.51 Recommendation for regula- mation, that it will tend to effectuate tions. the declared policy of the act, he shall modify, suspend, or terminate regula- Whenever the committee deems it tions under or pursuant to § 945.42, advisable that the handling of potatoes § 945.52, or § 945.65, or any combination be regulated pursuant to § 945.52, or thereof in order to facilitate shipments § 945.53, or both, it shall recommend to of potatoes for the following purposes: the Secretary grade, size, quality, or (a) Export; maturity regulation, or any combina- (b) Relief or charity; tion thereof, or amendment thereto, or (c) Livestock feed; modification, suspension, or termi- (d) Certified seed potatoes; nation thereof, whenever it finds that such regulation, as provided in such (e) Processing into specified prod- sections, will tend to effectuate the de- ucts; and clared policy of the act. (f) Such other purposes which may be specified by the Committee, with the § 945.52 Issuance of regulations. approval of the Secretary. (a) The Secretary shall limit the han- § 945.54 Minimum quantity exemption. dling of potatoes whenever he finds from the recommendations and infor- The committee, with the approval of mation submitted by the committee, or the Secretary, may establish, for any from other available information, that or all portions of the production area, such regulation will tend to effectuate minimum quantities below which ship- the declared policy of the act. Such ments will be free from regulations limitation may: issued or in effect pursuant to §§ 945.40 (1) Regulate in any or all portions of to 945.65, inclusive, or any combination the production area, the handling of thereof. particular grades, sizes, qualities, or § 945.55 Notification of regulation. maturities, or any combination thereof, of any or all varieties of potatoes The Secretary shall notify the com- during any period; or mittee of any regulations issued or of (2) Regulate the shipment of par- any modifications, suspension, or ter- ticular grades, sizes, qualities, or ma- mination thereof. The committee shall turities of potatoes differently, for dif- give reasonable notice thereof to han- ferent varieties, for different portions dlers. of the production area, for different packs, for different containers, or for § 945.56 Safeguards. any combination of the foregoing, dur- (a) The committee, with the approval ing any period; or of the Secretary, may prescribe ade- (3) Fix the size, capacity, weight, di- quate safeguards to prevent shipments mensions, pack, labeling or marking of pursuant to § 945.53 from entering chan- the container, or containers, which nels of trade and other outlets for

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other than the specific purpose author- aforesaid, no handler shall handle pota- ized therefor. toes after they have been regraded, re- (b) Safeguards, provided by this sec- sorted, repacked, or in any way further tion, may include, but shall not be lim- prepared for market, unless such pota- ited to, requirements that handlers: toes are inspected and covered by a (1) Shall obtain the inspection re- valid inspection certificate as required quired by § 945.65 or pay the assessment in paragraph (a) of this section. provided by § 945.42, or both, in connec- (c) Insofar as the requirements of tion with the potato shipments effected this section are concerned, the length in accordance with § 945.53; and of time for which an inspection certifi- (2) Shall obtain Certificates of Privi- cate shall be valid may be established lege from the committee for shipments by the committee with the approval of of potatoes effected or to be effected the Secretary; and such length of time under provisions of § 945.53. (c) The committee, with the approval may be different for shipments for dif- of the Secretary, shall prescribe rules ferent purposes. governing the issuance and the con- (d) When potatoes are inspected in tents of Certificates of Privilege. accordance with the requirements of (d) The committee may rescind, or this section, a copy of each inspection deny to any handler, Certificates of certificate issued shall be made avail- Privilege if proof satisfactory to the able promptly to the committee by the committee is obtained that potatoes inspection service. shipped by him for the purposes stated in § 945.53 were handled contrary to the COMPLIANCE provisions of this section. (e) The committee shall make re- § 945.70 Compliance. ports to the Secretary, as requested, Except as provided in this part, no showing the number of applications for handler shall ship potatoes, the ship- such certificates, the quantity of pota- ment of which has been prohibited by toes covered by such applications for the Secretary in accordance with pro- such certificates, the number of such visions of this subpart, and no handler applications denied and certificates shall ship potatoes except in con- granted, the quantity of potatoes formity to the provisions of this sub- shipped under duly issued certificates, part. and such other information as may be requested by the Secretary. MISCELLANEOUS PROVISIONS

INSPECTION AND CERTIFICATION § 945.80 Reports. § 945.65 Inspection and certification. (a) Upon the request of the com- (a) During any period in which regu- mittee, with approval of the Secretary, lations are in effect pursuant to every handler shall furnish to the com- § 945.42, § 945.52, or § 945.53, or any committee, in such manner and at such bination thereof, no handler shall han- time as may be prescribed, such infor- dle potatoes unless such potatoes are mation as will enable the committee to inspected by an authorized representa- exercise its powers and perform its du- tive of the Federal-State Inspection ties under this subpart. The Secretary Service, and are covered by a valid in- shall have the right to modify, change, spection certificate, except when re- or rescind any requests for reports pur- lieved from such requirements pursu- suant to this section. ant to recommendations by the com- (b) All data or other information con- mittee and approved by the Secretary. stituting a trade secret, or disclosing a (b) Regrading, resorting, or repack- trade position or business condition of ing any lot of potatoes shall invalidate a particular handler shall be treated as any prior inspection certificates cov- confidential and shall at all times be ering such potatoes insofar as the re- received by and kept in the custody quirements of this section are con- and under the control of one or more cerned. During any period in which shipments of potatoes are regulated, as

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designated employees of the com- one of the ways specified in this sub- mittee. Information which would re- part. veal the circumstances of a single handler shall be disclosed to no person § 945.83 Termination. other than the Secretary. (a) The Secretary may, at any time, (c) Each handler shall maintain for terminate the provision of this subpart at least two succeeding fiscal periods by giving at least one day’s notice by such records of potatoes received and of potatoes disposed of by such handler means of a press release or in any other as may be necessary to verify reports manner which he may determine. required pursuant to this section. The (b) The Secretary may terminate or committee, with the approval of the suspend the operation of any or all of Secretary, may prescribe rules and reg- the provisions of this subpart whenever ulations issued pursuant to this section he finds that such provisions do not specifying handler records and reports tend to effectuate the declared policy which the committee may need to per- of the act. form its functions. (c) The Secretary shall terminate the (d) For the purpose of assuring com- provisions of this subpart at the end of pliance and checking and verifying re- any fiscal period whenever he finds ports filed by handlers, the Secretary that such termination is favored by a and the committee, through its duly majority of producers who, during the authorized agents, shall have access to preceding fiscal period, have been en- any premises where applicable records gaged in the production for market of are maintained, where potatoes are potatoes: Provided, That such majority held, and, at any time during reasonable business hours, shall be permitted has, during such period, produced for to inspect such handlers’ premises and market more than fifty percent of the any and all records of such handlers volume of such potatoes produced for with respect to matters within the pur- market; but such termination shall be view of this part. effective only if announced on or before April 30 of the then current fiscal pe- [23 FR 5709, July 30, 1958. Redesignated at 26 riod. FR 12751, Dec. 30, 1961, as amended at 60 FR 29727, June 5, 1995] (d) The Secretary shall conduct a referendum as soon as practicable after § 945.81 Right of the Secretary. July 31, 1992, and at such time every The members of the committee (in- sixth year thereafter, to ascertain cluding successors and alternates), and whether continuance of this order is fa- any agent or employee appointed or vored by potato producers. The Sec- employed by the committee, shall be retary may terminate the provisions of subject to removal or suspension by this order at the end of any fiscal pe- the Secretary at any time. Each and riod in which the Secretary has found every order, regulation, decision, deter- that continuance of this order is not mination or other act of the committee favored by producers who, during a rep- shall be subject to the continuing right resentative period determined by the of the Secretary to disapprove of the Secretary, have been engaged in the same at any time. Upon such dis- production for market of potatoes in approval, the disapproved action of the the production area. Termination of said committee shall be deemed null the order shall be effective only if an- and void, except as to acts done in reli- nounced on or before July 1 of the then ance thereon or in compliance there- current fiscal period. with prior to such disapproval by the (e) The provisions of this subpart Secretary. shall, in any event, terminate when- § 945.82 Effective time. ever the provisions of the act author- The provisions of this subpart shall izing them cease to be in effect. become effective at such time as the [23 FR 5709, July 30, 1958. Redesignated at 26 Secretary may declare above his signa- FR 12751, Dec. 30, 1961, as amended at 53 FR ture attached to this subpart, and shall 3189, Feb. 4, 1988] continue in force until terminated in

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§ 945.84 Proceedings after termination. tive date of this subpart shall continue (a) Upon the termination of the pro- in office until their successors have visions of this subpart the then func- been selected and have qualified. All tioning members of the committee rules and regulations issued or ap- shall continue as trustees, for the pur- proved by the Secretary pursuant to pose of liquidating the affairs of the this part (Order No. 945, as amended) committee, of all the funds and prop- and not in conflict herewith, which are erty then in the possession of or under in effect immediately prior to the date control of the committee, including of this amendment shall continue in ef- claims for any funds unpaid or prop- fect under this subpart as originally erty not delivered at the time of such issued, or subsequently modified, until termination. Action by said trustee- such rules and regulations are changed, ship shall require the concurrence of a modified, or suspended in accordance majority of the said trustees. with this subpart. (b) The said trustees shall continue § 945.86 Duration of immunities. in such capacity until discharged by the Secretary; shall, from time to time The benefits, privileges, and immuni- account for all receipts and disburse- ties conferred upon any person by vir- ments and deliver all property on hand, tue of this subpart shall cease upon the together with all books and records of termination of this subpart, except the committee and of the trustees, to with respect to acts done under and such person as the Secretary may di- during the existence of this subpart. rect; and shall upon request of the Sec- § 945.87 Agents. retary execute such assignments or other instruments necessary or appro- The Secretary may, by designation in priate to vest in such person full title writing, name any person, including and right to all of the funds, property, any officer or employee of the Govern- and claims vested in the committee or ment, or name any bureau or division the trustees pursuant thereto. in the United States Department of Ag- (c) Any person to whom funds, prop- riculture, to act as his agent or rep- erty, or claims have been transferred resentative in connection with any of or delivered by the committee or its the provisions of this subpart. members, pursuant to this section, shall be subject to the same obligations § 945.88 Derogation. imposed upon the members of the com- Nothing contained in this subpart is, mittee and upon the said trustees. or shall be construed to be, in derogation or in modification of the rights of § 945.85 Effect of termination or the Secretary or of the United States amendments. to exercise any powers, granted by the (a) Unless otherwise expressly pro- act or otherwise, or, in accordance vided by the Secretary, the termi- with such powers, to act in the prem- nation of this subpart or of any regula- ises whenever such action is deemed tion issued pursuant to this subpart, or advisable. the issuance of any amendments to either thereof, shall not (1) affect or § 945.89 Personal liability. waive any right, duty, obligation, or li- No member or alternate of the com- ability which shall have arisen or mittee, nor any employee or agent which may thereafter arise in connec- thereof, shall be held personally re- tion with any provision of this subpart sponsible, either individually or jointly or any regulation issued under this with others, in any way whatsoever, to subpart, or (2) release or extinguish any handler or to any person for errors any violation of this subpart or of any in judgment, mistakes, or other acts, regulation issued under this subpart, or either of commission or omission, as (3) affect or impair any rights or rem- such member, alternate, or employee, edies of the Secretary or of any other except for acts of dishonesty. person with respect to any such violation. § 945.90 Separability. (b) The persons who are committee If any provision of this subpart is de- members and alternates on the effec- clared invalid, or the applicability

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thereof to any person, circumstance, or CERTIFICATES OF PRIVILEGE thing is held invalid, the validity of the remainder of this subpart, or the appli- § 945.120 General. cability thereof to any other person, Whenever shipments of potatoes for circumstance, or thing, shall not be af- special purposes pursuant to § 945.53 are fected thereby. relieved in whole or in part from grade and size regulations issued under § 945.91 Amendments. § 945.52 the committee shall require information and evidence as to the man- Amendments to this subpart may be ner, methods, and timing of such ship- proposed, from time to time, by the ments as safeguards against the entry committee or by the Secretary. of any such potatoes into trade channels other than those for which in- Subpart—Rules and Regulations tended. Such information and evidence shall include the requirements set SOURCE: 24 FR 8688, Oct. 27, 1959, unless forth below with respect to Certificates otherwise noted. Redesignated at 26 FR 12751, of Privilege. Dec. 30, 1961. § 945.121 Qualification. § 945.100 Communications. Before handling potatoes for special Unless otherwise provided by specific purposes which do not meet regulations issued pursuant to § 945.52 a han- direction of the committee, all reports, dler must qualify with the committee applications, submittals, requests, and to handle shipments for special pur- communications in connection with poses. To qualify he must (a) apply for the marketing agreement and order, and receive a Certificate of Privilege both as amended, shall be addressed to indicating his intent to so handle pota- the committee at its principal office. toes; (b) agree to comply with reporting and other requirements set forth in DEFINITIONS §§ 945.121 to 945.125, inclusive, with respect to such shipments; and (c) receive § 945.110 Order. approval of the committee, or its duly Order means Order No. 945, as amend- authorized agents, to so handle pota- ed, effective September 1, 1958 (§§ 945.1 toes. Such approval will be based upon through 945.91) regulating the handling evidence furnished in his application of Irish potatoes grown in Malheur for a Certificate of Privilege, and other County, Oregon, and the counties of information available to the com- Adams, Valley, Lemhi, Clark, and Fre- mittee. mont in the State of Idaho, and all of the counties in Idaho lying south § 945.122 Application. thereof. (a) Application for a Certificate of Privilege shall be made on forms fur- § 945.111 Fiscal period. nished by the committee. Each application may contain, but need not be lim- The fiscal period that began June 1, ited to, the name and address of the 1981, shall end July 31, 1982. Each year handler; the quantity by grade, size, thereafter fiscal period shall mean the quality and variety of the potatoes to period beginning August 1 and ending be shipped; the mode of transportation; the following July 31. the consignee; the destination; the pur- [47 FR 17272, Apr. 22, 1982] pose for which the potatoes are to be used; a certification to the United § 945.112 Terms. States Department of Agriculture and to the committee as to the truthful- Terms used in this subpart shall have ness of the information shown thereon; the same meaning as when used in the and any other appropriate information marketing agreement and order, both or documents deemed necessary by the as amended. committee or its duly authorized agents for the purpose stated in § 945.120.

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(b) The committee may require each the succeeding fiscal period. Any han- handler making shipments of potatoes dler who has a certificate rescinded or for export to include with his applica- denied may appeal to the committee in tion a copy of the Department of Com- writing for reconsideration of his dis- merce Shipper’s Export Declaration qualification. Form No. 7525–V applicable to such shipment. Subpart—Assessment Rates § 945.123 Approval. § 945.249 Assessment rate. The committee or its duly authorized On and after August 1, 2003, an as- agents shall give prompt consideration sessment rate of $0.0045 per hundred- to each application for a Certificate of weight is established for Idaho-Eastern Privilege. Approval of an application, Oregon potatoes. based upon a determination as to whether the information contained [68 FR 59527, Oct. 16, 2003] therein and other information available to the committee supports ap- Subpart—Handling Regulations proval, shall be evidenced by the issuance of a Certificate of Privilege to § 945.341 Handling regulation. the applicant. Each certificate shall No person shall handle any lot of po- cover a specified period, and specified tatoes unless such potatoes meet the qualities and quantities of potatoes to requirements of paragraphs (a) through be sold or transported to the des- (d) of this section, or unless such pota- ignated consignee for the purposes de- toes are handled in accordance with clared. paragraphs (e) and (f), or (g) of this section. § 945.124 Reports. (a) Minimum quality requirements—(1) Each handler of potatoes shipping Grade—All varieties. U.S. No. 2 or better under Certificates of Privilege shall grade. supply the committee with reports as (2) Size—(i) Round varieties. 17⁄8 inches requested by the committee or its duly minimum diameter, unless otherwise authorized agents showing the name specified on the container in connec- and address of the shipper; the car or tion with the grade. truck identification; the loading point; (ii) All other varieties. 2 inches min- destination; consignee; the inspection imum diameter, or 4 ounces minimum certificate number when inspection is weight: Provided, That at least 40 per- required; and any other information cent of the potatoes in each lot shall be deemed necessary by the committee. 5 ounces or heavier. (iii) All varieties, U.S. No. 1 grade or § 945.125 Disqualification. better. (A) Size B (11⁄2 to 21⁄4 inches di- The committee from time to time ameter). may conduct surveys of handling of po- (B) Creamer (3⁄4 to 15⁄8 inches diame- tatoes for special purposes requiring ter). Certificates of Privilege to determine (3) Cleanness—All varieties. ‘‘Fairly whether handlers are complying with clean.’’ the requirements and regulations ap- (b) Minimum maturity requirements—(1) plicable to such certificates. Whenever White Rose and red skin varieties. Each the committee finds that a handler or year from August 1 through December consignee is failing to comply with re- 31, ‘‘moderately skinned’’; during other quirements and regulations applicable periods no maturity requirements. to handling of potatoes in special out- (2) All other varieties. ‘‘Slightly lets, and requiring such certificates, a skinned.’’ Certificate or Certificates of Privilege (3) Exceptions. (i) Subject to issued such handler may be rescinded complaince with paragraph (b)(4)(iii) of and further certificates denied. Such this section, any lot of potatoes not ex- disqualification shall apply to, and not ceeding a total of 50 hundredweight of exceed, a reasonable period of time as such variety may be handled for any determined by the committee but in no producer without regard to the fore- event shall it extend beyond the end of going maturity requirements.

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(ii) If an officially inspected lot of po- smaller than 110 size nor larger than 60 tatoes meets the foregoing maturity size; or requirements, but fails to meet the (ii) U.S. No. 2 grade in one-piece 50- grade and size requirements, the lot pound fiberboard cartons of natural may be regraded. If, after regrading, kraft color, provided the cartons are such lot then meets the grade and size permanently and conspicuously requirements but fails to meet the ma- marked as to grade. turity requirements, as indicated by (3) Size shall be conspicuously the applicable Federal-State inspection marked on all cartons (except when certificate, such lot if not exceeding used as a master container) consistent 100 hundredweight shall be exempt with § 51.1545 of the United States from the foregoing maturity requirements if the handler complies with Standards for Grades of Potatoes (7 paragraph (b)(4)(iii) of this section. CFR 51.1540–51.1566). (iii) Prior to each shipment of pota- (d) Inspection. Except when relieved toes exempt from the foregoing matu- of such requirement pursuant to para- rity requirements, the handler thereof graphs (e) and (f), or (g) of this section: shall report to the committee the name (1) No handler shall handle potatoes and address of the producer of such po- unless such potatoes are inspected by tatoes, and each such shipment shall be either the Idaho Federal-State Inspec- handled as an identifiable entity. tion Service or Oregon Federal-State (c) Pack and marking. (1) When 50- Inspection Service and are covered and pound containers (except master con- accompanied by a valid inspection cer- tainers) of potatoes are marked with a tificate, numbered notesheet, or ship- count, size or similar designation, they ping clearance report: Provided, That a must meet the count, average count valid inspection certificate, numbered and weight ranges for the count des- notesheet, or shipping clearance report ignation listed below. is not required to accompany positive Range lot identified potatoes. Size (2) Each lot shipped shall be accom- Count Average Weight count 1 panied by a copy of a valid inspection certificate, a numbered notesheet, 2 3 4 Larger than 50 ...... ( ) ( ) ( ) shipping clearance report, or the lot 50 ...... 45–55 48–53 12–19 60 ...... 54–66 57–63 10–16 must meet PLI requirements estab- 70 ...... 63–77 67–74 9–15 lished by the Fresh Products Branch, 80 ...... 72–88 76–84 8–13 Fruit and Vegetable Division, Agricul- 90 ...... 81–99 86–95 7–12 100 ...... 90–110 95–105 6–10 tural Marketing Service of the U.S. De- 110 ...... 99–121 105–116 5–9 partment of Agriculture. 120 ...... 108–132 114–126 4–8 (3) Inspection certificates, numbered 130 ...... 117–143 124–137 4–8 140 ...... 126–154 133–147 4–8 notesheets or shipping clearance re- Smaller than 140 ...... (2) (3) 4–8 ports for potatoes to be shipped must 1 Applicable to lots. be issued within four days of such ship- 2 10 percent over or under. ment. Otherwise, such potatoes, includ- 3 5 percent over or under. 4 15 ounces or larger. ing lots that are positive lot identified, can only be shipped if a new inspection The following tolerances by weight, are is performed to verify that the pota- provided for potatoes in any lot which toes meet the requirements specified in fail to meet the weight range for the paragraphs (a), (b), and (c) of this sec- designated count: tion. If the subsequent inspection (i) Not to exceed 5 percent for verifies that the lot meets the require- undersize; and ments of paragraphs (a), (b), and (c) of (ii) Not to exceed 10 percent for over- this section, a new certificate, a new size. (2) Potatoes packed in cartons (ex- numbered notesheet, or a new shipping cept when used as a master container) clearance report shall be issued and, if shall be either: positive lot identified, shall reference (i) U.S. No. 1 grade or better, except the original PLI number, and a new potatoes of U.S. Extra No. 1 shall be no PLI number need not be applied to the

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lot. However, if upon subsequent in- (iv) shall be exempt from inspection re- spection, the lot does not meet the requirements specified in § 945.65 and quirements specified in either para- paragraph (d) of this section and from graphs (a), (b), or (c) of this section, assessment requirements specified in the lot shall be reconditioned in the § 945.42. presence of an authorized representa- (2) The minimum grade, size, clean- tive of the Idaho Federal-State Inspec- ness, maturity and pack requirements tion Service or Oregon Federal-State set forth in paragraphs (a), (b), (c) and Inspection Service prior to the close of (d) of this section shall be applicable to the business day. If the lot is recondi- shipment of potatoes for each of the tioned prior to the close of the business following purposes: day, a new certificate, a new numbered (i) Export: Except potatoes of a size notesheet, or a new shipping clearance not smaller than 11⁄2 inches in diameter report must be issued, and either a new may be shipped if the potatoes grade PLI number must be applied to the lot not less than U.S. No. 2; and or the original PLI number must be (ii) Except potatoes of a modified. If the PLI numbered lot is Prepeeling: 1 not reconditioned prior to the close of size not smaller than 1 ⁄2 inches in di- the business day, all PLI numbers must ameter may be shipped if the potatoes be obliterated. Any inspection certifi- grade not less than Idaho Utility or Or- cate, numbered notesheet, or shipping egon Utility grade. clearance report issued upon a subse- (f) Safeguards. (1) Each handler mak- quent inspection, including when a lot ing shipments of potatoes for charity, is reconditioned, must be issued within experimentation, or export pursuant to four days of shipment of the potatoes. paragraph (e) of this section shall: (4) Handlers shall provide the Com- (i) First, apply to the committee for mittee with the destination zip codes and obtain a Certificate of Privilege to of all potatoes handled by permitting make shipments for each purpose; the Idaho Federal-State Inspection (ii) Upon request by the committee, Service or Oregon Federal-State In- furnish reports of each shipment pursu- spection Service to review the bills of ant to the applicable Certificate of lading upon inspection to determine Privilege; the destination zip codes. The destina- (iii) At the time of applying to the tion zip codes shall be included on the committee for a Certificate of Privi- inspection certificates. The destination lege, or promptly thereafter, furnish zip codes and the quantity shall be pro- the committee with a receiver’s or buy- vided by the handler to the Committee er’s certification that the potatoes so on lots which are positive lot identi- handled are to be used only for the pur- fied, either orally or in writing. When- pose stated in the application and that ever potatoes are diverted to a dif- such receiver will complete and return ferent destination, the handler shall to the committee such periodic receiv- notify the Committee of the new des- er’s reports that the committee may tination zip code and quantity orally require. or in writing as soon as practicable. (iv) Mail to the office of the com- (e) Special purpose shipments. (1) The mittee a copy of the bill of lading for minimum grade, size, cleanness, matu- each Certificate of Privilege shipment rity, and pack requirements set forth promptly after the date of shipment, in paragraphs (a), (b), and (c) of this section shall not be applicable to ship- unless other arrangements are made ments of prepeeled potatoes as defined with the committee office; in paragraph (h) of this section or pota- (v) Bill each shipment directly to the toes for any of the following purposes: applicable receiver. (i) Charity; (2) Each handler making shipments (ii) Certified seed; of potatoes for canning, freezing, or (iii) Experimentation; and ‘‘other processing’’ pursuant to para- (iv) Canning, freezing and ‘‘other graph (e) of this section shall: processing’’ as hereinafter defined. (i) First apply to the committee for Also, shipments of potatoes for the and obtain a Certificate of Privilege to purpose specified in this subdivision make shipments for processing;

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(ii) Make shipments only to those peeled potatoes described in § 52.2422 of firms whose names appear on the com- the United States Standards for Peeled mittee’s current list of manufacturers Potatoes (7 CFR 52.2421–52.2433). The of potato products; term other processing has the same (iii) Upon request by the committee, meaning as the term appearing in the furnish reports of each shipment pursu- act and includes, but is not restricted ant to the applicable Certificate of to, potatoes for dehydration, chips, Privilege; shoestrings, starch, and flour. It in- (iv) Mail to the committee’s office a cludes only that preparation of pota- copy of the bill of lading for each Cer- toes for market which involves the ap- tificate of Privilege shipment promptly plication of heat or cold to such an ex- after the date of shipment, unless other tent that the natural form or stability arrangements are made with the com- of the commodity undergoes a substan- mittee office; tial change. The act of peeling, cooling, (v) Bill each shipment directly to the slicing, dicing, or applying material to applicable processor. prevent oxidation does not constitute (3) Each receiver of potatoes for proc- ‘‘other processing.’’ The terms Idaho essing pursuant to paragraph (e) of this Utility grade and Oregon Utility grade section shall: shall have the same meaning as when (i) Complete and return an applica- used in the standards for potatoes for tion form for listing as a manufacturer the respective State. Other terms used of potato products; in this section shall have the same (ii) Certify to the committee and to meaning as when used in Marketing the Secretary that potatoes received Agreement No. 98 and Order No. 945, from the production area for processing both as amended. will be used for such purposes and will (Secs. 1–19, 48 Stat. 31, as amended; 7 U.S.C. not be placed in fresh market channels; 601–674) (iii) Report on shipments received as [47 FR 34355, Aug. 9, 1982, as amended at 52 the committee may require and the FR 5530, Feb. 25, 1987; 52 FR 41695, Oct. 30, Secretary approve. 1987; 53 FR 48634, Dec. 2, 1988; 57 FR 62167, (4) Each handler making shipments Dec. 30, 1992; 59 FR 46723, Sept. 12, 1994; 60 FR of certified seed potatoes pursuant to 57905, Nov. 24, 1995; 65 FR 25627, May 3, 2000; paragraph (e) of this section shall fur- 65 FR 48144, Aug. 7, 2000; 67 FR 66531, Nov. 1, nish, at the request of the committee, 2002; 70 FR 21330, Apr. 26, 2005; 71 FR 29567, reports on the total volume of seed po- May 23, 2006; 74 FR 45734, Sept. 4, 2009] tatoes handled. EDITORIAL NOTE: After January 1, 1979, (g) Minimum quantity exemption. Each ‘‘Budget of Expenses and Rate of Assessment’’ handler may ship up to, but not to ex- regulations (e.g. sections .200 through .299) ceed, five hundredweight of potatoes and ‘‘Handling’’ regulations (e.g. sections .300 through .399) which are in effect for a year or any day without regard to the inspec- less, will not be carried in the Code of Fed- tion and assessment requirements of eral Regulations. For FEDERAL REGISTER ci- this part, but this exception shall not tations affecting these regulations, see the apply to any shipment that exceeds List of CFR Sections Affected, which appears five hundredweight of potatoes. in the Finding Aids section of the printed (h) Definitions. The terms U.S. Extra volume and at www.fdsys.gov. No. 1, U.S. No. 1, U.S. No. 2, Size B, fairly clean, moderately skinned, and slightly PART 946—IRISH POTATOES skinned shall have the same meaning as GROWN IN WASHINGTON when used in the United States Stand- ards for Potatoes (7 CFR 51.1540– Subpart—Order Regulating Handling 51.1566), including the tolerances set forth therein. The term prepeeling DEFINITIONS means the commercial preparation in a Sec. prepeeling plant of clean, sound, fresh 946.1 Secretary. potatoes by washing, peeling, or other- 946.2 Act. 946.3 Person. wise removing the outer skin, trim- 946.4 Production area. ming, sorting, and properly treating to 946.5 Potatoes. prevent discoloration preparatory to 946.6 Handler. sale in one or more of the styles of 946.7 Handle.

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946.8 Producer. 946.102 Terms. 946.9 Fiscal period. 946.103 Reestablishment of districts. 946.10 Committee. 946.104 Reestablishment and reapportion- 946.11 Varieties. ment of committee. 946.12 Seed potatoes. 946.13 Grade and size. SPECIAL PURPOSE CERTIFICATES 946.14 Grading. 946.15 Export. 946.120 Application. 946.16 District. 946.121 Issuance. 946.17 Pack. 946.122 Reports. 946.18 Container. 946.123 Denial and appeals.

ADMINISTRATIVE COMMITTEE MODIFICATION OF INSPECTION REQUIREMENTS 946.22 Establishment and membership. 946.130 Application. 946.23 Alternate members. 946.131 Issuance. 946.24 Procedure. 946.132 Reports. 946.25 Selection. 946.133 Cancellation. 946.26 Acceptance. 946.140 Handling potatoes for commercial 946.27 Term of office. processing into products. 946.28 Powers. 946.141 Late payment and interest charge. 946.29 Duties. 946.30 Expenses and compensation. 946.142 Operating reserve. 946.31 Districts. 946.143 Assessment reports. 946.32 Nomination. 946.248 Assessment rate. 946.33 Vacancies. Subpart—Handling Regulations EXPENSES AND ASSESSMENTS 946.336 Handling regulation. 946.40 Expenses. 946.41 Assessments. AUTHORITY: 7 U.S.C. 601–674. 946.42 Accounting. 946.43 Funds. Subpart—Order Regulating REGULATION Handling 946.50 Marketing policy. 946.51 Recommendation for regulations. SOURCE: 17 FR 2912, Apr. 4, 1952, unless oth- 946.52 Issuance of regulations. erwise noted. Redesignated at 26 FR 12751, 946.53 Minimum quantities. Dec. 30, 1961. 946.54 Shipments for specified purposes. 946.55 Safeguards. DEFINITIONS INSPECTION AND CERTIFICATION § 946.1 Secretary. 946.60 Inspection and certification. Secretary means the Secretary of Ag- EFFECTIVE TIME AND TERMINATION riculture of the United States, or any 946.62 Effective time. other officer, or member of the United 946.63 Termination. States Department of Agriculture, who 946.64 Proceedings after termination. is, or may hereafter be authorized to 946.65 Effect of termination or amendment. exercise the powers and to perform the duties of the Secretary of Agriculture. MISCELLANEOUS PROVISIONS 946.70 Reports and records. § 946.2 Act. 946.71 Compliance. 946.72 Right of the Secretary. Act means Public Act No. 10, 73d Con- 946.73 Duration of immunities. gress, as amended and reenacted and 946.74 Agents. amended by the Agricultural Mar- 946.75 Derogation. keting Agreement Act of 1937, as 946.76 Personal liability. amended (48 Stat. 31, as amended; 7 946.77 Separability. U.S.C. 601 et seq.). 946.78 Amendments. § 946.3 Person. Subpart—Rules and Regulations Person means an individual, partner- DEFINITIONS ship, corporation, association, legal 946.100 Order. representative, or any organized group 946.101 Marketing agreement. or business unit.

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§ 946.4 Production area. ington Potato Committee, established Production area means all territory pursuant to § 946.22. included within the boundaries of the § 946.11 Varieties. State of Washington. Varieties means and includes all clas- § 946.5 Potatoes. sifications or subdivisions of Irish po- Potatoes means all varieties of Irish tatoes according to those definitive potatoes grown within the State of characteristics now or hereafter recog- Washington. nized by the United States Department of Agriculture. § 946.6 Handler. Handler is synonymous with shipper § 946.12 Seed potatoes. and means any person (except a com- Seed potatoes means and includes all mon or contract carrier of potatoes potatoes officially certified and tagged, owned by another person) who handles marked or otherwise appropriately potatoes or causes potatoes to be han- identified under the supervision of the dled. official seed potato certifying agency of the State of Washington or other [37 FR 10916, June 1, 1972] seed certification agencies which the § 946.7 Handle. Secretary may recognize. Handle is synonymous with ship and § 946.13 Grade and size. means to transport, sell, or in any other way to place potatoes grown in Grade means any one of the officially the State of Washington, or cause such established grades of potatoes, and size potatoes to be placed, in the current of means any one of the officially estab- commerce within the production area lished sizes of potatoes as defined and or between the production area and set forth in: any point outside thereof, or from any (a) The U.S. Standards for Potatoes point in the adjoining States of Oregon issued by the U.S. Department of Agri- and Idaho to any other point: Provided, culture (§§ 51.1540 to 51.1566 of this That, the definition of ‘‘handle’’ shall title), or amendments thereto or modi- not include the transportation of fications thereof, or variations based ungraded potatoes within the produc- thereon; tion area for the purpose of having (b) U.S. Standards for Grades of Po- such potatoes prepared for market, or tatoes for Processing as issued by the stored, except that the committee may U.S. Department of Agriculture impose safeguards pursuant to § 946.55 (§§ 51.3410 to 51.3424 of this title), or with respect to such potatoes. amendments thereto, or modifications thereof, or variations based thereon; [37 FR 10916, June 1, 1972] (c) U.S. Standards for Grades of § 946.8 Producer. Peeled Potatoes (§§ 52.2421 to 52.2433 of this title), or amendments thereto or Producer means any person engaged modifications thereof, or variations in the production of potatoes for mar- based thereon; and ket. (d) State of Washington Standards § 946.9 Fiscal period. for Potatoes issued by the State of Washington Director of Agriculture, or Fiscal period means the period begin- amendments thereto, or modifications ning on July 1 of each year and ending thereof, or variations based thereon. June 30 of the following year, or such other period as the Secretary may es- [37 FR 10916, June 1, 1972] tablish pursuant to recommendation of the committee. § 946.14 Grading. Grading is synonymous with pre- [37 FR 10916, June 1, 1972] paring for market which means the sort- § 946.10 Committee. ing or separating of potatoes into grades and sizes for market purposes. Committee means the administrative committee, called the State of Wash- [37 FR 10916, June 1, 1972]

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§ 946.15 Export. (1) Shifts in acreage within districts and within the production area during Export means shipment of potatoes recent years; beyond the boundaries of the 48 contig- (2) The importance of new production uous States of the United States, or in its relation to existing districts; the District of Columbia. (3) The equitable relationship be- [37 FR 10916, June 1, 1972] tween committee apportionment and districts; and § 946.16 District. (4) Other relevant factors. District means each one of the geo- [17 FR 2912, Apr. 4, 1952. Redesignated at 26 graphical divisions of the production FR 12751, Dec. 30, 1961 as amended at 70 FR area established pursuant to § 946.31. 41133, July 18, 2005] [17 FR 2912, Apr. 4, 1952. Redesignated at 26 § 946.23 Alternate members. FR 12751, Dec. 30, 1961, and further redesig- (a) An alternate member of the com- nated at 37 FR 10916, June 1, 1972] mittee shall act in the place and stead § 946.17 Pack. of the member for whom he is an alternate, during such member’s absence. In Pack means a quantity of potatoes in the event of the death, removal, res- any type of container and which falls ignation, or disqualification of a mem- within the specific weight limits or ber, his alternate shall act for him within specific grade and/or size limits, until a successor of such member is se- or any combination thereof, rec- lected and has qualified. ommended by the committee and ap- (b) In the event that both a member proved by the Secretary. and his or her alternate are unable to [70 FR 41133, July 18, 2005] attend a Committee meeting, the member, the alternate member, or the Com- § 946.18 Container. mittee members present, in that order, may designate another alternate of the Container means a sack, box, bag, same classification (handler or pro- crate, hamper, basket, carton, package, ducer) to serve in such member’s place barrel, or any other type of receptacle and stead. used in the packing, transportation, sale or other handling of potatoes. [17 FR 2912, Apr. 4, 1952. Redesignated at 26 FR 12751, Dec. 30, 1961 as amended at 70 FR [70 FR 41133, July 18, 2005] 41133, July 18, 2005]

ADMINISTRATIVE COMMITTEE § 946.24 Procedure. (a) Sixty percent of the committee § 946.22 Establishment and member- members shall constitute a quorum ship. and a concurring vote of 60 percent of (a) The State of Washington Potato the committee members will be re- Committee consisting of fifteen mem- quired to pass any motion or approve bers, of whom ten shall be producers any committee action. and five shall be handlers, is hereby es- (b) The quorum and voting require- tablished. For each member of the ments of paragraph (a) of this section committee there shall be an alternate shall not apply to the designation of who shall have the same qualifications temporary alternates as provided in as the member. § 946.23. (b) The Secretary, upon recommenda- (c) The committee may provide for tion of the committee, may reestablish meetings by telephone, telegraph, or districts, may reapportion members other means of communication and any among districts, may change the num- vote cast at such a meeting shall be ber of members and alternate mem- confirmed promptly in writing: Pro- bers, and may change the composition vided, That if any assembled meeting is by changing the ratio of members, in- held, all votes shall be cast in person. cluding their alternates. In recom- [17 FR 2912, Apr. 4, 1952. Redesignated at 26 mending any such changes, the fol- FR 12751, Dec. 30, 1961 as amended at 70 FR lowing shall be considered: 41133, July 18, 2005]

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§ 946.25 Selection. fice of one-third of the initial members and alternates shall be for 1 year, one- (a) Persons selected as committee third for 2 years, and one-third for 3 members or alternates to represent years. producers shall be individuals who are (b) Committee members and alter- producers of fresh potatoes in the re- nates shall serve during the term of of- spective district for which selected, or fice for which they are selected and officers or employees of a corporate have qualified, or during that portion producer in such district. Such individ- thereof beginning on the date on which uals must also have produced potatoes they qualify during the term of office for the fresh market for at least three and continuing until the end thereof, out of the five years prior to nomina- and until their successors are selected tion. and have qualified. (b) Persons selected as committee members or alternates to represent [17 FR 2912, Apr. 4, 1952. Redesignated at 26 handlers shall be individuals who are FR 12751, Dec. 30, 1961, as amended at 37 FR handlers in the State of Washington, or 10916, June 1, 1972] officers or employees of a corporate § 946.28 Powers. handler in the aforesaid State, and such persons shall be residents of the The committee shall have the fol- State of Washington. lowing powers: (c) The Secretary shall select com- (a) To administer the provisions of mittee membership so that, during this subpart in accordance with its each fiscal period, each district, as des- terms; ignated in § 946.31, will be represented (b) To make rules and regulations to as follows: effectuate the terms and provisions of this subpart; (1) District No. 1—Three producer (c) To receive, investigate, and report members and one handler member; to the Secretary complaints of viola- (2) District No. 2—Two producer tion of the provisions of this subpart; members and one handler member; and (3) District No. 3—Two producer (d) To recommend to the Secretary members and one handler member; amendments to this subpart. (4) District No. 4—Two producer members and one handler member; § 946.29 Duties. (5) District No. 5—One producer It shall be the duty of the committee: member and one handler member. (a) At the beginning of each fiscal [17 FR 2912, Apr. 4, 1952. Redesignated at 26 year, to meet and organize, to select a FR 12751, Dec. 30, 1961, as amended at 37 FR chairman and such other officers as 10916, June 1, 1972; 52 FR 13070, Apr. 21, 1987; may be necessary, to select sub- 70 FR 41133, July 18, 2005] committees of committee members, and to adopt such rules and regulations § 946.26 Acceptance. for the conduct of its business as it Any person selected by the Secretary may deem advisable; as a committee member or as an alter- (b) To act as intermediary between nate shall qualify by filing a written the Secretary and any producer or han- acceptance with the Secretary within dler; ten days after being notified of such se- (c) To furnish to the Secretary such lection. available information as he may request; § 946.27 Term of office. (d) To appoint such employees, (a) The term of office of committee agents, and representatives as it may members and alternates shall be for 3 deem necessary and to determine the years beginning on the 1st day of July salaries and define the duties of each and continuing until their successors such person; are selected and have qualified: Pro- (e) To investigate, from time to time, vided, however, That the terms of office and to assemble data on the growing, of the initial committee under the harvesting, shipping, and marketing amended order shall be determined by conditions with respect to potatoes, the Secretary so that the terms of of- and to engage in such research and

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service activities which relate to the (a) District No. 1—The counties of handling or marketing of potatoes as Ferry, Stevens, Pend Oreille, Spokane, may be approved by the Secretary; Whitman, and Lincoln, plus the East (f) To keep minutes, books, and Irrigation District of the Columbia records which clearly reflect all of the Basin Project, plus the area of Grant acts and transactions of the committee County not included in either the Quin- and such minutes, books, and records cy or South Irrigation Districts which shall be subject to examination at any lies east of township vertical line R27E, time by the Secretary or his authorized plus the area of Adams County not in- agent or representative; cluded in either of the South or Quincy (g) To make available to producers Irrigation Districts. and handlers the committee voting (b) District No. 2—The counties of record on recommended regulations Kittitas, Douglas, Chelan, and and on other matters of policy; Okanogan, plus the Quincy Irrigation (h) At the beginning of each fiscal year, to submit to the Secretary a District of the Columbia Basin Project, budget of its expenses for such fiscal plus the area of Grant County not in- year, together with a report thereon; cluded in the East or South Irrigation (i) To cause the books of the com- Districts which lies west of township mittee to be audited by a competent line R28E. accountant at least once each fiscal (c) District No. 3—The counties of year, and at such other time as the Benton, Klickitat, and Yakima. committee may deem necessary or as (d) District No. 4—The counties of the Secretary may request. The report Walla Walla, Columbia, Garfield, and of such audit shall show the receipt Asotin, plus the South Irrigation Dis- and expenditure of funds collected pur- trict of the Columbia Basin Project, suant to this subpart; a copy of each plus the area of Franklin County not such report shall be furnished to the included in the South District. Secretary and a copy of each such re- (e) District No. 5—All of the remain- port shall be made available at the ing counties in the State of Wash- principal office of the committee for ington not included in Districts No. 1, inspection by producers and handlers; 2, 3, and 4 of this section. and (j) To consult, cooperate, and ex- [70 FR 41134, July 18, 2005] change information with the other potato marketing committees and other § 946.32 Nomination. individuals or agencies in connection The Secretary may select the mem- with all proper committee activities bers of the State of Washington Potato and objectives under this subpart. Committee and their respective alternates from nominations which may be § 946.30 Expenses and compensation. made in the following manner, or from Committee members and their re- among such other qualified persons: spective alternates when acting on (a) Nominations for Committee mem- committee business shall be reim- bers and alternate members shall be bursed for reasonable expenses nec- made at a meeting or meetings of pro- essarily incurred by them in the per- ducers and handlers held by the Com- formance of their duties and in the ex- mittee or at other industry meetings ercise of their powers under this sub- or events not later than May 1 of each part. In addition, they may receive rea- year; or the Committee may conduct sonable compensation at a rate rec- nominations by mail not later than ommended by the committee and ap- May 1 of each year in a manner rec- proved by the Secretary. ommended by the Committee and ap- [37 FR 10916, June 1, 1972] proved by the Secretary. (b) At least one nominee shall be des- § 946.31 Districts. ignated for each position as member For the purpose of determining the and for each position as alternate basis for selecting committee mem- member on the committee which is va- bers, the following districts of the pro- cant, or which is to become vacant the duction area are hereby established: following July 1;

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(c) The names of nominees shall be nations, which selection shall be made supplied to the Secretary in such man- on the basis of the representation pro- ner and form as he may prescribe, not vided for in this subpart. later than June 1 of each year, or by [17 FR 2912, Apr. 4, 1952. Redesignated at 26 such other date as may be specified by FR 12751, Dec. 30, 1961, and further redesig- the Secretary; nated at 37 FR 10917, June 1, 1972] (d) Only producers may participate in designating producer nominees, and EXPENSES AND ASSESSMENTS only handlers may participate in designating handler nominees. Any person § 946.40 Expenses. who operates in more than one district The committee is authorized to incur or is engaged in producing and han- such expenses as the Secretary finds dling potatoes, shall elect the classi- are reasonable and likely to be in- fication (i.e., producer or handler), and curred by it during each fiscal period the district within which he desires to for its maintenance and functioning, participate in designating nominees; and for such other purposes as the Sec- (e) Regardless of the number of dis- retary, pursuant to this subpart, deter- tricts in which a person produces or mines to be appropriate. The com- handles potatoes, each such person is mittee shall submit to the Secretary a entitled to cast only one vote on behalf budget for each fiscal period, including of himself, his agents, subsidiaries, af- an explanation of the items appearing filiates, and representatives in desig- therein, and a recommendation as to nating nominees for committee mem- the rate of assessment for such fiscal bers and alternates. An eligible voter’s period. privilege of casting only one vote as aforesaid shall be construed to permit [37 FR 10917, June 1, 1972] a voter to cast one vote for each position to be filled in the district in which § 946.41 Assessments. he elects to vote; and Each handler shall pay to the com- (f) If nominations are not made with- mittee upon demand, his pro rata share in the time and in the manner specified of the expenses authorized by the Sec- in this section, the Secretary may, retary for each fiscal period. Each han- without regard to nominations, select dler’s pro rata share shall be the rate the committee members and alternates of assessment per hundredweight fixed on the basis of the representation pro- by the Secretary times the quantity of vided for in this subpart. potatoes which he handles as the first handler thereof. At any time during or [37 FR 10916, June 1, 1972, as amended at 70 after a fiscal period, the Secretary may FR 41134, July 18, 2005] increase the rate of assessment as nec- § 946.33 Vacancies. essary to cover authorized expenses. Such increase shall be applicable to all To fill any vacancy occasioned by the potatoes handled during the given fis- failure of any person selected as a com- cal period. The payment of expenses for mittee member or as an alternate to the maintenance and functioning of the qualify, or in the event of the death, committee may be required during pe- removal, resignation, or disqualifica- riods when no regulations are in effect. tion of any qualified member or alter- If a handler does not pay his assess- nate, a successor for his unexpired ment within the time prescribed by the term may be selected by the Secretary committee, the assessment may be in- from nominations made in the manner creased by a late payment charge or an specified in § 946.32, or the Secretary interest charge, or both, at rates pre- may select such committee member or scribed by the committee with the ap- alternate from previously unselected proval of the Secretary. nominees on the current nominee list from the district involved. If the names [37 FR 10917, June 1, 1972] of nominees to fill any such vacancy are not made available to the Sec- § 946.42 Accounting. retary within 30 days after such va- (a) Excess funds. At the end of a fiscal cancy occurs, the Secretary may fill period, funds in excess of the year’s ex- such vacancy without regard to nomi- penses shall be placed in an operating

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reserve not to exceed approximately pare a policy statement for the mar- two fiscal periods’ operational expenses keting of potatoes. In developing its or such lower limits as the committee, marketing policy, the committee shall with the approval of the Secretary, investigate relevant supply and de- may establish. Funds in such reserve mand conditions for potatoes. In such shall be available for use by the com- investigations, the committee shall mittee for expenses authorized pursu- give appropriate considerations to the ant to § 946.40. Funds in excess of those following: placed in the operating reserve shall be (1) Market prices of potatoes, includ- refunded to handlers. Each handler’s ing prices by grade, size, quality, and share of such excess shall be the maturity in different packs of fresh po- amount of assessments he paid in ex- tatoes and of the various forms of proc- cess of his pro rata share of the actual essed potatoes; expenses of the committee and the ad- (2) Supplies of potatoes by grade, dition, if any, to the operating reserve. size, quality, and maturity in the pro- (b) Accounting of funds upon termi- duction area and in other production nation of order. Any money collected as areas, of fresh potatoes, and the sup- assessments pursuant to this subpart plies of various forms of processed po- and remaining unexpended in the pos- tatoes; session of the committee after termi- (3) The trend and level of consumer nation of this part shall be distributed income; in such manner as the Secretary may (4) Establishing and maintaining or- direct: Provided, That to the extent derly marketing conditions for pota- practical, such funds shall be returned toes; pro rata to the persons from whom (5) Orderly marketing of potatoes as such funds were collected. will be in the public interest; and [37 FR 10917, June 1, 1972] (6) Other relevant factors. (b) In the event it becomes advisable § 946.43 Funds. to deviate from such marketing policy All funds received by the committee because of changed supply and demand pursuant to any provisions of this sub- conditions, the committee shall formu- part shall be used solely for the pur- late a revised marketing policy state- poses specified in this subpart and shall ment in accordance with the appro- be accounted for in the following man- priate considerations in paragraph (a) ner: of this section. (a) The Secretary may at any time (c) The committee shall submit a re- require the committee and its members port to the Secretary setting forth to account for all receipts and dis- such marketing policy. Notice of each bursements; and such marketing policy and any revision (b) Whenever any person ceases to be thereof shall be given to producers, a committee member or alternate, he handlers, and other interested parties shall account for all receipts and dis- by bulletins, newspapers, or other ap- bursements and deliver all property propriate media, and copies thereof and funds in his hands, together with shall be available for examination at all books and records in his possession, the committee office to all interested to his successor in office or to such per- parties. son as the Secretary may designate, and shall execute such assignments and [37 FR 10917, June 1, 1972] other instruments as may be necessary or appropriate to vest in such successor § 946.51 Recommendation for regulations. or in such designated person the right to all the property, funds, or claims The committee shall recommend to vested in such member or alternate. the Secretary regulations, or amendments, modifications, suspension, or REGULATION termination thereof, whenever it finds that such regulations as provided in § 946.50 Marketing policy. § 946.52 are in accordance with the mar- (a) Prior to each marketing season, keting policy established pursuant to the committee shall consider and pre- § 946.50 and that such regulations will

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tend to effectuate the declared policy committee shall give reasonable notice of the act. thereof to handlers. [37 FR 10917, June 1, 1972] [37 FR 10917, June 1, 1972, as amended at 70 FR 41134, July 18, 2005] § 946.52 Issuance of regulations. § 946.53 Minimum quantities. (a) The Secretary shall limit the shipment of potatoes as set forth in The committee, with the approval of this subpart whenever he finds from the Secretary, may establish, for any the recommendation and information or all portions of the production area, submitted by the committee, or from minimum quantities below which ship- other available information, that it ments will be free from regulations would tend to effectuate the declared issued pursuant to this part. policy of the act: [37 FR 10918, June 1, 1972] (1) To regulate, in any or all portions of the production area the handling of § 946.54 Shipments for specified pur- particular grades, sizes, qualities or poses. maturity of any or all varieties of po- (a) Whenever the Secretary finds, tatoes during any period; upon the basis of the recommendations (2) To regulate the handling of par- and information submitted by the com- ticular grades, sizes, qualities or matu- mittee, or from other available infor- rities of any or all varieties of pota- mation, that it will tend to effectuate toes, or for any combination of the the declared policy of the act, he shall foregoing during any period in the modify, suspend, or terminate any or States of Oregon and Idaho which have all regulations issued pursuant to this been shipped from the production area part in order to facilitate shipments of to specified locations therein for grad- potatoes for the following purposes: ing or storage pursuant to § 946.54; (1) Livestock feed; (3) To regulate the handling of par- (2) Charity; ticular grades, sizes, qualities or matu- (3) Export; rities of any or all varieties differently (4) Seed; for: Different portions of the produc- (5) Prepeeling; tion area, different uses or outlets, dif- (6) Such other purposes as may be ferent packs or for any combination of specified by the committee with the the foregoing, during any period; approval of the Secretary; and (4) To regulate the handling of pota- (7) Grading or storing between the toes by establishing in terms of grades, districts within the production area or sizes, or both, minimum standards of to and within specified locations in the quality and maturity. adjoining States of Idaho and Oregon. (5) To regulate the size, capacity, (b) The Secretary shall give prompt weight, dimensions, pack, and marking notice to the committee of any modi- or labeling of the container, or con- fication, suspension, or termination of tainers, which may be used in the regulations pursuant to this section, or packing or handling of potatoes, or of any approval issued by him under both. the provisions of this section. (b) The Secretary may amend any [37 FR 10918, June 1, 1972] regulation issued under this subpart whenever he finds that such amend- § 946.55 Safeguards. ment would tend to effectuate the de- (a) The committee, with the approval clared policy of the act. The Secretary of the Secretary, may prescribe ade- may also terminate or suspend any reg- quate safeguards to prevent shipments ulation whenever he finds that such pursuant to § 946.54 from entering chan- regulation obstructs or no longer tends nels of trade and other outlets for to effectuate the declared policy of the other than the specific purposes au- act. thorized therefor, and the transpor- (c) The Secretary shall notify the tation of potatoes for grading and stor- committee of any such regulation ing to points outside the production issued pursuant to this section and the area.

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(b) Safeguards provided by this sec- further, That proper safeguards to as- tion may include, but shall not be lim- sure compliance are adopted. ited to, requirements that handlers: (b) Each such handler shall make ar- (1) Shall obtain the inspection re- rangements with the inspecting agency quired by § 946.60 or pay the assessment to forward promptly to the committee provided by § 946.41, or both, in connec- a copy of such inspection certificate: tion with the potato shipments effected Provided, however, That (1) each han- in accordance with § 946.54, and dler making shipments of potatoes dur- (2) Shall obtain a special purpose cer- ing such period shall prior to making tificate from the committee for ship- such shipment, determine if such shipments of potatoes effected or to be ef- ment has been inspected and if such fected under provisions of § 946.54. shipment has not been so inspected and (c) The committee, with the approval is not covered by an inspection certifi- of the Secretary, shall prescribe rules cate, each handler making such deter- governing the issuance and the con- minations shall have such potatoes in- tents of the special purpose certificate. spected and shall arrange for a copy of (d) The committee may rescind, or the inspection certificate to be for- deny to any handler the special pur- warded to the committee as aforesaid, pose certificate if proof satisfactory to and (2) each handler who first ships po- the committee is obtained that pota- tatoes after such potatoes are re- toes shipped by him for the purpose graded, resorted, or repacked, or in any stated in § 946.54 were handled contrary other way further prepared for market to the provisions of this section. shall have each shipment of such pota- (e) The committee shall make re- toes inspected as provided in this sec- ports to the Secretary, as requested, tion. showing the number of applications for [17 FR 2912, Apr. 14, 1952. Redesignated at 26 such certificates, the quantity of pota- FR 12751. Dec. 30, 1961, and further redesig- toes covered by such applications for nated and amended at 37 FR 10918, June 1, such certificates, the number of such 1972] applications denied, and certificates EFFECTIVE TIME AND TERMINATION granted, the quantity of potatoes shipped under duly issued certificates, § 946.62 Effective time. and such other information as may be The provisions of this subpart shall requested by the Secretary. become effective at such time as the [37 FR 10918, June 1, 1972] Secretary may declare above his signature attached to this subpart, and shall INSPECTION AND CERTIFICATION continue in force until terminated in one of the ways specified in this sub- § 946.60 Inspection and certification. part. (a) During any period in which the Secretary regulates the shipment of § 946.63 Termination. potatoes pursuant to the provisions of (a) The Secretary may, at any time, this subpart, each handler who first terminate the provisions of this sub- ships potatoes shall, prior to making part by giving at least one day’s notice shipment, cause each shipment to be by means of a press release or in any inspected by an authorized representa- other manner which he may determine. tive of the Federal-State inspection (b) The Secretary may terminate or service or such other inspection service suspend the operation of any or all of as the Secretary shall designate. The the provisions of this subpart whenever committee may, with the approval of he finds that such provisions do not the Secretary, prescribe rules and regu- tend to effectuate the declared policy lations modifying the inspection re- of the act. quirements of this section in cir- (c) The Secretary shall terminate the cumstances under which such require- provisions of this subpart at the end of ments would create an undue hardship any fiscal year whenever he finds that on growers or shippers: Provided, That such termination is favored by a ma- all such shipments shall comply with jority of producers who, during the pre- all regulations in effect: And provided ceding fiscal year, have been engaged

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in the production for market of pota- § 946.65 Effect of termination or toes: Provided, That such majority has amendment. during such year, produced for market Unless otherwise expressly provided more than fifty percent of the volume by the Secretary the termination of of such potatoes produced for market; this subpart or of any regulation issued but such termination shall be effective pursuant to this subpart, or the only if announced on or before May 31 issuance of any amendments to either of the then current fiscal year. thereof, shall not (a) affect or waive (d) The Secretary shall conduct a ref- any right, duty, obligation, or liability erendum six years after the effective which shall have arisen or which may date of this paragraph and every sixth thereafter arise in connection with any thereafter to ascertain whether pro- provisions of this subpart or any regu- ducers favor continuance of this part. lation issued under this subpart, or (b) (e) The provisions of this subpart release or extinguish any violation of this subpart or of any regulation issued shall, in any event, terminate when- under this subpart, or (c) affect or im- ever the provisions of the act author- pair any rights or remedies of the Sec- izing them cease to be in effect. retary or of any other person with re- [37 FR 10917, June 1, 1972, as amended at 70 spect to any such violation. FR 41134, July 18, 2005] MISCELLANEOUS PROVISIONS § 946.64 Proceedings after termination. § 946.70 Reports and records. (a) Upon the termination of the pro- (a) Upon the request of the com- visions of this subpart, the then func- mittee, with the approval of the Sec- tioning members of the committee retary, every handler shall furnish to shall continue as trustees, for the pur- the committee in such manner and at pose of liquidating the affairs of the such time as may be prescribed, such committee, of all the funds and prop- information as will enable the com- erty then in the possession of or under mittee to exercise its duties under this control of the committee, including subpart. claims for any funds unpaid or prop- (b) Each handler shall establish and erty not delivered at the time of such maintain for at least 2 succeeding termination. Action by said trustee- years such records and documents with ship shall require the concurrence of a respect to potatoes received and pota- majority of the said trustees. toes disposed of by him as will substan- (b) The said trustee shall continue in tiate the required reports. such capacity until discharged by the (c) For the purpose of assuring com- Secretary; shall from time to time, ac- pliance with the recordkeeping require- count for all receipts and disbursements and verifying reports filed by ments and deliver all property on hand, handlers, the Secretary and the com- together with all books and records of mittee through its duly authorized em- the committee and of the trustees, to ployees, shall have access to such records. such person as the Secretary may di- (d) All reports and records furnished rect; and shall upon request of the Sec- or submitted by handlers to, or ob- retary, execute such assignments or tained by the employees of, the com- other instruments necessary or appro- mittee which contain data for informa- priate to vest in such person full title tion constituting a trade secret or dis- and right to all of the funds, property, closing the trade position, financial and claims vested in the committee or condition, or business operations of the the trustees pursuant thereto. particular handler from whom re- (c) Any person to whom funds, prop- ceived, shall be treated as confidential, erty, or claims have been transferred and the reports and all information ob- or delivered by the committee or its tained from records shall at all times members, pursuant to this section, be kept in the custody and under the shall be subject to the same obligations control of one or more employees of imposed upon the members of the com- the committee who shall disclose such mittee and upon the said trustees. information to no person other than

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the Secretary, or his authorized tion or in modification of the rights of agents. Compilations of general reports the Secretary or of the United States from data and information submitted to exercise any powers granted by the by handlers is authorized subject to the act or otherwise, or, in accordance prohibition of disclosure of individual with such powers, to act in the prem- handlers’ identity or operations. ises whenever such action is deemed advisable. [37 FR 10918, June 1, 1972]

§ 946.71 Compliance. § 946.76 Personal liability. Except as provided in this subpart, No member or alternate of the com- no handler shall ship potatoes, the mittee, nor any employee or agent shipment of which has been prohibited thereof, shall be held personally re- by the Secretary in accordance with sponsible, either individually or jointly provisions of this subpart, and no han- with others, in any way whatsoever, to dler shall ship potatoes except in con- any handler or to any person for errors formity to the provisions of this sub- in judgment, mistakes, or other acts, part. either of commission or omission, as such member, alternate, or employee, § 946.72 Right of the Secretary. except for acts of dishonesty. The members of the committee (in- § 946.77 Separability. cluding successors and alternates), and any agent or employee appointed or If any provision of this subpart is de- employed by the committee, shall be clared invalid, or the applicability subject to removal or suspension by thereof to any person, circumstance, or the Secretary at any time. Each and thing is held invalid, the validity of the every order, regulation, decision, deter- remainder of this subpart, or the appli- mination or other act of the committee cability thereof, to any other person, shall be subject to the continuing right circumstance, or thing, shall not be af- of the Secretary to disapprove of the fected thereby. same at any time. Upon such dis- § 946.78 Amendments. approval the disapproved action of the said committee shall be deemed null Amendments to this subpart may be and void, except as to acts done in reli- proposed, from time to time, by the ance thereon or in compliance there- committee or by the Secretary. with prior to such disapproval by the Secretary. Subpart—Rules and Regulations

§ 946.73 Duration of immunities. DEFINITIONS The benefits, privileges, and immuni- § 946.100 Order. ties conferred upon any person by virtue of this subpart shall cease upon the Order means Order No. 946 (§§ 946.1 to termination of this subpart, except, 946.78), as amended, regulating the han- with respect to acts done under and dling of Irish potatoes grown in the during the existence of this subpart. State of Washington. [39 FR 1971, Jan. 16, 1974] § 946.74 Agents. The Secretary may, by designation in § 946.101 Marketing agreement. writing, name any person, including Marketing agreement means Mar- any officer or employee of the Govern- keting Agreement No. 113, as amended. ment or name any bureau or division in the United States Department of Agri- [39 FR 1972, Jan. 16, 1974] culture, to act as his agent or rep- § 946.102 Terms. resentative in connection with any of the provisions of this subpart. Terms used in this subpart shall have the same meaning as set forth in said § 946.75 Derogation. marketing agreement and order. Nothing contained in this subpart is, [22 FR 8177, Oct. 16, 1957. Redesignated at 26 or shall be construed to be, in deroga- FR 12751, Dec. 30, 1961]

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§ 946.103 Reestablishment of districts. (2) Prepeeling; Pursuant to § 946.22, on and after July (3) Canning, freezing, and ‘‘other proc- 1, 2007, the following districts are rees- essing’’; tablished: (4) Grading or storing at any speci- (a) District No. 1—the counties of fied location in Morrow or Umatilla Douglas, Chelan, Okanogan, Grant, Counties in the State of Oregon; and Adams, Ferry, Stevens, Pend Oreille, (5) Experimentation. Spokane, Whitman, and Lincoln. (b) Applications for special purpose (b) District No. 2—the counties of shipment certificates shall be made on Kittitas, Yakima, Klickitat, Benton, forms furnished by the committee. Franklin, Walla Walla, Columbia, Gar- Such application shall contain the field, and Asotin. name and address of the handler, and (c) District No. 3—all of the remain- such other information that the coming counties in the State of Wash- mittee may require such as the esti- ington, not included in Districts No. 1 mated amount of potatoes to be and No. 2 of this paragraph. shipped, the grades and sizes of pota- [72 FR 17795, Apr. 10, 2007] toes to be shipped (when applicable), expected consignees and destinations, § 946.104 Reestablishment and re- certification by applicant that state- apportionment of committee. ments are correct and that he will (a) Pursuant to § 946.22, on and after comply with disposition stated therein, July 1, 2007, the State of Washington and other information or documents as Potato Committee consisting of nine the committee may require in safe- members, of whom six shall be pro- guarding against entry of such pota- ducers and three shall be handlers, is toes into trade channels other than hereby reestablished. For each member those for which the special purpose cer- of the committee there shall be an al- tificate was granted. ternate who shall have the same qualifications as the member. [39 FR 1972, Jan. 16, 1974, as amended at 65 (b) Pursuant to § 946.22, on and after FR 70463, Nov. 24, 2000; 70 FR 44256, Aug. 2, 2005] July 1, 2007, membership representation of the State of Washington Potato § 946.121 Issuance. Committee shall be reapportioned among the districts of the production The committee, or its duly author- area so as to provide that each of the ized agents, shall give prompt consider- three districts as defined in § 946.103 are ation to each applicant for a special represented by two producer members purpose certificate. Upon approval of and one handler member and their re- the application, a special purpose cer- spective alternates. tificate shall be issued authorizing the applicant named therein to ship pota- [72 FR 17795, Apr. 10, 2007] toes for a specified purpose for a specified period of time. SPECIAL PURPOSE CERTIFICATES [39 FR 1972, Jan. 16, 1974] § 946.120 Application. (a) Whenever shipments for special § 946.122 Reports. purposes pursuant to § 946.54 are re- Each handler shipping potatoes under lieved in whole or in part from regula- and pursuant to a special purpose cer- tions issued under § 946.52, each handler tificate shall supply to the committee, desiring to make shipments of potatoes upon request, a report thereon showing for the following purposes shall submit the name and address of the shipper, an application to the committee, prior car or truck number, Federal-State In- to initiating such shipments, for a spe- spection Certificate number (if such in- cial purpose certificate permitting spection is required by regulations in such shipments: effect at the time of such shipment), (1) Charity: Provided, That handlers loading point, destination and con- making shipments for charity of 1,000 signee. pounds or less are exempt from these application requirements; [39 FR 1972, Jan. 16, 1974]

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§ 946.123 Denial and appeals. furnished by the committee the following information on each shipment: The committee may rescind a special quantity of potatoes, variety or vari- purpose certificate issued to a handler eties, grade, minimum size, type of for the purpose specified in § 946.120(a), container(s), date of shipment, carrier, or deny such special purpose certifi- destination, and name and address of cates to a handler, upon proof satisfac- receiver. tory to the committee that such handler has shipped potatoes contrary to [39 FR 1972, Jan. 16, 1974] those provisions. Such committee action denying or rescinding a special § 946.133 Cancellation. purpose certificate shall apply to and Whenever the committee finds that not exceed a reasonable period of time shipments of potatoes pursuant to an as determined by the committee. Any inspection modification permit are not handler who has been denied a special in accordance with the application pro- purpose certificate or who has had a visions of the order, such inspection special purpose certificate rescinded modification permit may be cancelled. may appeal to the committee for reconsideration. Such appeal shall be in [39 FR 1972, Jan. 16, 1974] writing. § 946.140 Handling potatoes for com- [39 FR 1972, Jan. 16, 1974] mercial processing into products. Pursuant to § 946.54(a)(6), shipments MODIFICATION OF INSPECTION of potatoes for commercial processing REQUIREMENTS into products may be made only in accordance with paragraphs (a) or (b) of § 946.130 Application. this section. Any handler whose packing facilities (a) Shipments may be made to per- are located in an area where a Wash- sons whose names are on the State of ington State Department of Agri- Washington Potato Committee’s list of culture, Plant Industry Division Office manufacturers of potato products. or Federal-State Inspector is not read- Such list may consist of firms actively ily available to perform the inspection engaged in the business of canning, required by this part may, pursuant to freezing, or ‘‘other processing’’ as de- § 946.60(a), apply to the committee for a fined in the act. permit authorizing modification of in- (1) Persons desiring to have their spection requirements. Applications name placed on the committee’s list shall be made on forms furnished by shall apply to the committee. Such ap- the committee and shall contain such plication shall contain the following: information as the committee, with ap- (i) Name and address of applicant; proval of the Secretary, may find nec- (ii) Location and description of facili- essary in making a determination re- ties for commercial processing into garding the issuance of such permit. products; [39 FR 1972, Jan. 16, 1974] (iii) Expected source of potatoes for commercial processing into products; § 946.131 Issuance. (iv) Such other information as the The committee, or its duly author- committee, with approval of the Sec- ized agents, shall give prompt consider- retary, may deem necessary. ation to each application for an inspec- (2) Upon receipt of an application for tion modification permit. Approval of such listing, the State of Washington an application shall be evidenced by Potato Committee shall make such in- the issuance of an applicable permit. vestigation as it deems necessary, and if it appears that the applicant may [39 FR 1972, Jan. 16, 1974] reasonably be expected to use potatoes covered by the application in accord- § 946.132 Reports. ance with the requirements of this sec- Each handler shipping potatoes pur- tion, it shall place the applicant’s suant to an inspection modification name on the State of Washington Po- permit shall report periodically as tato Committee’s list of manufacturers specified by the committee on forms of potato products.

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(b) For each shipment to a person (c) Upon termination of this part any whose name is not on the committee’s funds not required to defray the nec- list, the handler must provide evidence essary expenses of liquidation shall be to the committee prior to shipment disposed of in such manner as the Sec- that the potatoes will be used only for retary may determine to be appro- processing into products. Further, he priate. To the extent practical, such shall submit reports as prescribed by funds shall be returned pro rata to the the committee and approved by the handlers from whom they were col- Secretary. lected. [39 FR 1972, Jan. 16, 1974] (d) Terms used in this section shall have the same meaning as when used in § 946.141 Late payment and interest said marketing agreement and this charge. part. The Committee shall impose an in- [32 FR 16199, Nov. 28, 1967. Redesignated at 44 terest charge on any handler who fails FR 73012, Dec. 17, 1979; 60 FR 27683, May 25, to pay his or her assessment within 1995] sixty (60) days of the billing date shown on the handler’s assessment statement § 946.143 Assessment reports. received from the Committee. The in- During the period that russet type terest charge shall, after 60 days, be one percent of the unpaid assessment potatoes are exempt from handling re- balance. In the event the handler fails quirements under § 946.336, each person to pay the delinquent assessment, the handling russet type potatoes shall one percent interest charge shall be ap- submit a monthly report to the complied monthly thereafter to the unpaid mittee by the 10th day of the month balance, including any accumulated following the month such potatoes are unpaid interest. Any amount paid by a handled: Provided, That the first report handler as an assessment, including shall include all required information any charges imposed pursuant to this from July 26, 2010 through the end of paragraph, shall be credited when the the month in which the assessment repayment is received in the Committee port and its collection of information office. is approved by the Office of Manage- ment and Budget. Each assessment re- [73 FR 74348, Dec. 8, 2008] port shall contain the following infor- § 946.142 Operating reserve. mation: (a) The name and address of the han- (a) The Committee, with the approval dler; of the Secretary, may carry over excess funds into subsequent fiscal periods as (b) The date and quantity of russet an operating reserve: Provided, That type potatoes handled; funds in the operating reserve may not (c) The assessment payment due; and exceed approximately two fiscal peri- (d) Other information as may be re- ods’ expenses. quested by the Committee. (b) The funds in said operating re- [75 FR 43045, July 23, 2010] serve may be used: (1) To defray expenses incurred dur- EFFECTIVE DATE NOTE: At 75 FR 77752, Dec. ing any fiscal period prior to the time 14, 2010, § 946.143 was amended in the introductory text of § 946.143 by removing the assessment income is sufficient to words ‘‘July 26, 2010’’ and adding in their cover such expenses, place the words ‘‘July 24, 2010.’’, effective Jan- (2) To cover deficits incurred during uary 13, 2011. any fiscal period when assessment income is less than expenses, § 946.248 Assessment rate. (3) To defray expenses incurred dur- On and after July 1, 2005, an assess- ing any period when assessments are ment rate of $0.0035 per hundredweight suspended or are inoperative and is established for Washington potatoes. (4) To cover necessary expenses of liquidation in the event of termination [70 FR 35165, June 17, 2005] of this part.

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Subpart—Handling Regulations (b) Minimum maturity requirements—(1) Red, yellow fleshed and white types: Not more than § 946.336 Handling regulation. ‘‘moderately skinned.’’ (2) Russet types: Not more than ‘‘slightly No person shall handle any lot of po- skinned.’’ tatoes unless such potatoes meet the (c) Pack and marking: requirements of paragraphs (a), (b), (c), (1) Domestic: Potatoes packed in cartons and (g) of this section or unless such shall be either: (i) U.S. No. 1 grade or better, except that potatoes are handled in accordance potatoes which fail to meet the U.S. No. 1 with paragraphs (d) and (e), or (f) of grade only because of internal defects may this section, except that shipments of be shipped without regard to this require- the blue or purple flesh varieties of po- ment provided the lot contains no more than tatoes shall be exempt from both this 10 percent damage by any internal defect or handling regulation and the assess- combination of internal defects but not more ment requirements specified in § 946.41: than 5 percent serious damage by any internal defect or combination of internal defects. Provided, That from July 24, 2010, (ii) U.S. No. 2 grade, provided the cartons through June 30, 2011, russet type pota- are permanently and conspicuously marked toes shall be exempt from the require- as to grade. This marking requirement does ments of paragraphs (a), (b), (c), (d), not apply to cartons containing potatoes (e), and (g) of this section. meeting the requirements of (c)(1)(i). (2) Export: Potatoes packed in cartons shall [75 FR 43045, July 23, 2010] be U.S. No. 1 grade or better. (d) Special purpose shipments. (1) The min- EFFECTIVE DATE NOTE: At 75 FR 77752, Dec. 14, 2010, § 946.336 was revised, effective Janu- imum grade, size, cleanness, maturity, and ary 13, 2011. For the convenience of the user, pack requirements set forth in paragraphs the revised text is set forth as follows: (a), (b), and (c) of this section shall not apply to shipments of potatoes for any of the fol- § 946.336 Handling regulation. lowing purposes: (i) Livestock feed; No person shall handle any lot of potatoes (ii) Charity; unless such potatoes meet the requirements (iii) Seed; of paragraphs (a), (b), (c), and (g) of this sec- (iv) Prepeeling; tion or unless such potatoes are handled in (v) Canning, freezing, and ‘‘other proc- accordance with paragraphs (d) and (e), or (f) essing’’ as hereinafter defined; of this section, except that shipments of the (vi) Grading or storing at any specified lo- blue or purple flesh varieties of potatoes cation in Morrow or Umatilla Counties in shall be exempt from both this handling reg- the State of Oregon; ulation and the assessment requirements (vii) Experimentation. specified in § 946.41: Provided, That from July (2) Shipments of potatoes for the purposes 24, 2010, through June 30, 2011, russet type po- specified in paragraphs (d)(1)(i) through (vii) tatoes shall be exempt from the require- of this section shall be exempt from the in- ments of paragraphs (a), (b), (c), (d), (e), and spection requirements specified in paragraph (g) of this section. (g) of this section, except that shipments (a) Minimum quality requirements—(1) Grade: pursuant to paragraph (d)(1)(vi) of this sec- All varieties—U.S. No. 2 or better grade. tion shall comply with the inspection re- (2) Size: (i) At least 17⁄8 inches in diameter, quirements of paragraph (e)(2) of this sec- except that all red, yellow fleshed, and white tion. Shipments specified in paragraphs types may be 3⁄4 inch (19.1 mm) minimum di- (d)(1)(i), (ii), (iii), (v) and (vii) of this section ameter, if they otherwise meet the require- shall be exempt from assessment requirements of U.S. No. 1. ments as specified in § 946.248 and established (ii) All Russet types, 2 inches (54.0 mm) pursuant to § 946.41. minimum diameter, or 4 ounces minimum (e) Safeguards. (1) Handlers desiring to weight. make shipments of potatoes for prepeeling (iii) Any type of any size may be packed in shall: a 3-pound or less container if the potatoes (i) Notify the committee of intent to ship otherwise meet the requirements of U.S. No. potatoes by applying on forms furnished by 1 grade or better at the time of packing. the committee for a certificate applicable to (iv) Tolerances—The tolerance for size con- such special purpose shipments; tained in the U.S. Standards for Grades of (ii) Prepare on forms furnished by the com- Potatoes shall apply. mittee a special purpose shipment report on (3) Cleanness: All varieties and grades—as each such shipment, a copy of which must required in the United States Standards for also accompany each shipment. The handler Grades of Potatoes. For example: U.S. No. shall forward copies of each such special pur- 2—‘‘not seriously damaged by dirt,’’ and U.S. pose shipment report to the committee office No. 1—‘‘fairly clean.’’ and to the receiver with instructions to the

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receiver to sign and return a copy to the toes only for canning, freezing, or other committee office. Failure of the handler or processing; receiver to report such shipments by prompt- (iii) Upon request by the committee, fur- ly signing and returning the applicable spe- nish reports, or cause reports to be fur- cial purpose shipment report to the com- nished, for each shipment pursuant to the mittee office shall be cause for cancellation applicable Special Purpose Certificate; of such handler’s certificate applicable to (iv) Mail to the office of the committee a such special purpose shipments and/or the re- copy of the bill of lading for each Special ceiver’s eligibility to receive further ship- Purpose Certificate shipment promptly after ments pursuant to such certificate. Upon the date of shipment unless other arrange- cancellation of such certificate, the handler ments are made; may appeal to the committee for reconsider- (v) Bill each shipment directly to the ap- ation; such appeal shall be in writing; plicable processor. (iii) Before diverting any such special pur- (4) Each receiver of potatoes for processing pose shipment from the receiver of record as pursuant to paragraph (d) of this section previously furnished to the committee by shall: the handler such handler shall submit to the (i) Complete and return an application committee a revised special purpose ship- form for consideration of approval as a can- ment report. ner, freezer, or other processor of potato (2) Handlers desiring to ship potatoes for products; grading or storing to any specified location (ii) Certify to the committee and to the in Morrow or Umatilla Counties in the State Secretary that potatoes received from the of Oregon shall: production area for processing will be used (i) Notify the committee of intent to ship for such purpose and will not be placed in potatoes by applying on forms furnished by fresh market channels; the committee for a certificate applicable to (iii) Report on shipments received as the such special purpose shipment. Upon receiv- committee may require and the Secretary ing such application, the committee shall approve. supply to the handler the appropriate certifi- (5) Each handler desiring to make ship- cate after it has determined that adequate ments of potatoes for experimentation shall: facilities exist to accommodate such ship- (i) First apply to the committee for and ob- ments and that such potatoes will be used tain a Special Purpose Certificate to make only for authorized purposes; shipments for experimentation; (ii) If reshipment is for any purpose other (ii) Upon request by the committee, fur- than as specified in paragraph (d) of this sec- nish reports of each shipment pursuant to tion, each handler desiring to make reship- the applicable Special Purpose Certificate. ment of potatoes which have been graded or (6) Handlers diverting potatoes to livestock stored shall, prior to reshipment, cause each feed are not required to apply for a Special such shipment to be inspected by an author- Purpose Certificate nor report such ship- ized representative of the Federal-State In- ments to the committee. spection Service. Such shipments must com- (7) Each handler desiring to make ship- ply with the minimum grade, size, cleanness, ments of potatoes for charity shall: maturity, and pack requirements specified in (i) First apply to the committee for, and paragraphs (a), (b), and (c) of this section; obtain, a Special Purpose Certificate for the (iii) If reshipment is for any of the pur- purpose of making shipments for charity: poses specified in paragraph (d) of this sec- Provided, That shipments for charity of 1,000 tion, each handler making reshipment of po- pounds or less are exempt from the applica- tatoes which have been graded or stored tion and reporting requirements: And pro- shall do so in accordance with the applicable vided further, That potatoes previously grad- safeguard requirements specified in para- ed, assessed, and inspected in preparation for graph (e) of this section. shipment to the fresh market are exempt (3) Each handler making shipments of po- from the application and reporting require- tatoes for canning, freezing, or ‘‘other proc- ments. essing’’ pursuant to paragraph (d) of this sec- (ii) Each handler shipping potatoes to tion shall: charity must inform the recipient that the (i) First apply to the committee for and ob- potatoes cannot be resold or otherwise tain a Special Purpose Certificate to make placed in commercial market channels. shipments for processing; (8) Each handler making shipments of seed (ii) Make shipments only to those firms potatoes shall furnish, at the request of the whose names appear on the committee’s list committee, reports on the total volume of of canners, freezers, or other processors of seed potatoes handled. potato products maintained by the com- (f) Minimum quantity exemption. Each han- mittee, or to persons not on the list provided dler may ship up to, but not to exceed 5 hun- the handler furnishes the committee, prior dredweight of potatoes per day without re- to such shipment, evidence that the receiver gard to the inspection and assessment re- may reasonably be expected to use the pota- quirements of this part, but this exception

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shall not apply to any shipment over 5 hun- PART 947—IRISH POTATOES dredweight of potatoes. (g) Inspection. (1) Except when relieved by GROWN IN MODOC AND paragraphs (d) or (f) of this section, no per- SISKIYOU COUNTIES, CALIF., AND son may handle any potatoes unless a Fed- IN ALL COUNTIES IN OREGON, eral-State Inspection Notesheet or certifi- EXCEPT MALHEUR COUNTY cate covering them has been issued by an authorized representative of the Federal-State Subpart—Order Regulating Handling Inspection Service and the document is valid at the time of shipment. DEFINITIONS (2) U.S. No. 1 grade or better potatoes in Sec. the State of Washington which are resorted 947.1 Secretary. or repacked within 72 hours of being in- 947.2 Act. spected and certified are exempt from rein- 947.3 Person. spection. 947.4 Production area. (h) Definitions. The terms U.S. No. 1, U.S. 947.5 Potatoes. No. 2, not seriously damaged by dirt, fairly 947.6 Handler. clean, slightly skinned, and moderately skinned 947.7 Handle. shall have the same meaning as when used in 947.8 Producer. the United States Standards for Grades of 947.9 Fiscal period. Potatoes (7 CFR 51.1540–51.1566), including 947.10 Committee. the tolerances set forth in it. The term 947.11 Varieties. prepeeling means the commercial preparation 947.12 Seed potatoes. in the prepeeling plant of clean, sound, fresh 947.14 Pack. 947.15 Grade and size. tubers by washing, peeling or otherwise re- 947.16 Grading. moving the outer skin, trimming, sorting, 947.17 Export. and properly treating to prevent discolora- 947.18 District. tion preparatory to sale in one or more of the styles of peeled potatoes described in ADMINISTRATIVE COMMITTEE § 52.2422 United States Standards for Grades 947.25 Establishment and membership. of Peeled Potatoes (7 CFR 52.2421–52.2433). 947.26 Procedure. The term other processing has the same mean- 947.27 Selection. ing as the term appearing in the Act and in- 947.28 Term of office. cludes, but is not restricted to, potatoes for 947.29 Powers. dehydration, chips, shoestrings, starch, and 947.30 Duties. flour. It includes the application of heat or 947.31 Expenses and compensation. cold to such an extent that the natural form 947.32 Districts. or stability of the commodity undergoes a 947.33 Nominations. substantial change. The act of peeling, cool- 947.34 Vacancies. ing, slicing, dicing, or applying material to 947.35 Annual report. prevent oxidation does not constitute ‘‘other processing.’’ Other terms used in this section EXPENSES AND ASSESSMENTS have the same meaning as when used in the 947.40 Expenses. marketing agreement, as amended, and this 947.41 Assessments. part. RESEARCH AND DEVELOPMENT EDITORIAL NOTE: After January 1, 1979, ‘‘Budget of Expenses and Rate of Assessment’’ 947.47 Research and development. regulations (e.g. sections .200 through .299) REGULATION and ‘‘Handling’’ regulations (e.g. sections .300 through .399) which are in effect for a year or 947.50 Marketing policy. less, will not be carried in the Code of Fed- 947.51 Recommendations for regulations. 947.52 Issuance of regulations. eral Regulations. For FEDERAL REGISTER citations affecting these regulations, see the 947.53 Minimum quantities. 947.54 Shipments for specified purposes. List of CFR Sections Affected, which appears 947.55 Safeguards. in the Finding Aids section of the printed volume and at www.fdsys.gov. INSPECTION AND CERTIFICATION 947.60 Inspection and certification.

EXEMPTIONS 947.65 Procedure. 947.66 Granting exemptions. 947.67 Appeal.

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947.68 Review, records, and reports of ex- Subpart—Order Regulating emptions. Handling EFFECTIVE TIME AND TERMINATION 947.70 Effective time. SOURCE: 20 FR 7068, Sept. 21, 1955, unless otherwise noted. Redesignated at 26 FR 12751, 947.71 Termination. Dec. 30, 1961. 947.72 Proceedings after termination. 947.73 Effect of termination or amendment. DEFINITIONS

MISCELLANEOUS PROVISIONS § 947.1 Secretary. 947.80 Reports. Secretary means the Secretary of Ag- 947.81 Compliance. riculture of the United States or any 947.82 Right of the Secretary. officer or employee of the United 947.83 Duration of immunities. States Department of Agriculture to 947.84 Agents. whom authority has heretofore been 947.85 Derogation. delegated, or to whom authority may 947.86 Personal liability. hereafter be delegated, to act in his 947.87 Separability. stead. 947.88 Amendments. § 947.2 Act. Subpart—Rules and Regulations Act means Public Act No. 10, 73d Con- GENERAL gress, as amended and as reenacted and amended by the Agricultural Mar- 947.100 Communications. keting Agreement Act of 1937, as DEFINITIONS amended (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.; 68 Stat. 906, 907, 1047). 947.110 Order. 947.111 Marketing agreement. § 947.3 Person. 947.112 Terms. 947.113 Area determinations. Person means an individual, partner- 947.114 Fiscal period. ship, corporation, association, or any organized group or business unit. EXEMPTIONS § 947.4 Production area. 947.120 Hardship exemption. 947.123 Reports and records. Production area means and includes Modoc and Siskiyou Counties in the SAFEGUARDS State of California, and all counties, 947.130 Special Purpose Certificates—appli- except Malheur, in the State of Oregon. cation and issuance. § 947.5 Potatoes. 947.132 Reports. 947.133 Denial and appeals. Potatoes means all varieties of Irish 947.134 Establishment of list of manufactur- potatoes grown within the aforesaid ers of potato products. production area. 947.141 Late payment and interest charges. § 947.6 Handler. REESTABLISHMENT OF DISTRICTS Handler is synonymous with shipper 947.150 Reestablishment of districts. and means any person (except a com- 947.160 Reapportionment of committee mon or contract carrier of potatoes membership. owned by another person) who ships potatoes or causes potatoes to be shipped. REPORTS [35 FR 10741, July 2, 1970] Subpart—Assessment Rates § 947.7 Handle. 947.247 Assessment rate. Handle is synonymous with ship and means to sell, transport, or in any Subpart—Handling Regulations other way to place potatoes, or cause 947.340 Handling regulation. potatoes to be placed in the current of the commerce within the production AUTHORITY: 7 U.S.C. 601–674. area or between the production area

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and any point outside thereof, or from committee and approved by the Sec- any point in the adjoining States of retary. Idaho and Washington and Malheur County, Oreg., to any other point: Pro- § 947.15 Grade and size. vided, That the definition of ‘‘handle’’ Grade means any one of the officially shall not include the transportation of established grades of potatoes, and size ungraded potatoes within the district means any one of the officially estab- where they were grown for the purpose lished sizes of potatoes, as defined and of having such potatoes prepared for market, or stored, except that the com- set forth in: mittee may impose safeguards, pursu- (a) The U.S. Standards for Potatoes ant to § 947.55 with respect to such po- issued by the U.S. Department of Agri- tatoes. culture (§§ 51.1540 to 51.1556 of this title), or amendments thereto, or modi- [35 FR 10741, July 2, 1970] fications thereof, or variations based § 947.8 Producer. thereon; (b) U.S. Consumer Standards for Po- Producer is synonymous with grower and means any person engaged in a tatoes as issued by the U.S. Depart- proprietary capacity in the production ment of Agriculture (§§ 51.1575 to 51.1587 of potatoes for market. of this title), or amendments thereto, or modifications thereof, or variations [35 FR 10741, July 2, 1970] based thereon; § 947.9 Fiscal period. (c) U.S. Standards for Grades of Pota- toes for Processing as issued by the Fiscal period means the period begin- U.S. Department of Agriculture ning and ending on the dates approved by the Secretary pursuant to rec- (§§ 51.3410 to 51.3424 of this title), or ommendations by the committee. amendments thereto, or modifications thereof, or variations based thereon; § 947.10 Committee. (d) U.S. Standards for Grades of Committee means the administrative Peeled Potatoes (§§ 52.2421 to 52.2433 of committee, called the Oregon-Cali- this title), or amendments thereto, or fornia Potato Committee, established modifications thereof, or variations pursuant to § 947.25. based thereon; and (e) Standards for potatoes issued by § 947.11 Varieties. the State of Oregon or California, or Varieties means and includes all clas- amendments thereto, or modifications sifications or subdivisions of Irish po- thereof, or variations based thereon. tatoes according to those definitive characteristics now or hereafter recog- [35 FR 10741, July 2, 1970] nized by the United States Department § 947.16 Grading. of Agriculture. Grading is synonymous with pre- § 947.12 Seed potatoes. paring for market which means the sort- Seed potatoes means and includes all ing or separating of potatoes into potatoes officially certified and tagged, grades and sizes for market purposes. marked or otherwise appropriately identified under the supervision of the § 947.17 Export. official seed potato certifying agency Export means shipment of potatoes of the State from which the potatoes beyond the boundaries of continental are shipped, or other seed certification United States. agencies which the Secretary may recognize. § 947.18 District. § 947.14 Pack. District means each one of the geo- Pack means a unit of potatoes in any graphical divisions of the production type of container and which falls with- area established pursuant to § 947.32. in specific weight limits or within specific grade limits recommended by the

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ADMINISTRATIVE COMMITTEE also select one handler member of the committee with his respective alter- § 947.25 Establishment and member- nate, from each of Districts Nos. 1, 2, 3, ship. 4, and 5. (a) The Oregon-California Potato (c) Any person selected by the Sec- Committee consisting of 14 members, retary as a committee member or as an of whom nine shall be producers and alternate shall qualify by filing a writ- five shall be handlers, is hereby estab- ten acceptance with the Secretary lished. For each member of the com- within ten days after being notified of mittee there shall be an alternate who such selection. shall have the same qualifications as [20 FR 7068, Sept. 21, 1955, as amended at 35 the member. FR 10742, July 2, 1970] (b) An alternate member of the committee shall act in the place and stead § 947.28 Term of office. of the member for whom he is an alter- (a) Except as otherwise provided in nate during such member’s absence. In this section, the term of office of com- the event of the death, removal, res- mittee members and alternates shall ignation, or disqualification of a mem- be 2 years beginning June 1 and ending ber his alternate shall act for him until May 31. The terms of office of members a successor for such member is selected and alternates shall be so determined and has qualified. that approximately one-half of the [20 FR 7068, Sept. 21, 1955, as amended at 35 total producer committee membership FR 10741, July 2, 1970] and approximately one-half of the total handler committee membership shall § 947.26 Procedure. terminate each May 31. (a) Nine members of the committee (b) Committee members and alter- shall be necessary to constitute a nates shall serve during the term of of- quorum and nine concurring votes fice for which they are selected and shall be required to pass any motion or have qualified, or during that portion approve any committee action. thereof beginning on the date on which (b) The committee may provide for they qualify during the current term of meeting by telephone, telegraph, or office and continuing until the end other means of communication and any thereof, and until their successors are vote cast at such meeting shall be con- selected and have qualified. firmed promptly in writing: Provided, (c) The initial producer member and That if any assembled meeting is held, his alternate for District No. 5 shall be all votes shall be cast in person. selected for a period of 2 years beginning with the committee selected for [20 FR 7068, Sept. 21, 1955, as amended at 35 FR 10741, July 2, 1970] the term of office beginning June 1, 1970, through May 31, 1972. The initial § 947.27 Selection. handler member and his alternate for District No. 5 shall be selected for a 1- (a) Persons selected as committee year term of office beginning June 1, members or alternates to represent 1970, through May 31, 1971, and there- producers or handlers shall be pro- after each term of office shall be for 2 ducers or handlers, respectively, or of- years. ficers or employees of a corporate producer or handler, respectively, in the [20 FR 7068, Sept. 21, 1955, as amended at 35 district for which selected and shall be FR 10742, July 2, 1970] residents of such district. (b) The Secretary shall select three § 947.29 Powers. producer members of the committee, The committee shall have the fol- with their respective alternates, from lowing powers: District No. 1; two producer members, (a) To administer the provisions of with their respective alternates, from this subpart in accordance with its each of Districts No. 2 and No. 4; and terms; one producer member, with his respec- (b) To make rules and regulations to tive alternate, from each of Districts effectuate the terms and provisions of No. 3 and No. 5. The Secretary shall this subpart;

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(c) To receive, investigate, and report committee for inspection by producers to the Secretary complaints of viola- and handlers; tion of the provisions of this subpart; (j) To consult, cooperate, and ex- and change information with other potato (d) To recommend to the Secretary marketing committees and other indi- amendments to this subpart. viduals or agencies in connection with all proper committee activities and ob- § 947.30 Duties. jectives under this subpart; and (k) To establish, and pay the ex- It shall be the duty of the committee: penses of, advisory subcommittees for (a) At the beginning of each fiscal pe- the purpose of consulting with Federal, riod, to meet and organize, to select a State, and other appropriate agencies chairman and such other officers as with respect to the establishment of may be necessary, to select sub- marketing research and development committees of committee members, projects pursuant to § 947.47. and to adopt such rules and regulations for the conduct of its business as it § 947.31 Expenses and compensation. may deem advisable; Committee members and their re- (b) To act as intermediary between spective alternates when acting on the Secretary and any producer or han- committee business shall be reim- dler; bursed for reasonable expenses nec- (c) To furnish to the Secretary such essarily incurred by them in the per- available information as he may re- formance of their duties and in the ex- quest; ercise of their powers under this sub- (d) To appoint such employees, part. In addition, they may receive rea- agents, and representatives as it may sonable compensation at a rate rec- deem necessary and to determine the ommended by the committee and ap- salaries and define the duties of each proved by the Secretary. such person; [35 FR 10742, July 2, 1970] (e) To investigate, from time to time, and to assemble data on the growing, § 947.32 Districts. harvesting, shipping, and marketing (a) The following districts of the pro- conditions with respect to potatoes; duction area are hereby established as (f) To keep minutes, books, and follows: records which clearly reflect all of the acts and transactions of the committee District No. 1: The counties of Crook, and such minutes, books, and records Deschutes, and Jefferson in the State of shall be subject to examination at any Oregon; District No. 2: The counties of Klamath, Lake, time by the Secretary or his authorized Jackson, and Josephine in the State of Or- agent or representative; egon; (g) To make available to producers District No. 3: The counties of Curry, Coos, and handlers the committee voting Douglas, Lane, Lincoln, Benton, Linn, record on recommended regulations Polk, Marion, Yamhill, Tillamook, Wash- and on other matters of policy; ington, Clatsop, Columbia, Multnomah, Clackamas, and Hood River in the State of (h) At the beginning of each fiscal pe- Oregon; riod, to submit to the Secretary a District No. 4: The counties of Modoc and budget of its expenses for such fiscal Siskiyou in the State of California; period, together with a report thereon; District No. 5: The counties of Wasco, Sher- (i) To cause the books of the com- man, Gilliam, Morrow, Umatilla, Wallowa, mittee to be audited by a competent Union, Baker, Grant, Wheeler, and Harney accountant at least once each fiscal pe- in the State of Oregon. riod, and at such other time as the (b) The Secretary, upon the rec- committee may deem necessary or as ommendation of the committee, may the Secretary may request, and the re- reestablish districts within the produc- port of such audit shall show the re- tion area and may reapportion com- ceipt and expenditure of funds col- mittee membership among the various lected pursuant to this subpart; and, a districts: Provided, That in recom- copy of each such report shall be made mending any such changes in districts available at the principal office of the or representation, the committee shall

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give consideration to (1) the relative aforesaid shall be construed to permit importance of new areas of production, a voter to cast one vote for each posi- (2) changes in the relative position of tion to be filled in the district in which existing districts with respect to pro- he elects to vote; and duction, (3) the geographic location of (f) If nominations are not made with- areas of production as they would af- in the time and in the manner specified fect the efficiency of administering in this section, the Secretary may, this part, and (4) other relevant fac- without regard to nominations, select tors: Provided, further, That there shall the committee members and alternates be no change in the total number of on the basis of the representation pro- committee members or in the total vided for in this subpart. number of districts. [35 FR 10742, July 2, 1970] [20 FR 7068, Sept. 21, 1955, as amended at 35 FR 10742, July 2, 1970] § 947.34 Vacancies. § 947.33 Nominations. To fill any vacancy occasioned by the The Secretary may select the mem- failure of any person selected as a com- bers of the Oregon-California Potato mittee member or as an alternate to Committee and their respective alter- qualify, or in the event of the death, nates from nominations which may be removal, resignation, or disqualifica- made in the following manner: tion of any qualified member or alter- (a) A meeting or meetings of pro- nate, a successor for his unexpired ducers and handlers shall be held by term may be selected by the Secretary the committee in each district for from nominations made in the manner which nominees are to be selected, not specified in § 947.33, or the Secretary later than April 1 of each year, to des- may select such committee member or ignate nominees for members and al- alternate from previously unselected ternatives to the committee; nominees on the current nominee list (b) At least one nominee shall be des- from the district involved. If the names ignated for each position as member of nominees to fill any such vacancy and for each position as alternate are not made available to the Sec- member on the committee which is va- retary within 30 days after such vacant, or which is to become vacant the cancy occurs, the Secretary may fill following June 1; such vacancy without regard to nomi- (c) The names of nominees shall be nations, which selection shall be made supplied to the Secretary in such manner and form as he may prescribe, not on the basis of the representation pro- later than May 1 of each year, or by vided for in this subpart. such other date as may be specified by § 947.35 Annual report. the Secretary; (d) Only producers may participate in The committee shall prepare and sub- designating producer nominees and mit to the Secretary, within 2 months only handlers may participate in desig- following the last day of each fiscal pe- nating handler nominees. Any person riod, an annual report covering such who operates in more than one district fiscal period, and make a copy avail- or is engaged in producing and han- able to each handler and producer who dling potatoes, shall elect the classi- requests it. This annual report shall fication (i.e., producer or handler), and contain at least: the district within which he desires to (a) A complete review of the regu- participate in designating nominees; latory operations during the fiscal pe- (e) Regardless of the number of dis- riod; tricts in which a person produces or (b) An appraisal of the effect of such handles potatoes, each such person is regulatory operations upon the potato entitled to cast only one vote on behalf industry within the production area; of himself, his agents, subsidiaries, af- and filiates, and representatives in desig- (c) Any recommendations for nating nominees for committee mem- changes. bers and alternates. An eligible voter’s privilege of casting only one vote as [35 FR 10742, July 2, 1970]

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EXPENSES AND ASSESSMENTS cess of his pro rata share of the actual expenses of the committee and the ad- § 947.40 Expenses. dition, if any, to the operating reserve. The committee is authorized to incur (c) Accounting of funds upon termi- such expenses as the Secretary finds nation of order. Any money collected as are reasonable and likely to be in- assessments pursuant to this subpart curred by it during each fiscal period and remaining unexpended in the pos- for such purposes as the Secretary session of the committee after termi- may, pursuant to the provisions of this nation of this part shall be distributed subpart, determine to be appropriate in such manner as the Secretary may and for the maintenance and func- direct: Provided, That to the extent tioning of the committee. The committee shall submit to the Secretary a practical, such funds shall be returned budget for each fiscal period, including pro rata to the persons from whom an explanation of the items appearing such funds were collected. therein, and a recommendation as to [35 FR 10742, July 2, 1970] the rate of assessment for such fiscal period. RESEARCH AND DEVELOPMENT [35 FR 10742, July 2, 1970] § 947.47 Research and development. § 947.41 Assessments. The committee, with the approval of (a) Each handler shall pay to the the Secretary, may provide for the es- committee upon demand his pro rata tablishment of marketing research and share of the expenses authorized by the development projects designed to as- Secretary for each fiscal period. Each sist, improve, or promote the mar- handler’s pro rata share shall be the keting, distribution, and consumption rate of assessment per hundredweight of potatoes. fixed by the Secretary times the quantity of potatoes which he handles as REGULATION the first handler thereof. At any time during or after a fiscal period, the Sec- § 947.50 Marketing policy. retary may increase the rate of assess- (a) Preparation. Prior to each mar- ment as necessary to cover authorized keting season the committee shall con- expenses. The payment of expenses for the maintenance and functioning of the sider and prepare a proposed policy for committee may be required during pe- the marketing of potatoes. In devel- riods when no regulations are in effect. oping its marketing policy the com- If a handler does not pay his assess- mittee shall investigate relevant sup- ment within the time prescribed by the ply and demand conditions for pota- committee, the assessment may be in- toes. In such investigations the com- creased by a late payment charge or an mittee shall give appropriate consider- interest charge, at rates prescribed by ation to the following: the committee with the approval of the (1) Market prices for potatoes, in- Secretary. cluding prices by grade, size, quality, (b) Excess funds. At the end of a fiscal and maturity in different packs, or any period, funds in excess of the year’s ex- other shipping unit; penses shall be placed in an operating (2) Supply of potatoes by grade, size, reserve not to exceed approximately quality, and maturity in the produc- one fiscal period’s operational expenses tion area and in other production or such lower limits as the committee, areas; with the approval of the Secretary, (3) The trend and level of consumer may establish. Funds in such reserve shall be available for use by the com- income; mittee for expenses authorized pursu- (4) Establishing and maintaining or- ant to § 947.40. Funds in excess of those derly marketing conditions for pota- placed in the operating reserve shall be toes; refunded to handlers. Each handler’s (5) Orderly marketing of potatoes as share of such excess shall be the will be in the public interest; and amount of assessments he paid in ex- (6) Other relevant factors.

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(b) Reports. (1) The committee shall specified locations therein for grading submit a report to the Secretary set- or storage pursuant to § 947.54. ting forth the aforesaid marketing pol- (3) To regulate the handling of par- icy and it shall notify producers and ticular grades, sizes, qualities, or ma- handlers of the contents of such report. turities of any or all varieties dif- (2) In the event it becomes advisable ferently, for different portions of the to shift from such marketing policy be- production area, for different uses or cause of changed supply and demand outlets, for potatoes for prepeeling to conditions, the committee shall pre- different markets, for different packs, pare a new marketing policy in accord- or for any combination of the fore- ance with the manner previously outgoing, during any period; and lined. The committee shall submit a (4) To regulate the shipment of pota- report thereon to the Secretary and no- toes by establishing, in terms of tify producers and handlers of the con- grades, sizes, or both, minimum stand- tents of such report on the revised or ards of quality and maturity. amended marketing policy. (b) The Secretary may amend any regulation issued under this subpart § 947.51 Recommendations for regula- whenever he finds that such amend- tions. ment would tend to effectuate the de- The committee shall recommend to clared policy of the act. The Secretary the Secretary grade, size, quality, and may also terminate or suspend any reg- maturity regulations, or amendments ulation whenever he finds that such thereto, or modifications thereof, regulation obstructs or no longer tends whenever it finds that such regulations to effectuate the declared policy of the as provided in § 947.52 will tend to effec- act. tuate the declared policy of the act. (c) The Secretary shall notify the The committee also may recommend committee of any such regulation modification, suspension, or termi- issued pursuant to this section and the nation of any regulation, or amend- committee shall give reasonable notice ments thereto, in order to facilitate thereof to handlers. the handling of potatoes for the pur- [35 FR 10742, July 2, 1970] poses authorized in § 947.54. The committee may also recommend amend- § 947.53 Minimum quantities. ment, termination, or suspension of any regulation issued under this part. The committee, with the approval of the Secretary, may establish, for any § 947.52 Issuance of regulations. or all portions of the production area, minimum quantities below which ship- (a) The Secretary shall limit the ments will be free from regulations shipment of potatoes as set forth in issued pursuant to this part. this subpart whenever he finds from the recommendation and information [35 FR 10743, July 2, 1970] submitted by the committee, or from other available information, that it § 947.54 Shipments for specified pur- would tend to effectuate the declared poses. policy of the act: (a) Whenever the Secretary finds, (1) To regulate, in any or all portions upon the basis of the recommendations of the production area, the handling of and information submitted by the com- particular grades, sizes, qualities, or mittee, or from other available infor- maturities of any or all varieties of po- mation, that it will tend to effectuate tatoes, or any combination of the fore- the declared policy of the act, he shall going, during any period; modify, suspend, or terminate any or (2) To regulate the handling of par- all regulations issued pursuant to this ticular grades, sizes, qualities, or ma- part, in order to facilitate shipments of turities of any or all varieties of pota- potatoes for the following purposes: toes, or any combination of the fore- (1) Livestock feed; going during any period, in the States (2) Charity; of Idaho and Washington and Malheur (3) Export; County in Oregon which had been (4) Seed; shipped from the production area to (5) Prepeeling;

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(6) Canning and freezing; such certificates, the number of such (7) Processing into other products, applications denied, and certificates including ‘‘other processing,’’ pursuant granted, the quantity of potatoes to Public Law 91–196, 91st Cong., second shipped under duly issued certificates, session (Feb. 20, 1970); and such other information as may be (8) Such other purposes as may be requested by the Secretary. specified by the committee, with the approval of the Secretary; and [35 FR 10743, July 2, 1970] (9) Grading or storing between the districts within the production area or INSPECTION AND CERTIFICATION to and within specified locations in the adjoining States of Idaho and Wash- § 947.60 Inspection and certification. ington and Malheur County in the (a) During any period in which the State of Oregon. handling of potatoes is regulated pur- (b) The Secretary shall give prompt suant to § 947.42, § 947.52, or § 947.54, or notice to the committee of any modi- any combination thereof, no handler fication, suspension, or termination of shall handle potatoes unless such pota- regulations pursuant to this section, or toes are inspected by an authorized of any approval issued by him under representative of the Federal-State In- the provisions of this section. spection Service, or such other inspec- [35 FR 10743, July 2, 1970] tion service as the Secretary shall designate, and are covered by a valid in- § 947.55 Safeguards. spection certificate, except when re- (a) The committee, with the approval lieved from such requirements pursu- of the Secretary, may prescribe ade- ant to § 947.53 or § 947.54 or both. quate safeguards to prevent shipments (b) Regrading, resorting, or repack- pursuant to § 947.54 from entering chan- ing any lot of potatoes shall invalidate nels of trade and other outlets for any prior inspection certificates inso- other than the specific purpose author- far as the requirements of this section ized therefor. (b) Safeguards provided by this sec- are concerned. No handler shall handle tion may include, but shall not be lim- potatoes after they have been regraded, ited to, requirements that handlers: resorted, repacked, or in any way fur- (1) Shall obtain the inspection re- ther prepared for market, unless such quired by § 947.60 or pay the assessment potatoes are inspected by an author- provided by § 947.41 or both, in connec- ized representative of the Federal- tion with the potato shipments effected State Inspection Service, or such other in accordance with § 947.54, and inspection service as the Secretary (2) Shall obtain a Special Purpose shall designate: Provided, That such in- Certificate from the committee for spection requirements on regraded, re- shipments of potatoes effected or to be sorted, or repacked potatoes may be effected under provisions of § 947.54. modified, suspended, or terminated (c) The committee, with the approval under rules and regulations rec- of the Secretary, shall prescribe rules ommended by the committee, and ap- governing the issuance and the con- proved by the Secretary. tents of Special Purpose Certificates. (c) Insofar as the requirements of (d) The committee may rescind, or this section are concerned, the length deny to any handler, the Special Pur- of time for which an inspection certifi- pose Certificate if proof satisfactory to cate is valid may be established by the the committee is obtained that potatoes shipped by him for the purpose committee with the approval of the stated in the certificate were handled Secretary. contrary to the provisions of the cer- (d) When potatoes are inspected in tificate and this section. accordance with the requirements of (e) The committee shall make re- this section, a copy of each inspection ports to the Secretary, as requested, certificate issued shall be made avail- showing the number of applications for able to the committee by the inspec- such certificates, the quantity of pota- tion service. toes covered by such applications for

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EXEMPTIONS § 947.67 Appeal. If any applicant for exemption cer- § 947.65 Procedure. tificates is dissatisfied with the deter- The committee may adopt, subject to mination by the committee with re- approval of the Secretary, the proce- spect to his application, said applicant dures pursuant to which certificates of may file an appeal with the committee. exemption will be issued to producers Such an appeal must be taken prompt- or handlers. ly after the determination by the committee from which the appeal is taken. § 947.66 Granting exemptions. Any applicant filing an appeal shall (a) The committee may issue certifi- furnish evidence satisfactory to the cates of exemption to any producer committee for a determination on the who applies for such exemption and appeal. The committee shall thereupon furnishes adequate evidence to the reconsider the application, examine all committee: (1) That by reason of a reg- available evidence, and make a final ulation issued pursuant to § 947.52 he determination concerning the applica- will be prevented from handling as tion. The committee shall notify the large a proportion of his production as appellant of the final determination and shall furnish the Secretary with a the average proportion of production copy of the appeal and a statement of handled by all producers in said appli- considerations involved in making the cant’s immediate production area; and final determination. (2) that the grade, size, or quality of the applicant’s potatoes have been ad- § 947.68 Review, records, and reports versely affected by acts beyond the ap- of exemptions. plicant’s control and by acts beyond (a) The Secretary shall have the reasonable expectation. Each certifi- right to modify, change, alter, or re- cate shall permit the producer to han- scind any procedure and any exemp- dle the amount of potatoes specified tions granted pursuant to §§ 947.65, thereon. Such certificates shall be 947.66, 947.67, or any combination there- transferred with such potatoes at time of. of shipment. (b) The committee shall maintain a (b) The committee may issue certifi- record of all applications submitted for cates of exemption to any handler who exemption certificates, a record of all applies for such exemption and fur- exemption certificates issued and de- nishes adequate evidence to the com- nied and the quantity of potatoes cov- mittee: (1) That by reason of a regula- ered by such exemption certificates, a tion issued pursuant to § 947.52 he will record of the amount of potatoes han- be prevented from handling as large a dled under exemption certificates, a proportion of his storage holdings of record of appeals for reconsideration of ungraded potatoes, acquired during or applications, and such information as immediately following the digging sea- may be requested by the Secretary. son, as the average proportion of Periodic reports on such records shall ungraded storage holdings handled by be compiled and issued by the com- all handlers in said applicant’s imme- mittee upon request of the Secretary. diate shipping area; and (2) that the grade, size, or quality of the appli- EFFECTIVE TIME AND TERMINATION cant’s potatoes have been adversely affected by acts beyond the applicant’s § 947.70 Effective time. control and by acts beyond reasonable (a) The provisions of this subpart expectation. Each certificate shall per- shall become effective at such time as mit the handler to handle the amount the Secretary may declare above his of potatoes specified thereon. Such cer- signature attached to this subpart, and tificate shall be transferred with such shall continue in force until termi- potatoes at time of shipment. nated in one of the ways specified in (c) The committee shall be permitted this subpart. at any time to make a thorough inves- (b) All rules and regulations issued tigation of any producer’s or handler’s by the Secretary pursuant to this part claim pertaining to exemptions. (Order No. 947, as amended), which are

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in effect immediately prior to the date hand, together with all books and of this amendment shall continue in ef- records of the committee and of the fect under this subpart as originally trustees, to such person as the Sec- issued, or subsequently modified, until retary may direct; and shall, upon re- such rules and regulations are changed, quest of the Secretary, execute such modified, or suspended in accordance assignments or other instruments nec- with this subpart. essary or appropriate to vest in such person full title and right to all of the § 947.71 Termination. funds, property, and claims vested in (a) The Secretary may at any time the committee or the trustees pursuant terminate the provisions of this sub- to this subpart. part by giving at least one day’s notice (c) Any person to whom funds, prop- by means of a press release or in any erty, or claims have been transferred other manner which he may determine. or delivered by the committee or its (b) The Secretary may terminate or members, pursuant to this section, suspend the operation of any or all of the provisions of this subpart whenever shall be subject to the same obligations he finds that such provisions do not imposed upon the members of the com- tend to effectuate the declared policy mittee and upon the said trustees. of the act. (c) The Secretary shall terminate the § 947.73 Effect of termination or amendment. provisions of this subpart at the end of any fiscal period whenever he finds Unless otherwise expressly provided that such termination is favored by a by the Secretary, the termination of majority of producers who, during the this subpart or of any regulation issued preceding fiscal period, have been en- pursuant to this subpart, or the gaged in the production for market of issuance of any amendments to either potatoes; Provided, That such majority thereof, shall not: has, during such period, produced for (a) Affect or waive any right, duty, market more than fifty percent of the obligation, or liability which shall volume of such potatoes produced for have arisen or which may thereafter market; but such termination shall be arise in connection with any provision effective only if announced on or before of this subpart or any regulation issued June 30 of the then current fiscal pe- under this subpart; riod. (b) Release or extinguish any viola- (d) The provisions of this subpart tion of this subpart or of any regula- shall in any event terminate whenever tion issued under this subpart; or the provisions of the act authorizing (c) Affect or impair any rights or them cease to be in effect. remedies of the Secretary or of any § 947.72 Proceedings after termination. other person with respect to any such (a) Upon the termination of the pro- violation. visions of this subpart, the then func- MISCELLANEOUS PROVISIONS tioning members of the committee shall continue as trustees, for the pur- § 947.80 Reports. pose of liquidating the affairs of the committee, of all the funds and prop- (a) Upon the request of the com- erty then in the possession of or under mittee, with the approval of the Sec- control of the committee, including retary, each handler shall furnish to claims for any funds unpaid or prop- authorized employees of the com- erty not delivered at the time of such mittee, in such manner, on such forms termination. Action by said trustee- and at such time as the committee ship shall require the concurrence of a may prescribe, such reports and other majority of the said trustees. information as may be necessary for (b) The said trustees shall continue the committee to perform its duties in such capacity until discharged by under this part. The Secretary shall the Secretary; shall, from time to have the right to modify, change, or re- time, account for all receipts and dis- scind any requests for reports pursuant bursements and deliver all property on to this section.

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(b) Such reports may include, but are of the Secretary to disapprove of the not necessarily limited to, the fol- same at any time. Upon such dis- lowing: approval, the disapproved action of the (1) The quantities of potatoes re- said committee shall be deemed null ceived by a handler; and void, except as to acts done in reli- (2) The quantities disposed of by him ance thereon or in compliance there- segregated as to the respective quan- with prior to such disapproval by the tities subject to regulation and not Secretary. subject to regulation; (3) The date of each such disposition § 947.83 Duration of immunities. and the identification of the carrier The benefits, privileges, and immuni- transporting such potatoes; and ties conferred upon any persons by vir- (4) identification of the inspection tue of this subpart shall cease upon the certificates relating to the potatoes termination of this subpart, except which are handled pursuant to § 947.52 with respect to acts done under and or § 947.54, or both. during the existence of this subpart. (c) All such reports shall be kept in the custody and under the control of § 947.84 Agents. one or more employees of the com- The Secretary may, by designation in mittee so that the information con- writing, name any person, including tained therein, which may adversely any officer or employee of the Govern- affect the competitive position of any ment, or name any agency in the handler in relation to other handlers United States Department of Agri- will not be disclosed. Compilations of culture, to act as his agent or rep- general reports from data submitted by resentative in connection with any of handlers is authorized, subject to the the provisions of this subpart. prohibition of disclosure of individual handlers’ identities or operations. § 947.85 Derogation. (d) Each handler shall maintain and Nothing contained in this subpart is, make available on request for at least or shall be construed to be, in deroga- 2 succeeding years, following his han- tion or in modification of the rights of dling of potatoes, such records and doc- the Secretary or of the United States uments on potatoes received and pota- to exercise any powers granted by the toes disposed of by him as may be nec- act or otherwise, or, in accordance essary to verify reports required to be with such powers, to act in the prem- submitted to the committee pursuant ises whenever such action is deemed to this section. advisable. [35 FR 10743, July 2, 1970] § 947.86 Personal liability. § 947.81 Compliance. No member or alternate of the com- Except as provided in this subpart, mittee, nor any employee or agent no handler shall handle potatoes, the thereof, shall be held personally re- handling of which has been prohibited sponsible, either individually or jointly by the Secretary in accordance with with others, in any way whatsoever to provisions of this subpart, and no han- any handler or any person for errors in dler shall handle potatoes except in judgment, mistakes, or other acts, ei- conformity to the provisions of this ther of commission or omission, as subpart. such member, alternate, or employee, except for acts of dishonesty. § 947.82 Right of the Secretary. The members of the committee (in- § 947.87 Separability. cluding successors and alternates), and If any provision of this subpart is de- any agent or employee appointed or clared invalid, or the applicability employed by the committee, shall be thereof to any person, circumstance, or subject to removal or suspension by thing is held invalid, the validity of the the Secretary at any time. Each and remainder of this subpart, or the appli- every order, regulation, decision, deter- cability thereof to any other person, mination or other act of the committee circumstance, or thing, shall not be af- shall be subject to the continuing right fected thereby.

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§ 947.88 Amendments. 947.67 shall make application to the committee on forms furnished by it. Amendments to this subpart may be All information and conditions relative proposed from time to time, by the to the application will be considered committee or by the Secretary. promptly. The decision of the committee shall be final subject to the ap- Subpart—Rules and Regulations peal procedures prescribed in § 947.67. [39 FR 2270, Jan. 18, 1974] SOURCE: 22 FR 8176, Oct. 16, 1957, unless otherwise noted. Redesignated at 26 FR 12751, EFFECTIVE DATE NOTE: At 65 FR 42278, July Dec. 30, 1961. 10, 2000, § 947.120 was suspended indefinitely, effective July 1, 2000. GENERAL § 947.123 Reports and records. § 947.100 Communications. Any person handling potatoes under Unless otherwise provided in the § 947.120 shall record and report ship- marketing agreement and order (§§ 947.1 ments in such frequency as the com- to 947.88), or by specific direction of the mittee may prescribe. committee, all reports, applications, [39 FR 2270, Jan. 18, 1974] submittals, requests, and communications in connection therewith shall be EFFECTIVE DATE NOTE: At 65 FR 42278, July addressed to the committee at its prin- 10, 2000, § 947.123 was suspended indefinitely, effective July 1, 2000. cipal office. SAFEGUARDS DEFINITIONS § 947.130 Special Purpose Certifi- § 947.110 Order. cates—application and issuance. Order means Order No. 947, as amend- Each person handling potatoes for ed (§§ 947.1 to 947.88), regulating the special purposes under safeguard re- handling of Irish potatoes grown in quirements imposed pursuant to this Modoc and Siskiyou Counties in Cali- part shall apply to the committee for a fornia and in all Counties in Oregon, Special Purpose Certificate. The com- except Malheur County. mittee shall make available, on request, the forms for such application as § 947.111 Marketing agreement. well as such report forms at it may re- Marketing agreement means Mar- quire under § 947.132. keting Agreement No. 114, as amended. [39 FR 2270, Jan. 18, 1974] § 947.112 Terms. EFFECTIVE DATE NOTE: At 65 FR 42278, July Terms used in this subpart shall have 10, 2000, § 947.130 was suspended indefinitely, the same meaning as when used in said effective July 1, 2000. marketing agreement and order. § 947.132 Reports. § 947.113 Area determinations. (a) Immature potatoes. The applicant shall identify the producer and the Immediate production area, and imme- dates on which such potatoes will be diate shipping area, respectively, are handled in his application for a Special each synonymous with district. Purpose Certificate. § 947.114 Fiscal period. (b) Certified seed. A special purpose shipment report shall be required for The fiscal period shall begin July 1 of each load of certified seed when each year and end June 30 of the fol- shipped outside the district (§ 947.18) lowing year, both dates inclusive. where grown. The shipper of such cer- [62 FR 27171, May 19, 1997] tified seed potatoes shall return the completed form to the committee with- EXEMPTIONS in the time period prescribed on such forms. § 947.120 Hardship exemption. (c) Livestock feed. (1) The committee Handlers seeking an exemption pur- may require the applicant to furnish suant to the provisions of §§ 947.65– information specifying the location

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where the potatoes are to be consumed, (b) Persons who wish to be placed on the anticipated quantity of potatoes to the committee’s list of manufacturers be so handled, the total acreage from of potato products may apply to the which the feed will be derived and the committee and shall supply the fol- approximate starting and ending dates lowing information: for such shipments. (1) Name and address of applicant; (2) Any person handling potatoes for (2) Location and description of facili- this purpose shall record and report the ties for commercial processing of pota- volume handled at such intervals as toes into products; the committee may prescribe. (3) Expected source of potatoes for commercial processing into products; [39 FR 2270, Jan. 18, 1974, as amended at 56 (4) Certification to the Secretary FR 55986, Oct. 31, 1991] that potatoes received for processing EFFECTIVE DATE NOTE: At 65 FR 42278, July will not be diverted to the fresh mar- 10, 2000, § 947.132 was suspended indefinitely, ket, effective July 1, 2000. (5) Such other information as the committee, with the approval of the § 947.133 Denial and appeals. Secretary, may deem necessary. (a) The committee may suspend a Upon receipt of an application for such handler’s Special Purpose Certificate listing, the Oregon-California Potato for a period of 30 days for failure to re- Committee shall make such investiga- port as required by § 947.132. tion as it deems necessary, and if it ap- (1) A handler who has had two or pears that the applicant may reason- more certificates suspended or his cer- ably be expected to use potatoes cov- tificate suspended twice within the pre- ered by the application in accordance ceding two year period may be refused with and to comply with the require- a Special Purpose Certificate. The ments of this section, it shall place the committee also may revoke for a pe- person’s name on the Oregon-California riod of up to one year the Special Pur- Potato Committee’s list of manufac- pose Certificate of any handler who has turers of potato products. had his certificate suspended twice (c) If shipment is to a person whose within a marketing season. name is not on the committee’s list of (2) [Reserved] manufacturers, the handler must pro- (b) Upon refusal, suspension or rev- vide evidence to the committee prior ocation of a Special Purpose Certifi- to shipment that the potatoes will be cate, the handler may make a written used only for processing into products. appeal for reconsideration of the deci- Further, he shall submit reports as pre- sion to the committee. The Chairman scribed by the committee and approved shall direct that the committee imme- by the Secretary. diately reconsider the action. (d) The committee may remove from [39 FR 2270, Jan. 18, 1974] the list of manufacturers of potato products the name of any person who EFFECTIVE DATE NOTE: At 65 FR 42278, July fails to comply with the safeguard re- 10, 2000, § 947.133 was suspended indefinitely, effective July 1, 2000. quirements of this part. [39 FR 2271, Jan. 18, 1974, as amended at 39 § 947.134 Establishment of list of man- FR 31880, Sept. 3, 1974] ufacturers of potato products. EFFECTIVE DATE NOTE: At 65 FR 42278, July (a) The committee shall establish 10, 2000, § 947.134 was suspended indefinitely, and maintain in its office a list of firms effective July 1, 2000. who are manufacturers of potato products handled pursuant to § 947.54(a)(5)– § 947.141 Late payment and interest (7) inclusive. Such list may consist of charges. firms actively engaged in the business The committee shall impose a late of canning, freezing, or ‘‘other proc- payment charge on any handler who essing’’ as defined in the act; or fails to pay his or her assessment with- prepeeling as described in § 52.2422 in thirty (30) days of the billing date United States Standards for Grades of shown on the handler’s assessment Peeled Potatoes (§§ 52.2421–52.2433 of statement received from the com- this title). mittee. The late payment charge shall,

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after 30 days, be five percent of the un- REPORTS paid assessment balance. In the event the handler fails to pay the delinquent Subpart—Assessment Rates assessment amount, plus the late payment charge, within 60 days following § 947.247 Assessment rate. the billing date, an additional one per- On and after July 1, 1997, an assess- cent interest charge shall be applied ment rate of $0.004 per hundredweight monthly thereafter to the unpaid bal- is established for Oregon-California po- ance, including any accumulated inter- tatoes. est. Any amount paid by a handler as an assessment, including any charges [61 FR 27248, May 31, 1996, as amended at 62 imposed pursuant to this paragraph, FR 27171, May 19, 1997] shall be credited when the payment is EFFECTIVE DATE NOTE: At 65 FR 42278, July received in the committee office. 10, 2000, § 947.247 was suspended, effective July 1, 2000. [59 FR 48784, Sept. 23, 1994] EFFECTIVE DATE NOTE: At 65 FR 42278, July Subpart—Handling Regulations 10, 2000, § 947.141 was suspended, effective July 1, 2000. § 947.340 Handling regulation.

REESTABLISHMENT OF DISTRICTS No person shall handle any variety of potatoes grown in the production area, § 947.150 Reestablishment of districts. except for non-white fleshed varieties of potatoes, unless such potatoes meet Pursuant to § 947.32(b) and the rec- the requirements specified in para- ommendation of the Oregon-California graphs (a) through (f) of this section, or Potato Committee, the counties of unless such potatoes are handled in ac- Jackson and Josephine in the State of cordance with paragraphs (g) and (h), Oregon (currently a portion of District or (i) of this section. No. 3) are reestablished as a part of (a) Grade requirements. Such potatoes District No. 2. Terms used in this sec- grade at least U.S. No. 2. tion shall have the same meaning as (b) Size requirements. (1) Such pota- when used in said marketing agree- toes shipped to points within the conti- ment and this part. nental United States shall be at least 2 [33 FR 14229, Sept. 20, 1968] inches in diameter or weigh at least 4 ounces, and such potatoes shipped to § 947.160 Reapportionment of com- export destinations shall be at least 11⁄2 mittee membership. inches in diameter. (a) Pursuant to § 947.32(b), the mem- (2) Red-skinned varieties of potatoes bership of the Oregon-California Potato may be shipped without regard to any Committee shall be apportioned among minimum size requirement, if they oth- the districts so as to provide the fol- erwise grade at least U.S. No. 1. lowing representation: (1) Producer (3) All non-red-skinned varieties of 3 membership—two members from each potatoes that measure 1 ⁄4 inches in di- of Districts No. 2 and No. 5; three mem- ameter or less may be shipped if such bers from District No. 4; and one mem- potatoes otherwise grade at least U.S. No. 1. ber from each of Districts No. 1 and No. 3; (2) Handler membership—one mem- (c) Cleanness requirements. All vari- ber from each of Districts No. 1, No. 2, eties and grades—As required in the No. 3, No. 4, and No. 5. The respective United States Standards for Grades of alternates shall be selected on the Potatoes, except that U.S. Commercial may be no more than slightly dirty. same basis of representation as the ‘‘ ’’ members. (d) Maturity (skinning) requirements. (1) Round and White Rose varieties: not (b) Terms used in this section shall more than ‘‘moderately skinned.’’ have the same meaning as when used in (2) Other Long Varieties (including said marketing agreement and this but not limited to Russet Burbank and part. Norgold): not more than ‘‘slightly [39 FR 30825, Aug. 26, 1974] skinned.’’ 371

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(3) Not to exceed a total of 100 hun- (4) Any lot of potatoes previously in- dredweight of potatoes may be handled spected pursuant to § 947.60 and cer- during any seven day period without tified as meeting the requirements of meeting these maturity requirements. this part is not required to have addi- Prior to shipment of potatoes exempt tional inspection under § 947.60(b) after from the above maturity requirements, regrading, resorting, or repacking such the handler shall obtain from the com- potatoes, if the inspection certificate is mittee a Certificate of Privilege. valid at the time of regrading, resort- (e) Pack. Potatoes packed in cartons ing, or repacking of the potatoes. shall be either: (g) Special purpose shipments. The (1) U.S. No. 1 grade or better, except minimum grade, size, cleanness, matu- that potatoes that fail to meet the U.S. rity, pack and inspection requirements No. 1 grade only because of hollow set forth in paragraphs (a) through (f) heart and/or internal discoloration of this section shall not be applicable may be shipped provided the lot con- to shipments of potatoes for any of the tains not more than 10 percent damage following purposes: by hollow heart and/or internal discol- (1) Certified seed, subject to applica- oration, or not more than 5 percent se- ble safeguard requirements of para- rious damage by internal defects; or graph (h) of this section. (2) U.S. No. 2 potatoes weighing at (2) Livestock feed: However, potatoes may not be handled for such purposes if least 10 ounces. destined to points outside of the pro- (f) Inspection. (1) Except when reduction area, except that shipments to lieved by paragraphs (g) and (h), or (i) the counties of Benton, Franklin and of this section and paragraph (f)(2) of Walla Walla in the State of Washington this section, no person shall handle po- and to Malheur County, Oregon, may tatoes without first obtaining inspec- be made, subject to the safeguard pro- tion from an authorized representative visions of paragraph (h) of this section. of the Federal-State Inspection Serv- (3) Planting in the district where ice. grown: Further, potatoes for this pur- (2) Handlers making shipments from pose grown in District No. 2 or District facilities located in an area where in- No. 4 may be shipped between those spection costs would otherwise exceed two districts. one and one-half times the current per- (4) Between districts within the pro- hundredweight inspection fee, are ex- duction area for grading or storing. In empt from on-site inspection provided addition, potatoes grown in District such handler has made application to No. 5 may be shipped for grading and the committee for inspection exemp- storing to points in the counties of tion on forms supplied by the com- Adams, Benton, Franklin and Walla mittee, and provided further that such Walla in the State of Washington, or to handler signs an agreement with the Malheur County, Oregon, without re- committee to report each shipment on gard to the safeguard provisions of a daily basis and pay the committee a paragraph (h) of this section. sum equal to the current inspection (5) Charity: Except that shipments fee. for charity may not be resold if they do (3) For the purpose of operation not meet the requirements of the mar- under this part each required inspec- keting order, and that shipments in ex- tion certificate is hereby determined, cess of 5 hundredweight per charitable pursuant to § 947.60(c) to be valid for a organization shall be subject to the period of not to exceed 14 days fol- safeguard provisions of paragraph (h) of lowing completion of inspection as this section. shown on the certificate. The validity (6) Starch manufacture. period of an inspection certificate cov- (7) Canning, freezing, prepeeling, and ering inspected and certified potatoes ‘‘other processing’’ (except starch man- that are stored in mechanically refrig- ufacturing) as hereinafter defined (in- erated storage within 14 days of the including storage for such purposes). spection shall be 14 days plus the num- (h) Safeguards. (1) Each handler mak- ber of days that the potatoes were held ing shipments of certified seed outside in refrigerated storage. the district where grown pursuant to

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paragraph (g) of this section shall ob- Standards for Grades of Peeled Pota- tain from the committee a Certificate toes (7 CFR 52.2421–52.2433). of Privilege, and shall furnish a report (4) The term other processing has the of shipments to the committee on Spe- same meaning as the term appearing in cial Purpose Shipment Report forms. the act and includes, but is not re- (2) Each handler making shipments stricted to, potatoes for dehydration, of potatoes pursuant to paragraphs chips, shoestrings, or starch, and flour. (g)(2) and (g)(5) of this section shall ob- It includes only that preparation of po- tain a Certificate of Privilege from the tatoes for market which involves the committee, and shall report shipments application of heat or cold to such an on Special Purpose Shipment Report extent that the natural form or sta- forms at such intervals as the com- bility of the commodity undergoes a mittee may prescribe in its administra- substantial change. The act of peeling, tive rules. cooling, slicing, dicing, or applying (3) Each handler making shipments material to prevent oxidation does not pursuant to paragraph (g)(7) of this sec- constitute ‘‘other processing.’’ tion may ship such potatoes only to (5) The term non-white fleshed pota- persons or firms designated as manu- toes means all colored fleshed varieties facturers of potato products by the of potatoes other than white-fleshed committee pursuant to § 947.134. Fur- varieties of potatoes. (6) Other terms used in this section ther, each handler making such ship- shall have the same meaning as when ments shall obtain a Certificate of used in Marketing Agreement No. 114, Privilege from the committee and shall as amended, and this part. promptly report each shipment to the committee on Special Purpose Ship- [53 FR 2996, Feb. 3, 1988, as amended at 53 FR ment Report forms. 49114, Dec. 6, 1988; 54 FR 46718, Nov. 7, 1989; 56 (i) Minimum quantity exemption. Any FR 55986, Oct. 31, 1991; 57 FR 24542, June 10, 1992; 58 FR 33019, June 15, 1993] person may handle not more than 19 hundredweight of potatoes on any day EFFECTIVE DATE NOTE: At 64 FR 34117, June without regard to the inspection re- 25, 1999, § 947.340 was suspended, effective quirements of § 947.60 and to the assess- July 1, 1999, through June 30, 2000. At 65 FR 42278, July 10, 2000, § 947.340 was further sus- ment requirements of § 947.41 of this pended, effective July 1, 2000. part except no potatoes may be handled pursuant to this exemption which EDITORIAL NOTE: After Jan. 1, 1979, ‘‘Budget of Expenses and Rate of Assessment’’ regula- do not meet the requirements of para- tions (i.e. sections .200 through .299) and graphs (a), (b), (c), (d) and (e) of this ‘‘Handling’’ regulations (i.e. sections .300 section. This exemption shall not apply through .399), which are in effect for a year to any part of a shipment which ex- or less, will not be carried in the Code of ceeds 19 hundredweight. Federal Regulations. For FEDERAL REGISTER (j) Definitions. (1) The terms U.S. No. citations affecting these regulations, see the 1, U.S. Commercial, U.S. No. 2, Size B, List of CFR Sections Affected, which appears in the Finding Aids section of the printed moderately skinned and slightly skinned volume and at www.fdsys.gov. shall have the same meaning as when used in the United States Standards for PART 948—IRISH POTATOES Grades of Potatoes (7 CFR 51.1540– 51.1566) including the tolerances set GROWN IN COLORADO forth therein. Subpart—Order Regulating Handling (2) The term slightly dirty means potatoes that are not damaged by dirt. DEFINITIONS (3) The term prepeeling means the Sec. commercial preparation in a prepeeling 948.1 Secretary. plant of clean, sound, fresh potatoes by 948.2 Act. washing, peeling or otherwise removing 948.3 Person. the outer skin, trimming, sorting, and 948.4 Area. 948.5 Potatoes. properly treating to prevent discolora- 948.6 Seed potatoes. tion preparatory to sale in one or more 948.7 Handler. of the styles of peeled potatoes de- 948.8 Handle or ship. scribed in § 52.2422, United States 948.9 Producer.

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948.10 Fiscal period. 948.89 Derogation. 948.11 Grade, size and maturity. 948.90 Personal liability. 948.12 Varieties. 948.91 Separability. 948.13 Pack. 948.92 Amendments. 948.14 Container. 948.15 Culls. Subpart—Rules and Regulations 948.16 Committee. 948.17 Export. GENERAL 948.100 Order. REGULATION 948.101 Terms. 948.20 Marketing policy. 948.102 Communications. 948.21 Recommendations for regulations. 948.103 Fiscal period. 948.22 Issuance of regulations. 948.104 Term of office. 948.23 Handling for special purposes. 948.24 Safeguards. SAFEGUARDS

EXEMPTIONS 948.120 General. 948.121 Qualification. 948.28 Policy. 948.122 Application. 948.29 Procedure. 948.123 Approval. 948.30 Granting exemptions. 948.124 Reports. 948.31 Investigation. 948.125 Disqualification. 948.32 Appeal. 948.126 General cull regulation.

RESEARCH AND DEVELOPMENT EXEMPTIONS 948.35 Research and development. 948.130 Application for exemption certificates. INSPECTION 948.131 Federal-State inspection reports. 948.40 Inspection and certification. 948.132 Issuance of exemption certificates.

COMMITTEES MODIFICATION OF INSPECTION REQUIREMENTS 948.50 Area committees. 948.140 Application. 948.51 Colorado Potato Committee. 948.141 Issuance. 948.52 Alternates. 948.142 Reports. 948.53 Reestablishment. 948.143 Cancellation. 948.54 Eligibility. 948.150 Reestablishment of committee mem- 948.55 Term of office. bership. 948.56 Nomination and selection. 948.151 Colorado Potato Committee mem- 948.57 Failure to nominate. bership. 948.58 Vacancies. 948.153 Reestablishment of area. 948.59 Qualification. 948.60 Compensation and expenses. Subpart—Accounting and Collections 948.61 Procedure. 948.62 Powers. 948.200 Accounting and collections. 948.63 Duties. 948.215 Assessment rate. 948.216 Assessment rate. EXPENSES AND ASSESSMENTS Subpart—Handling Regulations 948.75 Expenses. 948.76 Budget. 948.386 Handling regulation. 948.77 Assessments. 948.387 Handling regulation. 948.78 Accounting. AUTHORITY: 7 U.S.C. 601–674. REPORTS 948.80 Reports. Subpart—Order Regulating Handling COMPLIANCE 948.81 Compliance. SOURCE: 25 FR 7092, July 27, 1960, unless MISCELLANEOUS PROVISIONS otherwise noted. Redesignated at 26 FR 12751, Dec. 30, 1961. 948.82 Right of the Secretary. 948.83 Effective time. DEFINITIONS 948.84 Termination. 948.85 Proceedings after termination. § 948.1 Secretary. 948.86 Effect of termination or amendment. 948.87 Duration of immunities. Secretary means the Secretary of Ag- 948.88 Agents. riculture of the United States, or any

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officer or employee of the Department § 948.7 Handler. of Agriculture to whom authority has Handler is synonymous with shipper heretofore been delegated, or to whom and means any person, except a com- authority hereafter may be delegated, mon or contract carrier of potatoes to act in his stead. owned by another person, who handles § 948.2 Act. potatoes. Act means Public Act No. 10 73d Con- § 948.8 Handle or ship. gress, as amended and as reenacted and amended by the Agricultural Mar- Handle or ship means to transport, keting Agreement Act of 1937, as sell, or in any way to place potatoes in amended (sections 1–19, 48 Stat. 31, as the current of the commerce between amended; 7 U.S.C. 601–674). the State of Colorado and any point outside thereof. § 948.3 Person. § 948.9 Producer. Person means an individual, partnership, corporation, association, legal Producer means any person engaged representative, or any organized group in the production of potatoes for mar- or business unit of individuals. ket.

§ 948.4 Area. § 948.10 Fiscal period. Area means any of the subdivisions of Fiscal period means the period begin- the State of Colorado as set forth in ning and ending on the dates approved this section or as reestablished pursu- by the Secretary pursuant to rec- ant to § 948.53. ommendations by an area committee. (a) Area No. 1, commonly known as § 948.11 Grade, size and maturity. the Western Slope, includes and consists of the counties of Routt, Eagle, Grade, means any of the officially es- Pitkin, Gunnison, Hinsdale, La Plata, tablished grades of potatoes, Size in the State of Colorado, and all coun- means any of the officially established ties in said State west of the aforesaid sizes of potatoes, and Maturity means counties. any of the stages of development or (b) Area No. 2, commonly known as condition of the outer skin (epidermis) the San Luis Valley, includes and con- of potatoes, as defined in the United sists of the counties of Saguache, States Standards for Potatoes issued Huerfano, Las Animas, Mineral, by the United States Department of Archuleta, in the State of Colorado, Agriculture (§§ 51.1540 to 51.1556, inclu- and all counties in said State, south of sive of this title) or Colorado grades es- the counties enumerated in this defini- tablished by the Commissioner, or tion of Area No. 2. amendments thereto, or modifications (c) Area No. 3 includes and consists of thereof, or variations based on any of all the remaining counties in the State the foregoing. of Colorado which are not included in Area No. 1 or Area No. 2. § 948.12 Varieties. Varieties means all classifications or § 948.5 Potatoes. subdivisions of Irish potatoes according Potatoes means and includes all vari- to those definitive characteristics now eties of Irish potatoes grown within or hereafter recognized by the United any of the aforesaid areas. States Department of Agriculture.

§ 948.6 Seed potatoes. § 948.13 Pack. Seed potatoes or seed means any pota- Pack means a quantity of potatoes in toes which have been certified by the any type of container, which falls with- official seed certification agency of the in specific weight limits, numerical State of Colorado and bear the official limits, grade limits, or any combina- tags, seals, or other appropriate identi- tion of these recommended by the com- fication indicating such certification. mittee and approved by the Secretary.

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§ 948.14 Container. committee shall publicly announce the Container means a sack, bag, crate, submission of each such marketing pol- box, basket, barrel, or bulk load or any icy report and copies thereof shall be other receptacle used in the packaging, available at the committee’s office for transportation, or sale of potatoes. inspection by any producer or any handler. In determining each such mar- § 948.15 Culls. keting policy the committee shall give due consideration to the following: Culls means potatoes which do not (1) Supply of potatoes by grade, size, meet the requirements set forth in quality, and maturity in the respective § 948.20. area, in the production area, and in § 948.16 Committee. other areas; (2) Market prices for fresh potatoes, Committee means any of the area com- including grower, shipping point, and mittees established pursuant to § 948.50 terminal market prices by grade, size, or the Colorado Potato Committee es- and quality in different packs or in dif- tablished pursuant to § 948.51. ferent containers; § 948.17 Export. (3) Market prices for potatoes in other outlets, including growers’ and Export means the shipment of pota- other market price levels by grade, toes to any destination which is not size, and quality; within the 48 contiguous States, or the (4) The trend and level of consumer District of Columbia, of the United income; States. (5) Establishing and maintaining REGULATION such orderly marketing conditions for potatoes as will be in the public inter- § 948.20 Marketing policy. est; and (a) General cull regulation. (1) It shall (6) Other relevant factors. be the marketing policy for the produc- § 948.21 Recommendations for regulation area to maintain a general cull tions. regulation in effect prohibiting the handling of potatoes for fresh market, An area committee upon complying except as otherwise provided in this with the requirements of § 948.20 may subpart, which do not meet the re- recommend regulations, or modifica- quirements of the U.S. No. 2, or better, tions, suspension or termination thereof, to the Secretary whenever it finds grade, 11⁄2 inches minimum diameter and larger. that such regulations as provided for in (2) Upon recommendation of the Col- this subpart will tend to effectuate the orado Potato Committee, or on other declared policies of the act. available information, the general cull regulation may be suspended or modi- § 948.22 Issuance of regulations. fied by the Secretary during a specified (a) The Secretary shall limit by regu- period with respect to any or all vari- lation the handling of potatoes when- eties of potatoes. ever he finds from recommendations (b) Area marketing policies. Each sea- and information submitted by an area son prior to or at the same time as ini- committee, or from other available in- tial recommendations are made pursu- formation, that such regulation would ant to § 948.21, each area committee tend to effectuate the declared policy shall submit to the Secretary a report of the act. Such regulation may: setting forth the marketing policy it (1) Limit the handling of particular deems desirable for the industry to fol- grades, sizes, qualities, or maturities of low in handling the respective area’s any or all varieties of potatoes, or any potatoes during the ensuing season. combination of the foregoing during Additional reports shall be submitted any period. from time to time if it is deemed advis- (2) Limit the handling of particular able by an area committee to adopt a grades, sizes, qualities, or maturities of new marketing policy because of potatoes differently, for different vari- changes in the demand and supply situ- eties, for different containers, for dif- ation with respect to potatoes. The ferent packs, for different portions of

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the production area, for different pur- (f) Manufacture or conversion into poses under § 948.23, or for any com- specified products; bination of the foregoing, during any (g) Other purposes recommended by period. the committees and approved by the (3) Provide a method through rules Secretary. and regulations issued pursuant to this subpart for fixing the size, capacity, § 948.24 Safeguards. weight, dimensions, or pack of the con- (a) Each area committee, with the tainer, or containers, which may be approval of the Secretary, shall pre- used in the packaging or handling of scribe adequate safeguards for potatoes potatoes, or both. handled pursuant to § 948.23 from enter- (4) Establish in terms of grades, sizes, ing trade channels other than those au- or both, minimum standards of quality thorized by regulations and by such and maturity. rules as may be necessary and inci- (b) Any regulation issued hereunder dental thereto. may be amended, modified, suspended, (b) Such safeguards may include re- or terminated by the Secretary on rec- quirements that handlers or processors ommendations by an area committee, desiring to handle potatoes pursuant to or on other available information, to § 948.23 shall: provide for (1) Apply for and obtain Certificates (1) Such changes in regulations found of Privilege from the area committee necessary by changes in supplies, de- for handling potatoes affected or to be mand, or prices; affected under the provisions of § 948.23; (2) Minimum quantities which should (2) Obtain inspection as required by be relieved of regulatory or adminis- § 948.40, or pay the assessment levied trative obligations; or pursuant to § 948.77, or both, except as (3) Relief from regulations no longer modified pursuant to § 948.23 in connec- tending to effectuate the declared poli- tion with shipments made under any cies of the Act. such certificate; and (c) The Secretary shall notify each (3) Furnish the committee such infor- committee of each regulation rec- mation, and execute or obtain execu- ommended by it and issued pursuant to tion of such documents, as the com- this section. The respective committee mittee may require. shall give reasonable notice thereof to (c) An area committee may rescind handlers. No regulation, except when or deny to any handler permission to relieving limitations, shall become ef- handle potatoes pursuant to § 948.23 of fective less than two days after this subpart if proof satisfactory to the issuance thereof. committee is obtained that potatoes handled by him for a purpose stated in § 948.23 Handling for special purposes. § 948.23 were handled contrary to the Upon the basis of recommendations provisions of this subpart. and information submitted by an area (d) The committee shall make re- committee, or other available informa- ports to the Secretary, as requested, tion, the Secretary, whenever he finds showing the number of applications for that it will tend to effectuate the de- such certificates, the quantity of pota- clared purposes of the Act, shall mod- toes covered by such applications, the ify, suspend, or terminate require- number of such applications denied and ments in effect pursuant to §§ 948.20 to certificates granted, the quantity of 948.22, inclusive, or §§ 948.40 or 948.77, or potatoes handled under duly issued cer- any combination thereof, to facilitate tificates, and such other information handling of potatoes for as may be requested. (a) Relief or charity; (b) Livestock feed; EXEMPTIONS (c) Export; (d) Seed; § 948.28 Policy. (e) Potatoes, other than certified Any producer whose potatoes have seed, sold to a producer exclusively for been adversely affected by acts beyond planting within specific geographic the control or reasonable expectation limits; of a prudent grower and who, by reason

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of any regulation issued pursuant to § 948.31 Investigation. this part, is or will be prevented from An area committee shall be per- shipping or having shipped during the mitted at any time to make a thorough then current marketing season, or a investigation of any applicant’s claim specific portion thereof, as large a pro- pertaining to exemptions. portion of his potato crop as the average proportion shipped or to be shipped § 948.32 Appeal. during comparable portions of the season by all producers in his immediate If any applicant for exemption cer- area of production, may apply to the tificates is dissatisfied with the deter- committee for exemptions from such mination by an area committee with regulations for the purpose of obtain- respect to his application, he may file ing equitable treatment under such an appeal with the committee. Any ap- regulations. plicant filing an appeal shall furnish evidence satisfactory to the committee § 948.29 Procedure. for a determination on the appeal.

Rules and procedures for granting ex- RESEARCH AND DEVELOPMENT emptions may be issued by the Sec- retary, upon recommendation of area § 948.35 Research and development. committees. Such rules and procedures The committee, with the approval of may provide for methods of determina- the Secretary, may provide for the es- tions by area committees of average tablishment of marketing research and proportions of crops shipped or being development projects designed to as- shipped in respective areas or subdivi- sist, improve, or promote the mar- sions thereof during any or all portions keting, distribution, and consumption of a season, for processing applications of potatoes and may make available for exemption, for issuing or denying committee information and data to certificates of exemption, for adminis- any person, or to any employee of an trative compliance with certificates agency or its agent, authorized by the issued, for reports by handlers thereon, committee as its agent with the ap- and for such other procedures as may proval of the Secretary, to conduct be necessary to administration hereof. such projects.

§ 948.30 Granting exemptions. INSPECTION An area committee may issue certificates of exemption to any qualified ap- § 948.40 Inspection and certification. plicant who furnishes adequate evi- (a) During any period in which the dence to such committee: handling of potatoes is regulated pur- (a) That the grade, size, or quality of suant to § 948.20 through § 948.24, inclu- the applicant’s potatoes have been ad- sive, no handler shall handle potatoes versely affected by acts beyond his con- unless such potatoes are inspected by trol or reasonable expectations; an authorized representative of the (b) That by reason of regulations Federal or a Federal-State Inspection issued pursuant to § 948.20 or § 948.22, Service and are covered by a valid in- the applicant will be prevented as a spection certificate, except when re- producer from shipping or having lieved of such requirements by shipped as large a proportion of his § 948.22(b), § 948.23, or § 948.40(b). production as the average proportion of (b) Rules may be issued by the Sec- production shipped by all producers in retary, upon recommendation of the said applicant’s immediate area of pro- Colorado Potato Committee requiring duction during the season, or a specific inspection on regraded, resorted or re- portion thereof. packed lots, or providing for special in- (c) Each such certificate issued shall spection requirements or relief there- permit the person identified therein to from. Such rules may provide distinc- ship or have shipped the potatoes de- tions, insofar as practical, between scribed thereon, and evidence of such handling at shipping point and han- certificates shall be made available to dling in receiving markets within the subsequent handlers thereof. production area.

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(c) Upon recommendation of an area (b) Area No. 2 (San Luis Valley): committee and approval by the Sec- Seven producers and five handlers se- retary, any or all potatoes so inspected lected as follows: and certified shall be identified by appropriate seals, stamps, or tags to be Three (3) producers from Rio Grande County; affixed to the containers by the han- One (1) producer from Saguache County; dler under the direction and super- One (1) producer from Conejos County; vision of a Federal or Federal-State In- One (1) producer from Alamosa County; spector or the committee. Master con- One (1) producer from all other counties in Area No. 2; tainers may bear the identification in- Two (2) handlers representing all producers’ stead of the individual containers with- cooperative marketing associations in in said master container. Area No. 2; (d) Insofar as the requirements of Three (3) handlers representing handlers in this section are concerned, the length Area No. 2 other than producers’ coopera- of time for which an inspection certifi- tive marketing associations. cate is valid may be established by the committee with the approval of the (c) Area No. 3: Five Producers and Secretary. four handlers selected as follows: (e) When potatoes are inspected in Three (3) producers from Weld County; accordance with the requirements of One (1) producer from Morgan County; this section, a copy of each inspection One (1) producer from the remaining coun- certificate issued shall be made avail- ties of Area No. 3; able to the committee by the inspec- Four (4) handlers from Area No. 3. tion service. (f) Area committees with the ap- EFFECTIVE DATE NOTE: At 57 FR 61774, Dec. 29, 1992, in § 948.50, paragraph (a) was sus- proval of the Colorado Potato Com- pended indefinitely. mittee may recommend and the Sec- retary may require that no handler § 948.51 Colorado Potato Committee. shall transport or cause the transportation of potatoes by motor vehicle or The Colorado Potato Committee is by other means unless such shipment is hereby established consisting of six accompanied by a copy of the inspec- members, with alternates. Two mem- tion certificate issued thereon, or other bers and alternates shall be selected document authorized by the committee from each area committee. Committee- to indicate that such inspection has men shall be selected by the Secretary been performed. Such certificate or from nominations of area committee document shall be surrendered to such members or alternates. authority as may be designated. EFFECTIVE DATE NOTE: At 57 FR 61774, Dec. 29, 1992, § 948.51 was amended by suspending COMMITTEES indefinitely the second sentence.

§ 948.50 Area committees. § 948.52 Alternates. A committee is hereby established as (a) For each committee member an administrative agency for each there shall be an alternate who shall area. Each area committee shall be have the same qualifications. During a comprised of members and alternates member’s absence, or when called upon as set forth in this section or as rees- to do so in accordance with the terms tablished by § 948.53. hereof, or in the event of a member’s (a) Area No. 1 (Western Slope): Four death, removal, resignation, or dis- producers and three handlers selected qualification, an alternate shall act in as follows: his place and stead until the member’s Two (2) producers and one (1) handler from successor is selected and has qualified. the counties of Eagle, Garfield, Pitkin, (b) Area committees, with the Sec- Moffat, and Routt, in the State of Colo- retary’s approval, may provide through rado; rules for members or for alternates to Two (2) producers and one (1) handler from the remaining counties of Area No. 1; recommend regulations for early crop One (1) handler representing all producers’ potatoes or for late crop potatoes and cooperative marketing associations in to specify the particular crop for which Area No. 1. each group shall be responsible.

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§ 948.53 Reestablishment. days prior to the expiration date of respective terms of office, meetings of Areas, subdivisions of areas, the dis- producers and handlers for each sub- tribution of representation among the division in which terms expire or in subdivision of areas, or among mar- which vacancies otherwise occur. keting organizations within respective (b) At each such meeting one or more areas may be reestablished by the Sec- nominees shall be designated for each retary upon area committee rec- impending vacancy as member or alter- ommendations. Upon approval therefor nate. Such designation may be by bal- of respective committees affected lot or by motion at the option of those thereby, areas may be reestablished. In present in voting capacity. recommending any such changes, the (c) Only producers may participate in committee shall consider (a) the rel- designating producer nominees; only ative importance of new producing sec- handlers may participate in desig- tions, (b) relative production, (c) nating handler nominees; and only changes in marketing organizations duly authorized representatives of pro- and their relative status in the indus- ducers’ cooperative marketing associa- try, (d) the geographic locations of pro- tions may participate in designating ducing sections as they would affect nominees to represent such associa- the efficiency of administration of this tions. If no separate representation is part, and (e) other relevant factors. provided for producers’ cooperative § 948.54 Eligibility. marketing associations, duly authorized representatives of such associa- Area committee members and alter- tions may participate in designating nates shall be individuals who shall be handler nominees. residents of, and producers or handlers, (d) Each producers’ cooperative mar- as the case may be, in the respective keting association shall be entitled to area. Also, each member or alternate cast only one vote in designating nomi- to qualify as a representative (a) for nees to represent such associations. producers shall be a producer, or an of- Each producer and each handler shall ficer or employee of a producer; (b) for be entitled to cast only one vote on be- producer’s cooperative marketing asso- half of himself, his agents, subsidiaries, ciations shall be members or employ- affiliates, and representatives. ees of such associations; or (c) for han- (e) If a producer, handler, or pro- dlers other than cooperative marketing ducers’ cooperative marketing associa- associations shall be a handler, or an tion is engaged in producing or han- officer or employee of a handler. dling potatoes in more than one area, or in more than one subdivision of an § 948.55 Term of office. area, such producer, handler, or pro- The term of office of each area com- ducers’ cooperative marketing associa- mittee member and alternate shall be tion shall elect the area or subdivision for two years. The term of office for in which he may participate in desig- Colorado Potato Committee members nating nominees. In no event shall and alternates shall be for one year. there be participation in more than one The dates on which terms of office for area or subdivision. each committee shall begin and end shall be established by the Secretary § 948.57 Failure to nominate. pursuant to respective committee rec- If nominations are not made pursu- ommendation. Terms of office of area ant to the provisions of § 948.56 by the committee members shall be arranged date provided therein, the Secretary so that approximately one-half shall may, without regard to nominations, terminate each year. Determination of select members and alternates on the which initial members and alternates basis of the representation provided for shall serve for one year or two years in this part. shall be by lot. § 948.58 Vacancies. § 948.56 Nomination and selection. To fill any vacancy occasioned by the (a) Each area committee shall hold failure of any person selected as a or cause to be held, not less than 15 member or as an alternate to qualify,

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or in the event of the death, removal, § 948.62 Powers. resignation, or disqualification of a Each committee shall have the fol- member or alternate, a successor for his unexpired term may be selected by lowing powers: the Secretary from nominations made (a) To administer the provisions of pursuant to § 948.56, from previously this subpart as specified herein; unselected nominees on the current (b) To make rules and regulations to nominee list, or from other eligible effectuate the terms and provisions of persons. this subpart; (c) To receive, investigate, and report § 948.59 Qualification. to the Secretary complaints of viola- Each person selected as a member or tion of the provisions of this part; and as an alternate shall qualify by (d) To recommend to the Secretary promptly filing a written acceptance amendments to this part. with the Secretary. § 948.63 Duties. § 948.60 Compensation and expenses. (a) Each committee shall: (a) Members of each area committee (1) Meet and organize as soon as prac- and their alternates shall serve with- tical after the beginning of each term out salary, but may be compensated at of office, select a chairman and such a rate not in excess of $10 per day while other officers’ as may be necessary, se- engaged on committee business, and lect subcommittees and adopt such may be reimbursed for necessary ex- rules and procedures for the conduct of penses actually incurred while so en- its business as it may deem advisable; gaged. At the discretion of an area (2) Act as intermediary between the committee, alternates may be re- Secretary and any producer or handler; quested to attend any or all committee meetings and receive compensation (3) Appoint such employees, agents and expenses therefor regardless of at- and representatives as it may deem tendance by the respective members. necessary and determine the salaries (b) The compensation and expenses of and define the duties of each; members and alternates of the Colo- (4) Keep minutes, books, and records rado Potato Committee shall be paid which clearly reflect all its acts and by the respective area committee they transactions. Such minutes, books and represent. records shall be subject to examination (c) Such other expenses as may be in- at any time by the Secretary; curred by the Colorado Potato Com- (5) Furnish promptly notices of meet- mittee pursuant to a budget of ex- ings, copies of the minutes of each penses approved by the Secretary shall committee meeting, and such other re- be allotted to, and paid by, one or more ports or information as may be re- of the area committees, as may be quested by the Secretary, including an- specified in an order issued by the Sec- nual reports of each area committee’s retary pursuant to the provisions of operations for the preceding marketing this subpart. season or fiscal period; (6) Make available to producers, and § 948.61 Procedure. to other area committees and the Colo- (a) A majority of all members of a rado Potato Committee the commit- committee shall be necessary to con- tee’s voting record on recommended stitute a quorum or to pass and motion regulations and other matters of pol- or approve any committee action. icy; (b) Each committee may provide for (7) Meet jointly with other area com- the members thereof, including the al- mittees when requested to do so by the ternate members when acting as mem- Colorado Potato Committee; bers, to vote by mail, telegraph, tele- (8) Consult, cooperate, and exchange phone, or other means of communica- information with other area commit- tion, provided that any such vote cast tees, with other marketing agreement orally shall be confirmed promptly in committees and other agencies or indi- writing. If any assembled meeting is viduals in connection with proper com- held all votes shall be cast in person. mittee activities and objectives;

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(9) Take any proper action necessary budget of income and expenditures nec- to carry out the provisions of this sub- essary for its administration of this part; and part. Each area committee may rec- (10) Cause the books of the com- ommend a rate of assessment cal- mittee to be audited by a competent culated to provide adequate funds to accountant at least once each fiscal pe- defray its proposed expenditures. Each riod. area committee shall present such (b) The Colorado Potato Committee budget to the Secretary with an ac- shall also: companying report showing the basis (1) Supervise the regulation of ship- for its calculations. ments pursuant to the provisions of the general cull regulation in the absence § 948.77 Assessments. of more restrictive regulations, and shall cooperate with any area com- (a) The funds to cover each area committee in administering any regulation mittee’s expenses shall be acquired by issued pursuant to this subpart; the levying of assessments upon han- (2) Make recommendations to the dlers as provided in this subpart. Each Secretary with respect to suspending handler who first handles potatoes or modifying the provisions of the gen- under this part, shall pay assessments eral cull regulation; to his respective area committee upon (3) Make available to area commit- demand, which assessments shall be in tees its voting record on recommenda- payment of such handler’s pro rata tions for modification of the cull regu- share of the area committee’s expenses. lation and other matters of policy; (b) Assessments shall be levied upon (4) Submit to each area committee handlers at rates established by the such available information as may be Secretary. Such rates may be estab- requested; and lished upon the basis of each area com- (5) Call joint meetings of area committee’s budget, recommendations, and mittees on matters requiring consider- other available information. Such ation of statewide marketing policies rates may be applied to specified con- when requested to do so by an area tainers used in the production area. committee. (c) At any time during, or subsequent to, a given fiscal period each area com- EXPENSES AND ASSESSMENTS mittee may recommend the approval of § 948.75 Expenses. an amended budget and an increase in the rate of assessment. Upon the basis Each area committee is authorized to of such recommendations, or other incur such expenses as the Secretary available information, the Secretary may find are reasonable and likely to be incurred during each fiscal period may approve an amended budget and for its maintenance and functioning, increase the rate of assessment. Such and for purposes determined to be ap- increase shall be applicable to all pota- propriate for administration of this toes grown within the particular area part. Handlers shall share expenses where an area committee recommends upon the basis of a fiscal period. Each such increase and which were handled handler’s share of such expenses shall by the first handler thereof during such be proportionate to the ratio between fiscal period. the total quantity of potatoes handled (d) The payment of assessments for by him as the first handler thereof dur- the maintenance and functioning of ing a fiscal period and the total quan- each area committee may be required tity of potatoes handled by all handlers under this part throughout the period as first handlers thereof during such it is in effect irrespective to whether fiscal period. particular provisions thereof are suspended or become inoperative. § 948.76 Budget. (e) In order to provide funds to enable As soon as practicable after the be- each area committee to perform its ginning of each fiscal period and as functions under this part, handlers may be necessary thereafter, each area may make advance payment of assess- committee shall prepare an estimated ments.

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§ 948.78 Accounting. one or more of the members thereof, or (a) If, at the end of a fiscal period, any other person, to act as a trustee the assessments collected are in excess for holding records, funds, or any other of expenses incurred, such excess shall committee property during periods of be accounted for in accordance with suspension of this subpart, or during one of the following: any period or periods when regulations (1) If such excess is not retained in a are not in effect and if the Secretary reserve, as provided in paragraph (a)(2) determines such action appropriate, he of this section, it shall be refunded pro- may direct that such person or persons portionately to the persons from whom shall act as trustee or trustees for such it was collected. committee. (2) An area committee, with the approval of the Secretary, may carry REPORTS over such excess into subsequent fiscal periods as a reserve: Provided, That § 948.80 Reports. funds already in the reserve are less Upon request of an area committee than approximately two fiscal period’s or of the Colorado Potato Committee expenses. Such reserve funds may be through an area committee, each han- used (i) to defray expenses, during any dler within the respective area of such fiscal period, prior to the time assess- area committee shall furnish to the ment income is sufficient to cover such area committee in such manner and at expenses; (ii) to cover deficits incurred such time as it may prescribe, reports during any fiscal period when assess- and other information as may be nec- ment income is less than expenses; (iii) essary for the committee to perform its to defray expenses incurred during any duties under this part. period when any or all provisions of (a) Such reports may include, but are this subpart are suspended or are inop- not necessarily limited to the fol- erative; (iv) to cover necessary ex- lowing examples: penses of liquidation in the event of (1) The quantities of potatoes re- termination of this subpart. Upon such ceived by a handler during any or all termination, any funds not required to periods of a season; defray the necessary expenses of liquidation shall be disposed of in such (2) The quantities disposed of by him, manner as the Secretary may deter- segregated as to quantities subject to mine to be appropriate. To the extent regulation, and where necessary seg- practical, such funds shall be returned regated as to types of outlets and spe- pro rata to the persons from whom cial or modified regulations applicable such funds were collected. to alternative outlets, and including (b) All funds received by an area com- quantities not subject to grade, inspec- mittee pursuant to the provisions of tion, assessment, or other similar regu- this part shall be used solely for the lations; purposes specified herein. The Sec- (3) The date of each such disposition retary may at any time require an area and the identification of the carrier committee and its members to account transporting such potatoes; for all receipts and disbursements. (4) Information essential to identi- (c) Upon the removal or expiration of fication of any or all specific quan- the term of office of any member of an tities, lots, and disposition of potatoes area committee, such member shall ac- handled under §§ 948.23 to 948.30, inclu- count for all receipts and disburse- sive, which may include identification ments and deliver all property and of inspection certificates, exemption funds in his possession to such com- certificates, certificates of privilege, or mittee, and shall execute such assign- other appropriate identification, in- ments and other instruments as may cluding the destination of each special be necessary or appropriate to vest in shipment, where necessary. such committee full title to all of the (b) All such reports shall be held property funds and claims vested in under appropriate protective classifica- such member pursuant to this part. tion and custody by the committee, or (d) Each area committee may make duly appointed employees thereof, so recommendations to the Secretary for that the information contained therein

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which may adversely affect the com- § 948.84 Termination. petitive position of any handler in rela- (a) The Secretary may at any time tion to other handlers will not be dis- terminate any or all provisions of this closed. Compilations of general reports subpart by giving at least one day’s no- from data submitted by handlers is au- tice by means of a press release or in thorized, subject to prohibition of dis- any other manner which he may deter- closure of individual handlers’ identi- mine. ties or operations. (b) The Secretary may at any time (c) Each handler shall maintain for terminate or suspend the operations of at least two succeeding years such any or all of the provisions of this sub- records of the potatoes received and part whenever he finds that such provi- disposed of by such handler as may be sions do not tend to effectuate the de- necessary to verify the reports he sub- clared policy of the Act. mits to the committee pursuant to this section. (c) The Secretary shall terminate the provisions of this subpart at the end of COMPLIANCE any fiscal period whenever he finds that such termination is favored by a § 948.81 Compliance. majority of producers, who during a Except as provided in this subpart, representative period, as determined by no handler shall handle potatoes, the the Secretary have been engaged in the handling of which has been prohibited production of potatoes for market: Pro- by the Secretary in accordance with vided, That such majority has, during provisions of this subpart, and no han- such representative period, produced dler shall handle potatoes except in for market more than fifty percent of conformity to the provisions of this the volume of such potatoes produced subpart. for market. (d) The provisions of this subpart MISCELLANEOUS PROVISIONS shall in any event terminate whenever the provisions of the Act authorizing § 948.82 Right of the Secretary. them cease to be in effect. The members of each area committee [25 FR 7092, July 27, 1960, as amended at 26 (including successors and alternates) FR 11483, Dec. 5, 1961. Redesignated at 26 FR and any agent or employee appointed 12751, Dec. 30, 1961] or employed by any committee shall be subject to removal or suspension by § 948.85 Proceedings after termination. the Secretary at any time. Each and (a) Upon the termination of the pro- every order, regulation, decision, deter- visions of this subpart the then func- mination or other act of each com- tioning members of each area committee shall be subject to the con- mittee shall continue as joint trustees tinuing right of the Secretary to dis- for the purpose of liquidating the af- approve of the same at any time. Upon fairs of their respective area com- such disapproval, the disapproved ac- mittee of all funds and property then tion of the said committee shall be in the possession of or under control of deemed null and void, except as to acts the committee, including claims for done in reliance thereon or in compli- any funds unpaid or property not deliv- ance therewith prior to such dis- ered at the time of such termination. approval by the Secretary. Action by said trusteeship shall require the concurrence of a majority of the § 948.83 Effective time. said trustees. The provisions of this subpart or any (b) The said trustees shall continue amendments thereto shall become ef- in such capacity until discharged by fective at such time as the Secretary the Secretary; shall from time to time may declare and shall continue in force account for all receipts and disburse- until terminated in one of the ways ments and deliver all property on hand, specified in this subpart. together with all books and records of [25 FR 7092, July 27, 1960, as amended at 26 said committees and of the trustees, to FR 11483, Dec. 5, 1961. Redesignated at 26 FR such person as the Secretary may di- 12751, Dec. 30, 1961] rect; and shall upon the request of the

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Secretary, execute such assignments or such powers, to act in the premises other instruments necessary or appro- whenever such action is deemed advis- priate to vest in such person full title able. and right to all of the funds, property, and claims vested in said committee or § 948.90 Personal liability. the trustees pursuant to this subpart. No member or alternate of any com- (c) Any person to whom funds, prop- mittee or any employee or agent there- erty, or claims have been transferred of, shall be held personally responsible, or delivered by an area committee or either individually or jointly with oth- its members pursuant to this section ers, in any way whatsoever, to any shall be subject to the same obligations handler or to any person for errors in imposed upon the members of such judgment, mistakes, or other acts, ei- committees and upon the said trustees. ther of commission or omission, as such member, alternate, agent, or em- § 948.86 Effect of termination or amendment. ployee, except for acts of dishonesty, willful misconduct or gross negligence. Unless otherwise expressly provided by the Secretary, the termination of § 948.91 Separability. this subpart or of any regulation issued pursuant to this subpart or the If any provision of this subpart is de- issuance of any amendments to either clared invalid or the applicability thereof, shall not (a) effect or waive thereof to any person, circumstance or any right, duty, obligation, or liability thing is held invalid, the validity of the which shall have arisen or which may remainder of this subpart, or the appli- thereafter arise in connection with any cability thereof to any other person, provision of this subpart or any regula- circumstance or thing shall not be af- tion issued under this subpart; or (b) fected thereby. release or extinguish any violation of § 948.92 Amendments. this subpart or of any regulations issued under this subpart; or (c) affect Amendments to this subpart may be or impair any rights or remedies of the proposed from time to time by a com- Secretary or of any other person with mittee or by the Secretary. respect to any such violations. Subpart—Rules and Regulations § 948.87 Duration of immunities. The benefits, privileges and immuni- GENERAL ties conferred upon any person by virtue of this subpart shall cease upon the SOURCE: 26 FR 5219, June 10, 1961, unless termination of this subpart, except otherwise noted. Redesignated at 26 FR 12751, with respect to acts done under and Dec. 30, 1961. during the existence of this subpart. § 948.100 Order. § 948.88 Agents. Order means §§ 948.1 to 948.92 (Order The Secretary may, by designation in No. 948 as amended) regulating the writing, name any person, including handling of Irish potatoes grown in the any officer or employee of the United State of Colorado. States or name any agency in the United States Department of Agri- § 948.101 Terms. culture, to act as his agent or rep- The terms used in this subpart shall resentative in connection with any of have the same meaning as when used in the provisions of this subpart. §§ 948.1 to 948.92.

§ 948.89 Derogation. § 948.102 Communications. Nothing contained in this subpart is, Unless otherwise provided in §§ 948.1 or shall be construed to be, in deroga- to 948.92, or by specific direction of an tion or in modification of the rights of area committee, all reports, applica- the Secretary or of the United States tions, submittals, requests and commu- to exercise any powers granted by the nications in connection with the order Act or otherwise, or in accordance with shall be addressed to the office of the

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committee for the area in which the shall include the requirements set potatoes involved are grown. forth below with respect to Certificates of Privilege. § 948.103 Fiscal period. Pursuant to § 948.10, the fiscal periods § 948.121 Qualification. for each area shall be as follows: Before handling potatoes for special (a) Area No. 1 and Area No. 3 shall purposes which do not meet regula- begin July 1 and end June 30, of the fol- tions issued under § 948.22 a handler lowing year, both dates inclusive; must qualify with the committee to (b) Area No. 2 shall begin September handle shipments for special purposes. 1 and end August 31, of the following To qualify he must (a) apply for and re- year, both dates inclusive. The 1986–87 ceive a Certificate of Privilege indi- fiscal period which began July 1, 1986, cating his intent to so handle potatoes; will be extended two months to August (b) agree to comply with reporting and 31, 1987. other requirements set forth in §§ 948.121 to 948.125, inclusive, with re- [52 FR 12515, Apr. 17, 1987] spect to such shipments; and (c) receive EFFECTIVE DATE NOTE: At 57 FR 61774, Dec. approval of the committee to so handle 29, 1992, in § 948.103, in paragraph (a), the potatoes. Such approval will be based words ‘‘Area No. 1 and’’ were suspended indefinitely. upon evidence furnished in his application for a Certificate of Privilege, and § 948.104 Term of office. other information available to the committee. (a) Pursuant to § 948.55, the two-year term of office for area committee mem- § 948.122 Application. bers and alternates shall be as follows: (1) Area No. 1 and Area No. 2 shall (a) Application for Certificate of begin June 1 and end May 31 of the sec- Privilege shall be made in person, by ond year following; telephone, or on forms furnished by the (2) Area No. 3 shall begin May 1 and committee. Each application may con- end April 30 of the second year fol- tain, but need not be limited to, the lowing. name and address of the handler; the (b) The one-year term of office of Col- quantity by grade, size, quality and va- orado Potato Committee members riety of the potatoes to be shipped; the shall begin as of June 1 of each year. mode of transportation; the consignee; the destination; the purpose for which [52 FR 12515, Apr. 17, 1987] the potatoes are to be used; a certifi- EFFECTIVE DATE NOTE: At 57 FR 61774, Dec. cation to the United States Depart- 29, 1992, in § 948.104, in paragraph (a)(1), the ment of Agriculture and to the com- words ‘‘Area No. 1 and’’ were suspended in- mittee as to the truthfulness of the indefinitely. formation shown thereon; and any SAFEGUARDS other appropriate information or documents deemed necessary by the com-

SOURCE: Sections 948.120 through 948.126 ap- mittee for the purposes stated in pear at 26 FR 10792, Nov. 18, 1961, unless oth- § 948.120. erwise noted. Redesignated at 26 FR 12751, (b) [Reserved] Dec. 30, 1961. § 948.123 Approval. § 948.120 General. The committee or its duly authorized Whenever shipments of potatoes for agents shall give prompt consideration special purposes under § 948.23 are re- to each application for a Certificate of lieved in whole or in part from grade Privilege. Approval of an application and size regulations issued under based upon a determination as to § 948.22 the committee shall require in- whether the information contained formation and evidence as to the man- therein and other information avail- ner, methods, and timing of such ship- able to the committee supports ap- ments as safeguards against the entry proval, shall be evidenced by the of any such potatoes into trade chan- issuance of a Certificate of Privilege to nels other than those for which in- the applicant. Each certificate shall tended. Such information and evidence cover a specified period, and specified

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qualities and quantities of potatoes to (d) Applicability to imports: Pursu- be sold or transported to the des- ant to section 608e–1 of the act and ignated consignee for the purposes de- § 980.1 Import Regulations; Irish potatoes clared. (part 980 of this chapter), in the absence of more restrictive regulations in § 948.124 Reports. effect for potatoes grown in Areas Nos. Each handler of potatoes shipping 2 and 3 in Colorado, this cull regulation under Certificates of Privilege shall shall be used in a basis for import regu- supply the committee with reports as lations for the red skinned, round type requested by the committee or its duly and for other round type potatoes, dur- authorized agents showing the name ing the periods specified and as des- and address of the shipper; the car or ignated in said § 980.1 of this chapter. truck identification; the loading point; [35 FR 11988, July 25, 1970] destination; consignee; the inspection certificate number when inspection is EXEMPTIONS required; and any other information deemed necessary by the committee. SOURCE: Sections 948.130 through 948.132 appear at 26 FR 10793, Nov. 18, 1961, unless oth- § 948.125 Disqualification. erwise noted. Redesignated at 26 FR 12751, Dec. 30, 1961. The committee from time to time may conduct surveys of handling of po- § 948.130 Application for exemption tatoes for special purposes requiring certificates. Certificates of Privilege to determine Any producer applying for exemption whether handlers are complying with from any grade and size regulation the requirements and regulations ap- issued under § 948.22 shall make appli- plicable to such certificates. Whenever cation to the respective area com- the committee finds that a handler or mittee for the area in which the appli- consignee is failing to comply with re- cant’s potatoes were grown or are quirements and regulations applicable stored, on forms to be furnished by the to handling of potatoes in special out- area committee. The application shall lets, and requiring such certificates, a include: Certificate or Certificates of Privilege (a) The name and address of the ap- issued such handler may be rescinded plicant; and further certificates denied. Such (b) The location, or locations, of the disqualification shall apply to, and not potatoes with respect to which exemp- exceed, a reasonable period of time as tion is requested; determined by the committee but in no (c) The total estimated quantity of event shall it extend beyond the end of potatoes (excluding culls) produced by the succeeding fiscal period. Any han- the applicant during the current sea- dler who has a certificate rescinded or son, stated in hundredweights, by vari- denied may appeal to the committee in eties, grades, and sizes; writing for reconsideration of his dis- (d) The estimated percentage of the qualification. applicant’s potato crop (excluding culls) which cannot be shipped because § 948.126 General cull regulation. of grade and size regulations then in ef- (a) No handler shall handle potatoes fect and the acts beyond his control or grown in the State of Colorado which reasonable expectation adversely af- do not meet the requirements of U.S. fecting his potatoes; No. 2 or better grade, or are less than (e) The quantity of potatoes of each 11⁄2 inches in diameter. variety (excluding culls) which has al- (b) This General Cull Regulation ready been sold or otherwise shipped shall remain in effect until suspended during the current season; or modified pursuant to § 948.20(a)(2). (f) The signature of the applicant and (c) The term U.S. No. 2 grade has the certification that the statements given same meaning as when used in the U.S. in the application are true and correct; Standards for Potatoes (§§ 51.1540 to and 51.1556 of this title), or amendments (g) Such additional information as thereto or modifications thereof. the area committee may find necessary

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in making a determination regarding (c) The committee may furnish each the granting of an exemption certifi- applicant receiving a certificate of ex- cate. emption with appropriate subcertifi- cates of exemption to identify each lot § 948.131 Federal-State inspection re- of exempted potatoes and a subcertifi- ports. cate shall be transferable with the lot Each application for exemption shall of potatoes to which it applies. Each be accompanied by a written report of applicant receiving a certificate of ex- a Federal-State Inspector, which shall emption shall report each shipment of contain the following: potatoes made under such certificate (a) A statement by the inspector that to the respective area committee he personally inspected the potatoes issuing the certificate. The report shall with respect to which exemption is re- state the name and address of the per- quested, and that he took a representa- son to whom the potatoes were sold, tive sample of such potatoes; the quantity sold, the date of transfer, (b) A statement of the percentage of and such other information as the com- the potatoes (excluding culls) which mittee may request. fail to meet the requirements of the MODIFICATION OF INSPECTION grade and size regulations then in ef- REQUIREMENTS fect; (c) A statement of the defects or § 948.140 Application. damage causing the potatoes to fail to Any handler whose packing facilities meet grade and size requirements then are located in an area where inspection in effect. is not readily available or the actual In the event that more than one vari- cost for inspection would otherwise ex- ety of potatoes is being regulated the ceed 11⁄3 times the current per hundred- above percentage shall be determined weight inspection fee, may apply to the separately for each variety of the ap- respective area committee for a waiver plicant’s potatoes. The cost of Federal- from the reinspection requirements. State inspection and report shall be Applications shall be made on forms borne by the applicant for exemption. furnished by the respective area committee and shall contain such informa- § 948.132 Issuance of exemption certifi- tion as the respective area committee, cates. with the approval of the Secretary, (a) The respective area committee re- may find necessary in making a deter- ceiving an application for exemption mination regarding the issuance of shall give prompt consideration there- such waiver. to and determine on the basis of the [55 FR 41181, Oct. 10, 1990] statements and facts therein contained and the factors set forth in § 948.30 § 948.141 Issuance. whether the application may be ap- Each respective area committee shall proved. The determination, if favor- give prompt consideration to each ap- able, shall be evidenced by the issuance plication for a waiver from reinspec- of a certificate of exemption pursuant tion. In granting a waiver, the handler to §§ 948.28 through 948.32. If the appli- shall agree to comply with all mar- cant’s request for exemption is denied, keting order requirements. Approval of he shall be so notified in writing. an application shall be evidenced by (b) Each certificate of exemption the issuance of an applicable waiver by issued as provided in this subpart, shall the respective area commitee to the contain the name and address of the handler. applicant, the location of his farm or ranch, the location, or locations, of all [55 FR 41181, Oct. 10, 1990] potatoes remaining to be shipped, the total quantity of potatoes which may § 948.142 Reports. be shipped under the certificate of ex- Each handler shipping potatoes pur- emption, and such other information as suant to a waiver from reinspection the area committee may deem desir- shall report periodically as specified by able. the respective area committee on

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forms furnished by the respective com- ternates shall be selected from nomina- mittee the following information one tions of Area 3 committee members or ach shipment: quantity of potatoes, va- alternates. riety or varieties, grade, size, type of container(s), date of shipment, carrier, [57 FR 61774, Dec. 29, 1992] destination, and name and address of § 948.153 Reestablishment of area. receiver. Pursuant to § 948.53, Area No. 2 is re- [55 FR 41181, Oct. 10, 1990] established as follows: § 948.143 Cancellation. Area No. 2 (San Luis Valley) includes and Whenever the respective area com- consists of the counties of Chaffee, mittee finds that shipments of potatoes Saguache, Huerfano, Las Animas, Mineral, pursuant to a reinspection waiver are Archuleta, Rio Grande, Conejos, Costilla, not in accordance with the established and Alamosa, in the State of Colorado. application and safeguard provisions, [60 FR 16566, Mar. 31, 1995] such waiver may be cancelled. [55 FR 41181, Oct. 10, 1990] Subpart—Accounting and Collections § 948.150 Reestablishment of committee membership. § 948.200 Accounting and collections. Pursuant to § 948.53, membership on (a) Each handler’s assessment ac- each area committee shall be reestablished as follows: count with Area No. 2 (San Luis Val- (a) Area No. 2 (San Luis Valley): Nine ley) Committee shall become due and producers and five handlers selected as payable upon presentation of a state- follows: ment thereof to such handler. (b) If settlement of such an assess- (1) Two (2) producers from Rio Grande Coun- ment account is not completed on or ty; (2) Two (2) producers from either Saguache before the 20th day following presen- County or Chaffee County; tation of a statement of such account, (3) One (1) producer from Conejos County; each handler failing to so complete set- (4) Two (2) producers from Alamosa County; tlement of his account may be declared (5) One (1) producer from all other counties delinquent by said area committee. in Area No. 2; (6) One (1) producer representing certified (c) The name of each person who is seed producers in Area No. 2; declared delinquent may be forwarded (7) Two (2) handlers representing bulk han- to the Secretary and, in addition, the dlers in Area No. 2; names of persons declared delinquent (8) Three (3) handlers representing handlers pursuant to paragraph (b) of this sec- in Area No. 2 other than bulk handlers. tion may be publicized by said area (b) Area No. 3: Three producers and committee. two handlers selected as follows: Three (d) Terms used in this section shall (3) producers and two (2) handlers from have the same meaning as when used in any county in Area No. 3. Marketing Agreement No. 97 and Order [52 FR 12515, Apr. 17, 1987, as amended at 58 No. 948 (§§ 948.1 to 948.92). FR 8541, Feb. 16, 1993; 60 FR 16566, Mar. 31, 1995; 67 FR 68021, Nov. 8, 2002; 68 FR 40119, [19 FR 8647, Dec. 17, 1954. Redesignated at 26 July 7, 2003] FR 12751, Dec. 30, 1961]

§ 948.151 Colorado Potato Committee § 948.215 Assessment rate. membership. On or after July 1, 2005, an assess- The Colorado Potato Committee ment rate of $0.02 per hundredweight is shall be comprised of six members and established for Colorado Area No. 3 po- alternates selected by the Secretary. tatoes. Three members and three alternates shall be selected from nominations of [70 FR 36816, June 27, 2005] Area 2 committee members or alternates, and three members and three al-

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§ 948.216 Assessment rate. inspection as shown on the inspection certificate. On and after September 1, 2003, an as- (2) No handler may transport or sessment rate of $0.0051 per hundred- cause the transportation by motor ve- weight is established for Colorado Area hicle of any shipment of potatoes for No. 2 potatoes. which an inspection certificate is re- [68 FR 53283, Sept. 10, 2003] quired unless each shipment is accompanied by a copy of the inspection cer- Subpart—Handling Regulations tificate applicable thereto and the copy is made available for examination at § 948.386 Handling regulation. any time upon request. (3) Each handler who handles pota- No person shall handle any lot of po- toes after such potatoes are regraded, tatoes grown in Area No. 2 unless such resorted, or repacked shall have such potatoes meet the requirements of potatoes reinspected, unless such han- paragraphs (a), (b), and (c) of this sec- dler has received a waiver from rein- tion, or unless such potatoes are han- spection pursuant to rules established dled in accordance with paragraphs (d) by the Secretary upon the rec- and (e), or (f) of this section. ommendation of the committee. (a) Minimum grade and size require- (d) Special purpose shipments. (1) The ments. (1) Round varieties, U.S. No. 2, or grade, size, maturity, and inspection better grade, 2 inches minimum diame- requirements of paragraphs (a), and (b), ter. and (c) of this section and the assess- (2) All other varieties. U.S. No. 2, or ment requirements of this part shall better grade, 2 inches minimum diame- not be applicable to shipments of pota- ter or 4 ounces minimum weight. toes for: 1 1 (3) 1 ⁄2-inch minimum to 2 ⁄4-inch max- (i) Livestock feed; imum diameter (Size B). U.S. Commer- (ii) Relief or charity; or cial grade or better: Provided, That (iii) Canning, freezing, and ‘‘other round, red-skinned varieties shall processing’’ as hereinafter defined. grade U.S. No. 1 or better. (2) The grade, size, maturity and in- (4) 1-inch minimum diameter to 1 3⁄4- spection requirements of paragraphs inch maximum diameter. U.S. Commer- (a), (b), and (c) of this section shall not cial grade or better: Provided, That be applicable to shipments of potatoes round, red-skinned varieties shall for experimentation, the manufacture grade U.S. No. 1 or better. or conversion into specified products, (5) None of the above categories of or for seed pursuant to section 948.6, potatoes identified in paragraphs (a)(1) but such shipments shall be subject to through (a)(4) of this section may be assessments. commingled in the same bag or other (e) Safeguards. Each handler of pota- container. toes which do not meet the grade, size, (b) Maturity (skinning) requirements. and maturity requirements of para- From August 1 through October 31 graphs (a) and (b) of this section and shall be: which are handled pursuant to para- (1) For U.S. No. 2 grade. Not more graph (d) of this section for any of the than ‘‘moderately skinned.’’ special purposes set forth therein shall: (2) All other grades. Not more than (1) Prior to handling, apply for and ‘‘slightly skinned.’’ obtain a Certificate of Privilege from (c) Inspection. (1) No handler shall the committee. handle any potatoes for which inspec- (2) Furnish the committee such re- tion is required unless an appropriate ports and documents as requested, in- inspection certificate has been issued cluding certification by the buyer or with respect thereto and the certificate receiver as to the use of such potatoes; is valid at the time of shipment. For and purposes of operation under this part it (3) Bill each shipment directly to the is hereby determined pursuant to applicable processor or receiver. § 948.40(d) that each inspection certifi- (f) Minimum quantity. For purposes of cate shall be valid for a period not to regulation under this part, each person exceed five days following the date of may handle up to but not to exceed

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1,000 pounds of potatoes without regard minimum weight: Provided That the to the requirements of paragraphs (a), minimum size may be 3⁄4 inch in diame- (b), and (c) of this section, but this ex- ter, if the potatoes otherwise meet U.S. ception shall not apply to any ship- No. 1 grade. ment which exceeds 1,000 pounds of po- (b) Maturity (skinning) requirements— tatoes. All Varieties. During the period begin- (g) Definitions. The terms U.S. No. 1, ning July 1 and ending December 31 U.S. Commercial, U.S. No. 2, Size B, each season for U.S. No. 2 grade, not slightly skinned, and moderately skinned more than ‘‘moderately skinned,’’ and shall have the same meaning as when for all other grades, not more than used in the U.S. Standards for Potatoes ‘‘slightly skinned’’; thereafter no matu- (7 CFR 2851.1540–2851.1566), including rity requirements. the tolerances set forth therein. The (c) Inspection. (1) No handler shall term other processing has the same handle any potatoes for which inspec- meaning as the term appearing in the tion is required unless an appropriate act and includes, but is not restricted inspection certificate has been issued to, potatoes for dehydration, chips, with respect thereto and the certificate shoestrings, starch, and flour. It in- is valid at the time of shipment. For cludes only that preparation of pota- purpose of operation under this part it toes for market which involves the ap- is hereby determined pursuant to para- plication of heat or cold to such an ex- graph (d) of § 948.40, that each inspec- tend that the natural form or stability tion certificate shall be valid for a pe- of the commodity undergoes a substan- riod not to exceed five days following tial change. The act of peeling, cooling, the date of inspection as shown on the slicing, dicing, or applying material to inspection certificate. prevent oxidation does not constitute (2) No handler may transport or ‘‘other processing.’’ The term manufacture or conversion into specified products cause the transportation by motor ve- means the preparation of potatoes for hicle of any shipment of potatoes for market into products by peeling, slic- which an inspection certificate is re- ing, dicing, applying material to pre- quired unless each shipment is accom- vent oxidation, or other means ap- panied by a copy of the inspection cer- proved by the committee, but not in- tificate applicable thereto and the copy cluding other processing. Other terms is made available for examination at used in this section shall have the any time upon request. same meaning as when used in Mar- (3) Each handler who handles pota- keting Agreement No. 97, as amended, toes after such potatoes are regraded, and this part. resorted, or repacked shall have such potatoes reinspected, unless such han- (Secs. 1–19, 48 Stat. 31, as amended; 7 U.S.C. dler has received a waiver from rein- 601–674) spection pursuant to rules established [46 FR 52324, Oct. 27, 1981] by the Secretary upon the rec- EDITORIAL NOTE: For FEDERAL REGISTER ci- ommendation of the committee. tations affecting § 948.386, see the List of CFR (d) Special purpose shipments. (1) The Sections Affected, which appears in the grade, size, maturity and inspection re- Finding Aids section of the printed volume quirements of paragraphs (a), (b), and and at www.fdsys.gov. (c) of this section and the assessment § 948.387 Handling regulation. requirements of this part shall not be applicable to shipments of potatoes for: On and after August 1, 1982, no person (i) Livestock feed; shall handle any lot of potatoes grown in Area No. 3 unless such potatoes (ii) Charity; meet the requirements of paragraphs (iii) Canning, freezing, and ‘‘other (a), (b), and (c) of this section, or unless processing’’ as hereinafter defined; and such potatoes are handled in accord- (iv) Certified seed potatoes (§ 948.6). ance with paragraphs (d) and (e), or (f) (v) Experimentation and the manu- of this section. facture or conversion into specified (a) Grade and size requirements—All products. varieties. U.S. No. 2 or better grade, 17⁄8 (2) The maturity requirements set inches minimum diameter or 4 ounces forth in paragraph (b) of this section

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shall not be applicable to shipments of ing material to prevent oxidation, or potatoes for prepeeling. other means approved by the com- (e) Safeguards. Each handler making mittee, but not including other proc- shipments of potatoes pursuant to essing. All other terms used in this sec- paragraph (d) of this section shall: tion shall have the same meaning as (1) Prior to shipment, apply for and when used in Marketing Agreement No. obtain a Certificate of Privilege from 97, as amended, and this part. the committee; (Secs. 1–19, 48 Stat. 31, as amended; 7 U.S.C. (2) Furnish the committee such re- 601–674) ports and documents as required, including certification by the buyer or [47 FR 32911, July 30, 1982, as amended at 52 FR 7269, Mar. 10, 1987; 55 FR 41181, Oct. 10, receiver on the use of such potatoes; 1990; 66 FR 49513, Sept. 28, 2001; 74 FR 65393, and Dec. 10, 2009; 75 FR 17036, Apr. 5, 2010] (3) Bill each shipment directly to the applicable buyer or receiver. EDITORIAL NOTE: After January 1, 1979, ‘‘Budget of Expenses and Rate of Assessment’’ (f) Minimum quantity. For purpose of regulations (e.g., sections .201 through .299) regulation under this part, each person and ‘‘Handling’’ regulations (e.g. sections .300 may handle up to but not to exceed through .399) which are in effect for a year or 1,000 pounds of potatoes per shipment less, will not be carried in the Code of Fed- without regard to the requirements of eral Regulations. For the FEDERAL REGISTER paragraphs (a) and (b) of this section, citations affecting these regulations, see the but this exception shall not apply to List of CFR Sections Affected, which appears any shipment of over 1,000 pounds of in the Finding Aids section of the printed volume and at www.fdsys.gov. potatoes. (g) Definitions. The terms U.S. No. 1, U.S. No. 2, Size B, moderately skinned PART 953—IRISH POTATOES and slightly skinned shall have the same GROWN IN SOUTHEASTERN STATES meaning as when used in the United States Standards for Grades of Pota- Subpart—Order Regulating Handling toes (7 CFR 51.1540–51.1566) including DEFINITIONS the tolerances set forth therein. The term prepeeling means the commercial Sec. 953.1 Secretary. preparation in a prepeeling plant of 953.2 Act. clean, sound, fresh potatoes by wash- 953.3 Person. ing, peeling or otherwise removing the 953.4 Production area. outer skin, trimming, sorting, and 953.5 Potatoes. properly treating to prevent discolora- 953.6 Handler. tion preparatory to sale in one or more 953.7 Ship. of the styles of peeled potatoes de- 953.8 Producer. 953.9 Fiscal period. scribed in § 52.2422 United States Stand- 953.10 Committee. ards for Grades of Peeled Potatoes (7 953.11 District. CFR 52.2421–52.2433). The term other 953.12 Reapportionment and redistricting. processing has the same meaning as the term appearing in the act and includes, ADMINISTRATIVE COMMITTEE but is not restricted to, potatoes for 953.15 Establishment and membership. dehydration, chips, shoestrings, starch, 953.16 Term of office. and flour. It includes only that prepa- 953.18 Nominations. 953.19 Selection. ration of potatoes for market which in- 953.20 Failure to nominate. volves the application of heat or cold 953.21 Acceptance. to such an extent that the natural form 953.22 Vacancies. or stability of the commodity under- 953.23 Alternate members. goes a substantial change. The act of 953.24 Procedure. peeling, cooling, slicing, dicing, or ap- 953.25 Expenses and compensation. 953.26 Powers. plying material to prevent oxidation 953.27 Duties. does not constitute ‘‘other processing.’’ 953.28 Obligations. The term manufacture or conversion into 953.29 District committees. specified products means the preparation of potatoes for market into prod- EXPENSES AND ASSESSMENTS ucts by peeling, slicing, dicing, apply- 953.33 Expenses.

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953.34 Assessments. Subpart—Order Regulating 953.35 Accounting. 953.36 Funds. Handling

REGULATIONS DEFINITIONS 953.40 Marketing policy. § 953.1 Secretary. 953.41 Recommendations for regulations. 953.42 Issuance of regulations. Secretary means the Secretary of Ag- 953.43 Minimum standards of quality. riculture of the United States, or any 953.44 Limitation of regulations. other officer or member of the United 953.45 Minimum quantities. States Department of Agriculture who is or may hereafter be authorized to ex- INSPECTION AND CERTIFICATION ercise the powers and to perform the 953.50 Inspection and certification. duties of the Secretary of Agriculture.

EFFECTIVE TIME AND TERMINATION § 953.2 Act. 953.65 Effective time. Act means Public Act No. 10, 73d Con- 953.66 Termination. gress, as amended and as re-enacted 953.67 Proceedings after termination. and amended by the Agricultural Mar- 953.68 Effect of termination or amendment. keting Agreement Act of 1937, as MISCELLANEOUS PROVISIONS amended (7 U.S.C. 601 et seq.). 953.75 Reports and records. § 953.3 Person. 953.76 Compliance. 953.77 Right of the Secretary. Person means an individual, partner- 953.78 Duration of immunities. ship, corporation, association, legal 953.79 Agents. representative, or any organized group 953.80 Derogation. or business unit of individuals. 953.81 Personal liability. 953.82 Separability. § 953.4 Production area. 953.83 Amendments. Production area means and includes the counties of Accomack, North- Subpart—Rules and Regulations ampton, Nansemond, James City, the GENERAL cities of Chesapeake and Virginia Beach in the State of Virginia and the 953.100 General. counties of Northampton, Halifax, CHANGE IN DATE FOR COMPLETING NOMINA- Nash, Edgecombe, Pitt, Lenoir, Jones, TIONS, TERM OF OFFICE, AND FISCAL PE- and Onslow and all counties east there- RIOD of in the State of North Carolina. 953.120 Nomination date. [33 FR 8503, June 8, 1968] 953.121 Term of office. 953.122 Fiscal period. § 953.5 Potatoes. 953.123 Reestablishment of districts and reapportionment of committee member- Potatoes means all varieties of Irish ship. potatoes grown in the production area.

Subpart—Assessment Rates § 953.6 Handler. Handler is synonymous with shipper 953.253 Assessment rate. and means any person (except a com- Subpart—Handling Regulations mon or contract carrier of potatoes owned by another person) who ships po- 953.322 Handling regulation. tatoes in fresh form, whether or not of AUTHORITY: 7 U.S.C. 601–674. his own production. SOURCE: 19 FR 8683, Dec. 18, 1954, unless § 953.7 Ship. otherwise noted. Redesignated at 26 FR 12751, Dec. 30, 1961. Ship is synonymous with handle and means to transport, sell, or in any manner place potatoes in the current

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of interstate commerce or so as di- (b) The importance of new production rectly to burden, obstruct, or affect in its relation to existing districts; such commerce. (c) The equitable relationship of committee membership and districts; [33 FR 8503, June 8, 1968] (d) Economies to result for producers § 953.8 Producer. in promoting efficient administration due to redistricting or reapportion- Producer means any person engaged ment of members within districts; and in the production of potatoes for mar- (e) Other relevant factors. ket. [33 FR 8503, June 8, 1968] § 953.9 Fiscal period. ADMINISTRATIVE COMMITTEE Fiscal period means the period beginning and ending on the dates approved § 953.15 Establishment and member- by the Secretary pursuant to rec- ship. ommendations by the committee. (a) The Southeastern Potato Com- [33 FR 8503, June 8, 1968] mittee, consisting of 12 members of whom seven shall be producers and five § 953.10 Committee. shall be handlers is hereby established. Committee means the Administrative For each member of the committee, Committee, called the Southeastern there shall be an alternate member, Potato Committee, established pursu- who shall have the same qualifications ant to § 953.15. as the member. (b) Persons selected as members or § 953.11 District. alternates of the committee shall be District means, describes, and refers individuals who are producers or han- to each of the geographic divisions of dlers, respectively, in the respective the production area hereby established district for which selected, or officers as follows: or employees of a corporate producer or handler, respectively, in such dis- District No. 1. Accomack County in the State trict: Provided, That no person, if he of Virginia. handles potatoes, shall be eligible for District No. 2. Northampton County in the State of Virginia. selection as a producer member on said District No. 3. James City and Nansemond committee unless 51 percent or more of Counties and the cities of Chesapeake and the potatoes handled by him during the Virginia Beach in the State of Virginia. then current fiscal year were of his District No. 4. Northampton, Gates, Hertford, own production, or unless such person Bertie, Chowan, Perquimans, Pasquotank, is an officer or employee of a pro- Currituck, and Camden Counties in the ducer’s cooperative marketing associa- State of North Carolina. tion. District No. 5. Halifax, Nash, Edgecombe, Pitt, Lenoir, Jones, Onslow, Carteret, [19 FR 8683, Dec. 18, 1954, as amended at 33 Pamlico, Craven, Beaufort, Martin, Wash- FR 8503, June 8, 1968] ington, Tyrrell, Hyde, and Dare in the State of North Carolina. § 953.16 Term of office. [33 FR 8503, June 8, 1968] (a) The term of office for committee members and alternates shall, except § 953.12 Reapportionment and redis- as otherwise specified, be for 1 year. tricting. The dates on which such term of office The committee may recommend, and shall begin and end shall be established pursuant thereto, the Secretary may by the Secretary pursuant to the com- approve, the reapportionment of mem- mittee’s recommendations, and the bers among districts, and the reestab- term of office may be extended or lishment of districts within the produc- shortened, including that of the then tion area. With respect to any such current membership, to accord there- changes, the committee and the Sec- with. retary shall give consideration to: (b) Committee members and alter- (a) Shifts in potato acreage within nates shall serve during the term of of- the districts and within the production fice for which they are selected and area during recent years; have qualified, or during that portion

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thereof, beginning on the date on ant to § 953.18 or from other eligible which they qualify during such term of persons. In addition, he shall similarly office and continuing until the end select one handler member from each thereof, and until their successors are district. The respective alternates shall selected and have qualified. be selected on the same basis of representation as the members. [33 FR 8503, June 8, 1968] (b) The term of office of the com- § 953.18 Nominations. mittee members and alternates for Dis- trict No. 6 shall be terminated upon de- The Secretary may select members letion of such district from the produc- of the committee and alternates from tion area. nominations which may be made in the (c) For the 1968–69 term of office the following manner: second producer member and his alter- (a) A meeting or meetings of pro- nate for each of Districts No. 4 and 5 ducers and handlers shall be held by shall be selected as soon as practicable the committee for each district to des- after deletion of District No. 6 from the ignate nominees for members and al- production area. Nomination meetings ternates to the committee; shall be held for these positions pursu- (b) At least one nominee shall be des- ant to § 953.18 and the selections shall ignated for each position as member be made pursuant to this section for and for each position as alternate the remainder of the 1968–69 term of of- member on the committee; fice. (c) The names of nominees shall be supplied to the Secretary in such man- [33 FR 8504, June 8, 1968] ner and form as he may prescribe, not later than September 15 of each year, § 953.20 Failure to nominate. or by such other date as may be speci- If nominations are not made within fied by the Secretary; the time and in the manner specified (d) Only producers may participate in by the Secretary pursuant to § 953.18, designating producer nominees and the Secretary may, without regard to only handlers may participate in desig- nominations, select the members and nating handler nominees. Any person alternate members of the committee, who operates in more than one district which selection shall be on the basis of or is engaged in producing and han- the representation provided for in dling potatoes, shall elect the classi- § 953.19. fication (i.e., producer or handler), and the district within which he desires to § 953.21 Acceptance. participate in designating nominees; Any person selected by the Secretary (e) Regardless of the number of dis- as a member or as an alternate member tricts in which a person produces or of the committee shall qualify by filing handles potatoes, each such person is a written acceptance with the Sec- entitled to cast only one vote on behalf retary within the time specified by the of himself, his agents, subsidiaries, af- Secretary. filiates, and representatives in desig- [33 FR 8504, June 8, 1968] nating nominees for committee members and alternates. An eligible voter’s § 953.22 Vacancies. privilege of casting only one vote as To fill any vacancy occasioned by the aforesaid shall be construed to permit failure of any person selected as a a voter to cast one vote for each posi- member or as an alternate member of tion to be filled in the district in which the committee to qualify, or in the he elects to vote. event of the death, removal, resigna- [33 FR 8503, June 8, 1968] tion, or disqualification of any qualified member or alternate member, a § 953.19 Selection. successor for his unexpired term may (a) The Secretary shall select one be selected by the Secretary from producer member in and for each of nominations made in the manner speci- Districts 1, 2, and 3, and two producer fied in § 953.18, or the Secretary may se- members in and for each of Districts 4 lect such member or alternate member and 5 from nominees submitted pursu- from previously unselected nominees

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on the current nominee list from the (c) To receive, investigate, and report district involved. If the names of nomi- to the Secretary complaints of viola- nees to fill any such vacancy are not tion of the provisions of this subpart; made available to the Secretary within and 30 days after such vacancy occurs, the (d) To recommend to the Secretary Secretary may fill such vacancy with- amendments to this subpart. out regard to nominations, which selection shall be made on the basis of § 953.27 Duties. the representation provided for in It shall be the duty of the committee: § 953.19. (a) To act as intermediary between the Secretary and any producer or han- § 953.23 Alternate members. dler; An alternate member of the com- (b) To keep minutes, books, and mittee shall act in the place and stead records which clearly reflect all of the of the member for whom he is alternate acts and transactions of the committee during such member’s absence. In the and such minutes, books, and records event of death, removal, resignation, or shall be subject to examination at any disqualification of a member, his alter- time by the Secretary or his authorized nate shall act for him until a successor agent or representative; for the unexpired term of such member (c) To investigate, from time to time, is selected and has qualified. and to assemble data on the growing, harvesting, shipping, and marketing § 953.24 Procedure. conditions with respect to potatoes, (a) Nine members shall constitute a and to engage in such research and quorum of the committee and any ac- service activities which relate to the tion of the committee shall require handling or marketing of potatoes as nine concurring votes. may be approved by the Secretary; (b) The committee may provide pro- (d) To furnish to the Secretary such cedure for meeting by telephone, tele- available information as he may re- graph, or other means of communica- quest; tions, and any vote cast at such a (e) To select subcommittees of com- meeting shall be confirmed promptly mittee members, a chairman and such in writing: Provided, That if an assem- other officers as may be necessary, and bled meeting of the committee is held to adopt such rules and regulations for all votes shall be cast in person. conduct of its business as it may deem advisable; § 953.25 Expenses and compensation. (f) At the beginning of each fiscal Committee members and alternates year, to submit to the Secretary a when acting on committee business budget of its expenses for such fiscal shall be reimbursed for reasonable ex- year, together with a report thereon; penses necessarily incurred by them in (g) To cause the books of the com- the performance of their duties and in mittee to be audited by a competent the exercise of committee powers accountant at least once each fiscal under this subpart. In addition, they year and at such other time as the may receive reasonable compensation committee may deem necessary or as at a rate recommended by the com- the Secretary may request. The report mittee and approved by the Secretary. of such audit shall show the receipt and expenditure of funds collected pur- [33 FR 8504, June 8, 1968] suant to this part; a copy of each such report shall be furnished to the Sec- § 953.26 Powers. retary and a copy of each such report The committee shall have the fol- shall be made available at the principal lowing powers: office of the committee for inspection (a) To administer the provisions of by producers and handlers; this subpart in accordance with its (h) To appoint such employees, terms; agents, and representatives as it may (b) To make rules and regulations to deem necessary and to determine the effectuate the terms and provisions of salaries and define the duties of each this subpart; such person; and

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(i) To consult, cooperate and ex- EXPENSES AND ASSESSMENTS change information with other potato marketing committees and other indi- § 953.33 Expenses. viduals or agencies in connection with The committee is authorized to incur all proper committee activities and ob- such expenses as the Secretary finds jectives under this subpart. may be necessary to carry out the functions of the committee pursuant to § 953.28 Obligations. the provisions of this subpart during each fiscal year. The funds to cover Upon the removal or expiration of such expenses shall be acquired by lev- the term of office of any member of the ying assessments as provided in § 953.34. committee, such member shall account for all receipts and disbursements and § 953.34 Assessments. deliver all property and funds, together (a) Each handler who first handles with all books and records, in his pos- potatoes shall, with respect to the po- session, to his successor in office or to tatoes so handled by him, pay to the a trustee designated by the Secretary committee such handler’s pro rata and shall execute such assignments and share of the expenses which the Sec- other instruments as may be necessary retary finds will be necessarily in- or appropriate to vest in such successor curred by the committee for its main- or trustee full title to all the property, tenance and functioning during each funds, and claims vested in such mem- fiscal year. Such handler’s pro rata ber pursuant to this section: Provided, share of such expenses shall be equal to That the provisions of this subpart the ratio between the total quantity of shall apply to alternate members in potatoes handled by him as the first possession of funds, property, books or handler thereof, during the applicable records, or participate in the receipt or fiscal year, and the total quantity of disbursement of funds. potatoes handled by all handlers as the first handlers thereof, during the same § 953.29 District committees. fiscal year. The Secretary shall fix the rate of assessment to be paid by such Potato producers and handlers in handlers: Provided, That the rate of as- each district, as defined in § 953.11, may sessment during each fiscal year shall establish and organize a District Com- not exceed 1 cent per hundred-weight. mittee of potato producers and han- (b) At any time during or after a fis- dlers within each such district for the cal year, the Secretary may increase purpose of assisting in an advisory ca- the rate of assessment in order to se- pacity the members of the South- cure sufficient funds to cover any later eastern Potato Committee from their finding by the Secretary relative to the district. The size and composition of expenses of the committee. Such in- each such District Committee shall be crease shall be applicable to all pota- determined by producers and handlers toes handled during the given fiscal within each district. Reports on the year. In order to provide funds to carry size and composition of each District out the functions of the committee, Committee shall be made available handlers may make advance payment upon request to the Southeastern Po- of assessments. tato Committee. The members of such § 953.35 Accounting. District Committees shall not receive compensation from any funds dispersed (a) If, at the end of a fiscal period, by the Southeastern Potato Com- the assessments collected are in excess mittee. Members of District Commit- of expenses incurred, such excess shall be accounted for in accordance with tees may be selected at meetings spon- one of the following: sored by the Southeastern Potato Com- (1) If such excess is not retained in a mittee. The terms of office of members reserve, as provided in paragraph (a)(2) of District Committees shall coincide of this section, it shall be refunded pro- with the terms of office of members of portionately and to the extent prac- the Southeastern Potato Committee. tical to the persons from whom it was collected: Provided, That each handler

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may be credited with such refund, for (a) The Secretary may, at any time, the operations of the following fiscal require the committee and its members period, unless he demands payment to account for all receipts and dis- thereof, in which event such propor- bursements; and tionate refund shall be paid to him. (b) Whenever any person ceases to be (2) The committee, with the approval a member of the committee, he shall of the Secretary, may establish an op- account for all receipts and disburse- erating monetary reserve, and may ments and deliver all property and carry over into subsequent fiscal peri- funds in his hands, together with all ods such excess in a reserve so estab- books and records in his possession, to lished: Provided, That funds in the re- his successor in office or to such person serve shall not exceed approximately as the Secretary may designate, and one fiscal period’s expenses. Such re- shall execute such assignments and serve funds may be used by the com- other instruments as may be necessary mittee (i) to defray expenses author- or appropriate to vest in such successor ized pursuant to § 953.33, (ii) to defray or in such designated person the right expenses during any fiscal period, prior to all the property, funds, or claims to the time assessment income is suffi- vested in such member. cient to cover such expenses, (iii) to cover deficits incurred during any fis- REGULATIONS cal period when assessment income is less than expenses, (iv) to defray ex- § 953.40 Marketing policy. penses incurred during any period when Prior to or at the same time initial any or all provisions of this part are recommendations in any fiscal period suspended or are inoperative, and (v) to are made pursuant to § 953.41, the com- cover necessary expenses of liquidation mittee shall prepare a marketing pol- in the event of termination of this icy, and promptly submit a copy there- part. Upon such termination, any funds of to the Secretary, setting forth its not required to defray the necessary proposed policy for the marketing of expenses of liquidation and after rea- potatoes during such fiscal period. In sonable effort by the committee it is the event it becomes advisable to devi- found impracticable to return such re- ate from such marketing policy, be- maining funds to handlers from whom cause of changed demand and supply collected, such funds shall be disposed conditions, or as the Secretary may re- of in such manner as the Secretary quest, the committee shall formulate a may determine to be appropriate. revised marketing policy and shall sub- (b) The committee may make rec- mit a report thereon to the Secretary. ommendations to the Secretary for one Notice of each such marketing policy or more of the members thereof, or any and revision thereof shall be given to other person or persons to act as trust- producers, handlers, and other inter- ee or trustees for holding records, ested parties by bulletins, newspapers, funds, or any other committee prop- or other appropriate media, and copies erty during periods of suspension of thereof shall be available for examina- this part, or during any period or peri- tion at the committee office to all in- ods when regulations are not in effect; terested parties. and, if the Secretary determines such action appropriate, he may direct that [33 FR 8504, June 8, 1968] such person or persons shall act as trustee or trustees for the committee. § 953.41 Recommendations for regulations. [33 FR 8504, June 8, 1968] (a) It shall be the duty of the committee to investigate supply and de- § 953.36 Funds. mand conditions for grades, sizes, and All funds received by the committee qualities of all potatoes. Whenever the pursuant to any provision of this subcommittee finds that such conditions part shall be used solely for the pur- make it advisable to regulate the ship- poses specified in this subpart and shall ment of particular grades, sizes, or be accounted for in the following man- qualities of potatoes during any period ner: in any or all portions of the production

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area, it shall recommend to the Sec- § 953.43 Minimum standards of quality. retary the particular grades, sizes, and (a) Recommendation. Whenever the qualities, or any combination thereof, committee deems it advisable to estab- of such potatoes deemed advisable to lish and maintain minimum standards be shipped during such period: Provided, of quality governing the shipment of That the committee shall not rec- potatoes, it shall recommend to the ommend to the Secretary any regula- Secretary such minimum standards of tion limiting the shipment of U.S. No. quality in terms of grades, sizes, or 1 grade or better, as such grades are de- both, below which shipments are to be fined in United States Standards for prohibited. At the time of submitting Potatoes in effect at the time of rec- each such recommendation, the com- ommendation. mittee shall also submit to the Sec- (b) In determining the grades, sizes, retary the supporting data and infor- and qualities of potatoes or any and all mation upon which it acted in making combinations thereof deemed advisable such recommendation. The committee to be regulated in view of the prospec- shall submit in support of its rec- tive demand thereof, the committee ommendations such other data and in- shall give due consideration to the fol- formation as may be requested by the lowing factors: Secretary, and shall promptly give ade- (1) Market prices, including prices by quate notice to all handlers and grow- grades and sizes, of potatoes for which ers of each such recommendation. regulation is recommended; (b) Establishment. Whenever the Sec- (2) Potatoes on hand in the market retary finds, from the recommenda- areas as manifested by supplies en tions and information submitted by the route and on track at the principal committee, or from other available in- markets; formation, that to prohibit the ship- (3) Available supply, quality, and ment of potatoes below certain speci- condition of potatoes in the production fied minimum grades, or smaller than area and other production areas; certain specified minimum sizes, or (4) Supplies from competing areas both, would be in the public interest and would tend to effectuate the de- and regions producing potatoes; clared policy of the act, he shall so pro- (5) The trend and level of consumer hibit the shipment of such potatoes. income; and The Secretary shall immediately no- (6) Other relevant factors. tify the committee of the issuance of each such regulation, and the com- § 953.42 Issuance of regulations. mittee shall promptly give adequate Whenever the Secretary shall find, notice thereof to handlers and growers. from the recommendations, informa- (c) Modification or suspension. (1) The tion and evidence submitted by the committee may recommend to the Sec- committee, or from other available in- retary the modification, suspension, or formation, that to limit the shipment termination of orders relating to min- of potatoes to particular grades, sizes, imum standards provided for or estab- and qualities thereof in any or all por- lished pursuant to this subpart. If the tions of the production area would tend Secretary finds, upon the basis of such to effectuate the declared policy of the recommendation and information, or act, he shall so limit by appropriate upon the basis of other available infor- regulations thereon the shipments of mation, that to modify, suspend, or such potatoes during a specified period. terminate such orders relating to min- The Secretary shall notify the com- imum standards of quality will tend to mittee of any such regulation and the effectuate the declared policy of the committee shall give reasonable notice act, he shall so modify or suspend such thereof to handlers: Provided, That no standards for (i) a specified period of regulations shall be issued under this time, or (ii) for an indefinite period of subpart limiting the shipment of U.S. time. No. 1 grade or better, as such grades (2) The Secretary shall immediately are defined in United States Standards notify the committee and the com- for Potatoes in effect at the time such mittee shall promptly give notice to regulations are issued. growers and handlers, of any order

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issued by the Secretary modifying, sus- and such other information as may be pending, or terminating any orders re- requested by the Secretary. The Sec- lating to minimum standards of qual- retary shall have the right to modify, ity established pursuant to, or provided change, alter, or rescind any safe- for, in this subpart. guards prescribed and any certificates issued by the committee pursuant to § 953.44 Limitation of regulations. the provisions of this section. (a) Nothing contained in this subpart shall authorize any limitation of the § 953.45 Minimum quantities. shipment of potatoes for any of the fol- The committee, with the approval of lowing purposes: the Secretary, may establish, for any (1) Potatoes shipped for consumption or all portions of the production area, by charitable institutions or for dis- quantities below which shipments shall tribution by relief agencies; be free from regulations issued pursu- (2) Potatoes shipped for manufac- ant to: § 953.42, Regulations, § 953.50, In- turing or conversion into byproducts, spection and certification, and § 953.34, except for manufacturing or conversion Assessments. into specified products recommended by the committee for regulation and [33 FR 8504, June 8, 1968] approved by the Secretary therefor; INSPECTION AND CERTIFICATION and (3) Upon recommendation of the com- § 953.50 Inspection and certification. mittee and approval of the Secretary, potatoes shipped for livestock feed, ex- The Southeastern Potato Committee port, or for other specified purposes. shall require, with approval of the Sec- (b) The Secretary shall give prompt retary, that whenever regulations are notice to the committee of any ap- in effect pursuant to this subpart, each proval issued by him under the provi- first handler shall, prior to making sions of this section. The committee each shipment of potatoes cause each may prescribe adequate safeguards to shipment to be inspected by an author- prevent potatoes shipped for the pur- ized representative of the Federal- poses stated above from entering the State Inspection Service. Each handler current of interstate commerce or di- shall make arrangements with the in- rectly burdening, obstructing, or af- specting agency to forward promptly to fecting such commerce contrary to the the committee a copy of each inspec- provisions of this subpart, which safe- tion certificate, issued as aforesaid. guards may include (1) a requirement EFFECTIVE TIME AND TERMINATION by the committee that growers and handlers who ship potatoes pursuant to § 953.65 Effective time. this section shall file applications to do so with the committee and (2) Fed- The provisions of this subpart shall eral-State inspection provided by become effective at such time as the § 953.50 and the payment of a pro rata Secretary may declare above his signa- share of expenses provided by § 953.34: ture attached to this subpart, and shall Provided, That such inspection and pay- continue in force until terminated in ment of expenses may be required at one of the ways specified in § 953.66. different times than otherwise specified by the aforesaid sections. The § 953.66 Termination. committee may issue certificates of (a) The Secretary may, at any time, privilege for shipments of potatoes af- terminate the provisions of this sub- fected or to be affected under the pro- part by giving at least one day’s notice visions of this section and shall make a by means of a press release or in any weekly report to the Secretary show- other manner which he may determine. ing the number of certificates applied (b) The Secretary may terminate or for, the number of bushels of potatoes suspend the operations of any or all of covered by such applications, the num- the provisions of this subpart whenever ber of certificates denied and granted, he finds that such provisions do not the number of bushels of potatoes tend to effectuate the declared policy shipped under duly issued certificates, of the act.

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(c) The Secretary shall terminate the § 953.68 Effect of termination or provisions of this subpart at the end of amendment. any fiscal year whenever he finds that Unless otherwise expressly provided such termination is favored by a ma- by the Secretary, the termination of jority of producers who, during the pre- this subpart, or of any regulation ceding fiscal year have been engaged in issued pursuant to this subpart, or the the production for market of potatoes: issuance of any amendment to either Provided, That such majority has, dur- thereof, shall not (a) affect or waive ing such year, produced for market any right, duty, obligation, or liability more than fifty percent of the volume which shall have arisen, or which may of such potatoes produced for market; thereafter arise in connection with any but such termination shall be effected provision, of this subpart, or any regu- only if announced on or before October lation issued under this subpart, or (b) 31, of the then current fiscal year. release or extinguish any violation of (d) The provisions of this subpart this subpart, or of any regulation issued under this subpart, or (c) affect shall, in any event, terminate when- or impair any rights or remedies of the ever the provisions of the act author- Secretary, or of any other person with izing them, cease to be in effect. respect to any such violation.

§ 953.67 Proceedings after termination. MISCELLANEOUS PROVISIONS (a) Upon the termination of the provisions of this subpart, the then func- § 953.75 Reports and records. tioning members of the committee (a) Upon the request of the com- shall continue as trustees, for the pur- mittee, with the approval of the Sec- pose of liquidating the affairs of the retary, every handler shall furnish to committee, of all funds and the prop- the committee, in such manner and at erty then in the possession of, or under such time as may be prescribed, such control of, the committee, including information as will enable the com- claims for any funds unpaid, or prop- mittee to exercise its duties under this erty not delivered at the time of such subpart. The Secretary shall have the right to modify, change, or rescind re- termination. Action by said trustee- quests for any reports pursuant to this ship shall require the concurrence of a section. majority of the said trustees. (b) Each handler shall establish and (b) The said trustees shall continue maintain for at least two succeeding in such capacity until discharged by years such records and documents with the Secretary; shall, from time to respect to potatoes received and pota- time, account for all receipts and dis- toes disposed of by him as will substan- bursements and deliver all property on tiate the required reports. hand, together with all books and (c) For the purpose of assuring com- records of the committee and of the pliance with the recordkeeping require- trustees, to such person as the Sec- ments and verifying reports filed by retary may direct; and shall, upon re- handlers, the Secretary, and the com- quest of the Secretary, execute such mittee through its duly authorized em- assignments or other instruments nec- ployees, shall have access to such essary or appropriate to vest in such records. person full title and right to all of the (d) All reports and records furnished funds, property, and claims vested in or submitted by handlers to, or ob- the committee or the trustees pursuant tained by the employees of, the com- to this subpart. mittee which contain data or information constituting a trade secret or dis- (c) Any person to whom funds, prop- closing the trade position, financial erty, or claims have been transferred, condition, or business operations of the or delivered by the committee or its particular handler from whom re- members, pursuant to this section, ceived, shall be treated as confidential shall be subject to the same obligations and the reports and all information ob- imposed upon the members of the com- tained from records shall at all times mittee and upon the said trustees. be kept in the custody and under the

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control of one or more employees of § 953.80 Derogation. the committee who shall disclose such Nothing contained in this subpart is, information to no person other than or shall be construed to be, in deroga- the Secretary, or as authorized by the tion or in modification of the rights of Secretary. Compilations of general re- the Secretary or of the United States ports from data and information sub- to exercise any powers granted by the mitted by handlers is authorized sub- act or otherwise, or in accordance with ject to the prohibition of disclosure of such powers, to act in the premises individual handlers’ identity or oper- whenever such action is deemed advis- ations. able. [33 FR 8504, June 8, 1968] § 953.81 Personal liability. § 953.76 Compliance. No member or alternate of the com- Except as provided in this subpart, mittee, nor any employee or agent no handler shall ship potatoes, the thereof, shall be held personally reshipment of which has been prohibited sponsible, either individually or jointly by the Secretary in accordance with with others, in any way whatsoever to provisions of this subpart, and no han- any handler or to any person for errors dler shall ship potatoes except in con- in judgment, mistakes, or other acts, formity to the provisions of this sub- either of commission or omission, as part. such member, alternate, or employee, except for acts of dishonesty. § 953.77 Right of the Secretary. The members of the committee (in- § 953.82 Separability. cluding successors and alternates), and If any provision of this subpart is de- any agent or employee appointed or clared invalid, or the applicability employed by the committee, shall be thereof to any person, circumstance, or subject to removal or suspension by thing is held invalid, the validity of the the Secretary at any time. Each and remainder of this subpart, or the appli- every order, regulation, decision, de- cability thereof to any other person, termination, or other act of the com- circumstance, or thing shall not be af- mittee, shall be subject to the con- fected thereby. tinuing right of the Secretary to disapprove of the same at any time. Upon § 953.83 Amendments. such disapproval, the disapproved ac- Amendments to this subpart may be tion of the said committee shall be proposed from time to time by the deemed null and void, except as to acts committee or by the Secretary. done in reliance thereon or in compliance therewith prior to such dis- Subpart—Rules and Regulations approval by the Secretary. GENERAL § 953.78 Duration of immunities. The benefits, privileges, and immuni- § 953.100 General. ties conferred upon any person by vir- (a) Marketing agreement means Mar- tue of this subpart shall cease upon the keting Agreement No. 104. termination of this subpart except with (b) Order means Order No. 953 (§§ 953.1 respect to acts done under and during through 953.83). the existence of this subpart. (c) All other terms shall have the same meaning as when used in the § 953.79 Agents. marketing agreement and order. The Secretary may, by designation in writing, name any person, including CHANGE IN DATE FOR COMPLETING NOMI- any officer or employee of the Govern- NATIONS, TERM OF OFFICE, AND FISCAL ment, or name any bureau or division PERIOD in the United States Department of Ag- riculture, to act as his agent or rep- § 953.120 Nomination date. resentative in connection with any of The names of committee nominees the provisions of this subpart. shall be supplied to the Secretary in

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such manner and form as he may pre- Subpart—Handling Regulations scribe, pursuant to § 953.18, not later than January 31 of each year. § 953.322 Handling regulation. [34 FR 17328, Oct. 27, 1969] During the period beginning June 5 and ending July 31 each season, no per- § 953.121 Term of office. son shall ship any lot of potatoes pro- The term of office, pursuant to duced in the production area unless § 953.16, which began November 1, 1968, such potatoes meet the requirements of shall end March 31, 1970. Thereafter, paragraphs (a) and (b) of this section or each term of office shall begin April 1 unless such potatoes are handled in ac- of each year and end March 31 of the cordance with paragraphs (c) and (d) or following year, both dates inclusive. (e) of this section. (a) Minimum grade and size require- [34 FR 17828, Oct. 27, 1969] ments. All round white varieties of po- § 953.122 Fiscal period. tatoes shall be U.S. No. 2 or better grade, 11⁄2 inches (38.1 mm) minimum The fiscal period, pursuant to § 953.9, diameter. which began on April 1, 1976, shall end (b) Inspection. Except as provided in on May 31, 1977. Thereafter, each fiscal paragraphs (c) and (e), no handler shall period shall begin on June 1 of each ship any round white potatoes unless year and end on May 31 of the following an appropriate inspection certificate year, both dates inclusive. covering them has been issued by the [41 FR 42184, Sept. 27, 1976] Federal-State Inspection Service and the certificate is valid at the time of § 953.123 Reestablishment of districts shipment. and reapportionment of committee (c) Special purpose shipments. The membership. grade, size, and inspection require- (a) Pursuant to § 953.12: (1) The coun- ments set forth in paragraphs (a) and ties of James City and Nansemond and (b) of this section shall not apply to po- the cities of Chesapeake and Virginia tatoes shipped for canning, freezing, Beach (currently District No. 3) are re- ‘‘other processing’’ as hereinafter de- established as a part of District No. 2; fined, livestock feed, charity or to (2) the membership of the Southeastern shipments of round red, long white or Potato Committee shall be apportioned Russet variety potatoes. However, the among the districts of the production handler of any potatoes shipped for are so as to provide the following rep- such special purposes shall comply resentation: Two producer members with the safeguard requirements of and one handler member from each of paragraph (d) of this section. Districts No. 1, 4, and 5; one producer (d) Safeguards. Each handler making member and two handler members shipments of potatoes for canning, from District No. 2. The respective al- freezing, ‘‘other processing,’’ livestock ternates shall be selected on the same feed or charity, or making shipments basis of representation as the members. of round red, long white or Russet vari- (b) Terms used in this section have ety potatoes in accordance with para- the same meaning as when used in the graph (c) of this section shall: said marketing agreement and this (1) Notify the committee of the han- part. dler’s intent to ship potatoes pursuant [37 FR 927, Jan. 21, 1972] to paragraph (c) of this section by applying forms furnished by the committee for a Certificate of Privilege ap- Subpart—Assessment Rates plicable to such special purpose ship- § 953.253 Assessment rate. ments. (2) Obtain an approved Certificate of On and after June 1, 1998, an assess- Privilege; ment rate of $0.01 per hundredweight is (3) Prepare on forms furnished by the established for Southeastern States po- committee a special purpose shipment tatoes. report for each such individual ship- [63 FR 32968, June 17, 1998] ment; and

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(4) Forward copies of such special PART 955—VIDALIA ONIONS purpose shipment report to the com- GROWN IN GEORGIA mittee office and to the receiver with

instructions to sign and return a copy DEFINITIONS to the committee’s office. Failure of the handler or receiver to report such Sec. shipments by promptly signing and re- 955.1 Secretary. 955.2 Act. turning the applicable special purpose 955.3 Person. shipment report to the committee of- 955.4 Production area. fice shall be cause for suspension of 955.5 Vidalia onion. such handler’s Certificate of Privilege 955.6 Handler. applicable to such special purpose ship- 955.7 Handle. ments. 955.9 Producer. (e) Minimum quantity exemption. Each 955.10 Producer-handler. handler may ship up to, but not to ex- 955.12 Committee. ceed five hundredweight of potatoes 955.13 Fiscal period. any day without regard to the inspec- COMMITTEE tion and assessment requirements of this part, but this exception shall not 955.20 Establishment and membership. 955.21 Term of office. apply to any portion of a shipment 955.22 Nominations. that exceeds five hundredweight of po- 955.23 Selection. tatoes. 955.24 Acceptance. (f) Definitions. The term U.S. No. 2 955.25 Alternates. shall have the same meaning as when 955.26 Vacancies. used in the U.S. Standards for Grades 955.27 Failure to nominate. of Potatoes as amended (7 CFR 955.28 Procedure. 2851.1540–2851.1566), including the toler- 955.29 Expenses. ances set forth in it. The term other 955.30 Powers. 955.31 Duties. processing has the same meaning as the term appearing in the act and includes, EXPENSES AND ASSESSMENTS but is not restricted to, potatoes for 955.40 Expenses. dehydration, chips, shoestrings, starch, 955.41 Budget. and flour. It includes only that prepa- 955.42 Assessments. ration of potatoes for market which in- 955.43 Accounting. volves the application of heat or cold 955.44 Excess funds. to such an extent that the natural form 955.45 Contributions. or stability of the commodity undergoes a substantial change. The act of RESEARCH AND DEVELOPMENT peeling, cooling, slicing, dicing, or ap- 955.50 Research and development. plying material to prevent oxidation REPORTS AND RECORDKEEPING does not constitute ‘‘other processing.’’ All other terms used in this section 955.60 Reports and recordkeeping. shall have the same meaning as when MISCELLANEOUS PROVISIONS used in Marketing Agreement No. 104 and this part, both as amended. 955.71 Termination or suspension. 955.72 Proceedings after termination. [47 FR 22500, May 25, 1982, as amended at 49 955.73 Effect of termination or amendment. FR 23334, June 6, 1984; 74 FR 65393, Dec. 10, 955.80 Compliance. 2009] 955.81 Right of the Secretary. 955.82 Duration of immunities. EDITORIAL NOTE: After January 1, 1979, 955.83 Agents. ‘‘Budget of Expenses and Rate of Assessment’’ regulations (e.g. sections .200 through .299) 955.84 Derogation. 955.85 Personal liability. and ‘‘Handling’’ regulations (e.g. sections .300 through .399) which are in effect for a year or 955.86 Separability. less, will not be carried in the Code of Fed- 955.87 Amendments. eral Regulations. For FEDERAL REGISTER ci- MARKETING AGREEMENT tations affecting these regulations, see the List of CFR Sections Affected, which appears 955.90 Counterparts. in the Finding Aids section of the printed 955.91 Additional parties. volume and at www.fdsys.gov. 955.92 Order with marketing agreement.

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Subpart—Rules and Regulations der of Bacon County to a point where it intersects Georgia State Road 32; thence eas- 955.101 Vidalia Onion Handler Report. terly along Georgia State Road 32 to Sea- 955.113 Fiscal period. board Coastline Railroad; thence northeast- 955.121 Change in term of office. erly along the tracks of Seaboard Coastline 955.122 Change in nomination deadlines. Railroad to a point where they intersect 955.142 Delinquent assessments. Long County and Liberty County; thence northwesterly and northerly along the ASSESSMENT RATES southwestern border of Liberty County to a 955.209 Assessment rate. point where the border of Liberty County intersects the southern border of Evans AUTHORITY: 7 U.S.C. 601–674. County; thence northeasterly along the east- SOURCE: 55 FR 717, Jan. 9, 1990, unless oth- ern border of Evans County to the intersec- erwise noted. tion of the Bulloch County border; thence northeasterly along the Bulloch County bor- DEFINITIONS der to a point where it intersects with the Ogeechee River; thence northerly along the § 955.1 Secretary. main channel of the Ogeechee River to a point where it intersects with the south- Secretary means the Secretary of Ag- eastern border of Screven County; thence riculture of the United States, or any northeasterly along the southeasterly border officer or employee of the Department of Screven County to the main channel of of Agriculture who has been delegated, the Savannah River; thence northerly along or who may hereafter be delegated, the the main channel of the Savannah River to a authority to act for the Secretary. point where the northwestern boundary of Hampton County, South Carolina intersects § 955.2 Act. the Savannah River; thence due west to a point where State Road 24 intersects Act means Public Act No. 10, 73d Con- Brannen Bridge Road; thence westerly along gress (May 12, 1933), as amended and as Brannen Bridge Road to a point where it reenacted and amended by the Agricul- intersects with State Road 21; thence west- tural Marketing Agreement Act of 1937, erly along State Road 21 to the intersection as amended (Sec. 1–19, 48 Stat. 31, as of State Road 17; thence westerly along State Road 17 to the intersection of State amended; 7 U.S.C. 601 et seq.). Road 56 and southerly to the northern border of Emanuel County; thence westerly and § 955.3 Person. southerly along the border of Emanuel Coun- Person means an individual, partner- ty to a point where it intersects the Treutlen ship, corporation, association, or any County border; thence southerly to a point other business unit. where the Truetlen County border intersects Interstate Highway 16; thence westerly to the point of beginning in Laurens County. § 955.4 Production area. Production area means that part of § 955.5 Vidalia onion. the State of Georgia enclosed by the Vidalia onion means all varieties of following boundaries: Allium cepa of the hybrid yellow Beginning at a point in Laurens County granex, granex parentage or any other where U.S. Highway 441 intersects Highway similar variety recommended by the 16; thence continue southerly along U.S. committee and approved by the Sec- Highway 441 to a point where it intersects retary, that are grown in the produc- the southern boundary of Laurens County; tion area. thence southwesterly along the border of Laurens County to a point where it inter- § 955.6 Handler. sects the county road known as Jay Bird Springs Road; thence southeasterly along Handler is synonymous with shipper Jay Bird Springs Road to a point where it and means any person (except a com- intersects U.S. Highway 23; thence easterly mon or contract carrier of Vidalia on- to a point where U.S. Highway 23 intersects ions owned by another person) who the western border of Telfair County; thence handles Vidalia onions, or causes southwesterly following the western and Vidalia onions to be handled. southern border of Telfair County to a point where it intersects with Jeff Davis County; § 955.7 Handle. thence following the southern border of Jeff Davis County to a point where it intersects Handle or ship means to package, with the western border of Bacon County; load, sell, transport, or in any other thence southerly and easterly along the bor- way to place Vidalia onions, or cause

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Vidalia onions to be placed, in the cur- onions, except as a consumer, nor shall rent of commerce within the produc- such person be a director, officer or tion area or between the production employee of any firm so engaged. area and any point outside thereof. Such term shall not include the trans- § 955.21 Term of office. portation, sale, or delivery of field-run (a) Except as otherwise provided in Vidalia onions to a person within the paragraph (b) of this section, the term production area for the purpose of hav- of office of committee members and ing such Vidalia onions prepared for their respective alternates shall be for market. two years and shall begin as of Sep- tember 16 or for such other period as § 955.9 Producer. the committee may recommend and Producer is synonymous with grower the Secretary approve. The terms shall and means any person engaged in a be determined so that approximately proprietary capacity in the production one-half of the total committee mem- of Vidalia onions for market. bership shall terminate each year. Members and alternates shall serve in § 955.10 Producer-handler. such capacity during the term of office Producer-Handler means a producer or portion thereof for which they are who handles Vidalia onions. selected and until their respective successors are selected. § 955.12 Committee. (b) The term of office of the initial Committee means the Vidalia Onion members and alternates shall begin as Committee, established pursuant to soon as possible after effective date of § 955.20. this part. As determined by lot drawn at the initial nomination meeting, one- § 955.13 Fiscal period. fourth of the initial grower members Fiscal period means the 12-month pe- and alternates shall serve for a one- riod beginning on September 16 and year term, one-fourth shall serve for a ending on September 15 of the next two-year term, one-fourth shall serve year or such other period that may be for a three-year term, and one-fourth recommended by the committee and shall serve for a four-year term. The approved by the Secretary. term of office for the initial public member and alternate shall be for two COMMITTEE years. (c) The consecutive terms of office of § 955.20 Establishment and member- members shall be limited to three 2- ship. year terms. (a) There is hereby established a Vidalia Onion Committee, consisting of § 955.22 Nominations. nine members, to administer the terms (a) Initial members. For nominations and provisions of this part. Eight mem- to the initial committee, a meeting of bers shall be producers, and one shall producers shall be held by the Sec- be a public member. At least four of retary. the producer members shall be pro- (b) Successor members. (1) The com- ducer-handlers. Each member shall mittee shall hold or cause to be held have an alternate who shall have the not later than August 1 of each year, or same qualifications as the member. such other date as may be specified by (b) Each member, other than the pub- the Secretary, a meeting or meetings lic member, shall be an individual who of growers for the purpose of desig- is, prior to selection and during such nating one nominee for each position member’s term of office, a resident of as member and for each position as al- the production area and a grower or an ternate member of the committee officer or employee of a grower. which is vacant, or which is about to (c) The public member shall be a resi- become vacant. dent of the production area and shall (2) Nominations for members and al- have no direct financial interest in the ternates shall be supplied to the Sec- commercial production, financing, buy- retary in such manner and form as the ing, packing or marketing of Vidalia Secretary may prescribe, not later

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than August 15 of each year, or by such that order, may designate another al- other date as may be specified by the ternate from the same district (if ap- Secretary. plicable) and the same group (producer (3) The Secretary may, upon rec- or producer-handler) to serve in such ommendation of the committee, divide member’s stead. Only the public mem- the production area into districts for ber’s alternate is authorized to serve in the purpose of nominating committee the place and stead of the public mem- members and their alternates. ber. In the event of the death, removal, (c) Only producers may participate in resignation or disqualification of a designating nominees to serve as com- member, that member’s alternate shall mittee members. Each producer is entitled to cast only one vote on behalf of serve until a successor to such member such producer and such producer’s is selected. agents, subsidiaries, affiliates, and representatives in designating nominees § 955.26 Vacancies. for committee members and alternates. To fill any vacancy occasioned by the An eligible voter’s privilege of casting failure of any person nominated as a only one vote shall be construed to per- member or as an alternate to qualify, mit a voter to cast one vote for each or in the event of the death, removal, position to be filled. resignation, or disqualification of a (d) The producer members shall member or alternate, a successor for nominate the public member and alter- the unexpired term may be selected by nate member at the first meeting fol- the Secretary from nominations made lowing the selection of members for a pursuant to § 955.22, or from other eligi- new term of office. Nominations for the ble persons. public member and alternate member shall be supplied to the Secretary in § 955.27 Failure to nominate. such manner and form as the Secretary may prescribe, not later than Novem- If nominations are not made within ber 1, or such other date as may be the time and manner prescribed in specified by the Secretary. § 955.22, the Secretary may, without regard to nominations, select members § 955.23 Selection. and alternates on the basis of the rep- From the nominations made pursu- resentation provided for in § 955.20. ant to § 955.22 or from other qualified persons, the Secretary shall select § 955.28 Procedure. members and alternate members of the (a) Five members of the committee committee. shall constitute a quorum, and five concurring votes shall be required to § 955.24 Acceptance. pass any motion or approve any com- Any person nominated to serve as a mittee action. member or alternate member of the (b) The committee may provide for committee shall, prior to selection by meetings by telephone, telegraph, or the Secretary, qualify by filing a writ- other means of communication, and ten acceptance indicating such person’s any vote cast orally at such meetings willingness to serve in the position for shall be confirmed promptly in writing: which nominated. Provided, That if an assembled meeting § 955.25 Alternates. is held, all votes shall be cast in person. An alternate member of the committee shall act in the place and stead § 955.29 Expenses. of the member for whom such person is an alternate during such member’s ab- Members and alternates shall serve sence or when designated to do so by without compensation but shall be re- such member. In the event both a imbursed for such expenses authorized member of the committee and that by the committee and necessarily in- member’s alternate are unable to at- curred by them in attending committee tend a committee meeting, the mem- meetings and in the performance of ber, the alternate, or the committee, in their duties under this part.

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§ 955.30 Powers. and a recommendation as to the rate of assessment for such period; The committee shall have the fol- (h) To cause its books to be audited lowing powers: by a Certified Public Accountant at (a) To administer the provisions of least once each fiscal period, and at this part in accordance with its terms; such other time as the committee may (b) To make rules and regulations to deem necessary or as the Secretary effectuate the terms and provisions of may request. The report of such audit this part; shall show the receipt and expenditure (c) To receive, investigate, and report of funds collected pursuant to this to the Secretary complaints of viola- part. A copy of each report shall be fur- tion of the provisions of this part; and nished to the Secretary. A copy shall (d) To recommend to the Secretary also be made available at the principal amendments to this part. office of the committee for inspection by producers and handlers provided § 955.31 Duties. that confidential information shall be The committee shall have, among removed; others, the following duties: (i) To give the Secretary the same (a) As soon as practicable after the notice of meetings of the committee beginning of each term of office, to and its subcommittees as is given to its meet and organize, to select a chair- members. man and such other officers as may be necessary, to select subcommittees of EXPENSES AND ASSESSMENTS committee members or alternates, and to adopt such rules and regulations for § 955.40 Expenses. the conduct of its business as it deems The committee is authorized to incur necessary; such expenses as the Secretary may (b) To act as intermediary between find are reasonable and likely to be in- the Secretary and any producer or han- curred by the committee for its main- dler; tenance and functioning, and to enable (c) To furnish to the Secretary such it to exercise its powers and perform available information as may be re- its duties in accordance with the provi- quested; sions of this part. The funds to cover (d) To appoint such employees, such expenses shall be acquired in the agents, and representatives as it may manner prescribed in §§ 955.42 and deem necessary, to determine the com- 955.45. pensation and define the duties of each such person, and to protect the han- § 955.41 Budget. dling of committee funds; At least 60 days prior to each fiscal (e) To investigate from time to time period, or such other date as may be and to assemble data on the growing, specified by the Secretary, and as may harvesting, shipping, and marketing be necessary thereafter, the committee conditions with respect to Vidalia on- shall prepare an estimated budget of ions; income and expenditures necessary for (f) To keep minutes, books, and the administration of this part. The records which clearly reflect all of the committee may recommend a rate of acts and transactions of the com- assessment calculated to provide ade- mittee. Such minutes, books, and quate funds to defray its proposed ex- records shall be subject to examination penditures. The committee shall at any time by the Secretary or the present such budget to the Secretary Secretary’s authorized agent or rep- with an accompanying report showing resentative. Minutes of each com- the basis for its calculations. mittee meeting shall be furnished promptly to the Secretary; § 955.42 Assessments. (g) Prior to the beginning of each fis- (a) The funds to cover the commit- cal period, to prepare and submit to tee’s expenses shall be acquired by the the Secretary a budget of its projected levying of assessments upon handlers income and expenses for such fiscal pe- as provided in this subpart. Each per- riod, together with a report thereon son who first handles Vidalia onions

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shall pay assessments to the com- erty, or records for which they are re- mittee upon demand, which assess- sponsible. Whenever any person ceases ments shall be in payment of such han- to be a member or alternate of the dler’s pro rata share of the committee’s committee, such person shall account expenses. for all receipts and disbursements and (b) Assessments shall be levied upon deliver all property and funds in such handlers at rates established by the member’s possession to the committee, Secretary. Such rates may be estab- pertaining to the committee’s activi- lished upon the basis of the commit- ties for which such person was respon- tee’s recommendations or other avail- sible, and shall execute such assign- able information. ments and other instruments as may (c) At any time during, or subsequent be necessary or appropriate to vest in to, a given fiscal period the committee the committee full title to all of the may recommend the approval of an property, funds, and claims vested in amended budget and an increase in the such person. rate of assessment. Upon the basis of (c) The committee may make rec- such recommendations, or other avail- ommendations to the Secretary for one able information, the Secretary may or more of the members thereof, or any approve an amended budget and in- other person, to act as a trustee for crease the assessment rate. Such in- holding records, funds, or any other crease shall be applicable to all Vidalia committee property during periods of onions which were handled during such suspension of this part, or during any fiscal period. period or periods when regulations are (d) The payment of assessments for not in effect and, upon determining the maintenance and functioning of the such action is appropriate, the Sec- committee may be required under this retary may direct that such person or part throughout the period it is in ef- persons shall act as trustee or trustees fect irrespective of whether particular for the committee. provisions of this part are suspended or become inoperative. § 955.44 Excess funds. (e) To provide funds for the adminis- If, at the end of a fiscal period, the tration of the provisions of this part assessments collected are in excess of during the initial fiscal period or the expenses incurred, such excess shall be first part of a fiscal period when nei- accounted for as follows: ther sufficient operating reserve funds (a) The committee, with the approval nor sufficient revenue from assess- of the Secretary, may establish an op- ments on the current seasons’s ship- erating reserve and may carry over to ments are available, the committee subsequent fiscal periods excess funds may accept payment of assessments in in a reserve so established, except advance or may borrow money for such funds in the reserve shall not exceed purposes. the equivalent of approximately three (f) The committee may impose a late fiscal periods’ budgeted expenses. Such payment charge or an interest charge reserve funds may be used: or both, on any handler who fails to (1) To defray any expenses authorized pay any assessment in a timely man- under this part; ner. Such time and the rates shall be (2) To defray expenses during any fis- recommended by the committee and cal period prior to the time assessment approved by the Secretary. income is sufficient to cover such expenses; § 955.43 Accounting. (3) To cover deficits incurred during (a) All funds received by the com- any fiscal period when assessment in- mittee pursuant to the provisions of come is less than expenses; this part shall be used solely for the (4) To defray expenses incurred dur- purposes specified in this part. ing any period when any or all provi- (b) The Secretary may at any time sions of this part are suspended or are require the committee, its members inoperative; and and alternates, employees, agents and (5) To cover necessary expenses of all other persons to account for all re- liquidation in the event of termination ceipts and disbursements, funds, prop- of this part.

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Upon termination of this part, any (2) The supply situation among com- funds not required to defray the nec- peting areas and commodities; essary expenses of liquidation shall be (3) The anticipated benefits from disposed of in such manner as the Sec- such projects in relation to their costs; retary may determine to be appro- (4) The need for marketing research priate except that to the extent prac- with respect to any market develop- ticable, such funds shall be returned ment activity; and pro rata to the persons from whom (5) Other relevant factors. such funds were collected. (c) If the committee should conclude (b) If such excess is not retained in a that a program of research and devel- reserve as provided in paragraph (a) of opment should be undertaken, or con- this section, each handler entitled to a tinued, in any fiscal period, it shall proportionate refund of the excess as- submit the following for the approval sessments collected shall be credited at of the Secretary; the end of a fiscal period with such re- (1) Its recommendations as to the fund against the operations of the fol- funds to be obtained pursuant to § 955.42 lowing fiscal period unless such han- or § 955.45; dler demands payment thereof, in (2) Its recommendation as to any re- which event such proportionate refund search projects; and shall be paid. (3) Its recommendations as to promotion activity and paid advertising. § 955.45 Contributions. (d) Upon conclusion of each activity, The committee may accept voluntary but at least annually, the committee contributions but these shall only be shall summarize and report the results used to pay expenses incurred pursuant of such activity to the Secretary. to § 955.50. Such contributions shall be (e) All marketing promotion activity free from any encumbrances by the engaged in by the committee, includ- donor, and the committee shall retain ing paid advertising, shall be subject to complete control of their use. the following terms and conditions: (1) No marketing promotion, includ- RESEARCH AND DEVELOPMENT ing paid advertising, shall refer to any private brand, private trademark or § 955.50 Research and development. private trade name; (a) The committee, with the approval (2) No promotion or advertising shall of the Secretary, may establish or pro- disparage the quality, use, value or vide for the establishment of produc- sale of like or any other agricultural tion research, marketing research and commodity or product, and no false or development and marketing promotion unwarranted claims shall be made in projects, including paid advertising, connection with the product; and designed to assist, improve, or promote (3) No promotion or advertising shall the marketing, distribution, consump- be undertaken without reason to be- tion, or efficient production of Vidalia lieve that returns to producers will be onions. Any such project for the pro- improved by such activity. motion and advertising of Vidalia onions may utilize an identifying mark REPORTS AND RECORDKEEPING which shall be made available for use by all handlers in accordance with such § 955.60 Reports and recordkeeping. terms and conditions as the com- Upon request of the committee, made mittee, with the approval of the Sec- with the approval of the Secretary, retary, may prescribe. The expense of each handler shall furnish to the com- such projects shall be paid from funds mittee, in such manner and at such collected pursuant to § 955.42 or § 955.45. time as it may prescribe, such reports (b) In recommending projects pursu- and other information as may be nec- ant to this section, the committee essary for the committee to perform its shall give consideration to the fol- duties under this part. lowing: (a) Such reports may include, but are (1) The expected supply of Vidalia on- not limited to, the following: ions in relation to market require- (1) The quantities of Vidalia onions ments; received by a handler;

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(2) The quantities disposed of by the (d) Within six years of the effective handler; date of this part, the Secretary shall (3) The date of each such disposition; conduct a continuance referendum to and ascertain whether continuance of this (4) The identification of the carrier part is favored by producers. Subse- transporting such Vidalia onions. quent referenda to ascertain continu- (b) All such reports shall be held ance shall be conducted every six years under appropriate protective classifica- thereafter. tion and custody by duly appointed em- (e) The provisions of this part shall, ployees of the committee, so that the in any event, terminate whenever the information contained therein which provisions of the Act authorizing them may adversely affect the competitive cease to be in effect. position of any handler in relation to § 955.72 Proceedings after termination. other handlers will not be disclosed. Compilations of general reports from (a) Upon the termination of the pro- data submitted by handlers is author- visions of this subpart, the then func- ized, subject to the prohibition of dis- tioning members of the committee closure of an individual handler’s iden- shall continue as joint trustees, for the tity or operations. purpose of liquidating the affairs of the (c) Each handler shall maintain for committee, of all funds and property at least two succeeding years such then in the possession, or under con- records of the Vidalia onions received trol, of the committee, including and disposed of by such handler as may claims for any funds unpaid or prop- be necessary to verify reports sub- erty not delivered at the time of such mitted to the committee pursuant to termination. Action by said trustee- this section. ship shall require the concurrence of a majority of the said trustees. MISCELLANEOUS PROVISIONS (b) The said trustees shall continue in such capacity until discharged by § 955.71 Termination or suspension. the Secretary; shall, from time to time, account for all receipts and dis- (a) The Secretary may at any time bursements and deliver all property on terminate the provisions of this part hand, together with all books and by giving at least one day’s notice by records of said committee and of the means of a press release or in any other trustees, to such person as the Sec- manner which the Secretary may de- retary may direct; and shall upon the termine. request of the Secretary, execute such (b) The Secretary shall terminate or assignments or other instruments nec- suspend the operations of any or all of essary or appropriate to vest in such the provisions of this part whenever it person full title and right to all of the is found that such provisions do not funds, property, and claims vested in tend to effectuate the declared policy said committee or the trustees pursu- of the Act. ant to this subpart. (c) The Secretary shall terminate the (c) Any person to whom funds, prop- provisions of this part at the end of erty, or claims have been transferred any fiscal period whenever it is found or delivered by the committee or its that such termination is favored by a members pursuant to this section shall majority of producers who, during a be subject to the same obligations im- representative period, have been en- posed upon the members of the com- gaged in the production of Vidalia on- mittee and upon the said trustees. ions: Provided, That such majority has, dur- § 955.73 Effect of termination or ing such representative period, pro- amendment. duced for market more than fifty per- Unless otherwise expressly provided cent of the volume of such Vidalia on- by the Secretary, the termination of ions produced for market, but such ter- this subpart or of any regulation issued mination shall be effective only if an- pursuant to this subpart, or the nounced on or before June 15 of the issuance of any amendments to either then current fiscal period. thereof, shall not:

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(a) Affect or waive any right, duty, or in modification of the rights of the obligation, or liability which shall Secretary or of the United States to have arisen or which may thereafter exercise any powers granted by the Act arise in connection with any provision or otherwise, or, in accordance with of this subpart or any regulation issued such powers, to act in the premises under this subpart; whenever such action is deemed advis- (b) Release or extinguish any viola- able. tion of this subpart or of any regulations issued under this subpart; or § 955.85 Personal liability. (c) Affect or impair any rights or No member or alternate of the com- remedies of the Secretary or of any mittee or any employee or agent there- other person with respect to any such of, shall be held personally responsible, violations. either individually or jointly with oth- § 955.80 Compliance. ers, in any way whatsoever, to any handler or to any person for errors in No handler shall handle Vidalia on- judgment, mistakes, or other acts, ei- ions except in conformity with the pro- ther of commission or omission, as visions of this part. such member, alternate, employee, or agent, except for acts of dishonesty, § 955.81 Right of the Secretary. willful misconduct, or gross neg- The members of the committee (in- ligence. cluding successors and alternates) and any agent or employee appointed or § 955.86 Separability. employed by the committee shall be subject to removal or suspension by If any provision of this part is de- the Secretary at any time. Each and clared invalid, or the applicability every order, regulation, decision, de- thereof to any person, circumstance, or termination, or other act of the com- thing is held invalid, the validity of the mittee shall be subject to the con- remainder of this part, or the applica- tinuing right of the Secretary to dis- bility thereof to any other person, cir- approve of the same at any time. Upon cumstance, or thing shall not be af- such disapproval, the disapproved ac- fected thereby. tion of the committee shall be deemed null and void except as to acts done in § 955.87 Amendments. reliance thereon or in compliance Amendments to this part may be pro- therewith prior to such disapproval by posed, from time to time, by the com- the Secretary. mittee or by the Secretary.

§ 955.82 Duration of immunities. MARKETING AGREEMENT The benefits, privileges, and immunities conferred upon any person by vir- § 955.90 Counterparts. tue of this part shall cease upon the This agreement may be executed in termination of this part, except with multiple counterparts and when one respect to acts done under and during counterpart is signed by the Secretary, the existence of this part. all such counterparts shall constitute, when taken together, one and the same § 955.83 Agents. instrument as if all signatures were The Secretary may, by designation in contained in one original. writing, name any person, including any officer or employee of the Govern- § 955.91 Additional parties. ment, or name any agency in the After the effective date thereof, any United States Department of Agri- handler may become a party to this culture, to act as the Secretary’s agent agreement if a counterpart is executed or representative in connection with by such handler and delivered to the any of the provisions of this part. Secretary. This agreement shall take effect as to such new contracting part § 955.84 Derogation. at the time such counterpart is deliv- Nothing contained in this part is, or ered to the Secretary, and the benefits, shall be construed to be, in derogation privileges, and immunities conferred

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by this agreement shall then be effec- and ending December 31 of each year, tive as to such new contracting party. except that the fiscal period that began on September 16, 1998, shall end on De- § 955.92 Order with marketing agree- cember 31, 1999. ment. Each signatory hereby requests the [64 FR 48245, Sept. 3, 1999] Secretary to issue, pursuant to the § 955.121 Change in term of office. Act, an order providing for regulating the handling of Vidalia onions in the Pursuant to § 955.21, the term of of- same manner as is provided for in this fice for the Committee shall be for two agreement. years beginning January 1 and ending December 31, except that, the term of Subpart—Rules and Regulations office for members and alternates whose terms expired on September 15, § 955.101 Vidalia Onion Handler Re- 1999, shall end on December 31, 1999, or port. until qualified successors are selected. (a) Each handler shall furnish ship- [64 FR 72269, Dec. 27, 1999] ping reports with the Vidalia Onion Committee on a monthly basis. Such § 955.122 Change in nomination dead- reports shall be made on forms pro- lines. vided by the Committee and shall in- Pursuant to § 955.22, the Committee clude: shall hold or cause to be held not later (1) The name and address of the han- than October 1 of each year a meeting dler; or meetings of growers for the purpose (2) Monthly period covered by the re- of designating one nominee for each port; position as member and for each posi- (3) Total quantity of Vidalia onions tion as alternate of the Committee received; which is vacant, or about to become (4) Total fresh market shipments of vacant. Such nominations shall be sup- Vidalia onions; plied to the Secretary in such manner (5) Shipment volume coming from and form as the Secretary may pre- acreage owned by the handler; scribe, not later than October 15 of (6) Total assessments owed; (7) Volume of onions packed under each year. The grower members shall contract for another handler and those nominate the public member and alter- handler names; nate public member at the first meet- (8) Onions sold to another handler; ing following the selection of members and for a new term of office. Nominations (9) Information on onions placed in for the public member and alternate Controlled Atmosphere storage. public member shall be supplied to the (b) Handlers shall file reports each Secretary in such manner and form as fiscal period beginning the first month the Secretary may prescribe, not later they make shipments and shall con- than February 15. tinue filing reports until they submit a [64 FR 72269, Dec. 27, 1999] final report for the season. Each such report shall be filed with the Com- § 955.142 Delinquent assessments. mittee not later than 5 p.m. on the Each handler shall submit assess- fifth day of each month following the ments to the Vidalia Onion Committee month in which any shipments were on a monthly basis for each month dur- made. Should the fifth day of the ing the fiscal period in which they month fall on a weekend or holiday, re- made shipments. Each such assessment ports are due by the first business day shall be paid to the Committee not prior to the fifth day of the month. later than 5 p.m. on the fifth day of [67 FR 41816, June 20, 2002, as amended at 71 each month following the month in FR 34509, June 15, 2006] which any shipments were made. Should the fifth day of the month fall § 955.113 Fiscal period. on a weekend or holiday, assessments Pursuant to § 955.13, fiscal period shall are due by the first business day prior mean the period beginning January 1 to the fifth day of the month.

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Each handler shall pay interest of 956.41 Budget. one percent per month on any unpaid 956.42 Assessments. assessments levied pursuant to § 955.42 956.43 Accounting. and on any accrued unpaid interest be- 956.44 Excess funds. 956.45 Contributions. ginning the day immediately after the date the monthly assessments were RESEARCH AND DEVELOPMENT due, until the delinquent handler’s as- 956.50 Research and development. sessments, plus applicable interest, has been paid in full. REGULATION [71 FR 34509, June 15, 2006] 956.60 Marketing policy. 956.61 Recommendation for regulations ASSESSMENT RATES 956.62 Issuance of regulations. 956.63 Handling for specified purposes. § 955.209 Assessment rate. 956.64 Minimum quantities. 956.65 Notification of regulations. On and after January 1, 2008, an as- 956.66 Safeguards. sessment rate of $0.13 per 40-pound carton or equivalent is established for INSPECTION Vidalia onions. 956.70 Inspection and certification.

[73 FR 31607, June 3, 2008] REPORTS PART 956—SWEET ONIONS GROWN 956.80 Reports and recordkeeping. IN THE WALLA WALLA VALLEY OF MISCELLANEOUS PROVISIONS SOUTHEAST WASHINGTON AND 956.85 Termination or suspension. NORTHEAST OREGON 956.87 Proceedings after termination. 956.88 Effect of termination or amendment. Subpart—Order Regulating Handling 956.89 Compliance. 956.90 Right of the Secretary. DEFINITIONS 956.91 Duration of immunities. 956.92 Agents. Sec. 956.93 Derogation. 956.1 Secretary. 956.94 Personal liability. 956.2 Act. 956.95 Separability. 956.3 Person. 956.96 Amendments. 956.4 Production area. 956.5 Walla Walla Sweet Onions. Subpart—Rules and Regulations 956.6 Handler. 956.7 Registered handler. 956.113 Fiscal period. 956.8 Handle. 956.142 Interest charges. 956.9 Container. 956.162 Container markings. 956.10 Producer. 956.163 Handling for specified purposes. 956.11 Varieties. 956.180 Reports. 956.12 Committee. 956.202 Assessment rate. 956.13 Fiscal period. 956.14 [Reserved] AUTHORITY: 7 U.S.C. 601–674. 956.15 Grade and size. SOURCE: 60 FR 27626, May 24, 1995, unless 956.16 Pack. otherwise noted. ADMINISTRATIVE COMMITTEE DEFINITIONS 956.20 Establishment and membership. 956.21 Term of office. § 956.1 Secretary. 956.22 Nominations. 956.23 Selection. Secretary means the Secretary of Ag- 956.24 Qualification and acceptance. riculture of the United States or any 956.25 Alternates. officer or employee of the Department 956.26 Vacancies. of Agriculture who has been delegated, 956.27 Failure to nominate. or to whom authority may hereafter be 956.28 Procedure. delegated, the authority to act for the 956.29 Expenses. 956.30 Powers. Secretary. 956.31 Duties. § 956.2 Act. EXPENSES AND ASSESSMENTS Act means Public Act No. 10, 73d Con- 956.40 Expenses. gress (May 12, 1933), as amended and as

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reenacted and amended by the Agricul- point on the East line of Section 11 in Twp. tural Marketing Agreement Act of 1937, 9 North, Rge. 37 East, W.M., thence South as amended (Sec. 1–19, 48 Stat. 31, as along the East line of Sections 11, 14, 23, 26, amended; 7 U.S.C. 601 et seq.). and 35 in Twp. 9 North, Rge. 37 East, W.M., the East lines of Sections 2, 11, 14, 23, 26, and § 956.3 Person. 35 in Twp. 8 North, Rge. 37 East, W.M., the East lines of Sections 2, 11, 14, 23, 26, and 35 Person means an individual, partner- in Twp. 7 North, Rge. 37 East, W.M., and the ship, corporation, association, or any East lines of Sections 2, 11, and fractional other business unit. Section 14 in Twp. 6 North, Rge. 37 East, W.M., to a point on the Washington-Oregon § 956.4 Production area. State line; thence West along said State Line to the closing corner on the West side of Sec- Production area means a tract of land tion 18 in Twp. 6 North, Rge. 37 East, W.M.; in Umatilla County, Oregon, and Walla thence South along the West line of Sections Walla County, Washington, based on 18, 19, 30, and 31 in Twp. 6 North, Rge. 37 surveyors’ maps, enclosed by the fol- East, W.M. and the West line of Sections 6, 7, lowing boundaries: and 18 in Twp. 5 North, Rge. 37 East to the corner common to Sections 18 and 19 in Twp. Commencing at the Southeast corner of Sec- 5 North, Rge. 37 East, W.M. and 13 and 24 in tion 13, Township (Twp.) 5 North, Range Twp. 5 North, Rge. 36 East, W.M., Being the (Rge.) 36 East, W.M.; thence Westerly along True Point of Beginning of this Legal De- the South line of Sections 13, 14, 15, 16, 17, scription. and 18 in Twp. 5 North, Rge. 36 East, Sec- tions 13, 14, 15, 16, 17, and 18 in Twp. 5 North, § 956.5 Walla Walla Sweet Onions. Rge. 35 East, Sections 13, 14, 15, 16, 17, and 18 in Twp. 5 North, Rge. 34 East, Sections 13, 14, Walla Walla Sweet Onions means all and 15 in Twp. 5 North, Rge. 33 East, W.M. to varieties of Allium cepa grown within the East right of way line of the Northern the production area, except Spanish Pacific Railway, as it runs Northwesterly hybrid varieties. The committee may, through Vansyckle Canyon; thence North- westerly along said Easterly right of way with the approval of the Secretary, ex- line to a point in the Northwest 1⁄4 of Section empt individual varieties from any or 20, Twp. 7 North, Rge. 32 East, W.M. where all regulations issued under this part. said line intersects the South right of way of the Union Pacific Railway, said intersection § 956.6 Handler. being commonly known as Zangar Junction; Handler is synonymous with shipper thence Easterly along said South right of way line of the Union Pacific Railway to a and means any person (except a com- 1 mon or contract carrier of Walla Walla point in the Southwest ⁄4 of Section 23, Twp. 7 North, Rge. 32 East where said line inter- Sweet Onions owned by another per- sects the South right of way line of Wash- son) who handles Walla Walla Sweet ington State Highway No. 12; thence Eas- Onions or causes Walla Walla Sweet terly along said South right of way line to Onions to be handled. the intersection with the West line of Sec- tion 34, Twp. 7 North, Rge. 33 East, W.M.; § 956.7 Registered handler. thence North, along the West line of Sec- tions 34, 27, 22, 15, 10, and 3 in Twp. 7 North, Registered handler means any person Rge. 33 East, W.M., and the West line of Sec- with adequate facilities for preparing tions 34, 27, and 22 in Twp. 8 North, Rge. 33 Walla Walla Sweet Onions for commer- East, W.M. to the Northwest corner of said cial market, who has requested such Section 22; thence East along the North line registration and is so recorded by the of said Section 22 to the Northeast corner committee, or any person who has ac- thereof; thence North along the West line of cess to such facilities and has recorded Sections 14, 11, and 2 in Twp. 8 North, Rge. 33 East, W.M. to the Northwest corner of said with the committee the ability and Section 2; thence East along North lines of willingness to assume customary obli- Sections 2 and 1 in Twp. 8 North, Rge. 33 gations of preparing Walla Walla Sweet East, W.M. and the North line of Section 6, Onions for commercial market. The Twp. 8 North, Rge. 34 East, W.M. to the cen- committee may recommend, for ap- terline of the Touchet River; thence north- proval of the Secretary, procedures erly and Easterly along said centerline of the with respect to handler registration. Touchet River as it runs through Twp. 9 North, Rge. 34 East, Twp. 9 North, Rge. 35 § 956.8 Handle. East, Twp. 10 North, Rge. 35 East, Twp. 10 North, Rge. 36 East, Twp. 9 North, Rge. 36 Handle is synonymous with ship and East, and Twp. 9 North, Rge. 37 East to a means to package, load, sell, transport,

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or in any way place Walla Walla Sweet thereof, or variations based thereon, or Onions or cause Walla Walla Sweet On- States of Washington or Oregon stand- ions to be placed in the current of com- ards of onions or amendments thereto merce within the production area or or modifications thereof or variations between the production area and any based thereon, recommended by the point outside thereof. Such term shall committee and approved by the Sec- not include the transportation, sale, or retary. delivery of harvested Walla Walla [64 FR 4933, Feb. 1, 1999] Sweet Onions to a handler within the production area for the purpose of hav- § 956.16 Pack. ing such Walla Walla Sweet Onions prepared for market. Pack means a quantity of Walla Walla Sweet Onions specified by grade, § 956.9 Container. size, weight, or count, or by type or condition of container, or any com- Container means a box, bag, crate, hamper, basket, package, or any other bination of these recommended by the receptacle used in the packaging, committee and approved by the Sec- transporting, sale, shipment, or other retary. handling of Walla Walla Sweet Onions. [64 FR 4933, Feb. 1, 1999]

§ 956.10 Producer. ADMINISTRATIVE COMMITTEE Producer is synonymous with grower § 956.20 Establishment and member- and means any person engaged in a ship. proprietary capacity in the production of Walla Walla Sweet Onions for mar- (a) The Walla Walla Sweet Onion ket. Marketing Committee, consisting of ten members, is hereby established. § 956.11 Varieties. The committee shall consist of six pro- Varieties means and includes all clas- ducer members, three handler mem- sifications, subdivisions, or types of bers, and one public member. Each Walla Walla Sweet Onions according to member shall have an alternate who those definitive characteristics now or shall have the same qualifications as hereafter recognized by the United the member. States Department of Agriculture or (b) A producer shall have three years recommended by the committee and of experience in producing onions in approved by the Secretary. order to qualify for committee membership. At the time of selection, no § 956.12 Committee. more than two producer members may be affiliated with the same handler. Committee means the Walla Walla Sweet Onion Committee established [60 FR 27626, May 24, 1995, as amended at 64 pursuant to § 956.20. FR 4933, Feb. 1, 1999]

§ 956.13 Fiscal period. § 956.21 Term of office. Fiscal period means the period begin- (a) Except as otherwise provided in ning on June 1 and ending on May 31 of paragraph (b) of this section, the term each year, or other such period as may of office of committee members and be recommended by the committee and their respective alternates shall be for approved by the Secretary. three fiscal periods beginning on June 1 or such other date as recommended by § 956.14 [Reserved] the committee and approved by the Secretary. The terms shall be deter- § 956.15 Grade and size. mined so that one-third of the grower Grade means any of the officially es- membership and one-third of the han- tablished grades of onions, including dler membership shall terminate each maturity requirements and size means year. Members and alternates shall any of the officially established sizes of serve during the term of office for onions as set forth in the United States which they are selected and have been standards for grades of onions or qualified, or during that portion there- amendments thereto, or modifications of beginning on the date on which they

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qualify during such term of office and (e) Each person who is both a handler continuing until the end thereof, or and a producer may vote either as a until their successors are selected and handler or as a producer, but not both; have qualified. (f) Each person is entitled to cast (b) The term of office of the initial only one vote on behalf of him or her- members and alternates shall begin as self, his or her partners, agents, sub- soon as possible after the effective date sidiaries, affiliates and representatives, of this subpart. One-third of the initial in designating nominees for committee industry members and alternates shall members and alternates. An eligible serve for a one-year term, one-third producer’s or handler’s privilege of shall serve for a two-year term, and casting only one vote, as aforesaid, one-third shall serve for a three-year shall be construed to permit such voter term. The initial, as well as all succes- to cast one vote for each producer sive terms of office of the public mem- member and alternate member position ber and alternate member shall be for to be filled or each handler member three years. and alternate member position to be (c) The consecutive terms of office filled, but not both. for all members shall be limited to two (g) Every three years, at the first three-year terms. There shall be no meeting following selection, the com- such limitation for alternate members. mittee shall nominate the public member and alternate for a three-year term § 956.22 Nominations. of office. Nominations from which the Sec- (h) The committee shall prescribe retary may select the members of the such additional qualifications, admin- committee and their respective alter- istrative rules and procedures for selec- nates may be made in the following tion and voting for each candidate as it manner: deems necessary and as the Secretary (a) The committee shall hold or approves. cause to be held, within the production area and prior to April 1 of each year § 956.23 Selection. or by such other date as may be speci- The Secretary shall select members fied by the Secretary, one or more and alternate members of the com- meetings of producers and handlers for mittee from the nominations made the purpose of designating one nominee pursuant to § 956.22 or from other quali- for each of the member and alternate fied persons. member positions which are vacant or will be vacant at the end of the fiscal § 956.24 Qualification and acceptance. period; (b) In arranging for such meetings Any person nominated to serve as a the committee may, if it deems such member or alternate member of the desirable, cooperate with existing orga- committee shall, prior to selection by nizations and agencies; the Secretary, qualify by filing a writ- (c) Nominations for committee mem- ten background and acceptance state- bers and alternate members shall be ment indicating such person’s willing- provided to the Secretary, in such ness to serve in the position for which manner and form as the Secretary may nominated. prescribe, not later than 30 days prior to the end of the fiscal period within § 956.25 Alternates. which the current term of office ex- An alternate member of the com- pires; mittee shall act in the place and stead (d) Only producers may participate in of the member for whom such person is designating nominees for producer an alternate, during such member’s ab- committee members and their alter- sence. In the event of the death, re- nates and only handlers may partici- moval, resignation, or disqualification pate in designating nominees for han- of a member, that member’s alternate dler committee members and their al- shall serve until a successor to such ternates; member has qualified and is selected.

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§ 956.26 Vacancies. (c) To receive, investigate, and report to the Secretary complaints of viola- To fill any vacancy occasioned by the tions of the provisions of this part; and failure of any person nominated as a (d) To recommend to the Secretary member or as an alternate to qualify, amendments to this part. or in the event of the death, removal, resignation, or disqualification of a § 956.31 Duties. member or alternate, a successor for It shall be among the duties of the the unexpired term may be selected by committee: the Secretary from nominations made (a) At the beginning of each fiscal pe- pursuant to § 956.22 from previously riod, or as soon thereafter as prac- unselected nominees on the current ticable, to meet and organize, to select nominee list, or from other eligible a chairperson and such other officers as persons. may be necessary, to select subcommittees, and to adopt such rules § 956.27 Failure to nominate. and regulations for the conduct of its If nominations are not made within business as it may deem advisable; the time and manner prescribed in (b) To act as intermediary between § 956.22 the Secretary may, without re- the Secretary and any producer or han- gard to nominations, select the mem- dler; bers and alternates on the basis of the (c) To furnish to the Secretary such representation provided for in § 956.20. available information as the Secretary may request; § 956.28 Procedure. (d) To appoint such employees, agents, and representatives as it may (a) Six members of the committee deem necessary and to determine the shall constitute a quorum, and six con- salaries and define the duties of each curring votes shall be required to pass such person; any motion or approve any committee (e) To investigate from time to time action, except that recommendations and to assemble data on the growing, made pursuant to § 956.61 shall require harvesting, shipping, and marketing seven concurring votes. conditions with respect to Walla Walla (b) The committee may provide for Sweet Onions and to engage in such re- meetings by telephone, telegraph, fac- search and service activities which re- simile, or other means of communica- late to the production, handling, or tion, and any vote cast orally at such marketing of Walla Walla Sweet On- meetings shall be confirmed promptly ions as may be approved by the Sec- in writing: Provided, That if an assem- retary; bled meeting is held, all votes shall be (f) To keep minutes, books, and cast in person. records which clearly reflect all of the acts and transactions of the com- § 956.29 Expenses. mittee. Such minutes, books, and Members and alternates shall serve records shall be subject to examination without compensation but shall be re- at any time by the Secretary or the imbursed for such expenses authorized Secretary’s authorized agent or rep- by the committee and necessarily in- resentative; curred by them in attending committee (g) To make available to producers meetings and in the performance of and handlers the committee voting record on recommended regulations their duties under this part. and on other matters of policy; § 956.30 Powers. (h) Prior to each fiscal period, to submit to the Secretary a budget of its The committee shall have the fol- proposed expenses for such fiscal pe- lowing powers: riod, together with a report thereon, (a) To administer the provisions of and a recommendation as to the rate of this part in accordance with its terms; assessment for such period; (b) To make rules and regulations to (i) To cause its books to be audited effectuate the terms and provisions of by a competent accountant at least this part; once each fiscal period, and at such

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other time as the committee may deem handler’s pro rata share of the commit- necessary or as the Secretary may re- tee’s expenses. quire; the report of such audit shall (b) Assessments shall be levied upon show the receipt and expenditure of handlers, at rates established by the funds collected pursuant to this part; a Secretary. Such rates may be estab- copy of each such report shall be fur- lished upon the basis of the commit- nished to the Secretary, and a copy of tee’s recommendations or other avail- each such report shall be made available information. able at the principal office of the com- (c) At any time during, or subsequent mittee for inspection by producers and to, a given fiscal period, the committee handlers: Provided, that confidential in- may recommend the approval of an formation shall be removed from all amended budget and an increase in the copies made available to the public; rate of assessment. Upon the basis of and such recommendations, or other avail- (j) To consult, cooperate, and ex- able information, the Secretary may change information with other onion approve an amended budget and in- marketing committees and other indi- crease the assessment rate. Such in- viduals or agencies in connection with crease in the assessment rate shall be all proper committee activities and ob- applicable to all Walla Walla Sweet On- jectives under this subpart. ions which were handled by each handler thereof during such fiscal period. EXPENSES AND ASSESSMENTS (d) The payment of assessments for the maintenance and functioning of the § 956.40 Expenses. committee may be required under this The committee is authorized to incur part throughout the period it is in ef- such expenses as the Secretary may fect, irrespective of whether particular find are reasonable and likely to be in- provisions of this part are suspended or curred by the committee for its main- become inoperative. tenance and functioning, and to enable (e) To provide funds for the adminis- it to exercise its powers and perform tration of the provisions of this part its duties in accordance with the provi- during the initial fiscal period or the sions of this part. The funds to cover first part of a fiscal period when nei- such expenses shall be acquired in the ther sufficient operating reserve funds manner prescribed in §§ 956.42 and nor sufficient revenue from assess- 956.45. ments on the current season’s shipments are available, the committee § 956.41 Budget. may accept payment of assessments in Prior to each fiscal period and as advance or may borrow money for such may be necessary thereafter, the com- purposes. mittee shall prepare an estimated (f) The committee may impose a late budget of income and expenditures nec- payment charge or an interest charge, essary for the administration of this or both, on any handler who fails to part. The committee shall recommend pay any assessment in a timely man- a rate of assessment calculated to pro- ner. Such time and the rates shall be vide adequate funds to defray its pro- recommended by the committee and posed expenditures. The committee approved by the Secretary. shall present such budget to the Sec- retary with an accompanying report § 956.43 Accounting. showing the basis for its calculations. (a) All funds received by the committee pursuant to the provisions of § 956.42 Assessments. this part shall be used solely for the (a) The funds to cover the commit- purposes specified in this part. tee’s expenses shall be acquired by the (b) The Secretary may at any time levying of assessments upon handlers require the committee, its members as provided in this subpart. Each per- and alternate members, employees, son who first handles Walla Walla agents, and all other such persons asso- Sweet Onions shall pay assessments to ciated with the committee to account the committee upon demand, which as- for all receipts, disbursements, funds, sessments shall be in payment of such property, or records for which they are

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responsible. Whenever any person (5) To cover necessary expenses of ceases to be a member, alternate mem- liquidation in the event of termination ber, employee, or agent of the com- of this part. mittee, such person shall account for (b) Upon termination of this part, all receipts, disbursements, funds, any funds not required to defray the property, and records pertaining to the necessary expenses of liquidation shall committee’s activities for which such be disposed of in such manner as the person was responsible, deliver all Secretary may determine to be appro- property and funds in such person’s priate except that to the extent prac- possession to the committee, and exe- ticable, such funds shall be returned cute such assignments and other in- pro rata to the persons from whom struments as may be necessary or ap- such funds were collected. propriate to vest in the committee full (c) If such excess is not retained in a title to all of the property, funds, and reserve as provided in paragraph (a) of this section, each handler entitled to a claims vested in such person pursuant proportionate refund of the excess as- to this part. sessments collected shall be credited at (c) The committee may make rec- the end of a fiscal period with such re- ommendations to the Secretary for one fund against the operations of the fol- or more of the members thereof, or any lowing fiscal period unless such han- other person, to act as a trustee for dler demands payment thereof, in holding records, funds, or any other which event such proportionate refund committee property during periods of shall be paid as soon as practicable. suspension of this part, or during any period or periods when regulations are § 956.45 Contributions. not in effect and, upon determining The committee may accept voluntary such action is appropriate, the Sec- contributions but these shall be used retary may direct that such person or only to pay expenses incurred pursuant persons shall act as trustee or trustees to § 956.50. Such contributions shall be for the committee. free from any encumbrances by the donor, and the committee shall retain § 956.44 Excess funds. complete control of their use. If, at the end of a fiscal period, the assessments collected are in excess of RESEARCH AND DEVELOPMENT expenses incurred, such excess shall be § 956.50 Research and development. accounted for as follows: (a) The committee, with approval of (a) The committee, with the approval the Secretary, may establish an oper- of the Secretary, may establish or pro- ating reserve and may carry over to vide for the establishment of produc- subsequent fiscal periods excess funds tion research, marketing research and in a reserve so established, except development, and marketing pro- funds in the reserve shall not exceed motion projects, including paid adver- the equivalent of approximately two tising, designed to assist, improve, or fiscal period’s budgeted expenses. Such promote the marketing, distribution, reserve funds may be used: consumption, or efficient production of Walla Walla Sweet Onions. Any such (1) To defray any expenses authorized project for the promotion and adver- under this part; tising of Walla Walla Sweet Onions (2) To defray expenses during any fis- may utilize an identifying mark, in- cal period prior to the time assessment cluding but not limited to registered income is sufficient to cover such ex- trademarks and logos, which shall be penses; made available for use by all handlers (3) To cover deficits incurred during in accordance with such terms and con- any fiscal period when assessment in- ditions as the committee, with the ap- come is less than expenses; proval of the Secretary, may prescribe. (4) To defray expenses incurred dur- The committee may register such logos ing any period when any or all provi- with the Commissioner of Patents and sions of this part are suspended or are Trademarks, U.S. Patent and Trade- inoperative; and mark Office. The expense of such

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projects shall be paid from funds col- for the marketing of Walla Walla lected pursuant to §§ 956.42 and 956.45. Sweet Onions. In developing its mar- (b) In recommending projects pursu- keting policy, the committee shall in- ant to this section, the committee vestigate relevant supply and demand shall give consideration to the fol- conditions for Walla Walla Sweet On- lowing: ions. In such investigations, the com- (1) The expected supply of Walla mittee shall give appropriate consider- Walla Sweet Onions in relation to mar- ation to the following: ket requirements; (1) Market prices for sweet onions, (2) The supply situation among com- including prices by variety, grade, size, peting onion areas and communities; quality, and maturity, and by different (3) The anticipated benefits from packs; such projects in relation to their costs; (2) Supply of sweet onions by grade, (4) The need for marketing research size, quality, maturity, and variety in with respect to any market develop- the production area and in other sweet ment activity; and onion producing sections; (5) Other relevant factors. (3) The trend and level of consumer (c) If the committee concludes that a income; program of research and development (4) Establishing and maintaining or- should be undertaken, or continued, in derly marketing conditions for Walla any fiscal period, it shall submit the Walla Sweet Onions; following for the approval of the Sec- (5) Orderly marketing of Walla Walla retary: Sweet Onions as will be in the public (1) Its recommendations as to the interest; and funds to be obtained pursuant to (6) Other relevant factors. §§ 956.42 and 956.45; (b) Reports. (1) The committee shall (2) Its recommendations as to any resubmit a report to the Secretary set- search projects; and ting forth the aforesaid marketing pol- (3) Its recommendations as to pro- icy, and the committee shall notify motion activity and paid advertising. producers and handlers of the contents (d) Upon conclusion of each activity, of such report. but at least annually, the committee (2) In the event it becomes advisable shall summarize and report the results to shift from such marketing policy be- of such activity to the Secretary. cause of changed supply and demand (e) All marketing promotion activity conditions, the committee shall pre- engaged in by the committee, includ- pare an amended or revised marketing ing paid advertising, shall be subject to policy in accordance with the manner the following terms and conditions: previously outlined. The committee (1) No marketing promotion, includ- shall submit a report thereon to the ing paid advertising, shall refer to any Secretary and notify producers and private brand, private trademark, or handlers of the contents of such report private trade name; on the revised or amended marketing (2) No promotion or advertising shall policy. disparage the quality, use, value, or sale of like or any other agricultural [64 FR 4933, Feb. 1, 1999] commodity or product, and no false or unwarranted claims shall be made in § 956.61 Recommendation for regula- connection with the product; and tions. (3) No promotion or advertising shall The committee shall recommend reg- be undertaken without reason to be- ulations to the Secretary whenever it lieve that returns to producers will be deems it advisable, as provided in improved by such activity. § 956.62. The committee also may recommend modification, suspension, or REGULATION termination of any regulation, or amendments thereto, in order to facili- § 956.60 Marketing policy. tate the handling of Walla Walla Sweet (a) Preparation. Prior to each mar- Onions for the purposes authorized in keting season, the committee shall § 956.63. The committee may also rec- consider and prepare a proposed policy ommend amendment, modification,

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termination, or suspension of any regu- § 956.63 Handling for specified pur- lation issued under this part. poses. Upon the basis of recommendations § 956.62 Issuance of regulations. and information submitted by the com- (a) Except as otherwise provided in mittee, or other available information, this part, the Secretary shall limit the the Secretary may issue special regula- shipment of Walla Walla Sweet Onions tions, or modify, suspend, or terminate by any one or more of the methods requirements in effect pursuant to hereinafter set forth whenever the Sec- §§ 956.42 and 956.62 or any combination retary finds from the recommendations thereof, in order to facilitate the han- and information submitted by the com- dling of onions for the following pur- mittee, or from other available infor- poses: mation, that such regulation would (a) Shipments of Walla Walla Sweet tend to effectuate the declared policy Onions for relief or to charitable insti- of the Act. Such limitation may: tutions; (1) Regulate in any or all portions of (b) Shipments of Walla Walla Sweet the production area, the handling of Onions for livestock feed; particular grades, sizes, qualities, or (c) Shipments of Walla Walla Sweet Onions for planting and for plants; maturities of any or all varieties of (d) Shipments of Walla Walla Sweet Walla Walla Sweet Onions, or combina- Onions as salad onions; tions thereof, during any period or pe- (e) Shipments of Walla Walla Sweet riods; Onions for all processing uses includ- (2) Regulate the handling of paring, pickling, peeling, dehydration, ticular grades, sizes, qualities, or ma- juicing, or other processing; turities of Walla Walla Sweet Onions (f) Shipments of Walla Walla Sweet differently, for different varieties or Onions for disposal; packs, or for any combination of the (g) Shipments of Walla Walla Sweet foregoing, during any period or periods; Onions for seed; (3) Provide a method, through rules (h) Shipments of Walla Walla Sweet and regulations issued pursuant to this Onions for packing or storing within part, for fixing the size, capacity, the production area or outside the pro- weight, dimensions, markings or pack duction area, but within specified loca- of the container or containers, which tions in the States of Oregon and may be used in the packaging or han- Washington; and dling of Walla Walla Sweet Onions, in- (i) Shipments of Walla Walla Sweet cluding appropriate logo or other con- Onions for other purposes which may tainer markings to identify the con- be specified. tents thereof; (4) Regulate the handling of Walla § 956.64 Minimum quantities. Walla Sweet Onions by establishing, in During any period in which ship- terms of grades, sizes, or both, min- ments of Walla Walla Sweet Onions are imum standards of quality and matu- regulated pursuant to this part, each rity. handler may handle up to, but not to (b) The Secretary may amend any exceed, 2,000 pounds of Walla Walla regulation issued under this part when- Sweet Onions per shipment without re- ever the Secretary finds that such gard to the inspection requirements of amendment would tend to effectuate this part: Provided, That such Walla Walla Sweet Onion shipments meet the the declared policy of the Act. The Sec- minimum requirements in effect at the retary may also terminate or suspend time of the shipment pursuant to any regulation or amendment thereof § 956.62. The committee, with the ap- whenever the Secretary finds that such proval of the Secretary, may rec- regulation or amendment obstructs or ommend modifications to this section no longer tends to effectuate the de- and the establishment of such other clared policy of the Act. minimum quantities below which [64 FR 4933, Feb. 1, 1999] Walla Walla Sweet Onion shipments will be free from the requirements in,

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or pursuant to, §§ 956.42, 956.62, 956.63, applications, the number of such appli- and 956.70, or any combination thereof. cations denied and certificates granted, the quantity of Walla Walla Sweet On- [64 FR 4934, Feb. 1, 1999] ions handled under duly issued certifi- § 956.65 Notification of regulations. cates, and such other information as may be requested. The Secretary shall notify the committee of each regulation issued and of INSPECTION each amendment, modification, suspension, or termination thereof. The com- § 956.70 Inspection and certification. mittee shall give reasonable notice (a) During any period in which ship- thereof to handlers. ments of Walla Walla Sweet Onions are § 956.66 Safeguards. regulated pursuant to this subpart, no handler shall handle Walla Walla (a) The committee, with the approval Sweet Onions unless such onions are of the Secretary, may prescribe ade- inspected by an authorized representa- quate safeguards to prevent Walla tive of the Federal-State Inspection Walla Sweet Onions shipped, pursuant Service, or such other inspection serv- to §§ 956.63 and 956.64, from entering ice as the Secretary shall designate channels of trade for other than the and are covered by a valid inspection purpose authorized therefor. (b) The committee, with the approval certificate, except when relieved from of the Secretary, may also prescribe such requirements pursuant to §§ 956.63 rules and regulations governing the or 956.64, or both. Upon recommenda- issuance, and the contents, of Certifi- tion of the committee, with approval of cates of Privilege, if such certificates the Secretary, inspection providers and are prescribed as safeguards by the certification requirements may be committee. Such safeguards may in- modified to facilitate the handling of clude requirements that: Walla Walla Sweet Onions. (1) Handlers shall first file applica- (b) Regrading, resorting, or repack- tions with the committee to ship such ing any lot of Walla Walla Sweet On- Walla Walla Sweet Onions. ions shall invalidate prior inspection (2) Handlers shall pay the pro rata certificates insofar as the requirements share of expenses provided by § 956.42 in of this section are concerned. No han- connection with such Walla Walla dler shall ship Walla Walla Sweet On- Sweet Onions. ions after they have been regraded, re- (3) Handlers shall obtain Certificates sorted, repacked, or in any other way of Privilege from the committee prior further prepared for market, unless to effecting the particular onion ship- such onions are inspected by an au- ment. thorized representative of the Federal- (c) The committee may rescind any State Inspection Service, or such other Certificate of Privilege, or refuse to inspection service as the Secretary issue any Certificate of Privilege, to shall designate: Provided, That such in- any handler if proof is obtained that spection requirements on regraded, re- Walla Walla Sweet Onions shipped by sorted, or repacked Walla Walla Sweet the handler for the purposes stated in Onions may be modified, suspended, or the Certificate of Privilege were han- terminated under rules and regulations dled contrary to the provisions of this recommended by the committee, and part. approved by the Secretary. (d) The Secretary shall have the (c) Upon recommendation of the com- right to modify, change, alter, or re- mittee, and approval of the Secretary, scind any safeguards prescribed and all Walla Walla Sweet Onions that are any certificates issued by the com- required to be inspected and certified mittee pursuant to the provisions of in accordance with this section shall be this section. identified by appropriate seals, stamps, (e) The committee shall make re- tags, or other identification to be fur- ports to the Secretary as requested, nished by the committee and affixed to showing the number of applications for the containers by the handler under such certificates, the quantity of Walla the direction and supervision of the Walla Sweet Onions covered by such Federal-State or Federal inspector, or

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the committee. Master containers may petitive position of any handler in rela- bear the identification instead of the tion to other handlers will not be dis- individual containers within said mas- closed. Compilations of general reports ter container. from data submitted by handlers is au- (d) Insofar as the requirements of thorized, subject to the prohibition of this section are concerned, the length disclosure of individual handler’s iden- of time for which an inspection certifi- tity or operations. cate is valid may be established by the (c) Each handler shall maintain for committee with the approval of the at least two succeeding years such Secretary. records of the Walla Walla Sweet On- (e) When Walla Walla Sweet Onions ions received and disposed of by such are inspected in accordance with the handler as may be necessary to verify requirements of this section, a copy of reports submitted to the committee each inspection certificate issued shall pursuant to this section. be made available to the committee by the inspection service. MISCELLANEOUS PROVISIONS (f) The committee may enter into an agreement with an inspection service § 956.85 Termination or suspension. with respect to the costs of the inspec- (a) The Secretary may at any time tion as provided by paragraph (a) of terminate the provisions of this sub- this section, and may collect from han- part by giving at least one day’s notice dlers their respective pro rata shares of by means of a press release or in any such costs. other manner which the Secretary may [64 FR 4934, Feb. 1, 1999] determine. (b) The Secretary shall terminate or REPORTS suspend the operations of any or all of the provisions of this subpart whenever § 956.80 Reports and recordkeeping. it is found that such provisions do not Upon request of the committee, made tend to effectuate the declared policy with the approval of the Secretary, of the act. each handler shall furnish to the com- (c) The Secretary shall terminate the mittee, in such manner and at such provisions of this subpart at the end of time as it may prescribe, such reports any fiscal period whenever it is found and other information as may be nec- that such termination is favored by a essary for the committee to perform its majority of producers who, during a duties under this part. representative period, have been en- (a) Such reports may include, but are gaged in the production of Walla Walla not necessarily limited to, the fol- Sweet Onions: Provided, That such ma- lowing: jority has, during such representative (1) The acreage of Walla Walla Sweet period, produced for market more than Onions grown; fifty percent of the volume of such (2) The quantities of Walla Walla Walla Walla Sweet Onions produced for Sweet Onions received by such handler; market, but such termination shall be (3) The quantities of Walla Walla announced at least 90 days before the Sweet Onions disposed of by such han- end of the current fiscal period. dler; (d) Within six years of the effective (4) The disposition date of such Walla date of this subpart the Secretary shall Walla Sweet Onions; conduct a continuance referendum to (5) The manner of disposition of such ascertain whether continuance of this Walla Walla Sweet Onions; and subpart is favored by producers. Subse- (6) The identification of the carrier quent referenda to ascertain continu- transporting such Walla Walla Sweet ance shall be conducted every six years Onions. thereafter. The Secretary may termi- (b) All such reports shall be held nate the provisions of this part at the under appropriate protective classifica- end of any fiscal period in which the tion and custody by the committee, or Secretary has found that continuance duly appointed employees thereof, so of this subpart is not favored by a ma- that any information contained therein jority of producers who, during a rep- which may adversely affect the com- resentative period determined by the

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Secretary, have been engaged in the have arisen or which may thereafter production for market of Walla Walla arise in connection with any provision Sweet Onions in the production area. of this subpart; Such termination shall be announced (b) Release or extinguish any viola- on or before the end of the fiscal pe- tion of this subpart or of any regula- riod. tions issued under this subpart; and (e) The provisions of this subpart (c) Affect or impair any rights or shall, in any event, terminate when- remedies of the Secretary or of any ever the provisions of the Act author- other person with respect to any such izing them cease to be in effect. violations.

§ 956.87 Proceedings after termination. § 956.89 Compliance. (a) Upon the termination of the pro- No handler shall handle Walla Walla visions of this subpart, the then func- Sweet Onions except in conformity to tioning members of the committee the provisions of this part. shall continue as joint trustees, for the purpose of liquidating the affairs of the § 956.90 Right of the Secretary. committee, of all funds and property The members of the committee, in- then in the possession, or under concluding successors and alternates, and trol, of the committee, including any agent or employee appointed or claims for any funds unpaid or prop- employed by the committee shall be erty not delivered at the time of such subject to removal or suspension by termination. Action by said trustee- the Secretary at any time. Each and ship shall require the concurrence of a every order, regulation, decision, de- majority of the said trustees. termination, or other act of the com- (b) The said trustees shall continue mittee shall be subject to the con- in such capacity until discharged by tinuing right of the Secretary to dis- the Secretary; shall, from time to approve of the same at any time. Upon time, account for all receipts and dis- such disapproval, the disapproved ac- bursements and deliver all property on tion of the committee shall be deemed hand, together with all books and null and void except as to acts done in records of said committee and of the reliance thereon or in compliance trustees, to such person as the Sec- therewith prior to such disapproval by retary may direct; and shall upon the the Secretary. request of the Secretary, execute such assignments or other instruments nec- § 956.91 Duration of immunities. essary or appropriate to vest in such The benefits, privileges, and immuni- person full title and right to all of the ties conferred upon any person by vir- funds, property, and claims vested in tue of this subpart shall cease upon the said committee or the trustees pursu- termination of this subpart, except ant to this subpart. with respect to acts done under and (c) Any person to whom funds, prop- during the existence of this subpart. erty, or claims have been transferred or delivered by the committee or its § 956.92 Agents. members pursuant to this section shall The Secretary may, by designation in be subject to the same obligations im- writing, name any person, including posed upon the members of the com- any officer or employee of the Govern- mittee and upon the said trustees. ment, or name any agency in the United States Department of Agri- § 956.88 Effect of termination or culture, to act as the Secretary’s agent amendment. or representative in connection with Unless otherwise expressly provided any of the provisions of this part. by the Secretary, the termination of this subpart or of any regulation issued § 956.93 Derogation. pursuant to this subpart, or the Nothing contained in this part is, or issuance of any amendments to either shall be construed to be, in derogation thereof, shall not: or in modification of the rights of the (a) Affect or waive any right, duty, Secretary or of the United States to obligation, or liability which shall exercise any powers granted by the Act

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or otherwise, or, in accordance with last day of the month in which such such powers, to act in the premises shipments are made. The interest whenever such action is deemed advis- charge shall be 11⁄2 percent of the unable. paid assessment balance. In the event the handler fails to pay the delinquent § 956.94 Personal liability. assessment amount within 60 days fol- No member or alternate of the com- lowing the due date, the 11⁄2 percent in- mittee or any employee or agent there- terest charge shall be applied monthly of, shall be held personally responsible, thereafter to the unpaid balance, in- either individually or jointly with oth- cluding any accumulated interest. Any ers, in any way whatsoever, to any amount paid by a handler as an assess- handler or to any person for errors in ment, including any charges imposed judgment, mistakes, or other acts, ei- pursuant to this paragraph, shall be ther of commission or omission, as credited when the payment is received such member, alternate, employee, or in the Committee office. agent, except for acts of dishonesty, willful misconduct, or gross neg- [75 FR 34347, June 17, 2010] ligence. § 956.162 Container markings. § 956.95 Separability. Effective April 15, 1997, no handler If any provision of this subpart is de- shall ship any container of Walla Walla clared invalid, or the applicability Sweet Onions except in accordance thereof to any person, circumstance, or with the following terms and provi- thing is held invalid, the validity of the sions: remainder of this subpart, or the appli- (a) Each container of Walla Walla cability thereof to any other person, Sweet Onions shall be conspicuously circumstance, or thing shall not be af- marked with the ‘‘Genuine Walla Walla fected thereby. Sweet Onion’’ logo. The marking may be in the form of a decal or a stamped § 956.96 Amendments. imprint of any color and size: Provided, Amendments to this subpart may be That the decal or stamped imprint proposed, from time to time, by the must be placed in plain sight and easy committee or by the Secretary. to read. (b) Walla Walla Sweet Onions may be handled not subject to the marking re- Subpart—Rules and Regulations quirements of this section when handlers ship such onions pursuant to SOURCE: 61 FR 44151, Aug. 28, 1996, unless § 956.163, or ship such onions in field otherwise noted. packed bulk bins containing more than 500 pounds net weight for sale to road- § 956.113 Fiscal period. side stands and farmers’ market opera- Pursuant to § 956.13, fiscal period shall tors for repacking and direct consumer mean the period beginning January 1 sale: Provided, That subject to Com- and ending December 31 of each year. mittee verification of handler con- [68 FR 57326, Oct. 3, 2003] tainer inventories, handlers may use their existing inventories of unmarked § 956.142 Interest charges. containers until April 15, 1999. For Walla Walla Sweet Onions han- [62 FR 18026, Apr. 14, 1997] dled prior to September 1, the Com- mittee shall impose an interest charge § 956.163 Handling for specified pur- on any handler who fails to pay his or poses. her annual assessments within thirty (a) Assessment and container mark- (30) days of the due date of September ing requirements specified in this part 30. For Walla Walla Sweet Onions han- shall not be applicable to shipments of dled during the period September 1 onions for any of the following pur- through May 31, the Committee shall poses: impose an interest charge on any han- (1) Shipments of Walla Walla Sweet dler who fails to pay his or her assess- Onions for relief or to charitable insti- ments within thirty (30) days of the tutions: Provided, That such shipments

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must be donated and not sold in order Privilege. That report shall contain the for this exemption to apply; following information: (2) Shipments of Walla Walla Sweet (i) Company name, contact name, ad- Onions for livestock feed; dress, contact telephone numbers, sig- (3) Shipments of Walla Walla Sweet nature, and date; Onions for planting and for plants; (ii) Names of shippers or receivers (4) Shipments of Walla Walla Sweet who have either shipped Walla Walla Onions as salad onions; sweet onions out of the production area (5) Shipments of Walla Walla Sweet or received the same; Onions for all processing uses includ- (iii) The total quantity of Walla Walla sweet onions shipped or received ing, pickling, peeling, dehydration, under this section during the period juicing, or other processing; covered; (6) Shipments of Walla Walla Sweet (iv) Certification by the receiver that Onions for disposal; all assessments due on Walla Walla (7) Shipments of Walla Walla Sweet sweet onions handled under the respec- Onions for seed. tive Certificate of Privilege are being (b) Market preparation outside the pro- forwarded to the Committee; and duction area. (1) Persons desiring to (v) Such other information as the ship or receive Walla Walla sweet on- Committee may require. ions for grading, packing, or storing (3) The Committee may cancel any outside the production area, but within Certificate of Privilege if proof satis- Oregon and Washington, shall apply to factory to the Committee is obtained the Committee on a ‘‘Shippers/Receivers that any Walla Walla sweet onions Application for Certificate of Privilege’’ shipped or received were done so conform. Such application shall contain trary to the provisions of this section. the following: Upon cancellation of such Certificate (i) Company name, contact name, ad- of Privilege the shipper or receiver dress, contact telephone numbers, date, may appeal to the Committee for re- and signature of the applicant; consideration. (ii) Whether the applicant is the ship- [62 FR 18026, Apr. 14, 1997, as amended at 69 per or receiver; FR 22382, Apr. 26, 2004] (iii) Agreement to provide a Special Purpose Shipment Report to the Com- § 956.180 Reports. mittee as required after shipping or re- (a) Each handler shall furnish to the ceiving Walla Walla sweet onions for Committee, no later than May 31 each grading, packing, or storing out of the year, a preseason Walla Walla Sweet production area under a Certificate of Onion Handler Registration Form. Such Privilege. form shall include: (iv) Certification by the applicant (1) Company name, contact name, that all provisions of the rules and reg- mailing and physical addresses, con- ulations of this part will be adhered to tact telephone numbers, and signature including, but not limited to, any of handler; grade, size, quality, maturity, pack, or (2) Season covered by registration; container requirements that may be (3) Brand names or labels to be used; currently in effect; and (v) Certification by the applicant, if a (4) Estimated number of acres of fall receiver under the Certificate of Privi- planted and spring planted Walla Walla lege, that they will forward to the Sweet Onions to be packed during the Committee office all assessments due season. on Walla Walla sweet onions handled. (b) Each handler shall furnish to the (vi) Such other information as the Committee a Handler’s Statement of Committee may require. Walla Walla Sweet Onion Shipments con- (2) Each approved applicant shall fur- taining the information in paragraphs nish to the Committee a Special Pur- (a)(1), (a)(2), and (a)(3) of this section, pose Shipment Report form no later than except that gift box and roadside stand thirty (30) days after the final ship- sales shall be exempt from paragraph ment of sweet onions are shipped or re- (a)(2) of this section: Provided, That for ceived pursuant to the Certificate of Walla Walla Sweet Onions handled

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prior to September 1, such report shall ADMINISTRATIVE COMMITTEE be furnished to the Committee by Sep- 958.20 Establishment and membership. tember 30, and that for Walla Walla 958.21 Procedure. Sweet Onions handled during the pe- 958.22 Selection. riod September 1 through May 31, such 958.23 Term of office. report shall be furnished to the Com- 958.24 Powers. mittee no later than thirty (30) days 958.25 Duties. 958.26 Expenses. after the end of the month in which 958.27 Districts. such onions were handled: 958.28 Nominations. (1) The number of 50 lb. equivalents 958.29 Failure to nominate. of Walla Walla Sweet Onions shipped 958.30 Vacancies. by each handler during each week of the shipping season and the total for EXPENSES AND ASSESSMENTS the season; 958.40 Expenses. (2) The geographical regions as de- 958.41 Budget. fined by the Committee to which each 958.42 Assessments. shipment is made; 958.43 Accounting. 958.44 Reserve fund. (3) The name, address, and signature 958.45 Accounting of funds upon termi- of each handler; and nation of the order. (4) The name of each producer and 958.46 Contributions. the number of 50 lb. equivalents of Walla Walla Sweet Onions that were RESEARCH AND DEVELOPMENT handled on behalf of or acquired from 958.47 Research and development. that producer. REGULATION [69 FR 22382, Apr. 26, 2004, as amended at 75 958.50 Marketing policy. FR 34347, June 17, 2010] 958.51 Recommendations for regulations. 958.52 Issuance of regulations. § 956.202 Assessment rate. 958.53 Handling for specified purposes. On and after January 1, 2008, an as- 958.54 Minimum quantities. sessment rate of $0.22 per 50-pound bag 958.55 Notification of regulations. or equivalent is established for Walla 958.56 Safeguards. Walla sweet onions. INSPECTION [73 FR 35888, June 25, 2008] 958.60 Inspection and certification. PART 958—ONIONS GROWN IN REPORTS CERTAIN DESIGNATED COUNTIES 958.65 Reports. IN IDAHO, AND MALHEUR EFFECTIVE TIME AND TERMINATION COUNTY, OREGON 958.70 Effective time. 958.71 Termination. Subpart—Order Regulating Handling 958.72 Proceeding after termination. 958.73 Effect of termination or amendment. DEFINITIONS Sec. MISCELLANEOUS PROVISIONS 958.1 Secretary. 958.81 Compliance. 958.2 Act. 958.82 Right of the Secretary. 958.3 Person. 958.83 Duration of immunities. 958.4 Production area. 958.84 Agents. 958.5 Onions. 958.85 Derogation. 958.6 Handler. 958.86 Personal liability. 958.7 Handle. 958.87 Separability. 958.8 Grading. 958.88 Amendments. 958.9 Grade and size. 958.89 Counterparts. 958.10 Producer. 958.90 Additional parties. 958.11 Committee. 958.91 Order with marketing agreement. 958.12 Fiscal period. 958.13 Variety or varieties. Subpart—Rules and Regulations 958.14 Export. 958.15 District. 958.112 Fiscal period. 958.16 Pack. 958.160 Reestablishment of Districts. 958.17 Container. 958.240 Assessment rate.

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958.250 Assessment Credit Report. owned by another person) who handles onions. Subpart—Handling Regulations § 958.7 Handle. 958.328 Handling regulation. Handle is synonymous with ship and AUTHORITY: 7 U.S.C. 601–674. means to sell or transport onions, or SOURCE: 22 FR 26, Jan. 3, 1957, unless other- cause onions to be sold or transported, wise noted. Redesignated at 26 FR 12751, Dec. within the production area or between 30, 1961. the production area and any point outside thereof. Except as otherwise pro- Subpart—Order Regulating vided in §§ 958.56 and 958.65, this defini- Handling tion of ‘‘handle’’ shall not be applicable to onions that are transported within DEFINITIONS the production area for grading or storing therein, or to onions that are trans- § 958.1 Secretary. ported or sold to commercial Secretary means the Secretary of Ag- dehydrators for processing by such riculture of the United States or any dehydrators into dehydrated onion officer or employee of the United products. States Department of Agriculture to whom authority has heretofore been § 958.8 Grading. delegated, or to whom authority may Grading is synonymous with prepare hereafter be delegated, to act in his for market and means the sorting or stead. separation of onions into grades and sizes for market purposes. § 958.2 Act. § 958.9 Grade and size. Act means Public Act No. 10, 73d Con- gress, as amended and as reenacted and Grade means any of the officially es- amended by the Agricultural Mar- tablished grades of onions, and size keting Agreement Act of 1937, as means any of the officially established amended (48 Stat. 31, as amended; 7 sizes of onions, as set forth in: U.S.C. 601 et seq., 68 Stat. 906, 1047). (a) The United States Standards for grades of onions (other than Bermuda- § 958.3 Person. Granex and Creole Types) (§§ 51.2830 to Person means an individual, partner- 51.2850 of this title), or amendments ship, corporation, association, or any thereto, or modifications thereof, or other business unit. variations based thereon; and (b) Any other United States Stand- § 958.4 Production area. ards, or State of Idaho or Oregon Standards for onions, or amendments Production area means all territory thereto, or modifications thereof, or included within the boundaries of the variations based thereon. County of Malheur in Oregon, and all counties south and southeast of the The term size also includes any of the southern boundary of Idaho County in sizes recognized by the onion trade in the State of Idaho. the production area.

§ 958.5 Onions. § 958.10 Producer. Producer means any person engaged Onions means all varieties of Allium in the production of onions for market. cepa, commonly known as onions, grown, or which may be grown in the § 958.11 Committee. production area. Committee means the Idaho-Eastern [41 FR 36196, Aug. 27, 1976] Oregon Onion Committee established pursuant to § 958.20. § 958.6 Handler. Handler is synonymous with shipper § 958.12 Fiscal period. and means any person (except a com- Fiscal period means the period begin- mon or contract carrier of onions ning and ending on the dates approved

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by the Secretary pursuant to rec- for such member is selected and has ommendations by the committee. qualified.

§ 958.13 Variety or varieties. [22 FR 26, Jan. 3, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 47 FR 8000, Variety or varieties means and in- Feb. 24, 1982] cludes all classifications of onions according to those definitive characteris- § 958.21 Procedure. tics now or hereafter recognized by the (a) Seven members of the committee United States Department of Agri- shall be necessary to constitute a culture. quorum and seven concurring votes shall be required to pass any motion or § 958.14 Export. approve any committee action. Export means shipment of onions be- (b) The committee may provide for yond the boundaries of continental voting by telephone, telegraph, or United States. other means of communication and any such vote shall be confirmed promptly § 958.15 District. in writing: Provided, That if an assem- District means each of the geo- bled meeting is held, all votes shall be graphical divisions of the production cast in person. area initially established or as reestab- § 958.22 Selection. lished pursuant to § 958.27. The Secretary shall select committee § 958.16 Pack. members and alternates from the nominee lists submitted pursuant to Pack means a quantity of onions in this part or from among other eligible any type of container and which falls persons. within specific weight limits or within (a) Each person selected as a com- specific grade or size limits, or both, as mittee member or alternate to rep- may be recommended by the com- resent producers shall be an individual mittee and approved by the Secretary. who is a producer, or an officer or employee of a producer, in the district for § 958.17 Container. which selected. Container means a sack, box, bag, (b) Each person selected as a com- crate, hamper, basket, carton, package, mittee member or alternate to rep- or any other type of receptacle used in resent handlers shall be an individual the packaging, transportation, sale, who is a handler, or an officer or em- shipment or other handling of onions. ployee of a handler in the portion of the production area for which selected. ADMINISTRATIVE COMMITTEE (c) The Secretary shall select one producer member of the committee, § 958.20 Establishment and member- and alternate, from each of the dis- ship. tricts established, or reestablished, (a) The Idaho-Eastern Oregon Onion pursuant to § 958.27. The Secretary Committee, consisting of six producer shall also select one handler member of members, four handler members, and the committee, and his alternate, from one public member is hereby estab- the Idaho portion of the production lished. Each shall have an alternate area and one member and his alternate who shall have the same qualifications from Malheur County, Oregon, and two as the member. handler members, and their respective (b) An alternate member of the com- alternates, from the production area- mittee shall act in the place and stead at-large. of the member for whom he is an alter- (d) Each person selected by the Sec- nate, during such member’s absence or retary as a committee member or al- inability to act, and shall perform ternate shall qualify by filing a written other duties as assigned. In the event acceptance promptly with the Sec- of the death, removal, resignation or retary. disqualification of a member, his alter- (e) The public member shall be a resi- nate shall act for him until a successor dent of the production area and have

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no direct financial interest in the com- (d) To appoint such employees, mercial production, financing, buying, agents, and representatives as it may packing or marketing of onions except deem necessary and to determine the as a consumer nor be a director, officer salaries and define the duties of each or employee of any firm so engaged. such person; [22 FR 26, Jan. 3, 1957. Redesignated at 26 FR (e) To investigate from time to time 12751, Dec. 30, 1961, as amended at 47 FR 8000, and to assemble data on the growing, Feb. 24, 1982] harvesting, shipping and marketing conditions with respect to onions and § 958.23 Term of office. to engage in such research and service (a) The term of office of committee activity which relate to the produc- members and alternates shall be for tion, handling or marketing of onions two years beginning on the first day of as may be approved by the Secretary; June and continuing through May 31. (f) To keep minutes, books, and The terms of office of members and al- records which clearly reflect all of the ternates shall be so determined that acts and transactions of the committee one-half of the total committee mem- and such minutes, books, and records bership shall terminate each May 31. shall be subject to examination at any (b) Committee members and alter- time by the Secretary or his authorized nates shall serve during the term of of- agent or representative; fice for which they are selected and (g) To make available to producers have qualified, or during that portion and handlers the committee voting thereof beginning on the date on which record on recommended regulations they qualify during the current term of and on other matters of policy; office and continuing until the end (h) Prior to each fiscal period, to sub- thereof, and until their successors are mit to the Secretary a budget of its selected and have qualified. proposed expenses for such fiscal period, together with a report thereon; § 958.24 Powers. (i) To cause the books of the com- The committee shall have the fol- mittee to be audited by a competent lowing powers: accountant at least once each fiscal pe- (a) To administer the provisions of riod, and at such other time as the this part in accordance with its terms; committee may deem necessary or as (b) To make rules and regulations to the Secretary may request; and the re- effectuate the terms and provisions of port of such audit shall show the re- this part; ceipt and expenditure of funds col- (c) To receive, investigate, and report lected pursuant to this part; a copy of to the Secretary complaints of viola- each such report shall be furnished to tions of the provisions of this part; and the Secretary and a copy of each such (d) To recommend to the Secretary report shall be made available at the amendments to this part. principal office of the committee for inspection by producers and handlers; § 958.25 Duties. and It shall be the duty of the committee: (j) To consult, cooperate, and ex- (a) At the beginning of each fiscal pe- change information, with other onion riod, or as soon thereafter as prac- marketing committees and other indi- ticable, to meet and organize, to select viduals or agencies in connection with a chairman and such other officers as all proper committee activities and ob- may be necessary, to select sub- jectives under this subpart; and committees of committee members, (k) To recommend nominees for the and to adopt such rules and regulations public member and alternate. for the conduct of its business as it may deem advisable; [22 FR 26, Jan. 3, 1957. Redesignated at 26 FR (b) To act as intermediary between 12751, Dec. 30, 1961, as amended at 41 FR the Secretary and any producer or han- 36196, Aug. 27, 1976; 47 FR 8000, Feb. 24, 1982] dler; (c) To furnish to the Secretary such § 958.26 Expenses. available information as he may re- Committee members and alternates quest; when acting on committee business

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shall be reimbursed for reasonable ex- District No. 5 (Parma, Wilder, Nampa, and penses necessarily incurred by them in Notus Area): Canyon County, Idaho. the performance of their duties and in District No. 6 (Homedale, Marsing, Meredian, the exercise of their powers under this Melba, Mountain Home, Glenns Ferry and part. However, at its discretion the Twin Falls Area): All counties in the Idaho committee may request the attendance portion of the production area not included of alternates at any or all meetings within Districts Nos. 1 and 5. notwithstanding the expected or actual (b) The Secretary, upon the rec- presence of the respective members. ommendation of the committee, may [41 FR 36196, Aug. 27, 1976] reestablish districts within the production area and may reapportion com- § 958.27 Districts. mittee membership among the various (a) For the purpose of selecting com- districts: Provided, That in recom- mittee members, the following dis- mending any such changes in districts tricts of the production area are hereby or representation, the committee shall initially established: give consideration to: (1) The relative importance of new producing sections; District No. 1 (Emmett, Payette, Weiser (2) changes in the relative position of Area): All territory within the boundaries of Washington, Payette and Gem Counties, existing districts with respect to onion in Idaho. production; (3) the geographic location District No. 2 (Oregon Slope): All territory of areas of production as they would af- within a boundary following the Snake fect the efficiency of administering River northwesterly from its junction with this part; (4) other relevant factors: the Malheur River, to the west line of Provided, further, That there shall be no Range 46E; thence south along said west line to the south line of Township 17S, and change in the total number of com- thence east along said south line to its mittee members or in the total number junction with the Malheur River, and of districts. thence northeasterly along the Malheur River to the junction with the Snake § 958.28 Nominations. River, the point of beginning. District No. 3 (Ontario, Vale, Jamieson, Bro- Nominations from which the Sec- gan): All territory within a boundary start- retary may select the members of the ing at the junction of the Malheur River Idaho-Eastern Oregon Onion Com- with the Snake River and extending south- mittee and their respective alternates westward along the Malheur River to its may be made in the following manner: junction with the south line of Township 17S, E. W. M.; thence westward along this (a) The committee shall hold or line to its junction with the west line of cause to be held prior to April 1 of each Range 46E; thence north along this line to year, after the effective date of this its junction with the Snake River; thence subpart, one or more meetings of pro- northwest along the Snake River to its ducers and of handlers in each of the junction with the north boundary of districts, or portions of the production Malheur County; thence west along the north boundary of Malheur County to the area, in which the then current terms west boundary of the county; thence south of office will expire the following May along the west boundary of Malheur Coun- 31; ty to its intersection with the south line of (b) In arranging for such meetings Township 20S; thence east along this line the committee may, if it deems desir- to its junction with the Hyline Canal and Siphon; thence northeast along the Hyline able, cooperate with existing organiza- Canal to its intersection with Highway 20; tions and agencies and may combine thence east along Highway 20 to Cairo its meetings with others; Junction; thence south 1⁄8 mile to the junc- (c) Nominations for committee mem- tion of Highway 20 to Oregon Avenue; bers and alternate members shall be thence east along Oregon Avenue to its termination at the Snake River; thence supplied to the Secretary, in such man- north along the Snake River to its junc- ner and form as he may prescribe, not tion with the Malheur River, the point of later than 30 days prior to the end of beginning. each fiscal period; District No. 4 (Nyssa-Adrian): All the area of (d) Only producers may participate in Malheur County, Oregon, south of District designating nominees for producer No. 3.

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committee members and their alter- nominations, select the committee nates and only handlers may partici- members and alternates on the basis of pate in designating nominees for han- the representation provided for in this dler committee members and their al- subpart. ternates; (e) Each person who is both a handler § 958.30 Vacancies. and a producer may vote either as a To fill any vacancy occasioned by the handler or as a producer and may select the group in which he will vote; failure of any person, selected as a (f) Regardless of the number of dis- committee member or alternate, to tricts in which a person produces or qualify, or in the event of the death, handles onions, each such person is en- removal, resignation, or disqualifica- titled to cast only one vote on behalf of tion of any qualified member or alter- himself, his partners, agents, subsidi- nate, a successor for his unexpired aries, affiliates and representatives, in term may be selected by the Secretary designating nominees for committee from nominations made in the manner members and alternates. In the event a specified in § 958.28, or the Secretary person is a producer engaged in pro- may select such committee member or ducing onions in more than one dis- alternate from previously unselected trict, such person shall select the dis- nominees on the current nominee list trict within which he may participate from the district or portion of the pro- as aforesaid in designating nominees. duction area, as the case may be, that Similarly, a person who is a handler is involved, or from other eligible per- both in Malheur County, Oregon, and sons. If the names of nominees to fill in the Idaho portion of the production any such vacancy are not made avail- area, may select either Malheur Coun- able to the Secretary within 30 days ty or the Idaho portion of the produc- after such vacancy occurs, the Sec- tion area in which to cast his vote for retary may fill such vacancy without the applicable committee handler member and alternate. Each such han- regard to nominations, which selection dler shall also be entitled to cast his shall be made on the basis of the rep- vote for the committee member and al- resentation provided for in this sub- ternate to represent the production part. area-at-large. An eligible voter’s privilege of casting only one vote, as afore- EXPENSES AND ASSESSMENTS said, shall be construed to permit such § 958.40 Expenses. voter to cast one vote for each member and alternate position to be filled in The committee is authorized to incur the respective district or portion of the such expenses as the Secretary may production area, as the case may be, in find are reasonable and likely to be in- which he elects to vote; and curred by it during each fiscal period (g) The producer and handler mem- for its maintenance and functioning, bers of the committee shall nominate and for such purposes as the Secretary, the public member and alternate. The pursuant to this subpart, determines to committee shall prescribe such addi- be appropriate. Handlers shall share ex- tional qualifications, administrative penses upon the basis of a fiscal period. rules and procedures for selection and Each handler’s share of such expenses voting for each candidate as it deems shall be proportionate to the ratio be- necessary and as the Secretary ap- tween the total quantity of such han- proves. dler’s onion shipments inspected pursu- [22 FR 26, Jan. 3, 1957. Redesignated at 26 FR ant to this part that are handled by 12751, Dec. 30, 1961, as amended at 47 FR 8000, him as the first handler thereof during Feb. 24, 1982] a fiscal period, and the total quantity § 958.29 Failure to nominate. of such onions handled by all handlers as first handlers thereof during the If nominations are not made within same period. the time and in the manner specified by the Secretary pursuant to § 958.28, the Secretary may, without regard to

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§ 958.41 Budget. all other persons to account for all re- Prior to each fiscal period, and as ceipts and disbursements, funds, prop- may be necessary thereafter the com- erty, or records for which they are re- mittee shall prepare a budget of esti- sponsible. Whenever any person ceases mated income and expenditures nec- to be a member or alternate of the essary for the administration of this committee, he shall account for all re- part. The committee shall recommend ceipts, disbursements, funds, and prop- to the Secretary a rate of assessment erty (including, but not being limited calculated to provide adequate funds to to, books and other records) pertaining defray its proposed expenditures. The to the committee’s activities for which committee shall present such budget he is responsible, and deliver all such promptly to the Secretary with an ac- property and funds in his hands to such companying report thereon showing successor, agency, or person as may be the basis for its calculations and rec- designated by the Secretary, and shall ommended rate. execute such assignments and other in- [22 FR 26, Jan. 3, 1957. Redesignated at 26 FR struments as may be necessary or ap- 12751, Dec. 30, 1961, as amended at 41 FR propriate to vest in each such suc- 36196, Aug. 27, 1976] cessor, agency, or person as may be designated by the Secretary the right § 958.42 Assessments. to all of such property and funds and (a) The funds to cover the commit- all claims vested in such person. tee’s expenses pursuant to § 958.40 shall (c) The committee may make rec- be acquired by the levying of assess- ommendations to the Secretary for one ments upon handlers as provided in or more of the members thereof, or any this subpart. Each handler who handles other person, to act as a trustee for onions as the first handler thereof holding records, funds, and any other which are inspected pursuant to this committee property during periods of part shall pay assessments to the com- suspension of this part, or during any mittee upon demand, which assess- periods when regulations are not in ef- ments shall be in payment of such han- fect; and, if the Secretary determines dler’s pro rata share of such expenses. such action appropriate, he may direct (b) Assessments shall be levied upon handlers at rates established by the that such person or persons shall so act Secretary. Such rates may be estab- as trustee or trustees. lished upon the basis of the commit- § 958.44 Reserve fund. tee’s recommendations or other available information. At the end of each fiscal period, funds (c) At any time during or subsequent in excess of the committee’s expenses to a given fiscal period, the committee may be placed in an operating reserve may recommend the approval of an not to exceed approximately 1 fiscal amended budget and an increase in the year’s operational expenses or such rate of assessment. Upon the basis of lower limits as the committee, with such recommendation, or other avail- the approval of the Secretary, may es- able information, the Secretary may tablish. Also, the committee, with the approve an amended budget and in- approval of the Secretary, may include crease the rate of assessment. Such in- in its budget an item for such reserve. crease shall be applicable to all onion Funds in the reserve shall be available shipments inspected pursuant to this for use by the committee for expenses part during such fiscal period. authorized pursuant to § 958.40. Funds § 958.43 Accounting. in excess of those placed in the operating reserve shall be refunded to han- (a) All funds received by the com- dlers. Each handler’s share of such ex- mittee pursuant to the provisions of cess shall be the amount he paid in ex- this part shall be used solely for the cess of his pro rata share of the ex- purposes specified in this part. penses of the committee. (b) The Secretary may at any time require the committee, its members [32 FR 11261, Aug. 3, 1967] and alternates, employees, agents, and

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§ 958.45 Accounting of funds upon ter- (4) The need for marketing research mination of the order. with respect to any market develop- Any funds collected as assessments ment activity; and pursuant to this subpart and remaining (5) The need for a coordinated effort unexpended in the possession of the with USDA’s Food Marketing Alert or committee after termination of this other similar programs. part shall be distributed in such man- (c) If the committee should conclude that a program of research or develop- ner as the Secretary may direct: Pro- ment should be undertaken, or contin- vided, That to the extent practical, such funds shall be returned pro rata to ued, in any crop year, it shall submit the persons from whom such funds the following for the approval of the were collected. Secretary: (1) Its recommendations as to the [32 FR 11262, Aug. 3, 1967] funds to be obtained pursuant to § 958.42 or § 958.46; § 958.46 Contributions. (2) Its recommendation as to any re- The committee may accept voluntary search projects; and contributions but these shall only be (3) Its recommendation as to pro- used to pay expenses incurred pursuant motion activity and paid advertising. to § 958.47. Furthermore, such contribu- (d) Upon conclusion of each activity, tions shall be free from any encum- but at least annually, the committee brances by the donor and the com- shall summarize and report the results mittee shall retain complete control of of such activity to its members and to their use. the Secretary. [41 FR 36196, Aug. 27, 1976] [41 FR 36196, Aug. 27, 1976] REGULATION RESEARCH AND DEVELOPMENT § 958.50 Marketing policy. § 958.47 Research and development. (a) Preparation. Prior to each mar- (a) The committee with the approval keting season the committee shall con- of the Secretary, may establish or pro- sider and prepare a proposed policy for vide for the establishment of projects the marketing of onions. In developing involving production research, mar- its marketing policy the committee keting research and development shall investigate relevant supply and projects, and marketing promotion in- demand conditions for onions. In such cluding paid advertising, designed to investigations the committee shall assist, improve, or promote the mar- give appropriate consideration to the keting, distribution, consumption or following: efficient production of onions. Any (1) Market prices for onions, includ- such project for the promotion and ad- ing prices by variety, grade, size, and vertising of onions may utilize an iden- quality, and by different packs; tifying mark which shall be made (2) Supply of onions by grade, size, available for use by all handlers in ac- quality, and variety in the production cordance with such terms and condi- area and in other onion producing sections as the committee, with the ap- tions; proval of the Secretary, may prescribe. (3) The trend and level of consumer The expenses of such projects shall be income; paid from funds collected pursuant to (4) Establishing and maintaining or- § 958.42 or § 958.46. derly marketing conditions for onions; (b) In recommending projects pursu- (5) Orderly marketing of onions as ant to this section the committee shall will be in the public interest; and give consideration to the following: (6) Other relevant factors. (1) The expected supply of onions in (b) Reports. (1) The committee shall relation to market requirements; submit a report to the Secretary set- (2) The supply situation among com- ting forth the aforesaid marketing pol- peting areas and commodities; icy; and the committee shall notify (3) The anticipated benefits from producers and handlers of the contents such projects in relation to their costs; of such report.

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(2) In the event it becomes advisable tainer, or containers, which may be to shift from such marketing policy be- used in the packaging or handling of cause of changed supply and demand onions, including appropriate container conditions, the committee shall pre- markings to identify the contents pare an amended or revised marketing thereof; policy in accordance with the manner (4) Regulate the handling of onions previously outlined. The committee by establishing, in terms of grades, shall submit a report thereon to the sizes, or both, minimum standards of Secretary and notify producers and quality and maturity; or handlers of the contents of such report (5) Limit the shipment of the total on the revised or amended marketing quantity of onions by prohibiting the policy. handling thereof during a specified period or periods. No regulation issued § 958.51 Recommendations for regula- pursuant to this subparagraph shall be tions. effective for more than 96 consecutive The committee shall recommend reg- hours: Provided, That not less than 72 ulations to the Secretary whenever it consecutive hours shall elapse between finds that such regulations as provided the termination of any such period of in § 958.52 will tend to effectuate the de- prohibition and the beginning of the clared policy of the act. The committee next such period. also may recommend modification, (6) Regulate the handling of onions suspension, or termination of any regu- by establishing, in terms of total lation, or amendments thereto, in weight or total number of layers of order to facilitate the handling of on- containers of onions, the maximum ions for the purposes authorized in load in railcars, taking into account § 958.53. The committee may also rec- types of containers and sizes of railcars ommend amendment, modification, used, potential resulting damage, and termination, or suspension of any regu- other relevant factors. lation issued under this part. (b) In the event the handling of onions is regulated pursuant to paragraph § 958.52 Issuance of regulations. (a)(5) of this section, no handler shall (a) Except as otherwise provided in handle any onions which were prepared this part, the Secretary shall limit the for market or loaded during the effec- shipment of onions by any one or more tive period of such regulation. How- of the methods hereinafter set forth ever, during any such period, no such whenever he finds from the rec- regulation shall be deemed to limit the ommendations and information sub- right of any person to sell or contract mitted by the committee, or from to sell onions for future shipment or other available information, that such delivery. regulation would tend to effectuate the (c) The Secretary may amend any declared policy of the act. Such limita- regulation issued under this part when- tion may: ever he finds that such amendment (1) Regulate in any or all portions of would tend to effectuate the declared the production area, the handling of policy of the act. The Secretary may particular grades, sizes, or qualities of also terminate or suspend any regula- any or all varieties of onions, or com- tion or amendment thereof whenever binations thereof, during any period or he finds that such regulation or amend- periods; ment obstructs or no longer tends to (2) Regulate the handling of par- effectuate the declared policy of the ticular grades, sizes, or qualities, of on- act. ions differently, for different varieties, [22 FR 26, Jan. 3, 1957. Redesignated at 26 FR for different portions of the production 12751, Dec. 30, 1961, as amended at 32 FR area, for different packs, or for any 11262, Aug. 3, 1967; 47 FR 8000, Feb. 24, 1982] combination of the foregoing, during any period or periods; § 958.53 Handling for specified pur- (3) Provide a method, through rules poses. and regulations issued pursuant to this Upon the basis of recommendations part, for fixing the size, capacity, and information submitted by the com- weight, dimensions, or pack of the con- mittee, or other available information,

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the Secretary shall issue special regu- (2) Handlers shall obtain inspection lations, or modify, suspend, or termi- provided by § 958.60, or pay the pro rata nate requirements in effect pursuant to share of expenses provided by § 958.42, §§ 958.42, 958.52, 958.60, or any combina- or both, in connection with such on- tion thereof, in order to facilitate the ions; and handling of onions for the following (3) Handlers shall obtain Certificates purposes whenever he finds that to do of Privilege from the committee prior so will tend to effectuate the declared to effecting the particular onion ship- policy of the act: ment. (a) Shipments of onions for export; (c) The committee may rescind any (b) Shipments of onions for relief or Certificate of Privilege, or refuse to to charitable institutions; issue any Certificate of Privilege to (c) Shipments of onions for livestock any handler if proof is obtained that feed; onions shipped by him for the purposes (d) Shipments of onions for planting; stated in the Certificate of Privilege and were handled contrary to the provi- (e) Shipments of onions for other pur- sions of this part. poses which may be specified. (d) The Secretary shall have the right to modify, change, alter, or re- § 958.54 Minimum quantities. scind any safeguards prescribed and The committee, with the approval of any certificates issued by the com- the Secretary, may establish minimum mittee pursuant to the provisions of quantities below which onion ship- this section. ments will be free from the require- (e) The committee shall make re- ments in, or pursuant to, §§ 958.42, ports to the Secretary, as requested, 958.52, 958.53, 958.60, or any combination showing the number of applications for thereof. such certificates, the quantity of onions covered by such applications, the § 958.55 Notification of regulations. number of such applications denied and The Secretary shall notify the com- certificates granted, the quantity of mittee of each regulation issued, and of onions handled under duly issued cer- each amendment, modification, suspen- tificates, and such other information sion, or termination thereof. The com- as may be requested. mittee shall give reasonable notice thereof to handlers. INSPECTION

§ 958.56 Safeguards. § 958.60 Inspection and certification. (a) The committee, with the approval (a) During any period in which ship- of the Secretary, may prescribe ade- ments of onions are regulated pursuant quate safeguards to prevent onions to this subpart, no handler shall handle shipped, onions unless such onions are inspected (1) Pursuant to § 958.53 or § 958.54; or by an authorized representative of the (2) To commercial dehydrators for Federal-State Inspection Service, or processing by such dehydrators into de- such other inspection service as the hydrated onion products, Secretary shall designate and are cov- from entering channels of trade for ered by a valid inspection certificate, other than the purpose authorized except when relieved from such re- therefor. quirements pursuant to § 958.53, § 958.54, (b) The committee, with the approval or both. of the Secretary, may also prescribe (b) Regarding, resorting, or repack- rules and regulations governing the ing any lot of onions shall invalidate issuance, and the contents, of Certifi- prior inspection certificates insofar as cates of Privilege if such certificates the requirements of this section are are prescribed as safeguards by the concerned. No handler shall ship onions committee. Such safeguards may inafter they have been regarded, re- clude requirements that: sorted, repacked or in any other way (1) Handlers shall first file applica- further prepared for market, unless tions with the committee to ship such such onions are inspected by an au- onions; thorized representative of the Federal-

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State Inspection Service, or such other (b) All such reports shall be held inspection service as the Secretary under appropriate protective classifica- shall designate. tion and custody by the committee, or (c) Upon recommendation of the com- duly appointed employees thereof, so mittee, and approval of the Secretary, that the information contained therein all onions that are required to be in- which may adversely affect the com- spected and certified in accordance petitive position of any handler in rela- with this section, shall be identified by tion to other handlers will not be dis- appropriate seals, stamps, tags, or closed. Compilations of general reports other identification to be furnished by from data submitted by handlers is au- the committee and affixed to the con- thorized, subject to the prohibition of tainers by the handler under the direc- disclosure of individual handler’s iden- tion and supervision of the Federal- tities or operations. State, or Federal inspector, or the (c) Each handler shall maintain for committee. Master containers may at least two succeeding years such bear the identification instead of the records of the onions received, and of individual containers within said mas- onions disposed of, by such handler as ter container. may be necessary to verify the reports (d) Insofar as the requirements of he submits to the committee pursuant this section are concerned, the length to this section. of time for which an inspection certificate is valid may be established by the EFFECTIVE TIME AND TERMINATION committee with the approval of the Secretary. § 958.70 Effective time. (e) When onions are inspected in ac- The provisions of this subpart, or any cordance with the requirements of this amendment thereto, shall become ef- section, a copy of each inspection cer- fective at such time as the Secretary tificate issued shall be made available may declare and shall continue in force to the committee by the inspection until terminated in one of the ways service. specified in this subpart.

REPORTS § 958.71 Termination. § 958.65 Reports. (a) The Secretary may at any time terminate the provisions of this sub- Upon request of the committee, made part by giving at least one day’s notice with the approval of the Secretary, by means of a press release or in any each handler shall furnish to the com- other manner which he may determine. mittee, in such manner and at such (b) The Secretary may terminate or time as it may prescribe, such reports suspend the operations of any or all of and other information as may be nec- the provisions of this subpart whenever essary for the committee to perform its he finds that such provisions do not duties under this part. tend to effectuate the declared policy (a) Such reports may include, but are of the act. not necessarily limited to, the fol- (c) The Secretary shall terminate the lowing: provisions of this subpart at the end of (1) The quantities of onions received any fiscal period whenever he finds by a handler; that such termination is favored by a (2) The quantities disposed of by him, majority of producers who, during a segregated as to the respective quan- representative period, have been entities subject to regulation and not gaged in the production for market of subject to regulation; onions: Provided, That such majority (3) The date of each such disposition has, during such representative period, and the identification of the carrier produced for market more than fifty transporting such onions; and percent of the volume of such onions (4) identification of the inspection produced for market, but such termi- certificates relating to the onions nation shall be effective only if an- which were handled pursuant to nounced on or before May 31 of the §§ 958.53 and 958.54. then current fiscal period.

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(d) The provisions of this subpart or impair any rights or remedies of the shall, in any event, terminate when- Secretary or of any other person with ever the provisions of the act author- respect to any such violations. izing them cease to be in effect. MISCELLANEOUS PROVISIONS § 958.72 Proceeding after termination. § 958.81 Compliance. (a) Upon the termination of the provisions of this subpart, the then func- No handler shall handle onions the tioning members of the committee handling of which has been prohibited shall continue as joint trustees, for the or otherwise limited by the Secretary purpose of liquidating the affairs of the in accordance with provisions of this committee, of all the funds and prop- part; and no handler shall handle on- erty then in the possession, or under ions except in conformity to the provi- control, of the committee, including sions of this part. claims for any funds unpaid and prop- § 958.82 Right of the Secretary. erty not delivered at the time of such termination. Action by said trustee- The members of the committee (in- ship shall require the concurrence of a cluding successors and alternates) and majority of the said trustees. any agent or employee appointed or (b) The said trustees shall continue employed by the committee shall be in such capacity until discharged by subject to removal or suspension by the Secretary; shall, from time to the Secretary at any time. Each and time, account for all receipts and dis- every order, regulation, decision, de- bursements and deliver all property on termination, or other act of the com- hand, together with all books and mittee shall be subject to the con- records of the committee and of the tinuing right of the Secretary to dis- trustees, to such person as the Sec- approve of the same at any time. Upon retary may direct; and shall, upon re- such disapproval, the disapproved ac- quest of the Secretary, execute such tion of the said committee shall be assignments or other instruments nec- deemed null and void except as to acts essary or appropriate to vest in such done in reliance thereon or in compli- person full title and right to all of the ance therewith prior to such dis- funds, property, and claims vested in approval by the Secretary. the committee or the trustees pursuant to this subpart. § 958.83 Duration of immunities. (c) Any person to whom funds, prop- The benefits, privileges, and immuni- erty, or claims have been transferred ties conferred upon any person by vir- or delivered by the committee or its tue of this subpart shall cease upon the members pursuant to this section, termination of this subpart, except shall be subject to the same obligations with respect to acts done under and imposed upon the members of the com- during the existence of this subpart. mittee and upon the said trustees. § 958.84 Agents. § 958.73 Effect of termination or The Secretary may, by designation in amendment. writing, name any person, including Unless otherwise expressly provided any officer or employee of the Govern- by the Secretary, the termination of ment, or name any agency in the this subpart or of any regulation issued United States Department of Agri- pursuant to this subpart, or the culture, to act as his agent or rep- issuance of any amendment to either resentative in connection with any of thereof, shall not (a) affect or waive the provisions of this part. any right, duty, obligation, or liability which shall have arisen or which may § 958.85 Derogation. thereafter arise in connection with any Nothing contained in this subpart is, provision of this subpart or of any reg- or shall be construed to be, in deroga- ulation issued under this subpart; (b) tion or in modification of the rights of release or extinguish any violation of the Secretary or of the United States this subpart or of any regulations to exercise any powers granted by the issued under this subpart; or (c) affect act or otherwise, or, in accordance

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with such powers, to act in the prem- § 958.91 Order with marketing agree- ises whenever such action is deemed ment. advisable. Each signatory handler requests the Secretary to issue, pursuant to the act, § 958.86 Personal liability. an order providing for regulating the No member or alternate of the com- handling of onions in the same manner mittee nor any employee or agent as is provided for in this agreement. thereof, shall be held personally re- The undersigned hereby authorizes the Di- sponsible, either individually or jointly rector, or Acting Director, Fruit and Vege- with others, in any way whatsoever, to table Division, Agricultural Marketing Serv- any handler or to any person for errors ice, United States Department of Agri- in judgment, mistakes, or other acts, culture, to correct any typographical errors which may have been made in this mar- either of commission or omission, as keting agreement. such member, alternate, employee, or In witness whereof, the contracting par- agent, except for acts of dishonesty, ties, acting under the provisions of the act, wilful misconduct, or gross negligence. for the purpose and subject to the limitations therein contained, and not otherwise, § 958.87 Separability. have hereto set their respective signatures and seals. If any provision of this subpart is de- llllllllll clared invalid, or the applicability (Firm name) thereof to any person, circumstance, or By: lllllllllllllllllllll thing is held invalid, the validity of the (Signature) 1 remainder of this subpart, or the appli- (Mailing address) cability thereof to any other person, (Title) circumstance, or thing, shall not be affected thereby. (Corporate Seal; if none, so state) (Date of execution) § 958.88 Amendments. [41 FR 29136, July 15, 1976] Amendments to this subpart may be proposed, from time to time, by the Subpart—Rules and Regulations committee or by the Secretary. § 958.112 Fiscal period. § 958.89 Counterparts. The fiscal period shall begin July 1 of This agreement may be executed in each year and end June 30 of the fol- multiple counterparts and when one lowing year, both dates inclusive. counterpart is signed by the Secretary, [68 FR 48531, Aug. 14, 2003] all such counterparts shall constitute, when taken together, one and the same § 958.160 Reestablishment of Districts. instrument as if all signatures were (a) Pursuant to § 958.27(b) the fol- contained in one original. lowing districts are reestablished: (1) District No. 5 (Parma-Wilder [41 FR 29135, July 15, 1976] area): That portion of Canyon County § 958.90 Additional parties. lying west and north of a line commencing at the junction of the north After the effective date hereof, any boundary of Canyon County and Range handler may become a party to this 4, Township 12 east, thence south along agreement if a counterpart is executed this line to Soeck Road, thence west by him and delivered to the Secretary. along Soeck Road one-fourth mile to This agreement shall take effect as to Notus Road, thence south along Notus such new contracting party at the time Road to Highway 19, thence west one such counterpart is delivered to the Secretary, and the benefits, privileges, 1 If one of the contracting parties to this and immunities conferred by this agreement is a corporation my signature agreement shall then be effective as to constitutes certification that I have the such new contracting party. power granted to me by the Board of Direc- tors to bind this corporation to the mar- [41 FR 29135, July 15, 1976] keting agreement.

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mile along Highway 19 to Friends (ii) U.S. No. 1, at least 11⁄2 inches Road, thence south along Friends Road minimum diameter. However, neither to Boundary Road, thence east one-half of these two categories of onions may mile along Boundary Road to Plum be commingled in the same bag or Road, thence south along Plum Road other container. to Homedale Road, thence west along (2) Cipolline (Borettana) varieties and Homedale Road to the western bound- red varieties. U.S. No. 2 or better grade, ary of Canyon County. at least 11⁄2 inches minimum diameter. (2) District No. 6 (Caldwell-Nampa- (3) All other varieties. Shall be either: Homedale and southern Idaho area): (i) U.S. No. 2 or U.S. Commercial That portion of Canyon County not in- grade, at least 3 inches minimum di- cluded in District No. 5 plus all of the ameter, but not more than 30 percent counties in the Idaho portion of the of the lot shall be comprised of onions production area not included within of U.S. No. 1 quality when packed in District No. 1. containers weighing less than 60 (b) Terms used in this section have pounds; or the same meaning as when used in said (ii) U.S. No. 1, 13⁄4 inches minimum to marketing agreement and this part. 23⁄4 maximum diameter; or (iii) U.S. No. 1, at least 21⁄4 inches [39 FR 1601, Jan. 11, 1974] minimum diameter. § 958.240 Assessment rate. However, none of these three categories of onions may be commingled On and after July 1, 2005, an assess- in the same bag or other container. ment rate of $0.10 per hundredweight is (b) Pack. Onions packed as U.S. Com- established for Idaho-Eastern Oregon mercial grade in containers weighing onions. less than 60 pounds shall have the [70 FR 32483, June 6, 2005] grade marked permanently and conspicuously on the container. § 958.250 Assessment Credit Report. (c) Inspection. No handler may handle Each handler may receive a credit for any onions regulated hereunder unless assessments on onions that have been such onions are inspected by the Fed- levied in accordance with §§ 958.42 and eral-State Inspection Service and are 958.240 and are subsequently regraded, covered by a valid applicable inspec- resorted, or repacked within the pro- tion certificate, except when relieved duction area, or shipped in accordance of such requirement pursuant to para- with § 958.328(e) by furnishing the ‘‘As- graph (d), (e) or (g) of this section. sessment Credit Report’’ and such other (d) Onions for peeling, chopping, or information as required to the com- slicing. Onions that have been inspected mittee. and certified as meeting the requirements of paragraphs (a) and (b) of this [71 FR 65040, Nov. 7, 2006] section and that are subsequently peeled, chopped, or sliced for fresh Subpart—Handling Regulations market within the production area may be handled without reinspection: § 958.328 Handling regulation. Provided the following: No person shall handle any lot of on- (1) Each handler making shipments ions, except braided red onions, unless of onions for alteration or performing such onions are at least ‘‘moderately alteration by peeling, chopping, or slic- cured,’’ as defined in paragraph (h) of ing must furnish the committee the this section, and meet the require- following information on the ‘‘Fresh ments of paragraphs (a), (b), and (c) of Cut Report’’ and such other documents this section, or unless such onions are as required: handled in accordance with paragraphs (i) Business name, address, telephone (d), (e) and (f) or (g) of this section. number, signature, and the date the (a) Grade and size requirements—(1) form was signed; White varieties (except cipolline (ii) The date of peeling, chopping, or (Borettana) varieties). Shall be either: slicing; (i) U.S. No. 1, 1 inch minimum to 2 (iii) Inspection certificate number; inches maximum diameter; or (iv) The quantity of onions; and

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(v) Such other information as may be mittee as required. Failure of the han- required by the committee. dler to furnish such report and infor- (2) Handlers who peel, chop, or slice mation as required to the committee onions produced outside the production may be cause for cancellation of such area must provide the committee with handlers’ Certificate of Privilege. Upon documentation showing that the on- cancellation of any such Certificate of ions so prepared were produced outside Privilege the handler may appeal to the production area. the committee for reconsideration. The (e) Special purpose shipments. The committee may audit a receiver or re- minimum grade, size, maturity, assess- ceiver’s agent of the special purpose ment, and inspection requirements of shipment to verify reports and infor- this section shall not be applicable to mation submitted by handlers. Failure shipments of onions for any of the fol- of a receiver or receiver’s agent of a lowing purposes: special purpose shipment to comply (1) Planting, with the committee may be cause for (2) Livestock feed, cancellation of the receiver’s or re- (3) Charity, ceiver agent’s eligibility to receive fur- (4) Dehydration, ther special purpose shipments from (5) Canning, the production area. Upon cancellation (6) Freezing, of any such Certificate of Privilege the (7) Extraction, receiver or the receiver’s agent may (8) Pickling, and appeal to the committee for reconsid- (9) Disposal. eration. In addition, the minimum grade, size, (g) Minimum quantity exemption. Each and maturity requirements set forth in handler may ship up to, but not to ex- paragraph (a) of this section shall not ceed, one ton of onions each day with- be applicable to shipments of pearl on- out regard to the inspection and assess- ions, but the maximum size requirement requirements of this part, if such ment in paragraph (h) of this section onions meet minimum grade, size and and the assessment and inspection re- maturity requirements of this section. quirements shall be applicable to ship- This exception shall not apply to any ments of pearl onions. portion of a shipment that exceeds one (f) Safeguards. Each handler making ton of onions. shipments of onions outside the pro- (h) Definitions. The terms ‘‘U.S. No. 1’’, duction area for dehydration, canning, ‘‘U.S. Commercial,’’ and ‘‘U.S. No. 2’’ freezing, extraction, or pickling pursu- have the same meaning as defined in ant to paragraph (e) of this section the United States Standards for Grades shall: of Onions (Other than Bermuda (1) Furnish ‘‘Application to Make Granex-Grano and Creole Types), as Special Purpose Shipments—Certifi- amended (7 CFR 51.2830 through cate of Privilege’’ and such other infor- 51.2854), or the United States Standards mation to the committee as required. for Grades of Bermuda-Granex-Grano The committee will review and verify Type Onions (7 CFR 51.3195 through each ‘‘Application to Make Special Pur- 51.3209), as amended, whichever is ap- pose Shipments—Certificate of Privi- plicable to the particular variety, or lege’’ and notify the handler of ap- variations thereof specified in this sec- proval or disapproval. The committee tion. The term ‘‘braided red onions’’ may contact the receiver or receiver’s means onions of red varieties with tops agent of the special purpose shipment braided (interlaced). ‘‘Pearl onions’’ for verification and request the re- means onions produced using specific ceiver or receiver’s agent to complete a cultural practices that limit growth to ‘‘Special Purpose Shipment Receiver the same general size as boilers and Certification’’ picklers (defined in the United States (2) Bill or consign each shipment di- Standards specified in this paragraph), rectly to the applicable receiver or re- and that have been inspected and cer- ceiver’s agent of the special purpose tified as measuring 2 inches in diame- shipment; ter or less. The term ‘‘moderately (3) Furnish ‘‘Onion Diversion Report’’ cured’’ means the onions are mature and such other information to the com- and are more nearly well cured than

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fairly well cured. Other terms used in 959.35 Duties. this section have the same meaning as EXPENSES AND ASSESSMENTS when used in Marketing Agreement No. 130 and this part. 959.40 Expenses. 959.41 Budget. [47 FR 32913, July 30, 1982, as amended at 49 959.42 Assessments. FR 31257, Aug. 6, 1984; 50 FR 50157, Dec. 9, 959.43 Accounting. 1985; 53 FR 32597, Aug. 26, 1988; 55 FR 31036, July 31, 1990; 55 FR 36601, Sept. 6, 1990; 58 FR RESEARCH AND DEVELOPMENT 60369, Nov. 16, 1993; 61 FR 35593, July 8, 1996; 61 FR 39841, July 31, 1996; 63 FR 55783, Oct. 19, 959.48 Research and development. 1998; 69 FR 56671, Sept. 22, 2004; 71 FR 65040, REGULATIONS Nov. 7, 2006] 959.50 Marketing policy. EDITORIAL NOTE: After January 1, 1979, ‘‘Budget of Expenses and Rate of Assessment’’ 959.51 Recommendations for regulations. regulations (e.g., sections .200 through .299) 959.52 Issuance of regulations. and ‘‘Handling’’ regulations (e.g., sections .300 959.53 Handling for special purposes. through .399) which are in effect for a year or 959.54 Safeguards. less, will not be carried in the Code of Fed- 959.55 Notification of regulation. eral Regulations. For FEDERAL REGISTER citations affecting these regulations, see the INSPECTION List of CFR Sections Affected, which appears 959.60 Inspection and certification. in the Finding Aids section of the printed volume and at www.fdsys.gov. REPORTS 959.80 Reports. PART 959—ONIONS GROWN IN SOUTH TEXAS COMPLIANCE 959.81 Compliance. Subpart—Order Regulating Handling MISCELLANEOUS PROVISIONS DEFINITIONS 959.82 Right of the Secretary. Sec. 959.83 Effective time. 959.1 Secretary. 959.84 Termination. 959.2 Act. 959.85 Proceeding after termination. 959.3 Person. 959.86 Effect of termination or amendments. 959.4 Production area. 959.87 Duration of immunities. 959.5 Onions. 959.88 Agents. 959.6 Handler. 959.89 Derogation. 959.7 Handle. 959.8 Registered handler. 959.90 Personal liability. 959.9 Producer. 959.91 Separability. 959.10 Grading. 959.92 Amendments. 959.11 Grade and size. 959.12 Pack. Subpart—Rules and Regulations 959.13 Container. 959.14 Varieties. GENERAL 959.15 Committee. 959.100 Order. 959.16 Fiscal period. 959.101 Terms. 959.17 District. 959.102 Communications. 959.18 Export. 959.103 Registered handler. COMMITTEE 959.104 Fiscal period. 959.110 Reestablishment of districts. 959.22 Establishment and membership. 959.111 Reapportionment of committee 959.23 Term of office. membership. 959.24 Districts. 959.115 Planting reports. 959.25 Redistricting. 959.26 Selection. SAFEGUARDS 959.27 Nomination. 959.28 Failure to nominate. 959.120 Policy. 959.29 Acceptance. 959.121 Qualification. 959.30 Vacancies. 959.122 Application. 959.31 Alternate members. 959.123 Approval. 959.32 Procedure. 959.124 Reports. 959.33 Expenses and compensation. 959.125 Disqualification. 959.34 Powers. 959.126 Handling of culls.

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Subpart—Assessment Rates § 959.6 Handler. 959.237 Assessment rate. Handler is synonymous with shipper and means any person (except a com- Subpart—Handling Regulations mon or contract carrier of onions owned by another person) who handles 959.322 Handling regulation. onions or causes onions to be handled. AUTHORITY: 7 U.S.C. 601–674. § 959.7 Handle. Subpart—Order Regulating Handle or ship means to package, Handling load, sell, transport, or in any way to place onions in the current of the commerce within the production area or SOURCE: 26 FR 704, Jan. 25, 1961, unless otherwise noted. Redesignated at 26 FR 12751, between the production area and any Dec. 30, 1961. point outside thereof. Such term shall not include the transportation, sale, or DEFINITIONS delivery of field-run onions to a person in the production area who is a reg- § 959.1 Secretary. istered handler. Secretary means the Secretary of Ag- [27 FR 227, Mar. 9, 1962, as amended at 34 FR riculture of the United States, or any 6440, Apr. 12, 1969] officer or employee of the Department to whom authority has heretofore been § 959.8 Registered handler. delegated, or to whom authority may Registered handler means any person be hereafter delegated, to act in his with adequate facilities within the pro- stead. duction area for preparing onions for commercial market, who customarily § 959.2 Act. does so, and who is so recorded by the Act means Public Act No. 10, 73d Con- committee, or any person who has ac- gress, as amended and as reenacted and cess to such facilities within the pro- amended by the Agricultural Mar- duction area, and has recorded with the keting Agreement Act of 1937, as committee his ability and willingness amended (sections 1–19, 48 Stat. 31, as to assume customary obligations of amended; 7 U.S.C. 601–674). preparing onions for commercial market. § 959.3 Person. Person means an individual, partner- § 959.9 Producer. ship, corporation, association or any Producer means any person engaged other business unit. in a proprietary capacity in the production of onions for market. § 959.4 Production area. Production area means the counties of § 959.10 Grading. Val Verde, Kinney, Uvalde, Medina, Grading is synonymous with prepara- Wilson, Karnes, Goliad, Victoria, Cal- tion for market and means the sorting or houn, Maverick, Zavala, Frio, separation of onions into grades, sizes, Atascosa, Dimmit, La Salle, McMullen, and packs for market purposes. Live Oak, Bee, Refugio, Webb, Duval, Jim Wells, San Patricio, Nueces, Za- § 959.11 Grade and size. pata, Jim Hogg, Brooks, Kleberg, Grade means any of the established Kenedy, Starr, De Witt, Aransas, Hi- grades of onions, and size means any of dalgo, Willacy, and Cameron, in the the established sizes of onions as de- State of Texas. fined and set forth in the United States Standards for Bermuda-Granex Type § 959.5 Onions. Onions (§§ 51.3195 to 51.3209 of this title) Onions means all varieties of Allium or any other United States Standards cepa commonly known as onions grown for onions, or amendments thereto or within the production area and mar- modifications thereof, or variations keted dry. based thereon, recommended by the

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committee and approved by the Sec- COMMITTEE retary. § 959.22 Establishment and member- § 959.12 Pack. ship. Pack means a quantity of onions The South Texas Onion Committee, specified by grade, size, weight, or consisting of seventeen members, ten of whom shall be producers and seven count, or by type or condition of con- of whom shall be handlers, is hereby es- tainer, or any combination of these tablished. For each member of the recommended by the committee and committee there shall be an alternate. approved by the Secretary. Producer members and alternates shall [27 FR 2278, Mar. 9, 1962] not have a proprietary interest in or be employees of a handler organization. § 959.13 Container. § 959.23 Term of office. Container means a box, bag, crate, (a) The term of office of committee hamper, basket, package, or any other members and their respective alter- receptacle used in the packaging, nates shall be for two years and shall transportation, sale, shipment or other begin as of August 1 and end as of July handling of onions. 31. The terms shall be so determined that about one-half of the total com- § 959.14 Varieties. mittee membership shall terminate Varieties means and includes all clas- each year. sifications, subdivisions, or types of on- (b) Committee members and alter- ions according to those definitive char- nates shall serve during the term of of- acteristics now or hereafter recognized fice for which they are selected and by the United States Department of have qualified, or during that portion Agriculture or recommended by the thereof beginning on the date on which committee and approved by the Sec- they qualify during such term of office retary. and continuing until the end thereof, and until their successors are selected § 959.15 Committee. and have qualified. Committee means the South Texas § 959.24 Districts. Onion Committee, established pursuant To determine a basis for selecting to § 959.22. committee members, the following districts of the production area are hereby § 959.16 Fiscal period. initially established: Fiscal period means the annual period District No. 1: (Coastal Bend) The Counties of beginning and ending on such dates as Victoria, Calhoun, Goliad, Refugio, Bee, may be approved by the Secretary pur- Live Oak, San Patricio, Aransas, Jim suant to recommendations of the com- Wells, Nueces, Kleberg, Brooks, Kenedy, mittee. Duval, and McMullen in the State of Texas. § 959.17 District. District No. 2: (Laredo) The Counties of Za- pata, Webb, and Jim Hogg in the State of District means each of the geographic Texas. divisions of the production area ini- District No. 3: (Lower Valley) The Counties of tially established pursuant to § 959.24 or Cameron, Hidalgo, Starr, and Willacy in the State of Texas. as reestablished pursuant to § 959.25. District No. 4: (Wilson-Karnes) The Counties of DeWitt, Wilson, Atascosa, and Karnes in § 959.18 Export. the State of Texas. Export means to ship onions to any District No. 5: (Winter Garden) The Counties of Val Verde, Frio, Kinney, Uvalde, Me- destination which is not within the 48 dina, Maverick, Zavala, Dimmit, and La contiguous States, or the District of Salle in the State of Texas. Columbia, of the United States. § 959.25 Redistricting. The committee may recommend, and pursuant thereto, the Secretary may

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approve, the reapportionment of mem- the committee shall hold such meet- bers among districts, and the reestab- ings or cause them to be held prior to lishment of districts within the produc- June 15 of each year, after the effective tion area. In recommending any such date of this subpart, or by such other changes, the committee shall give con- date as may be specified by the Sec- sideration to: retary; (a) Shifts in onion acreage within the (b) At each such meeting at least one districts and within the production nominee shall be designated for each area during recent years; position as member and for each posi- (b) The importance of new production tion as alternate member on the com- in its relation to existing districts; mittee; (c) The equitable relationship of com- (c) Nominations for committee mem- mittee membership and districts; bers and alternates shall be supplied to (d) Economies to result for producers the Secretary in such manner and form in promoting efficient administration as he may prescribe, not later than due to redistricting or reapportion- July 1 of each year, or by such other ment of members within districts; and date as may be specified by the Sec- (e) Other relevant factors. No change retary; in districting or in apportionment of (d) Only producers may participate in members within districts may become designating producer nominees, and effective less than 30 days prior to the only handlers may participate in nam- date on which terms of office begin ing handler nominees. In the event a each year and no recommendations for person is engaged in producing or han- such redistricting or reapportionment dling onions in more than one district, may be made less than six months such person shall elect the district prior to such date. within which he may participate as aforesaid in designating nominees; § 959.26 Selection. (e) Regardless of the number of dis- The Secretary shall select members tricts in which a person produces or and respective alternates from districts handles onions, each such person is en- established pursuant to § 959.24 or titled to cast only one vote on behalf of § 959.25. Initial selections shall be as himself, his agents, subsidiaries, affili- follows: ates, and representatives in designating nominees for committee mem- District No. 1: 3 producer members and alter- bers and alternates. An eligible voter’s nates; 1 handler member and alternate. District No. 2: 2 producer members and alter- privilege of casting only one vote as nates; 1 handler member and alternate. aforesaid shall be construed to permit District No. 3: 3 producer members and alter- a voter to cast one vote for each posi- nates; 2 handler member and alternates. tion to be filled in the respective dis- District No. 4: 1 handler member and alter- trict in which he elects to vote. nate. District No. 5: 2 producer members and alter- [26 FR 12751, Dec. 30, 1961, as amended at 34 nates; 2 handler members and alternates. FR 6440, Apr. 12, 1969]

§ 959.27 Nomination. § 959.28 Failure to nominate. The Secretary may select the mem- If nominations are not made within bers of the committee and alternates the time and in the manner specified in from nominations which may be made § 959.27, the Secretary may, without rein the following manner: gard to nominations, select the com- (a) A meeting or meetings of pro- mittee members and alternates, which ducers and handlers shall be held for selection shall be on the basis of the each district to nominate members and representation provided for in §§ 959.22 alternates for the committee. For through 959.26. nominations to the initial committee, the meetings may be sponsored by the § 959.29 Acceptance. United States Department of Agri- Any person selected as a committee culture or by any agency or group re- member or alternate shall qualify by quested to do so by such department. filing a written acceptance within ten For nominations for succeeding mem- days after being notified of such selec- bers and alternates on the committee, tion.

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§ 959.30 Vacancies. ing will be required to approve any action. To fill committee vacancies, the Sec- retary may select such members or al- § 959.33 Expenses and compensation. ternates from unselected nominees on Committee members and alternates the current nominee list from the dis- when acting on committee business trict involved, or from nominations shall be reimbursed for reasonable ex- made in the manner specified in penses necessarily incurred by them in § 959.27. If the names of nominees to fill the performance of their duties and in any such vacancy are not made avail- the exercise of their powers under this able to the Secretary within 30 days part. In addition they may receive after such vacancy occurs, such va- compensation at a rate to be deter- cancy may be filled without regard to mined by the committee and approved nominations, which selection shall be by the Secretary, not to exceed $10 for made on the basis of the representation each day, or portion thereof, spent in provided for in §§ 959.24 to 959.26. attending to committee business.

§ 959.31 Alternate members. § 959.34 Powers. An alternate member of the com- The committee shall have the fol- mittee shall act in the place and stead lowing powers: of the member for whom he is an alter- (a) To administer the provisions of nate, during such member’s absence or this part in accordance with its terms when designated to do so by the mem- and provisions; ber for whom he is an alternate. In the (b) To make rules and regulations to event both a member of the committee effectuate the terms and provisions of and his alternate are unable to attend this part; a committee meeting, the member or (c) To receive, investigate, and report his alternate or the committee (in that to the Secretary complaints of viola- order) may designate another alternate tion of the provisions of this part; and from the same district and the same (d) To recommend to the Secretary group (handler or grower) to serve in amendments to this part. such member’s place and stead. In the event of the death, removal, resigna- § 959.35 Duties. tion, or disqualification of a member, It shall be, among other things, the his alternate shall act for him until a duty of the committee: successor of such member is selected (a) As soon as practicable after the and has qualified. The committee may beginning of each term of office, to request the attendance of alternates at meet and organize, to select a chair- any or all meetings, notwithstanding man and such other officers as may be the expected or actual presence of the necessary, to select subcommittees of respective members. committee members and alternates, and to adopt such rules and regulations [27 FR 2278, Mar. 9, 1962] for the conduct of its business as it may deem advisable; § 959.32 Procedure. (b) To act as intermediary between (a) Eleven members of the committee the Secretary and any producer or han- shall be necessary to constitute a dler; quorum. Nine concurring votes, or two- (c) To furnish to the Secretary such thirds of the votes cast, whichever is available information as he may re- greater, shall be required to pass any quest; motion or approve any committee ac- (d) To appoint such employees, tion. At assembled meetings all votes agents, and representatives as it may shall be cast in person. deem necessary and to determine the (b) The committee may meet by tele- salaries and define the duties of each phone, telegraph, or other means of such person, and to protect the han- communication and any vote at such a dling of committee funds through fidel- meeting shall be promptly confirmed ity bonds for employees; in writing. On such occasions unani- (e) To investigate from time to time mous vote of committee members vot- and to assemble data on the growing,

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harvesting, shipping, and marketing dled by him as the first handler thereof conditions with respect to onions; during a fiscal period and the quantity (f) To prepare a marketing policy; of onions handled by all handlers as (g) To recommend marketing regula- first handlers thereof during such fiscal tions to the Secretary; period. (h) To recommend rules and procedures for, and to make determinations § 959.41 Budget. in connection with, issuance of certifi- As soon as practicable after the be- cates of privilege; ginning of each fiscal period and as (i) To keep minutes, books, and may be necessary thereafter, the com- records which clearly reflect all of the mittee shall prepare an estimated acts and transactions of the com- budget of income and expenditures nec- mittee, and such minutes, books and essary for the administration of this records shall be subject to examination part. The committee may recommend a at any time by the Secretary or by his rate of assessment calculated to pro- authorized agent or representative. vide adequate funds to defray its pro- Minutes of each committee meeting posed expenditures. The committee shall be reported promptly to the Sec- shall present such budget to the Sec- retary; retary with an accompanying report (j) At the beginning of each fiscal pe- showing the basis for its calculations. riod, to prepare a budget of its expenses for such fiscal period, together § 959.42 Assessments. with a report thereon; (a) The funds to cover the commit- (k) To cause the books of the com- tee’s expenses shall be acquired by the mittee to be audited by a competent levying of assessments upon handlers accountant at least once each fiscal pe- as provided in this subpart. Each han- riod, and at such other time as the dler who first handles onions, which committee may deem necessary or as are regulated under this part, shall pay the Secretary may request. The report assessments to the committee upon de- of such audit shall show the receipt mand, which assessments shall be in and expenditure of funds collected pur- payment of such handler’s pro rata suant to this part. A copy of each such share of the committee’s expenses. report shall be made available at the (b) Assessments shall be levied upon principal office of the committee for handlers at rates established by the inspection by producers and handlers, Secretary. Such rates may be estab- and a copy of each such report shall be lished upon the basis of the commit- furnished the Secretary; tee’s recommendations and other avail- (l) To consult, cooperate, and ex- able information. Such rates may be change information with other mar- applied to specified containers used in keting agreement committees and the production area. other individuals or agencies in con- (c) At any time during, or subsequent nection with all proper committee ac- to, a given fiscal period the committee tivities and objectives under this part. may recommend the approval of an amended budget and an increase in the EXPENSES AND ASSESSMENTS rate of assessment. Upon the basis of such recommendations, or other avail- § 959.40 Expenses. able information, the Secretary may The committee is authorized to incur approve an amended budget and in- such expenses as the Secretary may crease the rate of assessment. Such in- find are reasonable and likely to be increase shall be applicable to all onions curred during each fiscal period for its which were regulated under this part maintenance and functioning, and for and which were handled by the first such purposes as the Secretary, pursu- handlers thereof during such fiscal pe- ant to this subpart, determines to be riod. appropriate. Handlers shall share ex- (d) The payment of assessments for penses on the basis of a fiscal period. the maintenance and functioning of the Each handler’s share of such expenses committee may be required under this shall be proportionate to the ratio be- part throughout the period it is in ef- tween the total quantity of onions han- fect irrespective of whether particular

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provisions thereof are suspended or be- (c) Upon the removal or expiration of come inoperative. the term of office of any member of the (e) If a handler does not pay assess- committee, such member shall account ments within the time prescribed by for all receipts and disbursements and the committee, the assessment may be deliver all property and funds in his increased by a late payment charge possession to the committee, and shall and/or an interest rate charge at execute such assignments and other in- amounts prescribed by the committee struments as may be necessary or ap- with approval of the Secretary. propriate to vest in the committee full title to all of the property, funds, and [26 FR 704, Jan. 25, 1961, as amended at 73 FR claims vested in such member pursuant 10976, Feb. 29, 2008] to this part. § 959.43 Accounting. (d) The committee may make recommendations to the Secretary for one (a) Assessments collected in excess of or more of the members thereof, or any expenses incurred shall be accounted other person, to act as a trustee for for in accordance with one of the fol- holding records, funds, or any other lowing: committee property during periods of (1) Excess funds not retained in a re- suspension of this subpart, or during serve, as provided in paragraph (a)(2) of any period or periods when regulations this section shall be refunded propor- are not in effect and if the Secretary tionately to the persons from whom determines such action appropriate, he they were collected. may direct that such person or persons (2) The committee, with the approval shall act as trustee or trustees for the of the Secretary, may carry over excess committee. funds into subsequent fiscal periods as reserves: Provided, That funds already [26 FR 12751, Dec. 30, 1961, as amended at 34 in reserves do not equal approximately FR 6440, Apr. 12, 1969] two fiscal periods’ expenses. Such re- RESEARCH AND DEVELOPMENT serve funds may be used (i) to defray expenses during any fiscal period prior § 959.48 Research and development. to the time assessment income is sufficient to cover such expenses, (ii) to The committee, with the approval of cover deficits incurred during any fis- the Secretary, may establish or provide cal period when assessment income is for the establishment of production re- less than expenses, (iii) to defray ex- search, marketing research, and devel- penses incurred during any period when opment projects designed to assist, im- any or all provisions of this part are prove, or promote the marketing, dis- suspended or are inoperative, (iv) to tribution, consumption or efficient cover necessary expenses of liquidation production of onions. The expenses of in the event of termination of this such projects shall be paid from funds part. Upon such termination, any funds collected pursuant to § 959.42. not required to defray the necessary [38 FR 31516, Nov. 15, 1973] expenses of liquidation shall be disposed of in such manner as the Sec- REGULATIONS retary may determine to be appropriate. To the extent practical, such § 959.50 Marketing policy. funds shall be returned pro rata to the (a) At the beginning of each season, persons from whom such funds were and as the Secretary may require, the collected. committee shall prepare a marketing (b) All funds received by the com- policy. Such policy shall indicate the mittee pursuant to the provisions of data on onion supplies and demand on this part shall be used solely for the which the committee bases its judg- purpose specified in this part and shall ments and recommendations. It shall be accounted for in the manner pro- indicate also the kind or types of regu- vided for in this part. The Secretary lations contemplated during the ensu- may at any time require the coming season, and, to the extent prac- mittee and its members to account for tical, shall include recommendations all receipts and disbursements. for specific regulations. Notice of such

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marketing policy shall be given to pro- (3) Limit the handling of onions by ducers, handlers, and other interested establishing, in terms of grades, sizes, parties by bulletins, newspapers, or or both, minimum standards of quality other appropriate media, and copies and maturity; thereof shall be submitted to the Sec- (4) Fix the size, capacity, weight, di- retary and shall be available generally. mensions, or pack of the container or (b) Marketing policy statements re- containers which may be used in the lating to recommendations for regula- packaging, transportation, sale, prepa- tions shall give appropriate consider- ration for market, shipment, or other ation to onion supplies for the season, handling of onions; with special consideration to: (5) Establish holidays by prohibiting (1) Estimates of total supplies, in- throughout the entire production area, cluding grade, size, and quality thereof, the packaging or loading, or both, of in the production area; onions on Sundays; (2) Estimates of supplies in the com- (6) Prohibit the packaging or loading, peting areas; or both, of onions except during speci- (3) Market prices by grades, sizes, fied consecutive hours of any calendar containers, and packs; day or days: Provided, That, any han- (4) Estimates of supplies of com- dler may, upon such notice to the competing commodities; mittee as it may prescribe with ap- (5) Anticipated marketing problems; proval of the Secretary, package or (6) Level and trend of consumer in- load onions during a different period in come; and such day consisting of the same num- (7) Other relevant factors. ber of consecutive hours: Provided fur- § 959.51 Recommendations for regula- ther, That any handler who, due to con- tions. ditions specified in regulations established by the committee with the ap- Upon complying with the require- proval of the Secretary as being beyond ments of § 959.50 the committee may a handler’s reasonable control, is pre- recommend regulations to the Sec- vented for more than one of such con- retary whenever it finds that such reg- secutive hours from so packaging or ulations as are provided for in this sub- loading onions may, in accordance with part will tend to effectuate the de- such regulations, obtain permission clared policy of the act. from the committee to package or load § 959.52 Issuance of regulations. onions, or both, during a comparable number of additional hours in the same (a) The Secretary shall limit the han- day or a later day as specified by the dling of onions by regulations specified committee. in this section whenever he finds from (c) Regulations issued hereunder may the recommendations and information be amended, modified, suspended, or submitted by the committee, or from terminated whenever it is determined: other available information, that such regulations would tend to effectuate (1) That such action is warranted the declared policy of the act. upon recommendation of the com- (b) Such regulations may: mittee or other available information; (1) Limit in any or all portions of the (2) That such action is essential to production area the handling of par- provide relief from inspection, assess- ticular grades, sizes, qualities or packs, ment, or regulations under paragraph or any combination thereof, of any or (b) of this section for minimum quan- all varieties of onions during any pe- tities less than customary commercial riod; transactions; or (2) Limit the handling of particular (3) That regulations issued hereunder grades, sizes, qualities, or packs of on- no longer tend to effectuate the de- ions differently for different varieties, clared policy of the act. for different containers, for different (d) No handler may handle onions portions of the production area, or any that were packaged or loaded or both combination of the foregoing, during during any period when such packaging any period; or loading or both was prohibited by

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any regulation issued pursuant to para- are inspected by an authorized rep- graphs (b)(5) or (6) of this section, ex- resentative of the Federal or Federal- cept such onions as were exempted State Inspection Service. Such inspec- thereunder. tion requirements on regraded, re- [26 FR 704, Jan. 25, 1961. Redesignated at 26 sorted, or repacked onions may be FR 12751, Dec. 30, 1961, as amended at 34 FR modified, suspended, or terminated 6440, Apr. 12, 1969] upon recommendation by the committee and approval of the Secretary. § 959.53 Handling for special purposes. (c) Upon recommendation of the com- Regulations in effect pursuant to mittee and approval by the Secretary, §§ 959.42, 959.52, or 959.60 may be modi- any or all onions so inspected and cer- fied, suspended, or terminated to facili- tified shall be identified by appropriate tate handling of onions for: seals, stamps, or tags to be affixed to (a) Relief or charity; the containers by the handler under (b) Experimental purposes; the direction and supervision of a Fed- (c) Export; and eral or Federal-State Inspector or the (d) Other purposes which may be rec- Committee. Master containers may ommended by the committee and ap- bear the identification instead of the proved by the Secretary. individual containers within said master container. § 959.54 Safeguards. (d) At any time this marketing order The committee, with the approval of is inoperative, compulsory inspection the Secretary, may establish through is not required. rules such requirements as may be nec- (e) Insofar as the requirements of essary to establish that shipments this section are concerned, the length made pursuant to § 959.53 were handled of time for which an inspection certifi- and used for the purpose stated. cate is valid may be established by the § 959.55 Notification of regulation. committee with the approval of the Secretary. The Secretary shall promptly notify (f) When onions are inspected in ac- the committee of regulations issued or cordance with the requirements of this of any modification, suspension, or ter- section, a copy of each inspection cer- mination thereof. The committee shall tificate issued shall be made available give reasonable notice thereof to han- to the committee by the Inspection dlers. Service. INSPECTION (g) The committee may recommend and the Secretary may require that no § 959.60 Inspection and certification. handler shall transport or cause the (a) Whenever the handling of onions transportation of onions by motor ve- is regulated pursuant to § 959.52, or at hicle or by other means unless such other times when recommended by the shipment is accompanied by a copy of committee and approved by the Sec- the inspection certificate issued there- retary, no handlers shall handle onions on, or other document authorized by unless they are inspected by an author- the committee to indicate that such in- ized representative of the Federal or spection has been performed. Such cer- Federal-State Inspection Service and tificate or document shall be surren- are covered by a valid inspection cer- dered to such authority as may be des- tificate, except when relieved from ignated. such requirements pursuant to § 959.52(c) or § 959.54, or paragraph (b) of REPORTS this section. (b) Regarding, resorting, or repack- § 959.80 Reports. ing any lot of onions shall invalidate Upon request of the committee, made any prior inspection certificate insofar with the approval of the Secretary, as the requirements of this section are each handler shall furnish to the com- concerned. No handler shall handle on- mittee, in such manner or form and at ions after they have been regraded, re- such time as it may prescribe, such resorted, or repacked unless such onions ports and other information as may be

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necessary for the committee to per- subject to removal or suspension by form its duties under this part. the Secretary at any time. Each and (a) Such reports may include, but are every order, regulation, decision, deter- not necessarily limited to, the fol- mination or other act of the committee lowing: shall be subject to the continuing right (1) The quantities of onions received of the Secretary to disapprove of the by a handler; same at any time. Upon such dis- (2) The quantities disposed of by him approval, the disapproved action of the segregated as to the respective quan- said committee shall be deemed null tities subject to regulation and not and void, except as to acts done in reli- subject to regulation; ance thereon or in compliance there- (3) The date of each such disposition with prior to such disapproval by the and the identification of the carrier Secretary. transporting such onions; and (4) Identification of the inspection § 959.83 Effective time. certificates relating to the onions The provisions of this subpart, or any which were handled pursuant to § 959.52 amendment thereto, shall become ef- or § 959.53, or both. fective at such time as the Secretary (b) All such reports shall be held may declare and shall continue in force under appropriate protective classifica- until terminated in one of the ways tion and custody by the committee, or specified in this subpart. duly appointed employees thereof, so that the information contained therein § 959.84 Termination. which may adversely affect the competitive position of any handler in rela- (a) The Secretary may, at any time, tion to other handlers will not be dis- terminate the provisions of this sub- closed. Compilations of general reports part by giving at least one day’s notice from data submitted by handlers is au- by means of a press release or in any thorized, subject to the prohibition of other manner which he may determine. disclosure of individual handlers’ iden- (b) The Secretary shall terminate or tities or operations. suspend the operation of any or all of (c) Each handler shall maintain for the provisions of this subpart whenever at least two succeeding years such he finds that such provisions do not records and documents on onions re- tend to effectuate the declared policy ceived and onions disposed of by him as of the act. may be necessary to verify reports he (c) The Secretary shall terminate the submits to the committee pursuant to provisions of this subpart at the end of this section. any fiscal period whenever he finds that such termination is favored by a COMPLIANCE majority of producers who, during a representative period, have been en- § 959.81 Compliance. gaged in the production of onions for Except as provided in this subpart, market: Provided, That such majority no handler shall handle onions, the has, during such representative period, handling of which has been prohibited produced for market more than fifty by the Secretary in accordance with percent of the volume of such onions provisions of this subpart, or the rules produced for market. and regulations thereunder, and no (d) The Secretary shall conduct a ref- handler shall handle onions except in erendum within six years after the ef- conformity to the provisions of this fective date of this paragraph and subpart. every sixth year thereafter to ascertain whether continuance is favored by pro- MISCELLANEOUS PROVISIONS ducers. The Secretary would consider termination of this part if less than § 959.82 Right of the Secretary. two-thirds of the growers voting in the The members of the committee (in- referendum and growers of less than cluding successors and alternates), and two-thirds of the volume of onions rep- any agent or employee appointed or resented in the referendum favor con- employed by the committee, shall be tinuance.

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(e) The provisions of this subpart release or extinguish any violation of shall, in any event, terminate when- this subpart or of any regulation issued ever the provisions of the act author- under this subpart, or (c) affect or im- izing them cease to be in effect. pair any rights or remedies of the Sec- [26 FR 704, Jan. 25, 1961, as amended at 73 FR retary or of any other person with re- 10976, Feb. 29, 2008] spect to any such violation.

§ 959.85 Proceeding after termination. § 959.87 Duration of immunities. (a) Upon the termination of the pro- The benefits, privileges, and immuni- visions of this subpart the then func- ties conferred upon any person by vir- tioning members of the committee tue of this subpart shall cease upon the shall continue as joint trustees for the termination of this subpart, except purpose of settling the affairs of the with respect to acts done under and committee by liquidating all of the during the existence of this subpart. funds and property then in the possession of or under control of the com- § 959.88 Agents. mittee, including claims for any funds The Secretary may, by designation in unpaid or property not delivered at the writing, name any person, including time of such termination. Action by any officer or employee of the United said trusteeship shall require the con- States Department of Agriculture, to currence of a majority of the said act as his agent or representative in trustees. connection with any of the provisions (b) The said trustees shall continue of this subpart. in such capacity until discharged by the Secretary; shall, from time to § 959.89 Derogation. time, account for all receipts and dis- Nothing contained in this subpart is, bursements and deliver all property on or shall be construed to be, in deroga- hand, together with all books and tion or in modification of the rights of records of the committee and of the the Secretary or of the United States trustees, to such person as the Sec- to exercise any powers granted by the retary may direct; and shall, upon re- act or otherwise, or, in accordance quest of the Secretary, execute such with such powers, to act in the prem- assignments or other instruments nec- ises whenever such action is deemed essary or appropriate to vest in such advisable. persons full title and right to all of the funds, property, and claims vested in § 959.90 Personal liability. the committee or the trustees pursuant to this subpart. No member or alternate of the com- (c) Any person to whom funds, prop- mittee nor any employee or agent erty, or claims have been transferred thereof, shall be held personally re- or delivered by the committee or its sponsible, either individually or jointly members, pursuant to this section, with others, in any way whatsoever, to shall be subject to the same obligations any handler or to any person for errors imposed upon the members of the com- in judgment, mistakes, or other acts, mittee and upon the said trustees. either of commission or omission, as such member, alternate, agent, or em- § 959.86 Effect of termination or ployee, except for acts of dishonesty, amendments. willful misconduct, or gross neg- Unless otherwise expressly provided ligence. by the Secretary, the termination of this subpart or of any regulation issued § 959.91 Separability. pursuant to this subpart, or the If any provision of this subpart is de- issuance of any amendments to either clared invalid, or the applicability thereof, shall not (a) affect or waive thereof to any person, circumstance, or any right, duty, obligation, or liability thing is held invalid, the validity of the which shall have arisen or which may remainder of this subpart, or the appli- thereafter arise in connection with any cability thereof to any other person, provisions of this subpart or any regu- circumstance, or thing, shall not be af- lation issued under this subpart, or (b) fected thereby.

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§ 959.92 Amendments. committee, he shall be so informed by written notice stating the reason for Amendments to this subpart may be denial of his application. Any registra- proposed, from time to time, by the tion of a handler pursuant to this sec- committee or by the Secretary. tion may be canceled by the committee under circumstances which would have Subpart—Rules and Regulations justified denial of his application. Any handler whose registration has been SOURCE: 26 FR 2560, Mar. 25, 1961, unless canceled shall be so informed by writ- otherwise noted. Redesignated at 26 FR 12751, ten notice thereof stating the reason Dec. 30, 1961. therefor. The committee shall also notify producers of each such cancella- GENERAL tion of handler registration through committee bulletins or published no- § 959.100 Order. tice in local newspapers of general dis- Order means Order No. 959 (§§ 959.1 to tribution, or both. 959.92; 26 FR 704) regulating the handling of onions grown in South Texas. § 959.104 Fiscal period. The fiscal period shall begin August 1 § 959.101 Terms. of each year and end July 31 of the fol- The terms used in this subpart shall lowing year, both dates inclusive. have the same meaning as when used in the order. [68 FR 11466, Mar. 11, 2003] § 959.110 Reestablishment of districts. § 959.102 Communications. Pursuant to § 959.25, the following Unless otherwise provided in the districts are reestablished: order, or by specific direction of the (a) District 1 (Coastal Bend-Lower committee, all reports, applications, Valley): The counties of Victoria, Cal- submittals, requests and communica- houn, Goliad, Refugio, Bee, Live Oak, tions in connection with the order San Patricio, Aransas, Jim Wells, shall be addressed to the South Texas Nueces, Kleberg, Brooks, Kenedy, Onion Committee, at its principal of- Duval, McMullen, Cameron, Hidalgo, fice. Starr, and Willacy. (b) District 2 (Laredo-Winter Garden): § 959.103 Registered handler. The counties of Zapata, Webb, Jim For purposes of this part any person Hogg, De Witt, Wilson, Atascosa, who operates an established packing Karnes, Val Verde, Frio, Kinney, house within the production area with Uvalde, Medina, Maverick, Zavala, commonly accepted adequate facilities Dimmit, and LaSalle. for grading and packing onions for market, and who customarily buys on- [55 FR 25961, June 26, 1990] ions from producers for grading, pack- § 959.111 Reapportionment of coming, and marketing shall be recorded mittee membership. by the committee as a registered han- Pursuant to § 959.25, committee mem- dler. Any other person who wishes to bership is reapportioned among dis- be listed as a registered handler may tricts as follows: make application for registration on (a) District 1 (Coastal Bend-Lower forms furnished by the committee. If Valley): Six producer members and such applicant has facilities available four handler members. to him that are determined by the (b) District 2 (Laredo-Winter Garden): committee to be adequate for grading Four producer members and three han- and packing onions for market, and he dler members. assumes responsibility for inspection of onions handled by him, and for assess- [55 FR 25962, June 26, 1990] ments thereon, he may be approved and recorded as a registered handler. If the § 959.115 Planting reports. committee determines from the avail- Each handler shall furnish every two able information that the applicant is weeks during the planting season to not entitled to be registered with the the committee, on a form provided by

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the committee, the number of acres of information shown thereon, and any onions planted by the handler or grow- other appropriate information or docu- ers for whom the handler packs onions ments deemed necessary by the com- during such period and the location of mittee or its duly authorized agents for such plantings. the purposes stated in § 959.120. (b) The committee may require each [53 FR 7330, Mar. 8, 1988] handler making shipments of onions SAFEGUARDS for export to include with his application a copy of the Department of Com- § 959.120 Policy. merce Shippers Export Declaration Whenever shipments of onions for Form No. 7525–V applicable to such special purposes pursuant to § 959.53 are shipment. relieved in whole or in part from regu- § 959.123 Approval. lations issued under § 959.52, the committee may require information and The committee or its duly authorized evidence on the manner, methods, and agents shall give prompt consideration timing of such shipments as safeguards to each application for a Certificate of against the entry of any such onions in Privilege. Approval of an application, trade channels other than those for based upon the determination as to which intended. Such information and whether the information contained evidence shall include requirements set therein and other information avail- forth below with respect to Certificates able to the committee supports ap- of Privilege. proval, shall be evidenced by the issuance of a Certificate of Privilege to § 959.121 Qualification. the applicant. Each certificate shall Before handling onions for special cover a specified period and specified purposes which do not meet regula- qualities and quantities of onions to be tions issued pursuant to § 959.52, a han- sold or transported to a designated dler, when required by such regula- consignee for the purpose declared. tions, must qualify with the committee to handle shipments for special pur- § 959.124 Reports. poses. To qualify he must (a) apply for Each handler of onions shipping and receive a Certificate of Privilege under Certificates of Privilege shall indicating his intent to so handle on- supply the committee with reports as ions, (b) agree to comply with report- requested by the committee, or its duly ing and other requirements set forth in authorized agents, showing the name §§ 959.120 to 959.125, inclusive, with re- and address of the shipper; the car or spect to such shipments, and (c) receive truck identification; the loading point; approval of the committee, or its duly destination; consignee; the inspection authorized agents, to so handle onions. certificate number when inspection is Such approval will be based upon evi- required; and any other information dence furnished in his application for deemed necessary by the committee. Certificate of Privilege and other information available to the committee. § 959.125 Disqualification. The committee from time to time § 959.122 Application. may conduct surveys of handling of on- (a) Applications for a Certificate of ions for special purposes requiring Cer- Privilege shall be made on forms fur- tificates of Privilege to determine nished by the committee. Each applica- whether handlers are complying with tion may contain, but need not be lim- the requirements and regulations ap- ited to, the name and address of the plicable to such certificates. Whenever handler; the quantity by grade, size, the committee finds that the handler and quality of the onions to be shipped; or consignee is failing to comply with the mode of transportation; the con- requirements and regulations applica- signee; the destination; the purpose for ble to handling of onions in special out- which the onions are to be used; and lets and requiring such certificates, a certification to the United States De- Certificate or Certificates of Privilege partment of Agriculture and to the issued such handler may be rescinded committee as to the truthfulness of the and subsequent certificates denied.

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Such disqualification shall apply to, serious damage shall not exceed 10 per- and not exceed, a reasonable period of cent including not more than 2 percent time as determined by the committee, decay. Double the lot tolerance shall be but in no event shall it extend beyond permitted in individual packages in the date of the succeeding fiscal period. percentage grade lots. Application of Any handler who has a Certificate re- tolerances in U.S. onion standards scinded or denied may appeal to the shall apply to in-grade lots. committee in writing for reconsider- (b) Size requirements. (1) ‘‘Small’’—1 to ation of his disqualification. 21⁄4 inches in diameter, and limited to whites only; § 959.126 Handling of culls. 3 (2) ‘‘Repacker’’—1 ⁄4 to 3 inches in di- (a) The handling of culls, i.e., onions ameter, with 60 percent or more 2 which fail to meet the grade, size and inches in diameter or larger; quality requirements established under (3) ‘‘Medium’’—2 to 31⁄2 inches in di- § 959.52(b) of this part, is prohibited, un- ameter; or less such onions are: (4) ‘‘Jumbo’’ or ‘‘Large’’—3 inches or (1) Mechanically mutilated at the larger in diameter; or packing shed rendering them unsuit- (5) ‘‘Colossal’’—33⁄4 inches or larger in able for fresh market; diameter. (2) Handled for special purpose out- (6) Tolerances for size in the U.S. lets approved under § 959.53 of this part; onion standards shall apply except that or for ‘‘repacker’’ and ‘‘medium’’ sizes not (3) Handled for canning or freezing. more than 20 percent, by weight, of on- (b) As a safeguard against culls en- ions in any lot may be larger than the tering fresh market channels each han- maximum diameter specified. Applica- dler of culls under paragraphs (a) (2) or tion of tolerances in the U.S. onion (3) of this section shall apply for and standards shall apply. obtain a certificate from the com- (c) Inspection. (1) No handler may mittee which shall require the handler handle any onions regulated hereunder, to furnish such reports or other infor- except pursuant to paragraphs (d), mation as the committee may request. (e)(1), or (e)(2) of this section unless an [28 FR 60, Jan. 3, 1963] inspection certificate has been issued by the Federal or Federal-State Inspec- Subpart—Assessment Rates tion Service, Texas Cooperative Inspec- tion Program, covering them and the § 959.237 Assessment rate. certificate is valid at the time of ship- On and after August 1, 2009, an as- ment. City destinations shall be listed sessment rate of $0.025 per 50-pound on inspection certificates and release equivalent is established for South forms. Texas onions. (2) No handler may transport by motor vehicle or cause such transpor- [74 FR 38508, Aug. 4, 2009] tation of any shipment of onions for which an inspection certificate is re- Subpart—Handling Regulations quired unless each such shipment is accompanied by a copy of the inspection § 959.322 Handling regulation. certificate applicable thereto or the During the period beginning March 1 shipment release form furnished by the and ending June 4, no handler shall inspection service identifying truck handle any onions, including onions for lots to which a valid inspection certifi- peeling, chopping, and slicing, unless cate is applicable. A copy of such in- they comply with paragraphs (a) spection certificate or shipment re- through (c) or (d) or (e) of this section; lease form shall be surrendered upon except that onions handled during the request to Texas Department of Agri- period June 5 through July 15 shall culture personnel designated by the comply with paragraphs (c) or (d) or (e) committee. of this section. (3) For purposes of operation under (a) Grade requirements. Not to exceed this part, each inspection certificate, 20 percent defects of U.S. No. 1 grade. shipment release form, or committee In percentage grade lots, tolerances for form required as evidence of inspection

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is hereby determined to be valid for a and the records shall be subject to re- period not to exceed 72 hours following view and audit by the committee to completion of inspection as shown on verify reports thereon. the certificate. (4) In addition to provisions in the (4) Handlers shall pay assessment on preceding paragraphs, each handler all assessable onions according to the making shipments for processing shall: provisions of § 959.42. (i) Weigh or cause to be weighed each (d) Minimum quantity exemption. Any shipment prior to, or upon arrival at, handler may handle, other than for re- the processor. sale, up to, but not to exceed 110 (ii) Attach a copy of the weight tick- pounds of onions per day without re- et to a completed copy of the Report of gard to the requirements of this sec- Special Purpose Onion Shipment and tion, but this exemption shall not return both promptly to the committee apply to any shipment or any portion office. thereof of over 110 pounds of onions. (iii) Make each shipment directly to (e) Special purpose shipments. (1) The the processor or the processor’s sub- minimum grade, size, quality, and in- contractor and attach a copy of the Re- spection requirements set forth in port of Special Purpose Onion Ship- paragraphs (a) through (c) of this sec- ment. tion shall not be applicable to ship- (iv) Each processor or processor’s ments of onions for charity, relief, ex- subcontractor who receives cull onions port, and processing if handled in ac- shall weigh the onions upon receipt, cordance with paragraph (f) of this sec- complete the Report of Special Purpose tion. Shipment which accompanies each load (2) Experimental shipments. Upon ap- and mail it immediately to the com- proval by the committee, onions may mittee office. be shipped for experimental purposes (v) Each processor who receives cull exempt from regulations issued pursu- onions shall make available at its busi- ant to §§ 959.42, 959.52 and 959.60, pro- ness office at any reasonable time dur- vided they are handled in accordance ing business hours, copies of all appli- with the safeguard provisions of para- cable purchase orders, sales contracts, graph (f) of this section. or disposition documents for examina- (3) Onions failing to meet requirements. tion by the Department or by the com- Onions failing to meet the grade and mittee, together with any other infor- size requirements of this section, and mation which the committee or the De- not exempt under paragraphs (d) or (e) partment may deem necessary to en- of this section, may be handled only able it to determine the disposition of pursuant to § 959.126. Such onions not the onions. handled in accordance with paragraph (vi) If a processor employs a subcon- (f) of this section shall be mechanically tractor for any stage of processing, mutilated at the packing shed ren- such processor shall be responsible for dering them unsuitable for fresh mar- ensuring that the subcontractor ac- ket. counts for all quantities of onions re- (f) Safeguards. Each handler making ceived and processed or otherwise dis- shipments of onions for charity, relief, posed of, and that the subcontractor export, processing, or experimental reports to the committee in the same purposes shall: manner and frequently as the proc- (1) Apply to the committee for and essor. obtain a Certificate of Privilege to (5) Cull onions transported in bags make such shipments; shall be transported in unlabelled bags, (2) Furnish reports of each shipment or shall have labelled bags reversed so made under the applicable Certificate that the label is not visible. of Privilege; (g) Definitions. U.S. onion standards (3) Such reports, in accordance with means the United States Standards for § 959.80, shall be furnished to the com- Grades of Bermuda-Granex-Grano Type mittee in such manner, on such forms Onions (7 CFR 51.3195–51.3209), or the and at such times as it may prescribe. United States Standards for Grades of Each handler shall maintain records of Onions (Other Than Bermuda-Granex- such shipments pursuant to § 959.80(c), Grano and Creole Types) (7 CFR

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51.2830–51.2854), whichever is applicable 966.24 Districts. to the particular variety, or variations 966.25 Redistricting. thereof specified in this section. The 966.26 Selection. term U.S. No. 1 shall have the same 966.27 Nomination. 966.28 Failure to nominate. meaning as set forth in these stand- 966.29 Acceptance. ards. Processing means cooking or freez- 966.30 Vacancies. ing the onions in such a way, or with 966.31 Alternate members. such other food components, that the 966.32 Procedure. consistency of the product is changed. 966.33 Expenses and compensation. Canning and freezing shall be consid- 966.34 Powers. ered forms of processing. All other 966.35 Duties. terms used in this section shall have EXPENSES AND ASSESSMENTS the same meaning as when used in Marketing Agreement No. 143, as 966.40 Expenses. amended, and this part. 966.41 Budget. 966.42 Assessments. [47 FR 8552, Mar. 1, 1982] 966.43 Accounting. 966.44 Excess funds. EDITORIAL NOTE: For FEDERAL REGISTER ci- 966.45 Contributions. tations affecting § 959.322, see the List of CFR Sections Affected, which appears in the RESEARCH AND DEVELOPMENT Finding Aids section of the printed volume and at www.fdsys.gov. 966.48 Research and promotion.

EDITORIAL NOTE: After January 1, 1979 REGULATION ‘‘Budget of Expenses and Rate of Assessment’’ regulations (e.g., sections .200 through. 299) 966.50 Marketing policy. and ‘‘Handling’’ regulations (e.g., sections .300 966.51 Recommendations for regulations. through .399) which are in effect for a year or 966.52 Issuance of regulations. less, will not be carried in the Code of Fed- 966.53 Minimum quantities. eral Regulations. For FEDERAL REGISTER ci- 966.54 Shipments for special purposes. tations affecting these regulations, see the 966.55 Notification of regulation. List of CFR Sections Affected, which appears 966.56 Safeguards. in the Finding Aids section of the printed INSPECTION volume and at www.fdsys.gov. 966.60 Inspection and certification.

PART 966—TOMATOES GROWN IN EXEMPTIONS FLORIDA 966.70 Procedure. 966.71 Granting exemptions. Subpart—Order Regulating Handling 966.72 Investigation. 966.73 Appeal. DEFINITIONS 966.74 Records. Sec. 966.1 Secretary. REPORTS 966.2 Act. 966.80 Reports. 966.3 Person. 966.4 Production area and regulated area. MISCELLANEOUS PROVISIONS 966.5 Tomatoes. 966.6 Handler. 966.81 Compliance. 966.7 Handle. 966.82 Right of the Secretary. 966.8 Producer. 966.83 Effective time. 966.9 Grading. 966.84 Termination. 966.10 Grade and size. 966.85 Proceedings after termination. 966.11 Pack. 966.86 Effect of termination or amendment. 966.12 Maturity. 966.87 Duration of immunities. 966.13 Container. 966.88 Agents. 966.14 Varieties. 966.89 Derogation. 966.15 Committee. 966.90 Personal liability. 966.16 Fiscal period. 966.91 Separability. 966.17 District. 966.92 Amendments. 966.18 Export. Subpart—Rules and Regulations COMMITTEE GENERAL 966.22 Establishment and membership. 966.23 Term of office. 966.100 Communications.

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DEFINITIONS § 966.2 Act. 966.110 Order. Act means Public Act No. 10, 73d Con- 966.111 Marketing Agreement. gress, as amended and as reenacted and 966.112 Terms. amended by the Agricultural Mar- 966.113 Registered handler certification. keting Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 SAFEGUARDS U.S.C. 601 et seq.; 68 Stat. 906, 1047). 966.120 Application for Certificate of Privi- lege. § 966.3 Person. 966.121 Issuance. Person means an individual, partner- 966.122 Reports. ship, corporation, association, or any 966.123 Denial and appeal. other business unit. 966.124 Approved receiver.

EXEMPTION PROCEDURES § 966.4 Production area and regulated area. 966.130 Application. (a) Production area means the coun- 966.131 Investigations. ties of Pinellas, Hillsborough, Polk, 966.132 Issuance. 966.133 Disposition of certificates. Osceola, and Brevard in the State of 966.134 Reports. Florida, and all the counties of that 966.135 Appeals. State situated south of such counties. (b) Regulated area means that portion INSPECTION of the State of Florida which is bound- 966.140 Truck shipments. ed by the Suwannee River, the Georgia border, the Atlantic Ocean, and the INTERPRETATIVE RULES Gulf of Mexico. 966.150 Meaning of ‘‘producer’’. [33 FR 8585, June 12, 1968, as amended at 34 FR 19186, Dec. 4, 1969] REESTABLISHMENT OF DISTRICTS 966.160 Reestablishment of districts. § 966.5 Tomatoes. 966.161 Reapportionment of Committee Tomatoes means all varieties of the Membership. edible fruit (Lycopersicon esculentum) commonly known as tomatoes and Subpart—Assessment Rates grown within the production area. 966.234 Assessment rate. § 966.6 Handler. Subpart—Handling Regulations Handler is synonymous with shipper and means any person (except a com- 966.323 Handling regulation. mon or contract carrier transporting AUTHORITY: 7 U.S.C. 601–674. tomatoes for another person) who, as owner, agent, or otherwise, handles Subpart—Order Regulating fresh tomatoes or causes fresh toma- Handling toes to be handled. [33 FR 8585, June 12, 1968] SOURCE: 20 FR 7357, Oct. 4, 1955, unless otherwise noted. Redesignated at 26 FR 12751, § 966.7 Handle. Dec. 30, 1961. Handle or ship means to sell, transport, deliver, or in any other way to DEFINITIONS place fresh tomatoes, produced in the production area, in the current of com- § 966.1 Secretary. merce within the regulated area or be- Secretary means the Secretary of Ag- tween any point in the regulated area riculture of the United States, or any and any point outside thereof. Such officer or employee of the Department term shall not include the transpor- to whom authority has heretofore been tation, sale or delivery of field-run to- delegated, or to whom authority may matoes within the production area by hereafter be delegated, to act in his the producer thereof to a registered stead. handler for the purpose of having such

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tomatoes prepared for market. A reg- § 966.13 Container. istered handler is a handler who has Container means a box, bag, crate, adequate facilities in the production hamper, basket, package, tube, bulk area for grading and packing tomatoes load or any other type of unit used in and who is registered with the com- the packaging, transportation, sale, mittee pursuant to rules established shipment, or handling of tomatoes. with the approval of the Secretary. [34 FR 19186, Dec. 4, 1969] § 966.14 Varieties. Varieties means and includes all clas- § 966.8 Producer. sifications or subdivisions of tomatoes Producer means any person engaged according to those definitive charac- in a proprietary capacity in the pro- teristics now or hereafter recognized duction of tomatoes for market. by the United States Department of Agriculture. § 966.9 Grading. § 966.15 Committee. Grading is synonymous with prepara- means the Florida Tomato tion for market and means the sorting or Committee Committee, established pursuant to separation of tomatoes into grades, § 966.22. sizes, maturities, and packs for market purposes. § 966.16 Fiscal period. § 966.10 Grade and size. Fiscal period means the period beginning August 1 and ending July 31 fol- Grade means any one of the estab- lowing. lished grades of tomatoes and size means any one of the established sizes § 966.17 District. of tomatoes as defined and set forth in District means each one of the geo- U.S. Standards for Fresh Tomatoes graphic divisions of the production (§§ 51.1855 to 51.1877 of this title or U.S. area initially established pursuant to Consumer Standards for Fresh Toma- § 966.24, or as reestablished pursuant to toes (§§ 51.1900 to 51.1913 of this title), § 966.25. both issued by the United States De- partment of Agriculture, or amend- § 966.18 Export. ments thereto, or modifications there- Export means shipment of tomatoes of, or variations based thereon rec- beyond the boundaries of the 48 contig- ommended by the committee and ap- uous States (including the District of proved by the Secretary. Columbia) of the United States. § 966.11 Pack. [34 FR 19186, Dec. 4, 1969] Pack means any of the packs of toma- COMMITTEE toes as defined and set forth in the United States Standards for Fresh To- § 966.22 Establishment and member- matoes issued by the United States De- ship. partment of Agriculture (§§ 51.1855 to (a) The Florida Tomato Committee, 51.1877 of this title), or any pack of to- consisting of 12 producer members, is matoes recommended by the com- hereby established. For each member mittee and approved by the Secretary. of the committee there shall be an alternate who shall have the same quali- § 966.12 Maturity. fications as the member. Maturity means any of the various de- (b) Each person selected as a com- grees of ripeness of tomatoes as estab- mittee member or alternate shall be an lished by the committee with approval individual who is a producer, or an offi- of the Secretary as determined at the cer or an employee of a corporate pro- time of the inspection, pursuant to ducer, in the district for which selected § 966.60(a). and a resident of the production area. [34 FR 19186, Dec. 4, 1969] [33 FR 8586, June 12, 1968]

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§ 966.23 Term of office. tive within less than 30 days prior to (a) The term of office of committee the date on which terms of office begin members, and their respective alter- each year and no recommendations for nates, shall be for 1 year and shall such redistricting or reapportionment begin as of August 1 and end as of July may be made less than six months 31. prior to such date. (b) Committee members and alter- § 966.26 Selection. nates shall serve during the term of office for which they are selected and The Secretary shall select initially 3 have qualified, or during that portion members of the committee with their thereof beginning on the date on which respective alternates, from each dis- they qualify during such term of office trict. and continuing until the end thereof, and until their successors are selected § 966.27 Nomination. and have qualified. The Secretary may select the members of the committee and alternates § 966.24 Districts. from nominations which may be made For the purpose of determining the in the following manner: basis for selecting committee members (a) A meeting or meetings of pro- the following districts of the produc- ducers shall be held in each district to tion area are hereby initially estab- nominate members and alternates for lished. the committee. The committee shall District No. 1. The counties of Broward and hold such meetings or cause them to be Dade in the State of Florida; held prior to June 15 of each year or by District No. 2. The counties of Brevard, such other date as may be approved by Glades, Indian River, Martin, Osceola, the Secretary pursuant to rec- Okeechobee, Palm Beach, and St. Lucie in ommendation of the committee. the State of Florida; (b) At each such meeting at least one District No. 3. The counties of Charlotte, Col- lier, Hendry, Lee, and Monroe in the State nominee shall be designated for each of Florida; and position as member and for each posi- District No. 4. The counties of De Soto, tion as alternate on the committee. Hardee, Highlands, Hillsborough, Manatee, (c) Nominations for committee mem- Pinellas, Polk, and Sarasota in the State bers and alternates shall be supplied to of Florida. the Secretary in such manner and form [33 FR 8586, June 12, 1968] as he may prescribe, not later than July 15 of each year, or by such other § 966.25 Redistricting. date as may be approved by the Sec- The committee may recommend, and retary pursuant to recommendation of pursuant thereto, the Secretary may the committee. approve, the reapportionment of mem- (d) Only producers may participate in bers among districts, and the reestab- designating nominees for members and lishment of districts within the produc- alternates on the committee. In the tion area. In recommending any such event a person is engaged in producing changes, the committee shall give con- tomatoes in more than one district, sideration to: (a) Shifts in tomato acre- such person shall elect the district age within districts and within the pro- within which he may participate as duction area during recent years; (b) aforesaid in designating nominees; and the importance of new production in (e) Regardless of the number of dis- its relation to existing districts; (c) the tricts in which a person produces toma- equitable relationship of committee toes, each such person is entitled to membership and districts; (d) econo- cast only one vote on behalf of himself, mies to result for producers in pro- his agents, subsidiaries, affiliates, and moting efficient administration due to representatives in designating nomi- redistricting or reapportionment of nees for committee members and alter- members within districts; and (e) other nates. An eligible voter’s privilege of relevant factors. No change in dis- casting only one vote as aforesaid shall tricting or in apportionment of mem- be construed to permit a voter to cast bers within districts may become effec- one vote for each position to be filled

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in the respective district in which he (b) If both a member and respective elects to vote. alternate are unable to attend a committee meeting, the committee may [20 FR 7357, Oct. 4, 1955. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 33 FR designate any other alternate present 8586, June 12, 1968] from the same district to serve in place of the absent member. § 966.28 Failure to nominate. (c) The committee may provide for If nominations are not made within meeting by telephone, telegraph, or the time and in the manner specified in other means of communication, and § 966.27, the Secretary may, without re- any vote cast at such a meeting shall gard to nominations, select the com- be promptly confirmed in writing: Pro- mittee members and alternates, which vided, That if any assembled meeting is selection shall be on the basis of the held, all votes shall be cast in person. representation provided for in §§ 966.24 [20 FR 7357, Oct. 4, 1955. Redesignated at 26 through 966.26 inclusive. FR 12751, Dec. 30, 1961, as amended at 33 FR 8586, June 12, 1968; 51 FR 30474, Aug. 27, 1986] § 966.29 Acceptance. Any person selected as a committee § 966.33 Expenses and compensation. member or alternate shall qualify by Committee members and alternates filing a written acceptance with the may be reimbursed for expenses nec- Secretary within ten days after being essarily incurred by them in the per- notified of such selection. formance of duties and in the exercise of powers under this part. § 966.30 Vacancies. To fill committee vacancies, the Sec- § 966.34 Powers. retary may select such members or al- The committee shall have the fol- ternates from unselected nominees on lowing powers: the current nominee list from the dis- (a) To administer the provisions of trict involved, or from nominations this part in accordance with its terms; made in the manner specified in (b) To make rules and regulations to § 966.27. If the names of nominees to fill effectuate the terms and provisions of any such vacancy are not made avail- this part; able to the Secretary within 30 days (c) To receive, investigate, and report after such vacancy occurs, such va- to the Secretary complaints of viola- cancy may be filled without regard to tion of the provisions of this part; and nominations, which selection shall be (d) To recommend to the Secretary made on the basis of the representation amendments to this part. provided for in §§ 966.24 through 966.26 inclusive. § 966.35 Duties. It shall be, among other things, the § 966.31 Alternate members. duty of the committee: An alternate member of the com- (a) At the beginning of each term of mittee shall act in the place and stead office, to meet and organize, to select a of the member for whom he is an alter- chairman and such other officers as nate, during such member’s absence. In may be necessary, to select sub- the event of the death, removal, res- committees of committee members, ignation, or disqualification of a mem- and to adopt such rules and regulations ber, his alternate shall act for him for the conduct of its business as it until a successor of such member is se- may deem advisable; lected and has qualified. (b) To act as intermediary between the Secretary and any producer or han- § 966.32 Procedure. dler; (a) Eight members of the committee (c) To furnish to the Secretary such shall be necessary to constitute a available information as he may re- quorum and the same number of con- quest; curring votes shall be required to pass (d) To appoint such employees, any motion or approve any committee agents, and representatives as it may action. deem necessary and to determine the

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salaries and define the duties of each ant to this subpart, determines to be such person; appropriate. Handlers shall share ex- (e) To investigate from time to time penses upon the basis of a fiscal period. and to assemble data on the growing, Each handler’s share of such expense harvesting, shipping, and marketing shall be proportionate to the ratio be- conditions with respect to tomatoes; tween the total quantity of tomatoes (f) To prepare a marketing policy; handled by him as the first handler (g) To recommend marketing regula- thereof during a fiscal period and the tions to the Secretary; total quantity of tomatoes handled by (h) To recommend rules and proce- all handlers as first handlers thereof dures for, and to make determinations during such fiscal period. in connection with, issuance of certificates of privilege or exemptions, or § 966.41 Budget. both; At the beginning of each fiscal period (i) To investigate an applicant’s and as may be necessary thereafter, claim for exemptions; the committee shall prepare an esti- (j) To keep minutes, books, and mated budget of income and expendi- records which clearly reflect all of the tures necessary for the administration acts and transactions of the committee of this part. The committee may rec- and such minutes, books and records ommend a rate of assessment cal- shall be subject to examination at any culated to provide adequate funds to time by the Secretary or his authorized defray its proposed expenditures. The agent or representative. Minutes of committee shall present such budget to each committee meeting shall be re- the Secretary with an accompanying ported promptly to the Secretary; report showing the basis for its cal- (k) At the beginning of each fiscal pe- culations. riod, to prepare a budget of its expenses for such fiscal period, together § 966.42 Assessments. with a report thereon; (a) The funds to cover the commit- (l) To cause the books of the com- tee’s expenses shall be acquired by the mittee to be audited by a competent levying of assessments upon handlers accountant at least once each fiscal pe- as provided in this subpart. Each han- riod, and at such other time as the dler who first handles tomatoes shall committee may deem necessary or as pay assessments to the committee the Secretary may request. The report upon demand, which assessments shall of such audit shall show the receipt be in payment of such handler’s pro and expenditure of funds collected pur- rata share of the committee’s expenses. suant to this part; a copy of each such (b) Assessments shall be levied upon report shall be furnished to the Sec- handlers at rates established by the retary and a copy of each such report Secretary. Such rates may be estab- shall be made available at the principal lished upon the basis of the commit- office of the committee for inspection tee’s recommendations and other avail- by producers and handlers; and able information. Such rates may be (m) To consult, cooperate, and ex- applied to specified containers used in change information with other mar- the production area. keting agreement committees and (c) At any time during, or subsequent other individuals or agencies in con- to, a given fiscal period the committee nection with all proper committee ac- may recommend the approval of an tivities and objectives under this part. amended budget and an increase in the rate of assessment. Upon the basis of EXPENSES AND ASSESSMENTS such recommendations, or other available information, the Secretary may § 966.40 Expenses. approve an amended budget and in- The committee is authorized to incur crease the rate of assessment. Such in- such expenses as the Secretary may crease shall be applicable to all toma- find are reasonable and likely to be in- toes which were regulated under this curred during each fiscal period for its part and which were shipped by the maintenance and functioning, and for first handler thereof during such fiscal such purposes as the Secretary, pursu- period.

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(d) The payment of assessments for any period or periods when regulations the maintenance and functioning of the are not in effect and, if the Secretary committee may be required under this determines such action appropriate, he part throughout the period it is in ef- may direct that such person or persons fect irrespective whether particular shall act as trustee or trustees for the provisions thereof are suspended or be- committee. come inoperative. (e) In order to provide funds for the § 966.44 Excess funds. administration of the provisions of this (a) If, at the end of a fiscal period, part, the committee may accept the the assessments collected are in excess payment of assessments in advance, or of expenses incurred, such excess shall may borrow money on a short-term be accounted for in accordance with basis not to exceed one full-year coin- one of the following: ciding with the existing committee’s (1) If such excess is not retained in a term of office. The authority of the reserve, as provided in paragraph (a)(2) committee to borrow money may be of this section, to the extent practical used only to meet financial obligations it shall be refunded proportionately to as they occur and to allow the com- the persons from whom it was col- mittee a season to adjust its reserve lected. funds to meet any additional obliga- (2) The committee, with the approval tions. of the Secretary, may establish an op- [20 FR 7357, Oct. 4, 1955. Redesignated at 26 erating monetary reserve and may FR 12751, Dec. 30, 1961, as amended at 51 FR carry over to subsequent fiscal periods 30474, Aug. 27, 1986] excess funds in a reserve so established: Provided, That funds in the reserve § 966.43 Accounting. shall not exceed approximately one fis- (a) All funds received by the com- cal period’s expenses. Such reserve mittee pursuant to the provisions of funds may be used (i) to defray any ex- this subpart shall be used solely for the penses authorized under this part, (ii) purposes specified in this part. to defray expenses during any fiscal pe- (b) The Secretary may at any time riod prior to the time assessment in- require the committee, its members come is sufficient to cover such ex- and alternates, employees, agents and penses, (iii) to cover deficits incurred all other persons to account for all re- during any fiscal period when assess- ceipts and disbursements, funds, prop- ment income is less than expenses, (iv) erty, or records for which they are re- to defray expenses incurred during any sponsible. Whenever any person ceases period when any or all provisions of to be a member of the committee or al- this part are suspended or are inoper- ternate, he shall account to his suc- ative, and (v) to cover necessary ex- cessor, the committee, or to the person penses of liquidation in the event of designated by the Secretary, for all re- termination of this part. Upon such ceipts, disbursements, funds and prop- termination any funds not required to erty (including but not being limited to defray the necessary expenses of liq- books and other records) pertaining to uidation, and after reasonable effort by the committee’s activities for which he the committee it is found impracticable to return such remaining funds is responsible, and shall execute such to handlers, such funds shall be dis- assignments and other instruments as posed of in such manner as the Sec- may be necessary or appropriate to retary may determine to be appro- vest in such successor, committee, or priate. designated person, the right to all of (b) [Reserved] such property and funds and all claims vested in such person. [33 FR 8586, June 12, 1968] (c) The committee may make recommendations to the Secretary for one § 966.45 Contributions. or more of the members thereof, or any The committee may accept voluntary other person, to act as a trustee for contributions but these shall only be holding records, funds, or any other used for production research, market committee property during periods of research and development and mar- suspension of this subpart, or during keting and promotion including paid

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advertising pursuant to § 966.48. Fur- committee shall publicly announce the thermore, such contributions shall be submission of each such marketing pol- free from any encumbrances by the icy report and copies thereof shall be donor and the committee shall retain available at the committee’s office for complete control of their use. The com- inspection by any producer or any han- mittee is prohibited from accepting dler. In determining each such mar- contributions from handlers subject to keting policy the committee shall give the order, or any person whose con- due consideration to the following: tributions would constitute a conflict (a) Market prices of tomatoes, in- of interest. cluding prices by grades, sizes, and [51 FR 30474, Aug. 27, 1986] quality in different packs, and such prices by foreign competing areas; RESEARCH AND DEVELOPMENT (b) Supply of tomatoes, by grade, size, and quality in the production § 966.48 Research and promotion. area, and in other production areas, in- The committee may, with the ap- cluding foreign competing production proval of the Secretary, establish, or areas; provide for the establishment of (c) Trend and level of consumer in- projects including production research, come; marketing research and development (d) Marketing conditions affecting projects, and marketing promotion in- tomato prices; and cluding paid advertising, designed to (e) Other relevant factors. assist, improve or promote the marketing, distribution and consumption § 966.51 Recommendations for regula- or efficient production of tomatoes. tions. The expenses of such projects shall be The committee, upon complying with paid by funds collected pursuant to the requirements of § 966.50, may rec- §§ 966.42 and 966.45. Upon conclusion of ommend regulations to the Secretary each project, but at least annually, the whenever it finds that such regula- committee shall summarize the pro- tions, as are provided for in this sub- gram status and accomplishments, to part, will tend to effectuate the de- its members and the Secretary. A simi- clared policies of the act. lar report to the committee shall be required of any contracting party on any § 966.52 Issuance of regulations. project carried out under this section. The Secretary shall limit the han- Also, for each project the contracting dling of tomatoes whenever he finds party shall be required to maintain from the recommendation and informa- records of money received and expendi- tion submitted by the Committee, or tures and such shall be available to the from other available information, that committee and the Secretary. such regulation would tend to effec- [51 FR 30474, Aug. 27, 1986] tuate the declared policy of the act. Such regulation may: REGULATION (a) Limit, in any or all portions of the production area, the handling of § 966.50 Marketing policy. particular grades, sizes, qualities (in- Prior to or at the same time as ini- cluding maturity as a factor of grade tial recommendations are made pursu- or quality), or packs of any or all vari- ant to § 966.51, the committee shall sub- eties of tomatoes, during any period; or mit to the Secretary a report setting (b) Limit the handling of particular forth the marketing policy it deems de- grades, sizes, qualities, or packs of to- sirable for the industry to follow in matoes differently, from different vari- shipping tomatoes from the production eties, for different stages of maturity, area during the ensuring season. Addi- for different portions of the production tional reports shall be submitted from area, for different containers, for dif- time to time if it is deemed advisable ferent markets, for different purposes by the committee to adopt a new or specified in § 966.54, or any combination modified marketing policy because of of the foregoing, during any period; or changes in the demand and supply situ- (c) Limit the handling of tomatoes by ation with respect to tomatoes. The establishing, in terms of grades, sizes,

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or both, minimum standards of quality cates of Privilege if such certificates and maturity; or are prescribed as safeguards by the (d) Fix the size, weight, capacity, di- committee. Such safeguards may in- mensions, markings (including labels clude requirements that: and stamps), or pack of the container (1) Handlers shall file applications or containers which may be used in the with the committee to ship tomatoes packaging, transportation, sale, ship- pursuant to §§ 966.53 and 966.54; or ment, or other handling of tomatoes. (2) Handlers shall obtain inspection [20 FR 7357, Oct. 4, 1955. Redesignated at 26 provided by § 966.60, or pay the assess- FR 12751, Dec. 30, 1961, as amended at 33 FR ment levied pursuant to § 966.42, or 8586, June 12, 1968; 34 FR 19186, Dec. 4, 1969] both, in connection with shipments made under § 966.54; or § 966.53 Minimum quantities. (3) Handlers shall obtain Certificates The committee, with the approval of of Privilege from the committee to the Secretary, may establish, for any handle tomatoes effected or to be ef- or all portions of the production area, fected under the provisions of §§ 966.53 minimum quantities below which han- and 966.54. dling will be free from regulations (b) The committee may rescind or issued or effective pursuant to §§ 966.42, deny Certificates of Privilege to any 966.52, 966.54, 966.60, or any combination handler if proof is obtained that toma- thereof. toes handled by him for the purposes stated in §§ 966.53 and 966.54 were han- § 966.54 Shipments for special pur- dled contrary to the provisions of this poses. part. Upon the basis of recommendations (c) The Secretary shall have the right and information submitted by the com- to modify, change, alter, or rescind any mittee, or other available information, safeguards prescribed and any certifi- the Secretary, whenever he finds that cates issued by the committee pursu- it will tend to effectuate the declared ant to the provisions of this section. policy of the act, shall modify, sus- (d) The committee shall make re- pend, or terminate regulations issued ports to the Secretary, as requested, pursuant to §§ 966.42, 966.52, 966.53, showing the number of applications for 966.60, or any combination thereof, in such certificates, the quantity of toma- order to facilitate handling of tomatoes covered by such applications, the toes for the following purposes: number of such applications denied and (a) For export; certificates granted, the quantity of to- (b) For relief or for charity; matoes handled under duly issued cer- (c) For processing; or tificates, and such other information (d) For other purposes which may be as may be requested. specified by the committee, with the approval of the Secretary. INSPECTION

§ 966.55 Notification of regulation. § 966.60 Inspection and certification. The Secretary shall notify the com- (a) During any period in which the mittee of any regulations issued or of handling of tomatoes is regulated pur- any modification, suspension, or termi- suant to this subpart no handler shall nation thereof. The committee shall handle tomatoes unless such tomatoes give reasonable notice thereof to han- have been inspected and certified as dlers. meeting the requirements of this subpart by an authorized representative of § 966.56 Safeguards. the Federal or Federal-State Inspec- (a) The committee, with the approval tion Service, or such other inspection of the Secretary, may prescribe ade- service as the Secretary shall des- quate safeguards to prevent handling of ignate, and such tomatoes are covered tomatoes pursuant to § 966.53 or § 966.54 by a valid inspection certificate except from entering channels of trade for when relieved from such requirements other than the specific purpose author- pursuant to § 966.53 or § 966.54 or both. ized therefor, and rules governing the (b) Insofar as the requirements of issuance and the contents of Certifi- this section are concerned, the length

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of time for which an inspection certifi- ly after the determination by the com- cate is valid may be established by the mittee from which the appeal is taken. Secretary upon the recommendation of Any applicant filing an appeal shall the committee. furnish evidence satisfactory to the (c) When tomatoes are inspected in committee for a determination on the accordance with the requirements of appeal. The committee shall thereupon this section a copy of each inspection reconsider the application, examine all certificate issued shall be made avail- available evidence, and make a final able to the committee by the inspec- determination concerning the application service. tion. The committee shall notify the [34 FR 19186, Dec. 4, 1969] appellant of the final determination, and shall furnish the Secretary with a EXEMPTIONS copy of the appeal and a statement of considerations involved in making the § 966.70 Procedure. final determination. The committee may adopt, with approval of the Secretary, the procedures § 966.74 Records. pursuant to which certificates of ex- (a) The committee shall maintain a emption will be issued to producers or record of all applications submitted for handlers. exemption certificates, a record of all exemption certificates issued and de- § 966.71 Granting exemptions. nied, the quantity of tomatoes covered The committee shall issue certifi- by such exemption certificates, a cates of exemption to any producer record of the amount of tomatoes han- who applies for such exemption and dled under exemption certificates, a furnishes adequate evidence to the record of appeals for reconsideration of committee, that by reason of a regula- applications, and such information as tion issued pursuant to § 966.52 he will may be requested by the Secretary. be prevented from handling as large a Periodic reports on such records shall proportion of his production as the av- be compiled and issued by the com- erage proportion of production handled mittee upon request of the Secretary. during the entire season, or such por- (b) The Secretary shall have the tion thereof as may be determined by right, to modify, change, alter, or re- the committee, by all producers in said scind any procedure and any exemp- applicant’s immediate production area tions granted pursuant to §§ 966.70, and that the grade, size, or quality of 966.71, 966.72, 966.73, or any combination the applicant’s tomatoes have been ad- thereof. versely affected by acts beyond the applicant’s control and by acts beyond REPORTS reasonable expectation. Each certificate shall permit the producer to han- § 966.80 Reports. dle the amount of tomatoes specified Upon request of the committee, made thereon. Such certificate shall be with approval of the Secretary, each transferred with such tomatoes at time handler shall furnish to the committee, of transportation or sale. in such manner and at such time as it may prescribe, such reports and other § 966.72 Investigation. information as may be necessary for The committee shall be permitted at the committee to perform its duties any time to make a thorough inves- under this part. tigation of any producer’s or handler’s (a) Such reports may include, but are claim pertaining to exemptions. not necessarily limited to, the following: (1) The quantities of tomatoes § 966.73 Appeal. received by a handler; (2) the quan- If any applicant for exemption cer- tities disposed of by him, segregated as tificates is dissatisfied with the deter- to the respective quantities subject to mination by the committee with re- regulation and not subject to regula- spect to his application, said applicant tion; (3) the date of each such disposi- may file an appeal with the committee. tion and the identification of the car- Such an appeal must be taken prompt- rier transporting such tomatoes; and

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(4) identification of the inspection cer- § 966.83 Effective time. tificates and the exemption certifi- The provisions of this subpart, or any cates, if any, pursuant to which the to- amendment thereto, shall become ef- matoes were handled, together with fective at such time as the Secretary the destination of each exempted dis- may declare and shall continue in force position, and of all tomatoes handled until terminated in one of the ways pursuant to §§ 966.53 and 966.54. specified in this subpart. (b) All such reports shall be held under appropriate protective classifica- § 966.84 Termination. tion and custody by the committee, or (a) The Secretary may, at any time, duly appointed employees thereof, so terminate the provisions of this sub- that the information contained therein part by giving at least one day’s notice which may adversely affect the com- by means of a press release or in any petitive position of any handler in rela- other manner which he may determine. tion to other handlers will not be dis- (b) The Secretary may terminate or closed. Compilations of general reports suspend the operations of any or all of from data submitted by handlers is au- the provisions of this subpart whenever thorized, subject to prohibition of dis- he finds that such provisions do not closure of individual handlers identi- tend to effectuate the declared policy ties or operations. of the act. (c) Each handler shall maintain for (c) The Secretary shall terminate the at least two succeeding years such provisions of this subpart at the end of records of the tomatoes received and any fiscal period whenever he finds disposed of by such handler as may be that such termination is favored by a necessary to verify the reports he sub- majority of producers, who during a mits to the committee pursuant to this representative period, have been en- section. gaged in the production for market of tomatoes: Provided, That such majority ISCELLANEOUS PROVISIONS M has, during such representative period, produced for market more than fifty § 966.81 Compliance. percent of the volume of such tomatoes Except as provided in this subpart, produced for market. no handler shall handle tomatoes, the (d) The provisions of this subpart handling of which has been prohibited shall, in any event, terminate when- by the Secretary in accordance with ever the provisions of the act author- provisions of this subpart, and no han- izing them cease to be in effect. dler shall handle tomatoes except in conformity to the provisions of this § 966.85 Proceedings after termination. subpart. (a) Upon the termination of the provisions of this subpart the then func- § 966.82 Right of the Secretary. tioning members of the committee The members of the committee (in- shall continue as joint trustees for the cluding successors and alternates), and purpose of liquidating the affairs of the any agent or employee appointed or committee of all the funds and prop- employed by the committee, shall be erty then in the possession of or under subject to removal or suspension by control of the committee, including the Secretary at any time. Each and claims for any funds unpaid or prop- every order, regulation, decision, deter- erty not delivered at the time of such mination or other act of the committee termination. Action by said trustee- shall be subject to the continuing right ship shall require the concurrence of a of the Secretary to disapprove of the majority of the said trustees. same at any time. Upon such dis- (b) The said trustees shall continue approval, the disapproved action of the in such capacity until discharged by said committee shall be deemed null the Secretary; shall, from time to and void, except as to acts done in reli- time, account for all receipts and dis- ance thereon or in compliance there- bursements and deliver all property on with prior to such disapproval by the hand, together with all books and Secretary. records of the committee and of the

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trustees, to such person as the Sec- the Secretary or of the United States retary may direct; and shall, upon re- to exercise any powers granted by the quest of the Secretary, execute such act or otherwise, or, in accordance assignments or other instruments nec- with such powers, to act in the prem- essary or appropriate to vest in such ises whenever such action is deemed person full title and right to all of the advisable. funds, property and claims vested in the committee or the trustees pursuant § 966.90 Personal liability. to this subpart. (c) Any person to whom funds, prop- No member or alternate of the com- erty, or claims have been transferred mittee nor any employee or agent or delivered by the committee or its thereof, shall be held personally re- members pursuant to this section, sponsible, either individually or jointly shall be subject to the same obligations with others, in any way whatsoever, to imposed upon the members of the com- any handler or to any person for errors mittee and upon the said trustees. in judgment, mistakes, or other acts, either of commission or omission, as § 966.86 Effect of termination or such member, alternate, agent, or em- amendment. ployee except for acts of dishonesty, Unless otherwise expressly provided willful misconduct, or gross neg- by the Secretary, the termination of ligence. this subpart or of any regulation issued pursuant to this subpart, or the § 966.91 Separability. issuance of any amendments to either If any provision of this subpart is de- thereof, shall not (a) affect or waive clared invalid, or the applicability any right, duty, obligation, or liability which shall have arisen or which may thereof to any person, circumstance, or thereafter arise in connection with any thing is held invalid, the validity of the provision of this subpart or any regula- remainder of this subpart, or the appli- tion issued under this subpart, or (b) cability thereof to any other person, release or extinguish any violation of circumstance, or thing, shall not be af- this subpart or of any regulations fected thereby. issued under this subpart, or (c) affect or impair any rights or remedies of the § 966.92 Amendments. Secretary or of any other person with Amendments to this subpart may be respect to any such violations. proposed, from time to time, by the committee or by the Secretary. § 966.87 Duration of immunities. The benefits, privileges, and immuni- Subpart—Rules and Regulations ties conferred upon any person by virtue of this subpart shall cease upon the termination of this subpart, except SOURCE: 21 FR 353, Jan. 19, 1956, unless oth- with respect to acts done under and erwise noted. Redesignated at 26 FR 12751, during the existence of this subpart. Dec. 30, 1961.

§ 966.88 Agents. GENERAL The Secretary may, by designation in § 966.100 Communications. writing, name any person, including any officer or employee of the United Unless otherwise provided in the States, or name any agency in the marketing agreement and order, or by United States Department of Agri- specific direction of the committee, all culture, to act as his agent or rep- reports, applications, submittals, re- resentative in connection with any of quests, and communications in connec- the provisions of this subpart. tion with the marketing agreement and order shall be addressed to the § 966.89 Derogation. Florida Tomato Committee at its prin- Nothing contained in this subpart is, cipal office. or shall be construed to be, in derogation or in modification of the rights of

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DEFINITIONS (2) Address of handling facilities (including telephone and facsimile num- § 966.110 Order. ber), Order means Order No. 966 (§§ 966.1 to (3) Mailing address (if different from 966.92) regulating the handling of toma- handling facility), toes grown in Florida. (4) Number of years in tomato business in Florida, § 966.111 Marketing Agreement. (5) Type of business, and (6) Names of senior officers, partners, Marketing Agreement means Mar- or principal owners with financial in- keting Agreement No. 125. terest in the business. § 966.112 Terms. (c) If the committee determines from available information that an appli- Terms used in this subpart shall have cant meets the criteria specified in this the same meaning as when used in the section, such applicant shall be cer- marketing agreement and order. tified as a registered handler and shall be so informed by written notice from § 966.113 Registered handler certifi- the committee. If certification is de- cation. nied, such denial shall be made by the Each handler who handles tomatoes committee in writing, stating the rea- grown in the production area must be sons for denial. certified as a registered handler by the (d) A registered handler’s certifi- committee in order to ship such toma- cation shall be cancelled by the com- toes outside of the regulated area. A mittee, with the approval of the Sec- handler who is certified as a registered retary, if the handler fails to pay as- handler is a handler who has adequate sessments within 45 days of the end of facilities to meet the requirements for the assessment billing period, fails to preparing tomatoes for market, obtains provide reports, or no longer has ade- inspection on tomatoes handled, agrees quate facilities as described in this sec- to handle tomatoes in compliance with tion. Cancellation of a handler’s reg- the order’s grade, size and container re- istration shall be made in writing to quirements, pays applicable assess- the handler and shall specify the rea- ments on a timely basis, submits re- son(s) for and effective date of such ports required by the committee, and cancellation. The committee shall re- agrees to comply with other regulatory certify the handler’s registration at requirements on the handling of toma- such time as the handler corrects the toes grown in the production area. deficiencies which resulted in the can- (a) Based on the criteria specified in cellation. Certification is permanent this section, the committee shall de- until the committee determines, based termine eligibility for certification as on criteria herein, that cancellation is a registered handler. The committee or warranted. Persons who make deliv- its authorized agent shall inspect a eries of ungraded tomatoes to such cer- handler’s facilities to determine if the tified registered handlers are hereby facilities are adequate for preparing to- determined to be exempt from other- matoes for market. In order to be ade- wise applicable regulations pursuant to quate for such purposes, the facilities this part. must be permanent, nonportable build- (e) During any period in which the ings located in the production area handling of tomatoes is regulated pur- with equipment that is nonportable for suant to this part, no handler shall ob- the proper washing, grading, sizing and tain an inspection certifying that said packing of tomatoes grown in the pro- handler’s tomatoes meet the require- duction area. ments of the marketing order unless (b) Application for certification shall said handler has been certified as a reg- be executed by the handler and filed istered handler. Any person who is not with the committee on a form, pre- certified as a registered handler may scribed by and available at the prin- receive inspection on tomatoes from cipal office of the committee, con- the Federal-State Inspection Service. taining the following information: Such inspection certificate shall state (1) Business name, ‘‘Fails to meet the requirements of 470

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Marketing Order No. 966 because the Privilege shall supply the committee handler is not a registered handler.’’ with a report thereon within the time specified on the application for such [59 FR 51090, Oct. 7, 1994] certificate showing the name and ad- SAFEGUARDS dress of the shipper, car or truck identification, loading point, destination, § 966.120 Application for Certificate of consignee, and, when inspection is re- Privilege. quired, the Federal-State Inspection (a) Whenever handling is regulated Certificate number. pursuant to § 966.54, each handler desiring to make shipments of tomatoes for § 966.123 Denial and appeal. any of the following purposes shall, The committee may rescind a Certifi- prior thereto, apply to the committee cate of Privilege issued to a handler, or for and obtain a Certificate of Privilege deny a Certificate of Privilege to a permitting such shipment: handler, upon proof satisfactory to (1) For pickling, or such committee, that such handler has (2) For processing, or shipped tomatoes contrary to the pro- (3) For experimental purposes, or visions of this part. Such committee (4) For relief or charity, or action denying a Certificate of Privi- (5) For export, or lege shall apply to and not exceed a (6) For other purposes which may be reasonable period of time as deter- specified by the committee, with the mined by such committee. Any handler approval of the Secretary. who has been denied a Certificate of (b) Applications for Certificates of Privilege, or who has had a Certificate Privilege shall be made on forms fur- of Privilege rescinded, may appeal to nished by the committee. Each applica- the committee for reconsideration. tion shall contain the name and ad- Such appeal shall be in writing. dress of the handler, and such other information as such committee may re- § 966.124 Approved receiver. quire, such as, but not limited, to the quantity (by grade, size, quality, and (a) Approved receiver. Any person who variety) of tomatoes to be shipped, the desires to acquire, as an approved re- mode of transportation, consignee, des- ceiver, tomatoes for purposes as set tination, and other appropriate infor- forth in § 966.120(a), shall annually, mation or documents necessary to safe- prior thereto, file an application with guard against the entry of such toma- the committee on a form approved by toes into trade channels other than it, which shall contain, but not be lim- those for which the Certificate of ited to, the following information: Privilege is granted. (1) Name, address, contact person, telephone number, and e-mail address [21 FR 353, Jan. 19, 1956. Redesignated at 26 FR 12751, Dec. 30, 1961, as amended at 59 FR of applicant; 51091, Oct. 7, 1994] (2) Purpose of shipment; (3) Physical address of where manu- § 966.121 Issuance. facturing or other specified purpose is The committee, or its duly author- to occur; ized agents, shall give prompt consider- (4) Whether or not the receiver packs, ation to each application for a Certifi- repacks or sells fresh tomatoes; cate of Privilege and shall determine (5) A statement that the tomatoes whether the application is approved. obtained exempt from the fresh tomato Approval of an application shall be evi- regulations will not be resold or trans- denced by the issuance of a Certificate ferred for resale, directly or indirectly, of Privilege authorizing the applicant but will be used only for the purpose named therein to ship tomatoes for a specified in the corresponding certifi- specified purpose for a specified period cate of privilege; of time. (6) A statement agreeing to undergo random inspection by the committee; § 966.122 Reports. (7) A statement agreeing to submit Each handler handling tomatoes such reports as is required by the com- under and pursuant to a Certificate of mittee.

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(b) The committee, or its duly au- (b) Quantity (by grade, size, quality, thorized agents, shall give prompt con- and variety) of tomatoes harvested sideration to each application for an during the current season or any spe- approved receiver and shall determine cific portion thereof prior to the date whether the application is approved or of application and to be harvested, sub- disapproved and notify the applicant sequent to such date, during the re- accordingly. mainder of the current season or any (c) The committee, or its duly au- specific portion thereof (as may be de- thorized agents, may rescind a person’s termined pursuant to this part); an es- approved receiver status upon proof timate of the portion of such tomatoes satisfactory that such a receiver has which can be handled under regulation handled tomatoes contrary to the pro- issued pursuant to § 966.52, during the visions established under the Certifi- remainder of the season; and the rea- cate of Privilege. Such action rescind- sons why all of such tomatoes cannot ing approved receiver status shall be handled under such regulations. apply to and not exceed a reasonable [22 FR 9132, Nov. 16, 1957. Redesignated at 26 period of time as determined by the FR 12751, Dec. 30, 1961] committee or its duly authorized agents. Any person who has been de- § 966.131 Investigations. nied as an approved receiver or who has The committee may authorize inves- had their approved receiver status re- tigations of applications by its employ- scinded, may appeal to the committee ees, and such other persons as may be for reconsideration. Such an appeal necessary to procure adequate informa- shall be made in writing. tion to pass upon the merits of such ap- [70 FR 53540, Sept. 9, 2005] plications. [22 FR 9132, Nov. 16, 1957. Redesignated at 26 EXEMPTION PROCEDURES FR 12751, Dec. 30, 1961]

§ 966.130 Application. § 966.132 Issuance. Any person applying for exemption (a) The committee, or its duly au- from regulations issued pursuant to thorized agents, shall give prompt con- § 966.52 shall file such application with sideration to all statements and facts the committee, or its duly authorized relating to each application for exemp- agent for such purpose, on forms to be tion, and, pursuant to applicable provi- furnished by such committee. Each ap- sions of this part, a determination plication shall state the name and ad- shall be made as to whether or not the dress of the applicant, the grade, size, application is approved. The deter- and quality regulations from which ex- mination, if approving the application, emption is requested; and facts dem- shall be evidenced by the issuance of a onstrating that the tomatoes, for certificate of exemption pursuant to which exemption is requested, were ad- § 966.71: Provided, That a separate cer- versely affected by acts beyond his con- tificate may be issued, at the request trol or by acts beyond the applicant’s of an applicant, for each affected field. reasonable expectation. Applications (b) The applicant shall be notified in shall set forth such additional informa- writing if his request for exemption is tion as the committee may find nec- denied. essary in making determinations with (c) Each exemption certificate issued respect thereto, including, without pursuant to this subpart shall be on a limitation thereto, the information re- form duly approved by the committee quired on producers’ applications by and signed by an authorized represent- paragraphs (a) and (b) of this section. ative of such committee. At least one (a) The location and acreage of the copy of each exemption certificate farm on which tomatoes for which ex- issued shall be retained in the com- emption is requested, the location mittee records. Each such certificate where such tomatoes are to be prepared shall contain the name and address of for market, and the loading point from the recipient, the location of all toma- which such tomatoes are to be shipped toes authorized to be shipped there- if exemption is granted; under, the quantity (by grade, size,

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quality and variety) of tomatoes which INSPECTION will be permitted in the exempted shipments and such other information as § 966.140 Truck shipments. may be deemed necessary by the com- In case of the transportation by mittee to provide such committee, the truck outside of the production area of recipient, or both, with adequate and any tomatoes which are required to be specific information regarding such ex- inspected and certified as complying empted tomatoes. with any applicable requirements [22 FR 9132, Nov. 16, 1957. Redesignated at 26 under this part, such tomatoes shall be FR 12751, Dec. 30, 1961] accompanied by, and made available for examination at any time upon re- § 966.133 Disposition of certificates. quest, a copy of the appropriate inspec- (a) Each lot of tomatoes handled tion certificate or a copy of the appro- under an exemption certificate shall be priate transfer clearance receipt issued accompanied by such certificate, or by the Federal-State Inspection Serv- such appropriate identifying informa- ice, the official inspection agency for tion with respect to such certificate, as this program, showing that such toma- the committee may require, to facili- toes have been so inspected and cer- tate the administration of regulatory tified. provisions applicable thereto. (b) Each shipment of a lot or portion [21 FR 3000, May 5, 1956. Redesignated at 26 thereof, of tomatoes covered by an ex- FR 12751, Dec. 30, 1961, as amended at 65 FR emption certificate shall be accom- 8253, Feb. 18, 2000] panied by a Federal-State Inspection INTERPRETATIVE RULES Certificate which shall show the exemption certificate number covering § 966.150 Meaning of ‘‘producer’’. the lot. The term ‘‘producer’’ is defined in [22 FR 9132, Nov. 16, 1957. Redesignated at 26 § 966.8 as being any person engaged in a FR 12751, Dec. 30, 1961] proprietary capacity in the production § 966.134 Reports. of tomatoes for market. Under the definition of ‘‘tomatoes’’ in § 966.5, such pro- Persons handling tomatoes under ex- duction must have been in the produc- emption certificates shall, at such tion area. Section 966.22 provides that times as may be specified in such cer- each person selected as a committee tificates, report thereon to the com- member or alternate must be a pro- mittee the names and addresses of the ducer, or an officer or an employee of a receivers of such tomatoes, the quan- corporate producer. Section 966.27 pro- tity shipped (by grade, size, quality, vides that producers may vote for and variety), the inspection certifi- nominees for members and alternates cates issued with respect thereto, the on the Florida Tomato Committee, the dates of such shipments, and such administrative agency established pur- other information as may be requested suant to said marketing agreement and by such committee in order to administer the regulatory provisions applica- order. Section 966.3 defines a person as ble thereto. an individual, partnership, corporation, association, or other business unit. The [22 FR 9132, Nov. 16, 1957. Redesignated at 26 term ‘‘person’’ is construed to mean the FR 12751, Dec. 30, 1961] business unit which produces the tomatoes for market. § 966.135 Appeals. (a) The prevailing principle which If any applicant is dissatisfied with shall apply to the determination of the determination of the committee re- ‘‘producer’’ is who or which interest as a garding an application for an exemp- unit, whether an individual, partner- tion certificate, or any duly issued ex- ship, corporation, association, or any emption certificate an appeal by such other business unit, has the authority applicant may be taken to such com- to pass title to the tomatoes grown and mittee in accordance with § 966.73. made a part of the marketable supply [22 FR 9132, Nov. 16, 1957. Redesignated at 26 of tomatoes. In other words, the terms FR 12751, Dec. 30, 1961] shall be limited to those who have an

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ownership in tomatoes produced in the does not farm but, as rental for such production area. land, obtains the ownership of a por- (b) Producer means any person, as de- tion of the tomatoes produced thereon, fined in this section: such person shall be regarded as the (1) Who or which owns and farms land producer of that portion and entitled resulting in his or its ownership of the to one vote, and the tenant on such tomatoes produced thereon; land shall be regarded as the producer (2) Who or which rents or farms land, of the remaining portion produced on resulting in his or its ownership of all such land and also entitled to one vote. or a portion of the tomatoes produced (e) A producer eligible to vote is a thereon; or person who produced tomatoes for mar- (3) Who or which owns land which he ket in a proprietary capacity in the or it does not farm and, as rental for production area during the then cur- such land, obtains the ownership of a rent fiscal period, i.e., between August portion of the tomatoes produced 1, of the previous year and July 31 of thereon. the then current year. If a person who (c) The term ‘‘partnership’’ shall be would otherwise qualify as a producer deemed to include a husband and wife in a proprietary capacity in the pro- with respect to land, the title to which, duction area planted tomatoes for mar- or leasehold interest in which, is vested ket as fresh tomatoes during the cur- in them as tenants in common, joint rent fiscal period, but (1) did not mar- tenants, tenants by entirety, or, under ket any tomatoes in the fresh market community property laws, as commu- during the current fiscal period due to nity property. The term ‘‘partnership’’ adverse weather conditions, or (2) has shall also be deemed to include individ- tomatoes in production for fresh mar- uals, partnerships or corporations ket during the current fiscal period, al- which join together by agreement, in- though still unharvested, he shall, nev- formal or otherwise, for the purpose of ertheless, be eligible as a producer to growing tomatoes and which, as a unit, vote for committee nominees, if he pro- have authority to transfer title to such duced and marketed tomatoes grown in tomatoes at the time they are har- the production area in the next pre- vested or subsequent thereto. The term ceding fiscal period. ‘‘partnership’’ shall also include so- [23 FR 2588, Apr. 19, 1958. Redesignated at 26 called ‘‘joint ventures,’’ wherein one or FR 12751, Dec. 30, 1961] more parties to the arrangement con- tributes capital and others contribute REESTABLISHMENT OF DISTRICTS labor, management, equipment, or other services, or any variation of such § 966.160 Reestablishment of districts. contributions by two or more parties, (a) District No. 1: The county of Dade so that it results in the growing of to- in the State of Florida. matoes and the authority to transfer (b) District No. 2: The counties of title to the tomatoes so produced from Brevard, Glades, Indian River, Martin, that business unit to some other par- Osceola, Okeechobee, Palm Beach, St. ties in the marketing chain. Lucie, and Broward in the State of (d) Each legal entity, whether an in- Florida. dividual, a partnership, a joint ven- ‘‘ (c) Terms used in this section have ture, or a corporation, so engaged in ’’ the same meaning as when used in said the production of tomatoes for market marketing agreement and this part. shall have one vote for each position which is to be filled for the district for [35 FR 19633, Dec. 25, 1970] which he or it is eligible to vote. In the case of a partnership or a ‘‘joint ven- § 966.161 Reapportionment of Com- ture,’’ such vote shall not be accepted mittee Membership. in the absence of unanimous agreement Pursuant to § 966.25, industry mem- of the respective members. In the case bership on the Florida Tomato Com- of a corporation, such vote shall be mittee shall be reapportioned as fol- cast pursuant to the authorization of lows: its board of directors. In the case of a (a) District 1—two members and their person who owns land which he or it alternates.

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(b) District 2—two members and their § 51.1859 of the U.S. Standards for alternates. Grades of Fresh Tomatoes. (c) District 3—four members and Inches Inches their alternates. Size designation minimum maximum (d) District 4—four members and diameter diameter their alternates. 6×7 ...... 29⁄32 219⁄32 [50 FR 3738, Jan. 28, 1985, as amended at 60 6×6 ...... 217⁄32 229⁄32 FR 5560, Jan. 30, 1995] 5×6 ...... 225⁄32

Subpart—Assessment Rates (ii) Tomatoes of designated sizes may not be commingled, and each container § 966.234 Assessment rate. or lid shall be marked to indicate the designated size. On and after August 1, 2009, an as- (iii) Only 6×7, 6×6, or 5×6, may be used sessment rate of $0.0275 per 25-pound to indicate the above listed size des- carton is established for Florida toma- ignations or containers of tomatoes. toes. (iv) To allow for variations incident [74 FR 57059, Nov. 4, 2009] to proper sizing, not more than a total of ten (10) percent, by count, of the to- Subpart—Handling Regulations matoes in any lot may be smaller than the specified minimum diameter or § 966.323 Handling regulation. larger than the maximum diameter. From October 10 through June 15 of (3) Containers. (i) All tomatoes each season, except as provided in packed by a registered handler shall be paragraphs (b) and (d) of this section, packed in containers of 10, 20, and 25 no person shall handle any lot of toma- pounds designated net weights. The net toes produced in the production area weight of the contents shall not be less for shipment outside the regulated area than the designated net weight and unless it meets the requirements of shall not exceed the designated net paragraph (a) of this section. weight by more than two pounds. Sec- (a) Grade, size, container, and inspection 51.1863 of the U.S. Tomato Stand- tion requirements—(1) Grade. Tomatoes ards shall apply to all containers. shall be graded and meet the require- (ii) Each container or lid shall be ments specified for U.S. No. 1, U.S. marked to indicate the designated net Combination, or U.S. No. 2 of the U.S. weight and must show the name and Standards for Grades of Fresh Toma- address of the registered handler (as toes. When not more than 15 percent of defined in 966.7) in letters at least one- the tomatoes in any lot fail to meet fourth (1⁄4) inch high, and such con- the requirements of U.S. No. 1 grade tainers must be packed at the reg- and not more than one-third of this 15 istered handler’s facilities. The use of percent (or 5 percent) are comprised of inverted, previously printed container defects causing very serious damage in- lids is limited to the registered handler cluding not more than 1 percent of to- identified by the labels or marks that matoes which are soft or affected by originally appeared on the lid. decay, such tomatoes may be shipped (iii) The container in which the to- and designated as at least 85 percent matoes are packed must be clean and U.S. No. 1 grade. bright in appearance without marks, (2) Size. (i) All tomatoes packed by a stains, or other evidence of previous registered handler shall be at least 29⁄32 use. inches in diameter and shall be sized (4) Inspection. Tomatoes shall be in- with proper equipment in one or more spected and certified pursuant to the of the following ranges of diameters. provisions of § 966.60. Each handler who Tomatoes shipped outside the regu- applies for inspection shall register lated area shall also be sized with prop- with the committee pursuant to er equipment in one or more of the fol- § 966.113. Persons not certified by the lowing ranges of diameters. Measure- committee as a registered handler ments of diameters shall be in accord- shall be issued inspection certificates ance with the methods prescribed in on shipments handled by such persons

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stating ‘‘Fails to meet the require- cherry tomatoes; hydroponic tomatoes; ments of Marketing Order No. 966 be- and greenhouse tomatoes. Specialty cause the handler is not a registered packed red ripe tomatoes, yellow handler.’’ Evidence of inspection must meated tomatoes, and single layer and accompany truck shipments. two layer place packed tomatoes are (b) Special purpose shipments. The re- exempt from the container net weight quirements of paragraph (a) of this sec- requirements specified in paragraph tion shall not be applicable to ship- (a)(3)(i) of this section, and the requirements of tomatoes for pickling, proc- ment that each container or lid shall essing, experimental purposes, relief, be marked to indicate the designated charity, export, or other outlets rec- net weight as specified in paragraph ommended by the committee and ap- (a)(3)(ii) of this section, but must meet proved by the Secretary, if the handler the other requirements of this section. thereof complies with the safeguard re- Producer field-packed tomatoes must quirements of paragraph (c) of this sec- meet all of the requirements of this tion. Shipments for processing are also section except for the requirement that exempt from the assessment require- all containers must be packed at reg- ments of this part. istered handler facilities as specified in (c) Safeguards. Each handler making paragraph (a)(3)(ii) of this section, and shipments of tomatoes for pickling, the requirement that such tomatoes canning, experimental purposes, relief, designated as size 6 × 6 must meet the charity, or export in accordance with maximum diameter requirement speci- paragraph (b) of this section shall: fied in paragraph (a)(2)(i) of this sec- (1) Apply to the committee and ob- tion: Provided, That 6 × 6 and larger is tain a Certificate of Privilege to make used to indicate the listed size designa- such shipments. tion on containers. (2) Prepare on forms furnished by the (2) For minimum quantity. For pur- committee a report in quadruplicate on poses of this regulation each person such shipments authorized in para- subject thereto may handle up to but graph (b) of this section. not to exceed 50 pounds of tomatoes per (3) Bill or consign each shipment di- day without regard to the require- rectly to the designated applicable re- ments of this regulation, but this ex- ceiver. emption shall not apply to any ship- (4) Forward one copy of such report ment or any portion thereof of over 50 to the committee office and two copies pounds of tomatoes. to the receiver for signing and return- (3) For special packed tomatoes. Toma- ing one copy to the committee office. toes which met the inspection require- Failure of the handler or receiver to re- ments of paragraph (a)(4) of this sec- port such shipments by signing and re- tion which are resorted, regraded, and turning the applicable report to the repacked by a handler who has been committee office within ten days after designated as a ‘‘Certified Tomato Re- shipment may be cause for cancella- packer’’ by the committee are exempt tion of such handler’s certificate and/or from: receiver’s eligibility to receive further (i) The tomato grade classifications shipments pursuant to such certificate. of paragraph (a)(1) of this section; Upon cancellation of any such certifi- (ii) The size classifications of para- cate, the handler may appeal to the graph (a)(2) of this section, except that committee for reconsideration. the tomatoes shall be at least 2–9/32 (5) Make shipments only to those inches in diameter; and who have qualified with the committee (iii) The container weight require- as approved receivers. ments of paragraph (a)(3) of this sec- (d) Exemption—(1) For types. The fol- tion. lowing types of tomatoes are exempt (4) For varieties. Upon recommenda- from these regulations: Elongated tion of the committee, varieties of to- types commonly referred to as pear matoes that are elongated or otherwise shaped or paste tomatoes and including misshapen due to adverse growing con- but not limited to San Marzano, Red ditions may be exempted by the Sec- Top, and Roma varieties; cerasiform retary from the provisions of para- type tomatoes commonly referred to as graph (a)(2) of this section.

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(5) For UglyRipeTM and Vintage fined in § 966.150 and transferred to a RipesTM tomatoes. UglyRipeTM and Vin- registered handler’s facilities for final tage RipesTM tomatoes must meet all preparation for market. A Certified To- the requirements of this section: Pro- mato Repacker is a repacker of toma- vided, That UglyRipeTM and Vintage toes in the regulated area who has the RipesTM tomatoes shall be graded and facilities for handling, regrading, re- at least meet the requirements speci- sorting, and repacking tomatoes into fied for U.S. No. 2 under the U.S. consumer sized packages and has been Standards for Grades of Fresh Toma- certified as such by the committee. toes, except they are exempt from the Processing as used in §§ 966.120 and requirements that they be reasonably 966.323 means the manufacture of any well formed and not more than slightly tomato product which has been con- rough, and Provided, Further that the verted into juice, or preserved by any UglyRipeTM and Vintage RipesTM to- commercial process, including canning, matoes meet the requirements of the dehydrating, drying, and the addition Identity Preservation program, Fresh of chemical substances. Further, all Products Branch, Fruit and Vegetable processing procedures must result in a Programs, AMS, USDA. product that does not require refrigera- (e) Report of packouts. Each registered tion until opened. Pickling as used in handler shall, at the end of each day §§ 966.120 and 966.323 means to preserve during which handling activities have tomatoes in a brine or vinegar solu- been conducted, or the following morn- tion. U.S. tomato standards means the ing as the committee may prescribe, revised United States Standards for provide to the committee or its des- Fresh Tomatoes (7 CFR 51.1855 through ignated agent a complete and accurate 51.1877), effective October 1, 1991, as accounting of the number of containers amended, or variations thereof speci- of tomatoes packed that day. The re- fied in this section. Other terms in this port shall include an accounting of the section shall have the same meaning as grade, size, maturity, and net weight of when used in Marketing Agreement No. the containers packed in each such cat- 125, as amended, and this part, and the egory. The total packout report shall U.S. tomato standards. be provided to the committee or its au- [52 FR 46347, Dec. 7, 1987] thorized agent in a timely fashion that EDITORIAL NOTE: For FEDERAL REGISTER ci- allows the committee to compile a tations affecting § 966.323, see the List of CFR daily, industry-wide packout report. Sections Affected, which appears in the (f) Assessments. Handlers shall pay as- Finding Aids section of the printed volume sessments as provided in § 966.42. As- and at www.fdsys.gov. sessment will be based on inspection EDITORIAL NOTE: After January 1, 1979, certificates supplied to the committee ‘‘Budget of Expenses and Rate of Assessment’’ by the Federal-State Inspection Serv- regulations (e.g., sections .200 through .299) ice. and ‘‘Handling’’ regulations (e.g., sections .300 (g) Definitions. Hydroponic tomatoes through .399) which are in effect for a year or means tomatoes grown in solution less, will not be carried in the Code of Fed- without soil; greenhouse tomatoes means eral Regulations. For FEDERAL REGISTER citations affecting these regulations, see the tomatoes grown indoors; specialty List of CFR Sections Affected, which appears packed red ripe tomatoes means toma- in the Finding Aids section of the printed toes which at the time of inspection volume and at www.fdsys.gov. are #5 or #6 color (according to color classification requirements in the U.S. PART 980—VEGETABLES; IMPORT tomato standards) with their calyx REGULATIONS ends and stems attached and cell packed in a single layer container; and Sec. producer field-packed tomatoes means to- 980.1 Import regulations; Irish potatoes. matoes which at the time of inspection 980.117 Import regulations; onions. are #3 color or higher (according to 980.212 Import regulations; tomatoes. color classification requirements in the 980.501 Safeguard procedures for potatoes, U.S. tomato standards), that are onions, and tomatoes exempt from grade, picked and place packed in new con- size, quality, and maturity requirements. tainers in the field by a producer as de- AUTHORITY: 7 U.S.C. 601–674.

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§ 980.1 Import regulations; Irish pota- year are in most direct competition toes. with potatoes of the same type pro- (a) Findings and determinations with duced in the area covered by Order No. respect to imports of Irish potatoes. (1) 945 (part 945 of this chapter). Pursuant to section 8e of the Agricul- (b) Grade, size, quality, and maturity tural Marketing Agreement Act of 1937, requirements. On and after the effective as amended (7 U.S.C. 601–674), it is here- date hereof importation of Irish pota- by found that: toes, except certified seed potatoes, (i) Grade, size, quality, and maturity shall be prohibited unless they comply regulations have been issued from time with the following requirements. to time pursuant to the following mar- (1) Through the entire year, the keting orders: No. 945 (part 945 of this grade, size, quality, and maturity re- chapter), No. 948 (part 948 of this chap- quirements of Marketing Order No. 946, ter), No. 947 (part 947 of this chapter), as amended (part 946 of this chapter), No. 946 (part 946 of this chapter), and applicable to potatoes of the red- No. 953 (part 953 of this chapter). skinned, round type shall be the re- (ii) During the past several years, spective grade, size, quality, and matu- grade, size, quality, and maturity regu- rity requirements for all imported red- lations have been in effect pursuant to skinned, round type potatoes. two or more of such orders during each (2) Through the entire year, the month of the year; grade, size, quality, and maturity re- (iii) The marketing of Irish potatoes quirements of Area II, Colorado (San can be reasonably distinguished by the Luis Valley) covered by Marketing several seasonal categories, i.e., win- Order No. 948, as amended (part 948 of ter, early spring, late spring, early this chapter), applicable to potatoes of summer, late summer, and fall. The the round type, other than red-skinned bulk of the fall crop is harvested and varieties, shall be the respective grade, placed in storage in the fall and mar- size, quality, and maturity require- keted over a period of several months ments for imports of all other round extending into the following summer. type potatoes. But potatoes harvested from the other (3) Through the entire year the seasonal crops are generally marketed grade, size, quality, and maturity re- as the potatoes are harvested. The marketing seasons for these crops over- quirements of Marketing Order 945, as lap. amended (part 945 of this chapter) ap- (iv) Concurrent grade, size, quality, plicable to potatoes of all long types and maturity regulations under two or shall be the respective grade, size, more of the aforesaid marketing orders quality, and maturity requirements for are expected in the ensuing and future imported potatoes of all long types. seasons, as in the past. (4) The grade, size, quality, and ma- (2) Therefore it is hereby determined turity requirements as provided for in that: this paragraph shall apply to imports (i) Imports of red-skinned, round type of similar types of potatoes, unless oth- potatoes during each month of the erwise ordered, on and after the effec- marketing year are in most direct tive date of the applicable domestic competition with potatoes of the same regulation or amendment thereto, as type produced in the area covered by provided in this paragraph or 3 days Marketing Order No. 946 (part 946 of following publication of such regula- this chapter). tion or amendment in the FEDERAL (ii) Imports of all other round type REGISTER, whichever is later. potatoes during each month of the (c) Minimum quantities. Any importa- marketing year are in most direct tion which, in the aggregate, does not competition with potatoes of the same exceed 500 pounds may be imported type produced in Area 2, Colorado (San without regard to the provisions of this Luis Valley) covered by Marketing section. Order No. 948, as amended (part 948 of (d) Plant quarantine. No provisions of this chapter). this section shall supersede the restric- (iii) Imports of long type potatoes tions or prohibitions of potatoes under during each month of the marketing the Plant Quarantine Act of 1912.

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(e) Certified seed. Certified seed pota- U.S.C. 608e) issued by a designated gov- toes shall include only those potatoes ernmental inspection service applica- which are officially certified and ble to a particular shipment of pota- tagged as seed potatoes by the Plant toes is required on all imports of pota- Health and Production Division, Plant toes other than certified seed. Products Directorate, Canadian Food (1)(i) Inspection and certification by Inspection Agency, and which are sub- the Federal or Federal-State Inspec- sequently used as seed. tion Service will be available and per- (f) Designation of governmental inspec- formed in accordance with the rules tion services. The Federal or Federal- and regulations governing certification State Inspection Service, Fruit and of fresh fruits, vegetables, and other Vegetable Programs, Agricultural Mar- products (part 51 of this title), and each keting Service, U.S. Department of Ag- lot shall be made available and acces- riculture and the Food of Plant Origin Division, Plant Products Directorate, sible for inspection as provided therein. Canadian Food Inspection Agency, are Cost of inspection and certification hereby designated as governmental in- shall be borne by the applicant. spection services for the purpose of cer- (ii) Since inspectors may not be sta- tifying the grade, size, quality, and ma- tioned in the immediate vicinity of a turity of Irish potatoes that are import, or point of entry, an importer of ported, or to be imported, into the uninspected and uncertified Irish pota- United States under the provisions of toes should make advance arrange- § 608e of the Act. ments for inspection. Each importer (g) Inspection and official inspection should give at least the specified ad- certificates. An official inspection cer- vance notice to one of the following ap- tificate certifying the potatoes meet plicable inspection offices prior to the the United States import requirements time the Irish potatoes will be im- for Irish potatoes under section 8e (7 ported.

Advance Ports and points Inspection offices notice (days)

All Maine ports and points of entry ... In-Charge, Post Office Box 1058, Presque Isle, ME 04767 (PH 207–764– 1 2100). Port of Boston, MA ...... In-Charge, Boston Market Terminal Building, Room 1, 34 Market Street, 1 Everett, MA 02149 (PH 617–389–2480). Port of New York, NY ...... In-Charge, 465B New York City Terminal Market, Bronx, NY 10474 (PH 1 718–991–7665). Port of Philadelphia, PA ...... In-Charge, 210 Produce Building, 3301 South Galloway Street, Philadel- 1 phia, PA 19148 (PH 215–336–0845. All other ports and points of entry ..... Head, Field Operations Section, Fresh Products Branch, Fruit and Vege- 3 table Programs, AMS, USDA, Washington, DC 20250–0240 (PH 1– 800–811–2373).

(2) In the event the required inspec- (4) Each inspection certificate issued tion is performed prior to the arrival of with respect to any Irish potatoes to be the potatoes at the port of entry, the imported into the United States shall inspection certificate that is issued set forth, among other things: must show that the inspection was per- (i) The date and place of inspection; formed at the time of loading such po- (ii) The name of the shipper, or appli- tatoes for direct transportation to the cant; United States; and if transportation is (iii) The Customs entry number per- by water, the certificate must show taining to the lot or shipment covered that the inspection was performed at by the certificate; the time of loading onto the vessel. (iv) The commodity inspected; (3) Inspection certificates shall cover (v) The quantity of the commodity only the quantity of potatoes that is covered by the Certificate; being imported at a particular port of (vi) The principal identifying marks entry by particular importers. of the containers;

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(vii) The railroad car initials and § 980.117 Import regulations; onions. number, the truck and trailer number, (a) Findings and determinations with the name of the vessel, or other identi- respect to onions. (1) Under section 8e of fication of the shipment; and the Agricultural Marketing Agreement (viii) The following statement if the Act of 1937, as amended (7 U.S.C. 601– facts warrant: Meets U.S. Import re- 674), it is hereby found that: quirements under section 8e of the Ag- (i) Grade, size, quality, and maturity ricultural Marketing Agreement Act of regulations have been issued regularly 1937. under Marketing Orders No. 958 and (h) Reconditioning prior to importation. 959, both as amended; Nothing contained in this part shall be (ii) Since December 9, 1985, grade, deemed to preclude any importer from size, quality, and maturity regulations reconditioning prior to importation have been in effect pursuant to these any shipment of Irish potatoes for the orders during the period August through July; purpose of making it eligible for impor- (iii) The marketing of onions can be tation under the Act. reasonably distinguished by the sea- (i) Definitions. (1) For the purpose of sonal categories, i.e., late summer and this part potatoes meeting the require- early spring. The bulk of the late sum- ments of Canada No. 1 grade and Can- mer crop is harvested and placed in ada No. 2 grade shall be deemed to storage in late summer and early fall comply with the requirements of the and marketed over a period of several U.S. No. 1 grade and U.S. No. 2 grade, months extending into the following respectively, and the tolerances for spring. But the onions harvested from size, as set forth in the U.S. Standards the early spring crop are generally for Grades of Potatoes (§§ 51.1540 to marketed as soon as the onions are 51.1556, inclusive of this title) may be harvested. The marketing seasons for used. these crops overlap; (2) Importation means release from (iv) Concurrent grade, size, quality, the custody of the U.S. Customs Serv- and maturity regulations under the ice. two marketing orders are expected in future seasons, as in the past. (j) Exemptions. (1) The grade, size, (2) Therefore, it is hereby determined quality and maturity requirements of that: Imports of onions during the this section shall not be applicable to June 5 through March 9 period, and the potatoes imported for canning, freez- entire year for imports of pearl and ing, other processing, livestock feed, cipolline varieties of onions, are in charity, or relief, but such potatoes most direct competition with the mar- shall be subject to the safeguard provi- keting of onions produced in des- sions contained in § 980.501. Processing ignated counties of Idaho and Malheur includes canning, freezing, dehydra- County, Oregon, covered by Marketing tion, chips, shoestrings, starch and Order No. 958, as amended (7 CFR Part flour. Processing does not include pota- 958) and during the March 10 through toes that are only peeled, or cooled, June 4 period the marketing of im- sliced, diced, or treated to prevent oxi- ported onions, not including pearl or dation, or made into fresh potato salad. cipolline varieties of onions, is in most (2) There shall be no size require- direct competition with onions pro- ments for potatoes that are imported duced in designated counties in South in containers with a net weight of 3 Texas covered by Marketing Order No. pounds or less, if the potatoes are oth- 959, as amended (7 CFR part 959). erwise U.S. No. 1 grade or better. (b) Grade, size, quality, and maturity requirements. On and after the effective [34 FR 8044, May 22, 1969, as amended at 35 date hereof no person may import on- FR 8204, May 26, 1970; 36 FR 9634, May 27, ions as defined herein unless they are 1971; 37 FR 8059, Apr. 25, 1972; 54 FR 22577, inspected and meet the following re- May 25, 1989; 57 FR 30382, July 9, 1992; 58 FR quirements: 69189, Dec. 30, 1993; 61 FR 13060, Mar. 26, 1996; (1) During the period June 5 through 67 FR 66531, Nov. 1, 2002; 74 FR 2808, Jan. 16, March 9 of each marketing year, and 2009; 74 FR 65394, Dec. 10, 2009] the entire year for pearl and cipolline

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onions, whenever onions grown in des- inspection and certification shall be ignated counties in Idaho and Malheur borne by the applicant. County, Oregon, are regulated under (3) Since inspectors may not be sta- Marketing Order No. 958, imported on- tioned in the immediate vicinity of ions shall comply with the grade, size, some smaller ports of entry, importers quality, and maturity requirements should make advance arrangements for imposed under that order. inspection by ascertaining whether or (2) During the period March 10 not there is an inspector located at through June 4 of each marketing year, their particular port of entry. For all whenever onions grown in designated ports of entry where an inspection of- counties in South Texas are regulated fice is not located, each importer must under Marketing Order No. 959, im- give the specified advance notice to the ported onions, not including pearl and applicable office listed below prior to cipolline onions, shall comply with the the time the onions will be imported. grade, size, quality, and maturity requirements imposed under that order. Ad- vance (c) Minimum quantity exemption. Any Ports Office notice importation which in the aggregate (days) does not exceed 110 pounds (50 kilo- All Texas points ...... Officer-in-charge, 1301 1 grams) may be imported without re- West Expressway, gard to the provisions of this section. Alamo, Tex. 78516. Phone 512–787–4091 or (d) Plant quarantine. Provisions of 512–787–6881. this section shall not supercede the re- All Arizona points ..... Officer-in-charge, P.O. Box 1 strictions or prohibitions on onions 1614, Nogales, Ariz. under the Plant Quarantine Act of 1912. 85621. Phone 602–287– 4783. (e) Designation of governmental inspec- All California points .. Officer-in-charge, 784 South 3 tion service. The Federal or Federal- Central Ave., room 266, State Inspection Service, Fruit and Los Angeles, Calif. 90021. Phone 213–688– Vegetable Programs, Agricultural Mar- 2489. keting Service, U.S. Department of Ag- All Hawaii points ...... Officer-in-charge, P.O. Box 1 riculture and the Food of Plant Origin 22159, Pawaa Sub- Division, Plant Products Directorate, station, Honolulu, Hawaii 96822. Phone 808–941– Canadian Food Inspection Agency, are 3071. hereby designated as governmental in- All Puerto Rico points Officer-in-charge, P.O. Box 2 spection services for the purpose of cer- 9112, Santurce, P.R. tifying the grade, size, quality, and ma- 00908. Phone 809–783– 2230 or 809–783–4116. turity of onions that are imported, or New York City, N.Y .. Officer-in-charge, room 1 to be imported, into the United States 28A, Hunts Point Market, under the provisions of section 8e of Bronx, N.Y. 10474. Phone 212–991–7669 or the Act. 212–991–7668. (f) Inspection and official inspection New Orleans, La ...... Officer-in-charge, 5027 U.S. 1 certificates. (1) An official inspection Postal Service Bldg., 701 certificate certifying the onions meet Loyola Ave., New Orle- ans, La. 70113. Phone the U.S. import requirements for on- 504–589–6741 or 504– ions under section 8e (7 U.S.C. 608e–1), 589–6742. issued by a designated governmental Miami, Fla ...... Officer-in-charge, 1350 1 Northwest 12th Ave., inspection service and applicable to a room 530, Miami, Fla. specified lot is required on all imports 33136. Phone 305–324– of onions. 6116 or 305–324–6117. (2) Inspection and certification by All other Florida Officer-in-charge, P.O. Box 1 points. 1232, Winter Haven, Fla. the Federal or Federal-State Inspec- 33880. Phone 813–294– tion Service will be available and per- 3511, extension 33. formed in accordance with the rules All other points ...... Chief, Fresh Products 3 and regulations governing certification Branch, Fruit and Vege- table Quality Division, of fresh fruits, vegetables and other Food Safety and Quality products (7 CFR part 51). Each lot shall Service, Washington, be made available and accessible for in- D.C. 20250. Phone 202– spection as provided therein. Cost of 447–5870.

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(4) Inspection certificates shall cover cultural practices that limit growth to only the quantity of onions that is 2 inches in diameter or less. being imported at a particular port of (i) Exemptions. The grade, size, qual- entry by a particular importer. ity and maturity requirements of this (5) Each inspection certificate issued section shall not be applicable to on- with respect to any onions to be im- ions imported for processing, livestock ported into the United States shall set feed, charity, or relief, and pearl on- forth, among other things: ions, onion sets (plantings), braided red (i) The date and place of inspection; onions, and minimum quantity ship- (ii) The name of the shipper, or appli- ments of 110 pounds, but such onions cant; shall be subject to the safeguard provi- (iii) The Customs entry number per- sions in § 980.501. Processing includes taining to the lot or shipment covered canning, freezing, dehydration, extrac- by the certificate; tion (juice) and pickling in brine. Proc- (iv) The commodity inspected; essing does not include fresh chop, (v) The quantity of the commodity fresh cut, convenience food or other covered by the certificate; pre-packaged salad operations. Pearl (vi) The principal identifying marks onions must be inspected for size prior on the containers; to entry into the United States. (vii) The railroad car initials and number, the truck and trailer license [43 FR 5500, Feb. 9, 1978, as amended at 52 FR number, the name of the vessel, or 8872, Mar. 20, 1987; 52 FR 19281, May 22, 1987; other identification of the shipment; 54 FR 8520, Mar. 1, 1989; 58 FR 69189, Dec. 30, 1993; 59 FR 46912, Sept. 13, 1994; 61 FR 13060, and Mar. 26, 1996; 61 FR 25557, May 22, 1996; 69 FR (viii) The following statement, if the 56671, Sept. 22, 2004; 74 FR 2808, Jan. 16, 2009; facts warrant: Meets import require- 74 FR 65394, Dec. 10, 2009; 75 FR 1269, Jan. 11, ments of 7 U.S.C. 608e–1. 2010] (g) Reconditioning prior to importation. Nothing contained in this part shall be § 980.212 Import regulations; tomatoes. deemed to preclude any importer from (a) Findings and determinations with reconditioning prior to importation respect to fresh tomatoes. (1) Under Sec- any shipment of onions for the purpose tion 8e of the Agricultural Marketing of making it eligible for importation. Agreement Act of 1937, as amended (7 (h) . For the purpose of Definitions U.S.C. 601–674), it is hereby found that: this section, Onions means all varieties (i) Grade, size, quality and maturity of Allium cepa marketed dry, except de- regulations have been issued from time hydrated, canned, or frozen onions, pickling onions in brine, onion sets, to time under Marketing Order No. 966, green onions, or braided red onions. as amended; The term U.S. No. 2 has the same mean- (ii) The marketing of fresh tomatoes ing as set forth in the United States from Florida covered by Marketing Standards for Grades of Bermuda- Order No. 966, as amended, can reason- Granex-Grano Type Onions (7 CFR ably be expected to occur during the 51.3195 through 51.3209), the United months of October through June; States Standards for Grades of Creole (2) Therefore, it is hereby determined Onions (7 CFR 51.3955 through 51.3970), that imports of fresh tomatoes during or the United States Standards for the months of October through June Grades of Onions Other Than Bermuda- are in most direct competition with Granex-Grano and Creole Types (7 CFR the marketing of fresh tomatoes pro- 51.2830 through 51.2854), whichever is duced in Florida covered by Marketing applicable to the particular variety, Order No. 966, as amended. and variations thereof specified in this (b) Grade, size, quality and maturity re- section. The term moderately cured quirements. On and after the effective means the onions are mature and are date hereof no person may import fresh more nearly well cured than fairly well tomatoes except pear shaped, cherry, cured. Importation means release from hydroponic and greenhouse tomatoes the custody of U.S. Customs and Bor- as defined herein, or tomatoes to be der Protection. The term pearl onions used in noncommercial outlets for ex- means onions produced using specific perimental purposes, unless they are

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inspected and meet the following re- does not exceed 60 pounds may be im- quirements; ported without regard to the provisions (1) From October 10 through June 15 of this section. of each season, tomatoes offered for (d) Plant quarantine. Provisions of importation shall be at least 29⁄32 this section shall not supersede the re- inches in diameter. Not more than 10 strictions or prohibitions on tomatoes percent, by count, in any lot may be under the Plant Quarantine Act of 1912. smaller than the minimum specified di- (e) Designation of governmental inspec- ameter. All lots of tomatoes shall be at tion service. The Federal or Federal- least U.S. No. 2 grade. Provided, That State Inspection Service, Fruit and UglyRipeTM and Vintage RipesTM toma- Vegetable Programs, Agricultural Mar- toes shall be graded and at least meet keting Service, U.S. Department of Ag- the requirements specified for U.S. No. riculture and the Food of Plant Origin 2 under the U.S. Standards for Grades Division, Plant Products Directorate, of Fresh Tomatoes, except they are ex- Canadian Food Inspection Agency, are empt from the requirements that they hereby designated as governmental in- be reasonably well formed and not spection services for the purpose of cer- more than slightly rough, and Provided, tifying the grade, size, quality, and ma- Further that the UglyRipeTM and Vin- turity of tomatoes that are imported, tage RipesTM tomatoes meet the re- or to be imported, into the United quirements of the Identity Preserva- States under the provisions of section tion program, Fresh Products Branch, 8e of the Act. Fruit and Vegetable Programs, AMS, (f) Inspection and official inspection USDA. certificates. (1) An official inspection (2) Prior to importation of tomatoes certificate certifying the tomatoes to be used in noncommercial outlets meet the United States import require- for experimental purposes, the im- ments for tomatoes under Section 8e (7 porter shall apply for and obtain from U.S.C. 608e–1), issued by a designated the Vegetable Branch, Fruit and Vege- governmental inspection service and table Division, AMS, U.S. Department applicable to a specified lot is required of Agriculture, Washington, DC 20250, on all imports of fresh tomatoes. an approved Certificate for Special (2) Inspection and certification by Purpose Shipment, complete Part I and the Federal or Federal-State Inspec- comply with all procedures specified tion Service will be available and per- thereon. A separate certificate is re- formed in accordance with the rules quired for each shipment. Three copies and regulations governing certification of the certificate shall accompany of fresh fruits, vegetables and other shipment, of which one copy shall be products (7 CFR part 51). Each lot shall surrendered to the Federal or Federal- be made available and accessible for in- State Inspector of the U.S. Department spection as provided therein. Cost of of Agriculture at the port of entry. inspection and certification shall be (3) Upon completion of shipment re- borne by the applicant. ceiver making final disposition of the (3) Since the inspectors may not be tomatoes shall complete Part II of the stationed in the immediate vicinity of Certificate. Importer shall be respon- some smaller ports of entry, importers sible for the return, within 10 days, of should make advance arrangements for a signed copy of the certificate to the inspection by ascertaining whether or Chief, Vegetable Branch, Fruit and not there is an inspector located at Vegetable Division, AMS, U.S. Depart- their particular port of entry. For all ment of Agriculture, Washington, DC ports of entry where an inspection of- 20250, certifying that the tomatoes fice is not located, each importer must were used for the purpose specified give the specified advance notice to the thereon. applicable office listed below prior to (c) Minimum quantity exemption. Any the time the tomatoes will be im- importation which in the aggregate ported.

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Ad- (vi) The principal identifying marks vance on the containers; Ports Office notice (days) (vii) The railroad car initials and number, the truck and trailer license All Texas points ...... Officer-in-charge, 1301 1 West Expressway, number, the name of the vessel, or Alamo, Tex. 78516, other identification of the shipment; phone 512–787–4091 or and 6881. (viii) The following statement, if the All Arizona points ..... Officer-in-charge, P.O. Box 1 1614, Nogales, Ariz. facts warrant: Meets import require- 85621, phone 602–287– ments of 7 U.S.C. 608e–1. 2902. (g) Reconditioning prior to importation. All California points .. Officer-in-charge, 784 South 1 Central Ave., room 266, Nothing contained in this part shall be Los Angeles, Calif. deemed to preclude any importer from 90021, phone 213–688– reconditioning prior to importation 2489. any shipment of tomatoes for the pur- All Hawaii points ...... Officer-in-charge, P.O. Box 1 22159, Pawaa substation, pose of making it eligible for importa- Honolulu, Hawaii 96822, tion. phone 808–941–3071. (h) Definitions. For the purpose of All Puerto Rico points Officer-in-charge, P.O. Box 2 9112, Santurce, P.R. this section, Importation means release 00908, phone 809–783– from custody of the United States Bu- 2230 or 4116. reau of Customs. Cherry tomatoes means New York, N.Y ...... Officer-in-charge, room 1 cerasiform types commonly referred to 28A, Hunts Point Market, Bronx, N.Y. 10474, phone as ‘‘cherry tomatoes.’’ Pear shaped toma- 212–991–7669 or 7668. toes means elongated types, commonly New Orleans, La ...... Officer-in-charge, 5027 U.S. 1 referred to as pear shaped or paste to- Postal Service Bldg., 701 matoes and include San Marzano, Red Loyola Ave., New Orle- ans La. 70113, phone Top and Roma varieties. Hydroponic to- 504–589–6741 or 6742. matoes means tomatoes grown in solu- Miami, Fla ...... Officer-in-charge, 1350 1 tion without soil. Greenhouse tomatoes Northwest 12th Ave., room 530, Miami, Fla. means tomatoes grown indoors. The 33136, phone 305–324– terms relating to grade and size, as 6116 or 6117. used herein, shall have the same mean- All other Florida Officer-in-charge, P.O. Box 1 ing as when used in the U.S. Standards points. 1232, Winter Haven, Fla. 33880, phone 813–294– for Grades of Fresh Tomatoes (7 CFR 3511, ext. 33. 51.1855 through 51.1877). All other points ...... Chief, Fresh Products 3 (i) Exemptions. The grade, size, qual- Branch, Fruit and Vege- ity and maturity requirements of this table Quality Division, Food Safety and Quality section shall not apply to tomatoes for Service, Washington, DC charity, relief, canning or pickling, but 20250, phone 202–447– such tomatoes shall be subject to the 5870. safeguard provisions contained in (4) Inspection certificates shall cover § 980.501. Processing includes canning only the quantity of tomatoes that is and pickling. being imported at a particular port of [42 FR 55192, Oct. 14, 1977, as amended at 43 entry by a particular importer. FR 3349, Jan. 25, 1978; 57 FR 27352, June 19, (5) Each inspection certificate issued 1992; 58 FR 69189, Dec. 30, 1993; 61 FR 13060, with respect to any tomatoes to be im- Mar. 26, 1996; 63 FR 12401, Mar. 13, 1998; 72 FR ported into the United States shall set 2172, Jan. 18, 2007; 74 FR 2808, Jan. 16, 2009; 74 FR 45736, Sept. 4, 2009; 74 FR 65394, Dec. 10, forth, among other things: 2009] (i) The date and place of inspection; (ii) The name of the shipper, or appli- § 980.501 Safeguard procedures for po- cant; tatoes, onions, and tomatoes exempt (iii) The Customs entry number per- from grade, size, quality, and matu- taining to the lot or shipment covered rity requirements. by the certificate; (a) Each person who imports: (iv) The commodity inspected; (1) Potatoes, onions or tomatoes for (v) The quantity of the commodity consumption by charitable institutions covered by the certificate; or distribution by relief agencies;

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(2) Potatoes, onions, or tomatoes for (d) All FV–6 forms and other cor- processing; respondence regarding entry of 8e com- (3) Potatoes or onions for livestock modities must be mailed to the Mar- feed; or keting Order Administration Branch, (4) Pearl onions, shall obtain an ‘‘Im- Fruit and Vegetable Programs, AMS, porter’s Exempt Commodity Form’’ USDA, 1400 Independence Avenue, SW., (FV–6) from the Marketing Order Ad- STOP 0237, Washington, DC 20250–0237, ministration Branch, Fruit and Vege- telephone (202) 720–2491. table Programs, AMS, USDA, and shall [61 FR 13060, Mar. 26, 1996, as amended at 74 show the completed ‘‘Importer’s Ex- FR 65394, Dec. 10, 2009] empt Commodity Form’’ to the U.S. Customs Service Regional Director or PART 981—ALMONDS GROWN IN District Director, as applicable, at the CALIFORNIA port at which the customs entry is filed. One copy shall be mailed to the Subpart—Order Regulating Handling Marketing Order Administration Branch, Fruit and Vegetable Programs, DEFINITIONS AMS, USDA with a postmark no later Sec. than two days after the date of impor- 981.1 Secretary. tation and a third copy shall accom- 981.2 Act. pany the lot to the exempt outlet spec- 981.3 Person. ified on the form. Any lot offered for 981.4 Almonds. 981.5 Unshelled almonds. inspection and, all or a portion thereof, 981.6 Shelled almonds. subsequently imported as exempt 981.7 Edible kernel. under this provision shall be reported 981.8 Inedible kernel. on an ‘‘Importer’s Exempt Commodity 981.9 Kernel weight. Form’’ and such form, accompanied by 981.10 Almonds received for his own ac- a copy of the applicable inspection cer- count. 981.11 Area of production. tificate, shall be mailed to the Mar- 981.12 Grower. keting Order Administration Branch. 981.13 Handler. (b) Each person who receives an ex- 981.14 Cooperative handler. empt commodity for the purposes spec- 981.15 Almond product. ified in paragraph (a) of this section 981.16 To handle. shall also receive a copy of the same 981.17 Inspection agency. numbered Importer’s Exempt Com- 981.18 Settlement weight. 981.19 Crop year. modity Form filed by the importer or 981.20 Handler carryover. customs broker and shall certify, by 981.21 Trade demand. completing and signing Section II of 981.21a Salable almonds. the form and mailing the form to the 981.21b Reserve almonds. Marketing Order Administration 981.22 Board. Branch within two days of receipt of 981.23 Part and subpart. the exempt lot, that such lot has been ALMOND BOARD OF CALIFORNIA received and will be utilized in the exempt outlet. 981.30 Establishment. 981.31 Membership representation. (c) It is the responsibility of the im- 981.32 Nominations. porter to notify the Marketing Order 981.33 Selection and term of office. Administration Branch of any lot of 981.34 Qualification and acceptance. exempt commodity rejected by a re- 981.35 Alternates. ceiver, shipped to an alternative ex- 981.36 Vacancy. empt receiver, returned to the country 981.37 Expenses. of origin, or otherwise disposed of. In 981.38 Powers. 981.39 Duties. such cases, a second ‘‘Importer’s Ex- 981.40 Procedure. empt Commodity Form’’ must be filed by the importer providing sufficient in- RESEARCH formation to determine ultimate dis- 981.41 Research and development. position of the exempt lot and such disposition shall be so certified by the QUALITY CONTROL final receiver. 981.42 Quality control.

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981.43 Marking or labeling of containers. 981.413 Roadside stand exemption. 981.441 Credit for market promotion activi- VOLUME REGULATION ties, including paid advertising. 981.45 General. 981.442 Quality control. 981.46 Withholding reserve. 981.450 Exempt dispositions. 981.47 Method of establishing salable and re- 981.455 Interhandler transfers. serve percentages. 981.466 Almond butter. 981.48 Increase of salable percentage. 981.467 Disposition in reserve outlets by 981.49 Board estimates and recommenda- handlers. tions. 981.472 Reports of almonds received. 981.50 Reserve obligation. 981.473 Redetermination reports. 981.51 Requirements for reserve. 981.474 Other reports. 981.52 Holding requirement and delivery. 981.481 Interest and late payment charges. 981.54 Payment to handlers for services ren- AUTHORITY: 7 U.S.C. 601–674. dered. 981.55 Interhandler transfers. SOURCE: 35 FR 11372, July 16, 1970, unless 981.56 Assistance of Board in accounting for otherwise noted. reserve. 981.57 Application of salable and reserve Subpart—Order Regulating percentages after end of crop year. 981.59 Adjustment upon increase of salable Handling percentage. DEFINITIONS 981.60 Determination of kernel weight. 981.61 Redetermination of kernel weight. § 981.1 Secretary. DISPOSITION OF RESERVE Secretary means the Secretary of Ag- 981.65 Prohibition on the use or disposition riculture of the United States, or any of reserve almonds. other officer or employee of the United 981.66 Conditions governing disposition of States Department of Agriculture who reserve. is, or who may be, authorized to per- 981.67 Disposition by handler. form the duties under this part of the RECORDS AND REPORTS Secretary of Agriculture of the United States. 981.70 Records and verification. 981.71 Record of receipts. § 981.2 Act. 981.72 Reports of receipts. 981.73 Periodic reports. Act means Public Act No. 10, 73d Con- 981.74 Other reports. gress, as amended and as reenacted and 981.75 Confidential nature of records and re- amended by the Agricultural Mar- ports. keting Agreement Act of 1937, as 981.76 Handler list of growers. amended (48 Stat. 31, as amended; 62 EXPENSES AND ASSESSMENTS Stat. 1247; 63 Stat. 282, 1051; 7 U.S.C. 601 et seq.). 981.80 Expenses. 981.81 Assessment. § 981.3 Person. MISCELLANEOUS PROVISIONS Person means an individual, partner- 981.85 Personal liability. ship, corporation, association, or any 981.86 Separability. other business unit. 981.87 Derogation. 981.88 Duration of immunities. § 981.4 Almonds. 981.89 Agents. 981.90 Effective time, suspension, or termi- Almonds means (unless otherwise nation. specified) all varieties of almonds (ex- 981.91 Effect of termination or amendment. cept bitter almonds), either shelled or 981.92 Amendments. unshelled, grown in the State of Cali- fornia, and for the purposes of research Subpart—Assessment Rates includes almond shells and hulls. 981.343 Assessment rate. [41 FR 26852, June 30, 1976]

Subpart—Administrative Rules and § 981.5 Unshelled almonds. Regulations Unshelled almonds means almonds the 981.401 Adjusted kernel weight. kernels of which are contained in the 981.408 Inedible kernel. shell.

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§ 981.6 Shelled almonds. § 981.12 Grower. Shelled almonds mean raw or roasted Grower is synonymous with producer almonds after the shells are removed and means any person engaging, in a and includes blanched, diced, sliced, proprietary capacity, in the commer- slivered, cut, halved, or broken al- cial production of almonds. monds, or any combination thereof. Additional almond products may be in- § 981.13 Handler. cluded by the Secretary from time to Handler means any person handling time upon consideration of a rec- almonds during any crop year, except ommendation from the Board or other that such term shall not include either pertinent information. a grower who sells only almonds of his own production at retail at a roadside § 981.7 Edible kernel. stand operated by him, or a person re- Edible kernel means a kernel, piece, or ceiving almonds from growers and particle of almond kernel that is not other persons and delivering these al- inedible. monds to a handler. [41 FR 26852, June 30, 1976] [41 FR 26852, June 30, 1976]

§ 981.8 Inedible kernel. § 981.14 Cooperative handler. Cooperative handler means any han- Inedible kernel means a kernel, piece, dler as defined in § 981.13 of this subpart or particle of almond kernel with any which qualifies for treatment as a non- defect scored as serious damage, or profit cooperative association as de- damage due to mold, gum, shrivel, or fined in Section 54001, et seq. of the brown spot, as defined in the United California Food and Agricultural Code. States Standards for Shelled Almonds, The Board, with the approval of the or which has embedded dirt not easily Secretary, may modify this definition, removed by washing. This definition if necessary. may be modified by the Board with the approval of the Secretary: Provided, [61 FR 32920, June 26, 1996] That the Board shall submit any recommendation for modification to the § 981.15 Almond product. Secretary not later than August 1. Almond product means any edible [41 FR 26852, June 30, 1976] preparation other than those included under the definition of ‘‘shelled al- § 981.9 Kernel weight. monds,’’ manufactured entirely or partially from raw shelled almonds, and Kernel weight means the weight of nut mixtures containing shelled or kernels, including pieces and particles, unshelled almonds. regardless of whether edible or inedible, contained in any lot of almonds, § 981.16 To handle. unshelled or shelled. To handle means to use almonds commercially of own production or to sell, § 981.10 Almonds received for his own account. consign, transport, ship (except as a common carrier of almonds owned by Almonds received for his own account another) or in any other way to put al- means all almonds which are received monds grown in the area of production by a handler (including all almonds of into any channel of trade for human his own production), except those consumption worldwide, either within which are received by him for storage the area of production or by transfer or processing for the account of any from the area of production to points other person and with respect to which outside or by receipt as first receiver such handler performs no handling at any point of entry in the United function. States or Puerto Rico of almonds grown in the area of production, ex- § 981.11 Area of production. ported therefrom and submitted for re- Area of production means the State of entry or which are reentered free of California. duty. However, sales or deliveries by a

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grower to handlers, hullers or other § 981.21a Salable almonds. processors within the area of produc- Salable almonds means those almonds tion shall not, in itself, be considered which are free to be handled pursuant as handling by a grower. to any salable percentage established [61 FR 32920, June 26, 1996] by the Secretary pursuant to § 981.47 or § 981.48 and, in the absence of a reserve § 981.17 Inspection agency. percentage being established for a crop Inspection agency means the Federal- year, all almonds received by handlers State Inspection Service or, when spe- for their own accounts during that crop cifically designated, the Federal In- year. spection Service. § 981.21b Reserve almonds. § 981.18 Settlement weight. Reserve almonds means those almonds Settlement weight means the actual which must be withheld from handling gross weight of any lot of almonds rein satisfaction of a reserve obligation ceived for his own account by any han- arising from application of a reserve dler, less adjustments as follows: percentage established by the Sec- (a) For weight of containers, retary pursuant to § 981.47 or § 981.48. (b) For excess moisture, § 981.22 Board. (c) For trash or other foreign material of any kind, and Board means the Almond Board of (d) For inedible kernels as defined in California which is the administrative § 981.8. agency established by this subpart. [35 FR 11372, July 16, 1970, as amended at 61 [41 FR 26852, June 30, 1976] FR 32920, June 26, 1996] § 981.23 Part and subpart. § 981.19 Crop year. Part means the order regulating the Crop year means the twelve month handling of almonds grown in the State period from August 1 to the following of California, and all rules, regulations, July 31, inclusive. Any new crop al- and supplementary orders issued there- monds harvested or received prior to under, and the aforesaid order shall be August 1 will be applied to the next a subpart of such part. crop year for marketing order pur- ALMOND BOARD OF CALIFORNIA poses. The first crop year after the implementation of this amendment shall § 981.30 Establishment. be a 13-month period. A Board of ten members, with an al- [61 FR 32920, June 26, 1996] ternate member for each such member, is hereby established. § 981.20 Handler carryover. Handler carryover as of any given date § 981.31 Membership representation. means all almonds, wherever located, Membership of the Board will be de- then held by handlers for their own ac- termined in the following manner: counts (whether or not sold) but not in- (a) Two members and an alternate for cluding any almond products. each member shall be selected from [41 FR 26852, June 30, 1976] nominees submitted by each of the following groups designated in paragraphs § 981.21 Trade demand. (a) (1) and (2) of this section, or from among other qualified persons belong- Trade demand means the quantity of ing to such groups: almonds (kernelweight basis) which (1) Those growers who market their commercial distributors and users such almonds through cooperative handlers; as the wholesale, chain store, confec- and tionery, bakery, ice cream, and nut (2) Those growers who market their salting trades will acquire from all almonds through other than coopera- handlers during a crop year for dis- tive handlers. tribution worldwide. (b) Two members and an alternate for [61 FR 32920, June 26, 1996] each member shall be selected from

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nominees submitted by each of the fol- tribution of ballots shall be announced lowing groups designated in paragraphs by press release, furnishing pertinent (b) (1) and (2) of this section, or from information on balloting, issued by the among other qualified persons belong- Board through newspapers and other ing to such groups: publications having general circulation (1) Cooperative handlers; and in the almond producing areas. (2) All handlers, other than coopera- (2) Nominees for the positions de- tive handlers. scribed in Section 981.31(c) shall be (c) One member and an alternate handled in the same manner as de- shall be selected from nominees submitted by each of the following groups scribed in paragraph (a)(1) of this sec- designated in paragraphs (c) (1) and (2) tion except that those terms of office of this section, or from among other shall expire annually. qualified persons belonging to such (b) Voting. (1) Nominees for each groups: member and alternate member position (1) The group of cooperative handlers shall be voted upon separately by the or the group of handlers other than co- group proposing them. The handler or operative handlers, whichever received grower group which is determined to be for their account more than 50 percent eligible for additional representation of the almonds delivered by all growers pursuant to § 981.31 (e) and (f), respec- as determined by December 31 of the tively, shall nominate such representa- then current crop year; and tives in the same manner prescribed for (2) Those growers whose almonds choosing other nominees. were marketed through the handler (2) Each handler may vote for a group identified in paragraph (c)(1) of nominee for each position representing this section. the group to which he belongs. Each [61 FR 32920, June 26, 1996] handler vote shall be weighted by the quantity of almonds (kernel weight § 981.32 Nominations. basis computed to the nearest whole (a) Method. (1) Each year the terms of ton) handled for his own account office of three of the members elected through December 31 of the crop year pursuant to Section 981.31 (a) and (b) in which nominations are made. The shall expire, except every third year nominee for each position shall be the when the term of office for two of those person receiving the highest weighted members shall expire. Nominees for vote for the position. each respective member and alternate member shall be chosen by ballot deliv- (3) Growers who market their al- ered to the Board. Nominees chosen by monds through cooperative handlers the Board in this manner shall be sub- shall vote through their respective or- mitted by the Board to the Secretary ganizations. Each cooperative shall on or before February 20 of each year cast a vote for nominees for each posi- together with such information as the tion representing the cooperative grow- Secretary may require. If a nomination er group and such ballots shall be for any Board member or alternate is weighted by the number of growers not received by the Secretary on or be- who are members of, or under contract fore February 20, the Secretary may se- with, such cooperative. The nominee lect such member or alternate from for each position shall be the person re- persons belonging to the group to be ceiving the highest weighted vote for represented without nomination. The that position. Board shall mail to all handlers and (4) Growers who market their al- growers, other than the cooperative(s) monds through other than cooperative of record, the required ballots with all handlers shall each have one equal necessary voting information including vote. The nominees for each position the names of incumbents willing to ac- representing such grower group shall cept renomination, and, to such grow- be the person receiving the highest ers, the name of any person proposed number of votes for that position. for nomination in a petition signed by at least 15 such growers and filed with [35 FR 11372, July 16, 1970, as amended at 61 the Board on or before January 20. Dis- FR 32920, June 26, 1996]

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§ 981.33 Selection and term of office. shall be handlers or employees of han- (a) Members and their respective al- dlers. In the event any member or alternates for positions open on the ternate ceases to be qualified for the Board shall be selected by the Sec- position for which selected, that posi- retary from persons nominated pursu- tion shall be deemed vacant. ant to § 981.32, or, at the discretion of (b) The Board, with approval of the the Secretary, from other qualified Secretary, may establish additional persons, for a term of office beginning eligibility requirements for grower March 1. Members and alternates shall members on the Board. continue to serve until their respective [61 FR 32921, June 26, 1996] successors are selected and qualified. (b) The term of office of members of § 981.35 Alternates. the Board shall be for a period of three An alternate for a member for the years beginning on March 1 of the Board shall act in the place and stead years selected except where otherwise of such member (a) in his absence, or provided. However, for the initial eight (b) in the event of his death, removal, members of the Board selected pursu- resignation or disqualification, until a ant to this section and to paragraphs successor for his unexpired term has (a) and (b) of § 981.31, two members been selected and has qualified. shall serve for a term of one year; three members shall serve for a term of two § 981.36 Vacancy. years; and three members shall serve To fill any vacancy occasioned by the for a term of three years. For the ini- death, removal, resignation, or dis- tial terms of office, at the time of nom- qualification of any member or alter- ination under § 981.32, the Board shall nate of the Board, a successor for his make this designation by lot. The term unexpired term shall be selected by the of office for the two members selected Secretary after consideration of rec- under paragraph (c) of § 981.31 shall al- ommendations which may be sub- ways be for a period of one year. mitted by members of the group for (c) Board members may serve for a which such vacancy exists, unless such total of six consecutive years. Members selection is deemed unnecessary by the who have served for six consecutive Secretary. years must leave the Board for at least one year before becoming eligible to § 981.37 Expenses. serve again. A person who has served The members of the Board shall serve less than six consecutive years on the without compensation, but shall be al- Board may not be nominated to a new lowed their necessary expenses. three year term if his or her total consecutive years on the Board at the end § 981.38 Powers. of that new term would exceed six The Board shall have the following years. This limitation on tenure shall powers: not include service on the Board prior (a) To administer the provisions of to implementation of this amendment this part in accordance with its terms; and shall not apply to alternate mem- (b) To make rules and regulations to bers. effectuate the terms and provisions of [61 FR 32920, June 26, 1996] this part; (c) To receive, investigate and report § 981.34 Qualification and acceptance. to the Secretary complaints of viola- (a) Any person to be selected as a tions of this part; and member or alternate of the Board (d) To recommend to the Secretary shall, prior to such selection, qualify amendments to this part. by providing such background information as necessary and by advising the § 981.39 Duties. Secretary that he/she agrees to serve in The Board shall have, among other the position for which nominated. things, the following duties: Grower members and alternates shall (a) To act as intermediary between be growers or employees of growers, the Secretary and any handler or grow- and handler members and alternates er;

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(b) To keep minute books and records fax or other electronic means shall not which will clearly reflect all of its acts be permitted at any assembled meeting and transactions, and such minute of the Board. When a proposition is books and records shall be subject to submitted for vote by mail, telegram, examination by the Secretary at any fax or other electronic means, at least time; eight members of the Board must vote (c) To investigate the growing, ship- in favor of its passage or the propo- ping, and marketing conditions with sition shall be defeated. respect to almonds and to assemble (d) Right of the Secretary. The mem- data in connection therewith; bers of the Board (including successors (d) To furnish to the Secretary such or alternates), and any agent or em- available information as may be deemed pertinent or as he may request; ployee appointed or employed by the (e) To appoint such employees as it Board, shall be subject to removal or may deem necessary and to determine suspension by the Secretary at any the salaries, define the duties and fix time. Each and every order, regulation, the bonds of such employees; and decision, determination, or other act of (f) To cause the books of the Board to the Board shall be subject to the con- be audited by one or more competent tinuing right of the Secretary to dis- certified public accountants at least approve of the same at any time, and, once for each crop year, and at such upon such disapproval, shall be deemed other times as the Board may deem null and void except as to acts done in necessary or as the Secretary may re- reliance thereon or in compliance quest; and the report of each such therewith. audit shall show, among other things, (e) Additional voting requirements. the receipt and expenditure of funds Adoption of recommendations by the pursuant hereto: and to file with the Board with respect to projects pursu- Secretary three copies of all audit re- ant to § 981.41 involving production reports made. search, marketing research and devel- § 981.40 Procedure. opment projects, and marketing promotion including paid advertising and (a) Organization and rules. The mem- crediting the pro rata expense assess- bers of the Board shall select a chair- ment obligation of handlers with such man from their membership. The Board portion of their direct expenditures for shall select such other officers and marketing promotion including paid adopt such rules for the conduct of its business as it may deem advisable. The advertising, shall require at least seven Board shall give to the Secretary or his affirmative votes. designated agent and representatives [35 FR 11372, July 16, 1970, as amended at 37 the same notice of meetings of the FR 3984, Feb. 15, 1972; 61 FR 32921, June 26, Board as is given to members of the 1996] Board. (b) Quorum. All decisions of the RESEARCH Board, except where otherwise specifically provided, shall be by a majority § 981.41 Research and development. vote of the members present. The pres- (a) General. The Board, with the ap- ence of six members shall be required proval of the Secretary, may establish to constitute a quorum. or provide for the establishment of (c) Voting by mail, telegram, fax or projects involving production research, other electronic means. The Board may marketing research and development vote by mail, telegram, fax or other projects, and marketing promotion in- electronic means upon written notice cluding paid advertising, designed to to all members, or alternates acting in assist, improve, or promote the mar- their place, including in the notice a keting, distribution, consumption or statement of a reasonable time, not to exceed 10 days, in which a vote by mail, efficient production of almonds. The telegram, fax or other electronic Board may also provide for crediting means must be received by the Board the pro rata expense assessment obliga- for counting. Voting by mail, telegram, tions of a handler with such portion of

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his direct expenditure for such mar- (4) Upon conclusion of each activity, keting promotion including paid adver- but at least annually, the Board shall tising as may be authorized. The ex- summarize and report the results of penses of such projects shall be paid such activity to its members and to the from funds collected pursuant to Secretary. § 981.81(a) or credited pursuant to para- (e) Rules and regulations. Before any graph (c) of this section. project involving marketing pro- (b) Authorization. If, on the basis of a motion, including paid advertising and Control Board recommendation pursu- the crediting of the pro rata expense ant to § 981.40(e) with respect to assessment obligation of handlers is projects pursuant to this section, and undertaken pursuant to this section, appertaining rules and regulations es- the Secretary, after recommendation tablished by the Secretary on rec- by the Board, shall prescribe appro- ommendation of the Board, and other priate rules and regulations as are nec- available information, the Secretary essary to effectively regulate such ac- concurs that such activities should be tivity. permitted, he shall authorize such ac- [37 FR 3984, Feb. 25, 1972, as amended at 61 tivities. FR 32921, June 26, 1996] (c) Creditable expenditures. The Board, with the approval of the Secretary, QUALITY CONTROL may provide for crediting all or any § 981.42 Quality control. portion of a handler’s direct expenditures for marketing promotion includ- (a) Incoming. Except as provided in ing paid advertising, that promotes the this paragraph, each handler shall sale of almonds, almond products or cause to be determined, through the in- their uses. No handler shall receive spection agency, and at handler ex- credit for any allowable direct expendi- pense, the percent of inedible kernels tures that would exceed the total of his in each variety received by him and shall report the determination to the assessment obligation which is attrib- Board. The quantity of inedible kernels utable to that portion of his assess- in each variety in excess of two percent ment designated for marketing proof the kernel weight received, shall motion including paid advertising. constitute a weight obligation to be ac- Such expenditures may include, but are cumulated in the course of processing not limited to, money spent for adver- and shall be delivered to the Board, or tising space or time in newspaper, mag- Board accepted crushers, feed manufac- azines, radio, television, transit, and turers, or feeders. The Board, with the outdoor media, including the actual approval of the Secretary, may change standard agency commission costs not this percentage for any crop year, may to exceed 15 percent. authorize additional outlets, may ex- (d) Promotion guidelines. All mar- empt bleaching stock from inedible keting promotion activity engaged in kernel determination or obligation and by the Board, including paid adver- may establish rules and regulations tising, shall be subject to the following necessary and incidental to the admin- terms and conditions: istration of this provision, including (1) No marketing promotion, includ- the method of determining inedible ing paid advertising shall refer to any kernel content and satisfaction of the private brand, private trademark or disposition obligation. The Board for private trade name; good cause may waive portions of obli- (2) No promotion or advertising shall gations for those handlers not gener- disparage the quality, use, value, or ating inedible material from such sale of like or any other agricultural sources as blanching or manufacturing. commodity or product, and no false or (b) Outgoing. For any crop year the unwarranted claims shall be made in Board may establish, with the approval connection with the product; of the Secretary, such minimum qual- (3) No promotion or advertising shall ity and inspection requirements appli- be undertaken without reason to be- cable to almonds to be handled or to be lieve that returns to producers will be processed into manufactured products, improved by such activity; and as will contribute to orderly marketing

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or be in the public interest. In such ignate such percentages. Except as pro- crop year, no handler shall handle or vided in § 981.50 the salable and reserve process almonds into manufactured percentages shall each be applied to items or products unless they meet the the kernel weight of almonds received applicable requirements as evidenced by a handler for his own account dur- by certification acceptable to the ing the crop year. In establishing such Board. The Board may, with the ap- salable and reserve percentages, the proval of the Secretary, establish dif- Secretary shall give consideration to ferent outgoing quality requirements the ratio of estimated trade demand for different markets. The Board, with (domestic plus export, less the handler the approval of the Secretary, may es- carryover available to satisfy trade de- tablish rules and regulations necessary mand plus the desirable handler carry- and incidental to the administration of over at the end of the crop year) to the this provision. estimated production of marketable almonds (all expressed in terms of kernel [41 FR 26853, June 30, 1976, as amended at 41 FR 53651, Dec. 8, 1976; 73 FR 45156, Aug. 4, weight) or the allocation quantity 2008] (marketable production plus almonds diverted to oil or feed when eligible for § 981.43 Marking or labeling of con- reserve satisfaction) whichever is ap- tainers. plicable; the recommendation sub- The Board may, with the approval of mitted to him by the Board; and such the Secretary, establish regulations to other information as he deems appro- require handlers to mark or label their priate. The total of the salable and re- containers that are used in packaging serve percentages established each crop or handling of bulk almonds. For pur- year shall equal 100 percent. poses of this section, container means a [41 FR 26853, June 30, 1976, as amended at 61 box, bin, bag, carton, or any other type FR 32921, June 26, 1996] of receptacle used in the packaging or handling of bulk almonds. § 981.48 Increase of salable percentage. [73 FR 45156, Aug. 4, 2008] Upon request filed prior to May 15 by the Board or, if the Board should fail to VOLUME REGULATION request, by two or more handlers who have handled at least 15 percent of all § 981.45 General. almonds handled in the preceding crop In order to effectuate the declared year, and after findings of fact (based policy of the act, no handler shall han- upon a revision of the estimates re- dle almonds except in accordance with quired under § 981.49 and other perti- the terms and conditions of this part. nent information) that the quantity of salable almonds is not sufficient to sat- § 981.46 Withholding reserve. isfy trade demand and desirable carry- When a reserve percentage has been over requirements for the crop year, fixed for any crop year, as hereinafter the Secretary may increase the salable provided, no handler shall handle al- percentage. Such findings shall be monds except on condition that he made in the manner specified in comply with the requirements in re- § 981.47. spect to withholding reserve almonds and the prescribed disposition thereof. § 981.49 Board estimates and recommendations. § 981.47 Method of establishing salable To aid the Secretary in fixing the and reserve percentages. salable and reserve percentages, the Whenever the Secretary finds, from Board shall furnish to the Secretary, the recommendations and supporting not later than August 1, the following information supplied by the Board or estimates (kernel weight basis) and from any other available information, recommendations for the crop year, that to designate the percentages of al- each of which, or any later revisions monds during any crop year which thereof, shall be adopted by the affirm- shall be salable almonds and reserve al- ative vote of at least six members: monds would tend to effectuate the de- (a) The quantity of marketable al- clared policy of the act, he shall des- monds to be produced;

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(b) The estimated handler carryover § 981.51 Requirements for reserve. and the estimated reserve inventory as Each handler may satisfy his reserve of July 31; obligation with such almonds specified (c) The desirable handler carryover in the terms of the agency agreement and the probable reserve inventory at authorized in § 981.67, including all ap- the end of the crop year; plicable inspection and certification re- (d) The trade demand, taking into quirements. Any handler who does not consideration anticipated imports, eco- become an agent may receive credit by nomic conditions and the anticipated market price (within the limitations of similarly delivering almonds to the the act); and Board or its designees. These require- (e) The recommended salable and re- ments may be established by the serve percentages to be established. Board, with the approval of the Sec- retary, and from time to time so modi- The Board shall also furnish to the fied, and may include grade require- Secretary a complete report of the pro- ments for reserve almonds delivered to ceedings of the Board meeting at which human consumption outlets. the recommended salable and reserve percentages were considered. If, for any [41 FR 26853, June 30, 1976] reason, the Board fails to make these estimates or to recommend to the Sec- § 981.52 Holding requirement and de- retary salable and reserve percentages livery. as required hereby, reports rep- Each handler shall, at all times, hold resenting the views of members with in his possession or under his control, respect to such matters may be sub- in proper storage for the account of the mitted to the Secretary who may act Board, the quantity of almonds nec- on the basis of such reports or other in- essary to meet his reserve obligation formation available to him. less: (a) Any quantity which was dis- [35 FR 11372, July 16, 1970, as amended at 41 posed of by him pursuant to § 981.67; FR 26853, June 30, 1976; 61 FR 32921, June 26, and (b) any quantity for which he is 1996] otherwise relieved by the Board of responsibility to so hold almonds. Upon § 981.50 Reserve obligation. demand of the Board reserve almonds Whenever salable and reserve per- shall be delivered to the Board f.o.b. centages are in effect for a crop year, handler’s warehouse or point of stor- each handler shall withhold from han- age, except that the Board shall not dling a quantity of almonds having a make such demand upon a handler with kernel weight equal to the reserve per- respect to reserve almonds for which he centage of the kernel weight of all al- has agreed to undertake disposition monds such handler receives for his pursuant to § 981.67. Any handler who own account during the crop year: Pro- does not act as agent for the Board in vided, That, any quantity of almonds the disposition of reserve almonds shall delivered to outlets such as poultry or be subject to the applicable inspection animal feed or crushing into oil, in a and certification requirements pre- manner permitting accountability to scribed by the Board pursuant to the Board, shall not be included in such § 981.67. receipts. The quantity of almonds hereby required to be withheld from han- [41 FR 26853, June 30, 1976] dling shall constitute, and may be referred to as the ‘‘reserve’’ or ‘‘reserve ob- § 981.54 Payment to handlers for serv- ligation’’ of a handler. The almonds ices rendered. handled as salable almonds by any han- The Board may pay handlers for nec- dler, in accordance with the provisions essary services rendered by them in of this part, shall be deemed to be that connection with almonds eventually handler’s quota fixed by the Secretary disposed of directly by the Board as re- within the meaning of section 8a(5) of serve including but not limited to stor- the act. ing, shelling, sorting, bleaching, grad- [41 FR 26853, June 30, 1976] ing, packaging, fumigating, and other

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services in accordance with such sched- § 981.59 Adjustment upon increase of ule of payments and under such condi- salable percentage. tions as may be established by the Sec- (a) Upon any increase in the salable retary after recommendation of the percentage and corresponding decrease Board. in the reserve percentage, the reserve § 981.55 Interhandler transfers. obligation of each handler for the entire crop year to the effective date of (a) Any handler may, upon notice to such action shall be computed in ac- and under the supervision and direc- cordance with such revised salable and tion of the Board, transfer almonds or reserve percentages. From the reserve reserve credits to another handler. Any almonds that may have been withheld such transfers shall be accounted for in such manner that the reserve obliga- by him and not yet disposed of, any tion and assessments on the combined handler authorized to act and acting as transactions of the participating han- agent of the Board in disposing of re- dlers shall be fully met and such reserve pursuant to § 981.66 shall be per- serve withholding obligation and as- mitted to select, under the supervision sessments may be divided between such and direction of the Control Board, the handlers in accordance with their ar- particular reserve almonds to be re- rangements subject to approval of the stored to his salable percentage, and Board. such restoration shall be deemed to ful- (b) When salable and reserve percent- fill the obligation of the Board with re- ages are in effect, any handler may spect to such increase. transfer reserve withholding obligation (b) In the case of handlers who have to other handlers. Terms and condi- not been authorized to dispose of their tions implementing this provision own reserves, and handlers who have must be recommended by the Board terminated their agencies to dispose of and approved by the Secretary. their own reserves, prior to an increase [35 FR 11372, July 16, 1970, as amended at 61 in the salable percentage, insofar as FR 32921, June 26, 1996] practicable each such handler shall be permitted to select almonds from his § 981.56 Assistance of Board in ac- own reserve to be restored to his sal- counting for reserve. able quantity. In the event there are The Board, on written request, may not sufficient reserve almonds held by assist handlers in accounting for their the Board at the time the salable per- reserve obligations and may aid any centage is increased, to make full res- handler in acquiring almonds to meet toration, as represented by the in- any deficiency in his reserve. crease in the salable percentage, to all such handlers, the restoration to the § 981.57 Application of salable and re- salable quantities of the respective serve percentages after end of crop handlers shall be pro rata on the basis year. of certified kernel weight poundage of The salable and reserve percentages reserve contributed by said handlers established for any crop year shall con- during the crop year to the date of in- tinue in effect with respect to all al- crease of the salable percentage: Pro- monds for which the reserve obligation vided, That restoration shall be made has not been previously met, which are in a manner that will result, to the ex- received for his own account or handled tent practicable, in a comparable per- by any handler after the end of such centage of reserve disposition for each crop year and before salable and re- such handler and that no handler shall serve percentages are established for the succeeding crop year. After such receive almonds in excess of his con- percentages are established for the new tribution. Such restoration to the sal- crop year, the withholding require- able quantity shall be deemed to fulfill ments for all such almonds theretofore the obligation of the Board with re- received for his own account or handled spect to the increase in the salable per- during that crop year shall be adjusted centage. to the newly established percentages.

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§ 981.60 Determination of kernel DISPOSITION OF RESERVE weight. § 981.65 Prohibition on the use or dis- (a) Almonds for which settlement is position of reserve almonds. made on kernel weight. All lots of al- Except as provided in §§ 981.66 and monds, whether shelled or unshelled, 981.67, almonds that are withheld as re- for which settlement is made on the serve pursuant to the requirements of basis of kernel weight shall be included § 981.50 or are creditable in satisfaction in the total kernel weight for any han- of a reserve withholding obligation dler at the settlement weight. thereunder, shall not be used or dis- (b) Almonds for which settlement is posed of by any handler or any other made on unshelled weight. The settle- person. ment weight for unshelled almonds shall be determined on the basis of rep- § 981.66 Conditions governing disposi- resentative samples of unshelled al- tion of reserve. monds reduced to shelled weight. (a) General. The Board shall have power and authority to sell or dispose [35 FR 11372, July 16, 1970, as amended at 61 of any and all reserve almonds with- FR 32921, June 26, 1996] held upon the best terms and at the § 981.61 Redetermination of kernel highest return obtainable consistent weight. with the ultimate complete disposition of reserve, subject to all conditions of The Board, on the basis of reports by this section. handlers, shall redetermine the kernel (b) Exclusion from salable normal trade weight of almonds received by each channels. No reserve almonds shall be handler for his own account during sold in the United States, Puerto Rico, each crop year through each of the fol- and the Canal Zone other than to gov- lowing dates: December 31, March 31, ernmental agencies or to charitable in- and June 30. Such redetermined kernel stitutions for charitable purposes, ex- weight for each handler shall be the cept for diversion into almond oil, al- basis for computing his reserve obliga- mond butter, poultry or animal feed, or tion for the crop year through such into other channels which the Board dates, except that adjustment shall be finds are noncompetitive with existing made for almonds on which the obliga- normal markets for almonds, and with tion has been assumed by another han- proper safeguards in each case to pre- dler. The redetermined kernel weight vent such almonds thereafter entering of each handler’s receipts, as of any the channels of trade in such normal date during the crop year, shall be his markets. carryover as of that date plus the (c) Disposition after December 31. Any reserve almonds remaining unsold as of weight of almonds delivered or used in December 31 shall be disposed of by the products minus the carryover at the Board as soon as practicable through beginning of the crop year, the weight the most readily available reserve out- on which another handler has assumed lets. The date of December 31 herein the obligations, and the weight deliv- specified may be extended to a later ered to exempt outlets. Weights used in date by the Secretary, upon rec- such computations for various classi- ommendation of the Board or other in- fications of almonds shall be: formation. (a) For unshelled almonds, the (d) Expenses. Direct expenses incurred kernelweight based on representative by the Board in the maintenance and samples reduced to shelled weight; disposition of reserve almonds shall be (b) For shelled almonds, the net charged against the proceeds of sales of weight; and such almonds. (c) For shelled almonds used in pro- (e) Distribution of proceeds. Net production of almond products, the net ceeds from the disposition of reserve weight of such almonds. almonds by the Board shall be distributed to each handler in proportion to [41 FR 26853, June 30, 1976, as amended at 61 his relative share of such disposition in FR 32921, June 26, 1996] terms of creditable reserve kernel

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weight pursuant to § 981.51 or such does not terminate his agency as of other basis as the Board may adopt April 1, he shall be required to con- with the approval of the Secretary. tinue to serve as such agent until De- [35 FR 11372, July 16, 1970, as amended at 37 cember 31 of the next crop year. The FR 3984, Feb. 25, 1972; 41 FR 26854, June 30, Board shall not terminate such an 1976; 61 FR 32921, June 26, 1996] agency prior to December 31 unless the agent violates the terms and condi- § 981.67 Disposition by handler. tions specified by the Board or other Upon request of a handler, made provisions of the order. During the pe- prior to the delivery by him of any re- riod of such agency the Board, as prin- serve to the Board in any crop year, cipal, shall not dispose of the reserve the Board shall authorize such handler withheld from handling by said agent. to act as agent of the Board, upon such The Board, with the approval of the reasonable terms and conditions, in- Secretary may prescribe such rules and cluding inspection and certification re- regulations as are necessary to regu- quirements, as the Board may specify late disposition of reserve almonds in- and subject to the conditions of § 981.66 cluding methods for crediting as rein disposing of the reserve withheld serve any salable almonds sold and de- from handling by such handler for that livered to reserve outlets. crop year. Any handler who is authorized to dispose of his reserve may, [35 FR 11372, July 16, 1970, as amended at 61 through arrangement with another FR 32921, June 26, 1996] handler dispose of such reserve through such other handler or, in lieu of dis- RECORDS AND REPORTS position, may acquire credits for reserve disposition from another handler. § 981.70 Records and verification. In the first instance, the second han- Each handler shall keep records dler shall also be subject to the condi- which will clearly show the details of tions of § 981.66. It shall be the obliga- his or her receipts of almonds, tion of any handler authorized to dis- withholdings, sales, shipments, inven- pose of such reserve to effect disposi- tories, reserve disposition, advertising tion thereof in accordance with all ap- and promotion activities, as well as plicable requirements and conditions. other pertinent information regarding The proceeds of such disposition shall his or her operation pursuant to the be retained by the handler making the provisions of this part: Provided, that, disposition, except that, in case he dis- such records shall be kept in the State poses of the reserve of another handler, of California. Such records shall be re- the proceeds from that disposition tained by the handler for 2 years after shall be divided between the two handlers on the basis of a mutual agree- the end of the crop year to which they ment. Such authorization shall expire apply. Each handler’s premises shall be as of December 31 of the next crop accessible to authorized representa- year, and any reserve then remaining tives of the Board and the Secretary undisposed of by the handler shall be for examination and audit of the afore- returned to the Board. If the date of said records and for inspection and ob- December 31 specified in § 981.66(e) is servation of almonds. The Board shall extended, the date of December 31 shall make such checks of almonds or audits be extended correspondingly. Any han- of each handler’s records as it deems dler who has been authorized to act as appropriate or are requested by the agent of the Board in disposing of his Secretary to insure that accurate in- reserve may terminate such agency as formation as required in this part is of April 1 of the particular crop year by being furnished by handlers. giving written notice to the Board to that effect not later than the previous [35 FR 11372, July 16, 1970, as amended at 37 March 20, in which event such handler FR 3984, Feb. 25, 1972; 61 FR 32921, June 26, shall return to the Board, for disposi- 1996] tion by it, all reserve almonds remaining in his possession. In case a handler

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§ 981.71 Record of receipts. spectively, such information as may be For the purpose of establishing the prescribed by the Board for use in rede- reserve obligation and furnishing sta- termination of kernel weight and mar- tistical information to the Board nec- keting policy considerations. essary for the conduct of its oper- [35 FR 11372, July 16, 1970, as amended at 61 ations, each handler, on receiving al- FR 32922, June 26, 1996] monds for his own account, shall issue to the person from whom so received a § 981.74 Other reports. receipt therefor. At least two dupli- Upon the request of the Board, made cates thereof shall be made at the time with the approval of the Secretary, of issuance, one of which shall be re- every handler shall furnish to the tained by the handler as a part of his Board in such manner and at such records and the other submitted to the times as it prescribes (in addition to Board as hereinafter provided. Such re- such other reports as are specifically ceipts shall be serially numbered and provided for in this part) such other in- shall accurately show for each lot re- formation as will enable the Board to ceived, the identity of the handler, the perform its duties and exercise its pow- name and address of the person from ers hereunder. whom received, the number of containers in the lot, the variety, whether § 981.75 Confidential nature of records shelled or unshelled, and the settle- and reports. ment weight for each such variety. The All information contained in handler character and amount of all adjust- records made available to the Board or ments deducted from the gross weight the Secretary, or in reports to the shall be shown with the gross weight Board, constituting a trade secret or on the receipt issued by the handler. disclosing the trade position, financial EFFECTIVE DATE NOTE: At 40 FR 4416, Jan. condition, or business operations of 30, 1975, § 981.71 was suspended indefinitely. any handler shall be considered as confidential information. Such informa- § 981.72 Reports of receipts. tion received by the Board, shall be Each handler receiving almonds for kept in the custody and under the con- his own account shall tabulate such re- trol of one or more employees of the ceipts by varieties and shall submit re- Board, who shall disclose such informa- ports thereof to the Board in such form tion to no person except the Secretary. and at such intervals as the Board may prescribe for all receipts issued by him. § 981.76 Handler list of growers. Such reports shall be accompanied by No later than December 31 of each duplicate copies of the receipts issued crop year, each handler other than a pursuant to the provisions of § 981.71 for cooperative handler (hereinafter, re- all almonds included in such report. ferred to as independent handler) gov- The Board, after checking such reports erned by this subpart shall, upon rein such manner as it deems desirable, quest, submit to the Board a complete shall determine in the manner speci- list of growers who have delivered al- fied in § 981.60 the kernel weight of the monds to such independent handler almonds so received. during that crop year.

EFFECTIVE DATE NOTE: At 40 FR 4416, Jan. [61 FR 32921, June 26, 1996] 30, 1975, in § 981.72, the second sentence was suspended indefinitely. EXPENSES AND ASSESSMENTS

§ 981.73 Periodic reports. § 981.80 Expenses. On or before January 15, and April 15, The Board is authorized to incur such and August 15 of each crop year, each expenses as the Secretary may find are handler shall file with the Board a reasonable and likely to be incurred by written report, certified to the Board it during each crop year, for the main- and to the Secretary by such handler tenance and functioning of the Board, as to its completeness and correctness, including the accumulation and main- showing as of the close of business on tenance of an operating reserve fund, December 31, March 31, and July 31, re- and for such purposes as the Secretary

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may, pursuant to the provisions of this later than the fifth month the amount subpart, determine to be appropriate. not expended from assessments col- The recommendation of the Board as to lected for administrative-research in the expenses for each such year, to- the previous crop year shall be retained gether with all data supporting such in the operating reserve fund. Any recommendation, shall be submitted to amounts, not credited pursuant to the Secretary on or before August 1 of § 981.41 for a crop year may be used by the crop year in connection with which the Board for its marketing promotion such recommendation is made. expenses of the succeeding crop year, [35 FR 11372, July 16, 1970, as amended at 37 and any unexpended portion of those FR, 3984, Feb. 25, 1972] amounts at the end of that crop year shall be retained in the marketing pro- § 981.81 Assessment. motion portion of the operating reserve (a) Requirement for payment. Each fund. Any funds in each portion of the handler shall pay to the Board on de- operating reserve fund in excess of the mand by the Board, from time to time, level authorized pursuant to paragraph such sum less any amounts credited (c) of this section shall be refunded to pursuant to § 981.41, based on such rate handlers or used to reduce the assess- per pound of almonds, kernel weight basis, received by him for his own ac- ment rate of the subsequent crop year, count (except as to receipts from other as the Board may determine. Each han- handlers on which assessments have dler’s share of a refund shall be the been paid) as the Secretary finds is amount by which his payment of as- necessary to provide funds to meet the sessments exceeds his pro rata share of authorized board expenses and the op- the two major classifications of Board erating reserve requirements, and es- expenses. For the purpose of computing tablishes for the crop year. Upon rede- any refund from the marketing pro- termination of the kernel weight of al- motion portion, each handler’s pay- monds received by handlers for their ment of assessments shall include any own account as provided in § 981.61, amount credited to the handler pursu- such redetermined kernel weight for ant to § 981.41. In lieu of a refund, each each handler, adjusted for receipts on handler may have the amount due him which assessments have been paid, credited to his assessment obligation of shall be the basis upon which he shall the crop year in which the amount pay assessments. At any time during or would be refunded. after a crop year, the Secretary may (c) Reserves. The Board may maintain increase the rate of assessments to apply to all such almonds during such an operating reserve fund consisting of crop year to secure sufficient funds to an administrative-research portion and cover the expenses authorized by a marketing promotion portion. The § 981.80 or by any later finding by the amount in each portion shall not ex- Secretary relative to the expenses of ceed approximately six-months’ budget the Board, and such additional assess- for the activity area or such lower ments shall be paid to the Board by amount as the Board may establish each handler on demand. The payment with the approval of the Secretary: of assessments for the maintenance Provided, That this limitation shall not and functioning of the Board may be restrict the temporary retention of ex- required under this part throughout cess funds for the purpose of stabilizing the period it is in effect irrespective of or reducing the assessment rate of a whether particular provisions thereof crop year. To the extent that funds are suspended or become inoperative. from current crop year assessments are (b) Refunds. Any money collected as inadequate, funds in the operating re- assessments for either the administra- serve may be used for the authorized tive (maintenance and functioning) or activities of the crop year. Funds so research activities of the Board and used, and not exceeding the six-month not used for the expenses of the appli- limitation, shall be replaced to the ex- cable crop year, may be used in paying tent practicable from assessments sub- the Board’s expenses of the first four sequently collected for the crop year. months of the succeeding crop year. No

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(d) Disposition of funds upon termi- § 981.88 Duration of immunities. nation. Any money collected from as- The benefits, privileges, and immuni- sessments hereunder and remaining un- ties conferred upon any person by vir- expended in possession of the Board tue of this subpart shall cease upon its upon the termination of this part shall termination except with respect to acts be distributed in such manner as the done under and during its existence. Secretary may direct. (e) Any assessment not paid by a § 981.89 Agents. handler within a period of time pre- The Secretary may, by a designation scribed by the Board may be subject to in writing, name any person, including an interest or late payment charge or any officer or employee of the United both. The period of time, rate of inter- States Government, or name any bu- est and late payment charge shall be as reau or division of the United States recommended by the Board and ap- Department of Agriculture, to act as proved by the Secretary. Subsequent to his agent or representative in connec- such approval, all assessments not paid tion with any of the provisions of this within the prescribed period of time subpart. shall be subject to an interest or late payment charge or both. § 981.90 Effective time, suspension, or termination. [35 FR 11372, July 16, 1970, as amended at 37 FR 3984, Feb. 25, 1972; 41 FR 26854, June 30, (a) Effective time. The provisions of 1976; 61 FR 32921, June 26, 1996] this subpart, as well as any amendments to this subpart, shall become ef- MISCELLANEOUS PROVISIONS fective at such time as the Secretary may declare, and shall continue in § 981.85 Personal liability. force until terminated or suspended in No member or alternate member of one of the ways hereinafter specified in the Board, or any employee or agent this section. thereof, shall be held personally re- (b) Suspension or termination—(1) Fail- sponsible, either individually or jointly ure to effectuate policy of act. The Sec- with others, in any way whatsoever, to retary shall terminate or suspend the any handler or any other person for er- operation of any or all of the provi- rors in judgment, mistakes, or other sions of this subpart, whenever he finds acts either of commission or omission, that such provisions do not tend to ef- as such member, alternate member, fectuate the declared policy of the act. agent, or employee, except for acts of (2) The Secretary shall conduct a ref- dishonesty. erendum as soon as practical after the end of the fiscal year ending two years § 981.86 Separability. after implementation of this amendment, and at such time every fifth year If any provision of this subpart is de- thereafter, to ascertain whether con- clared invalid, or the applicability tinuation of the order is favored by thereof to any person, circumstance, or growers who have been engaged in the thing is held invalid, the validity of the production of almonds for market remainder hereof or the applicability within the State of California during thereof to any other person, cir- the current crop year. cumstance, or thing shall not be af- (3) When favored by growers. The Sec- fected thereby. retary shall terminate the provisions of this subpart at the end of any crop § 981.87 Derogation. year whenever he finds that such ter- Nothing contained in this subpart is, mination is favored by a majority of or shall be construed to be, in deroga- the growers of almonds who during the tion or in modification of the rights of crop year have been engaged in the pro- the Secretary or of the United States duction for market of almonds in the to exercise any powers granted by the State of California: Provided, That such act or otherwise, or, in accordance majority have during such period pro- with such powers, to act in the prem- duced for market more than 50 percent ises whenever such action is deemed of the volume of such almonds pro- advisable. duced for market within said State;

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but such termination shall be effected which shall have arisen or which may only if announced on or before July 1 of thereafter arise in connection with any the then current crop year. provision of this subpart or any regula- (4) If enabling legislation is terminated. tion issued under this subpart, or (b) The provisions of this subpart shall, in release or extinguish any violation of any event, terminate whenever the pro- this subpart or of any regulation issued visions of the act authorizing them under this subpart, or (c) affect or im- cease to be in effect. pair any rights or remedies of the Sec- (c) Proceedings after termination—(1) retary or of any other person, with re- Designation of trustees. Upon the termi- spect to any such violation. nation of the provisions of this subpart, the members of the Board then § 981.92 Amendments. functioning shall continue as joint Amendments to this subpart may be trustees, for the purpose of liquidating proposed, from time to time, by any the affairs of the Board, of all funds person or by the Board. and property then in the possession or under the control of the Board, includ- EDITORIAL NOTE: After January 1, 1979, ‘‘Budget of Expenses and Rate of Assessment’’ ing claims for any funds unpaid or regulations (e.g., sections .300 through .399) property not delivered at the time of and ‘‘Marketing percentage’’ regulations (e.g., such termination. Action by said trust- sections .200 through .299) which are in effect eeship shall require the concurrence of for a year or less, will not be carried in the a majority of the said trustees. Code of Federal Regulations. For FEDERAL (2) Duties of trustees. Said trustees REGISTER citations affecting these regula- shall continue in such capacity until tions, see the List of CFR Sections Affected, which appears in the Finding Aids section of discharged by the Secretary; shall, the printed volume and at www.fdsys.gov. from time to time, account for all receipts and disbursements and deliver all property on hand, together with all Subpart—Assessment Rates books and records of the Board and the § 981.343 Assessment rate. joint trustees, to such person as the Secretary may direct; and shall, upon On and after August 1, 2005, an as- request of the Secretary, execute such sessment rate of $0.030 per pound is es- assignments or other instruments nec- tablished for California almonds. Of essary or appropriate to vest in such the $0.030 assessment rate, 60 percent person full title and right to all of the per assessable pound is available for funds, property, and claims vested in handler credit-back. the Board or the joint trustees pursu- [70 FR 43273, July 27, 2005] ant thereto. (3) Obligations of persons other than Subpart—Administrative Rules and board members and trustees. Any person Regulations to whom funds, property, or claims have been transferred or delivered by § 981.401 Adjusted kernel weight. the Board or its members, pursuant to (a) Definition. Adjusted kernel weight this section, shall be subject to the shall mean the actual gross weight of same obligations imposed upon the any lot of almonds: Less weight of con- members of the said Board and upon tainers; less moisture of kernels in ex- the said joint trustees. cess of five percent; less shells, if appli- [35 FR 11372, July 16, 1970, as amended at 61 cable; less processing loss of one per- FR 32921, June 26, 1996] cent for deliveries with less than 95 percent kernels; less trash or other for- § 981.91 Effect of termination or eign material. The adjusted kernel amendment. weight shall be determined by sam- Unless otherwise expressly provided pling certified by the inspection agen- by the Secretary, the termination of cy. this subpart or of any regulation issued (b) Computation. The computation of pursuant to this subpart, or the adjusted kernel weight shall be in the issuance of any amendment to either manner shown in the following exam- thereof, shall not (a) affect or waive ples. The examples are based on the any right, duty, obligation, or liability analysis of a 1,000 gram sample taken

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from a lot of almonds weighing 10,000 nels, seven percent. Excess moisture is pounds with less than 95 percent ker- two percent. The second computation nels, and a 1,000 gram sample taken example is for the lot with 95 percent from a lot of almonds weighing 10,000 or more kernels containing the fol- pounds with 95 percent or more ker- lowing: Edible kernels, 840 grams; ined- nels. The first computation example is ible kernels, 120 grams; foreign mate- for the lot with less than 95 percent rial, 40 grams; and moisture content of kernels containing the following: Edi- kernels, seven percent. Excess mois- ble kernels, 530 grams; inedible ker- ture is two percent. The example com- nels, 120 grams; foreign material, 350 putations are as follows: grams, and moisture content of ker-

Computation No. 1 Computation No. 2 Deliveries with less than 95 Deliveries with 95 percent percent kernels or more kernels Percent of Weight Percent of Weight sample (pounds) sample (pounds)

1. Actual gross weight of delivery ...... 10,000 ...... 10,000 2. Percent of edible kernel weight ...... 53.0 ...... 84.0 ...... 3. Less weight loss in processing 1 ...... 1.00 ...... 0 ...... 4. Less excess moisture of edible kernels (excess moisture×line 2)... 1.06 ...... 1.68 ...... 5. Net percent shell out (line 2 ¥ lines 3 and 4) ...... 50.94 ...... 82.32 ...... 6. Net edible kernels (line 5×line 1) ...... 5,094 ...... 8,232 7. Percent of inedible kernels (from sample) ...... 12.0 ...... 12.0 ...... 8. Less excess moisture of inedible kernels (excess moisture from sample×line 7)...... 24 ...... 24 ...... 9. Net percent inedible kernels (line 7¥line 8) ...... 11.76 ...... 11.76 ...... 10. Total inedible kernels (line 9×line 1) ...... 1,176 ...... 1,176 11. Adjusted kernel weight (line 6+line 10) ...... 6,270 ...... 9,408 1 Only applies to deliveries with less than 95 percent kernels.

[45 FR 68630, Oct. 16, 1980, as amended at 61 FR 42991, Aug. 20, 1996]

§ 981.408 Inedible kernel. ance with section 1392 of the regulations of the California Department of Pursuant to § 981.8, the definition of Food and Agriculture shall be con- inedible kernel is modified to mean a kernel, piece, or particle of almond strued as ‘‘roadside’’ sales for the pur- kernel with any defect scored as seri- pose of § 981.13 where these conditions ous damage, or damage due to mold, are met. gum, shrivel, or brown spot, as defined [50 FR 30264, July 25, 1985] in the United States Standards for Shelled Almonds, or which has embed- § 981.441 Credit for market promotion ded dirt or other foreign material not activities, including paid adver- easily removed by washing: Provided, tising. That the presence of web or frass shall (a) In order for a handler to receive not be considered serious damage for credit for his/her own promotional ac- the purposes of determining inedible tivities from his/her pro rata portion of kernels, pieces, or particles of almond advertising assessment payments, pur- kernels. suant to § 981.41(c), the Board must de- [59 FR 39419, Aug. 3, 1994] termine that such expenditures meet the applicable requirements of this sec- § 981.413 Roadside stand exemption. tion. Credit will be granted either in The term at retail at a roadside stand the form of a payment from the Board, as used in § 981.13 shall be defined to or as an offset to that portion of the mean sales for home use and not for re- assessment if activities are conducted sale which are not in excess of 100 and documented to the satisfaction of pounds net kernel weight to any one the Board at least 2 weeks prior to the customer per day. Sales of almonds at Board’s first and second assessment certified farmers’ markets in compli- billings, and at least 3 weeks prior to

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the Board’s third and fourth assess- (3) No Credit-Back will be given for ment billings in a crop year. Credit, advertising placed in publications that hereinafter termed ‘‘Credit-Back’’, will target the farming or grower trade. No be granted in an amount not to exceed Credit-Back shall be given for any out- 662⁄3 percent of a handler’s proven ex- door advertising in California almond penditures for qualified activities. growing counties with more than 1,000 (b) The portion of the handler assess- bearing acres: Provided, That outdoor ment for which credit may be received advertising in these counties which under this section will be billed, and is specifically directs consumers to a due and payable, at the same time as handler-operated outlet offering direct the portion of the handler assessment purchase of almonds will be eligible for used for the Board’s administrative ex- Credit-Back. penses, unless the handler(s) conduct (4) Credit-Back shall be granted for and document activities at least 2 those qualified activities specified weeks prior to the first and second as- below, except that Credit-Back will not sessment billings and 3 weeks prior to be allowed in any case for travel ex- the third and fourth assessment bil- penses, or for any promotional activi- lings. If the handler(s) conduct activities that result in price discounting. ties and submit documentation accord- (i) Paid advertising directed to ending to applicable provisions in this sec- users, trade or industrial users. Credit- tion, their advertising assessment obli- Back shall be granted for money spent gation will be reduced according to the on paid advertising space or time in- amount of proven activities approved cluding, but not limited to, news- by the Board. papers, magazines, radio, television, (c) The Board shall grant Credit-Back transit and outdoor media, and includ- for qualifying activities only to the ing the standard agency commission handler who performed such activities costs not to exceed 15 percent of gross. (ii) Other market promotion activities. and who filed a claim for Credit-Back Credit-Back shall be granted for marin accordance with this section. ket promotion other than paid adver- (d) Credit-Back shall be granted only tising, for the following activities: for qualified promotional activities (A) Marketing research (except pre- which are conducted and completed testing and test-marketing of paid ad- during the crop year for which Credit- vertising); Back is requested. (B) Trade and consumer product pub- (e) The following requirements shall licity: Provided, That no Credit-Back apply to Credit-Back for all pro- shall be given for related fees charged motional activities: by an advertising or public relations (1) Credit-Back granted by the Board agency; shall be that which is appropriate when (C) Printing costs for promotional compared to accepted professional material; practices and rates for the type of ac- (D) Direct mail printing and distribu- tivity conducted. In the case of claims tion; for Credit-Back activities not covered (E) Retail in-store demonstrations; by specific and established criteria, the (F) Point-of-sale materials (not in- Board shall grant the claim if it is concluding packaging); sistent with practices and rates for (G) Sales and marketing presentation similar activities. To this end, the kits; Board may issue guidelines for quali- (H) Trade fairs and exhibits; fying activities from time to time as (I) 50/50 advertising with retailers; warranted. For activities in markets (J) Couponing (printing, distribution, other than the United States and Can- and handling costs only); and ada, paragraph (e)(5) of this section (K) Development and use of web-site shall also apply. on the Internet for advertising and (2) The clear and evident purpose of public relations purposes, including E- each activity shall be to promote the commerce (mail ordering through the sale, consumption or use of California Internet): Provided, That Credit-Back almonds, and nothing therein shall de- shall be limited to $20,000 per year for tract from this purpose. such activities, and no credit shall be

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given for costs for E-commerce admin- it-Back, and has on record with the istration, Extranet (restricted Web Board all claims for reimbursement sites within the Internet), Intranet made to FAS and/or the CDFA. Foreign (inter-office communication network), market expenses paid by third parties or portions of a web-site that target as part of a handler’s contract with the farming or grower trade. FAS or CDFA will not be eligible for (iii) For any qualified activity in- Credit-Back. volving joint participation by a han- (6) A handler must file claims with dler and a manufacturer or seller of a the Board to obtain Credit-Back for complementary product(s), or a han- promotional expenditures, as follows: dler selling multiple complementary (i) All claims submitted to the Board products, including other nuts, with for any qualified activity must include: such activity including the handler’s (A) A description of the activity and name or brand, or the words ‘‘California when and where it was conducted; Almonds , the amount allowed for ’’ (B) Copies of all invoices from sup- Credit-Back claim shall reflect that pliers or agencies; portion of the activity represented by almonds, or the handler’s actual pay- (C) Copies of all canceled checks ment, whichever is less. issued by the handler in payment of (iv) Except as otherwise provided in these invoices; and paragraph (e)(4)(v) of this section, when (D) An actual sample, picture or products containing almonds are pro- other physical evidence of the activity. moted, the amount allowed for Credit- (ii) Handlers may receive credit Back shall reflect that portion of the against their assessment obligation up product weight represented by al- to the advertising amount of the as- monds, or the handler’s actual pay- sessment installment due: Provided, ment, whichever is less: Provided, That, That handlers submit the required doc- except for mixed nut products, the umentation for a qualified activity at amount of Credit-Back for qualified least 2 weeks prior to the mailing of promotional activities for products the Board’s first and second assessment containing almonds shall be granted at notices, and at least 3 weeks prior to 662⁄3 percent of proven expenditures, if the mailing of the Board’s third and the product is owned or distributed by fourth assessment notices in a crop the handler and such ownership or dis- year. In all other instances, handlers tributorship is stated on the package: must remit the advertising assessment Provided Further, That to receive any to the Board when billed, and a refund level of credit, the product must dis- will be issued to the extent of proven, play the handler’s name, the handler’s qualified activities. brand, or the words ‘‘California Al- (iii) Checks from the Board in pay- monds’’ on the primary, face label. ment of approved Credit-Back claims (5) Credit-Back for promotional ac- will be mailed to handlers on February tivities in a foreign market shall be 15, April 15, June 15, and 30 days after granted at 662⁄3 percent of a handler’s submission of final claims for the crop unreimbursed expenditures for quali- year pursuant to paragraph (e)(6)(iv) of fied activities in any foreign market, if this section. To receive payment on the handler is promoting pursuant to a these dates, handler claims must be contract with the Foreign Agricultural submitted, with all required elements, Service, USDA (FAS) and/or the Cali- at least one month prior to the pay- fornia Department of Food and Agri- ment date. A handler can receive Cred- culture (CDFA). Such activities must it-Back for his/her allowable direct ex- also meet the requirements of para- penditures only up to the amount of graphs (e)(1), (2), (3), (4), and (6) of this that portion of the handler’s assess- section. Unless the Board is admin- ment designated for marketing pro- istering the foreign marketing promotion, including paid advertising. gram, such activities shall not be eligi- (iv) A statement of the Credit-Back ble for Credit-Back unless the handler commitments outstanding as of the certifies that he/she was not and will close of a crop year must be submitted not be reimbursed by either FAS or the in full to the Board within 15 days after CDFA for the amount claimed for Cred- the close of that crop year. Final

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claims pertaining to such commit- the mechanical sampling procedures. ments outstanding must be submitted For all other receipts, including but with all required elements within 76 not limited to field examination and days after the close of that crop year. purchase receipts, accumulations pur- All other final claims for which no chased for cash at the handler’s door or statement of Credit-Back commit- from an accumulator, or almonds of ments outstanding has been filed must the handler’s own production, sampling be submitted by August 15 of that cal- shall be conducted or monitored by the endar year. inspection agency in a manner accept- (f) Appeals. If a determination is able to the Board. All samples shall be made by the Board staff that a par- bagged and identified in a manner ac- ticular promotional activity is not eli- ceptable to the Board and the inspec- gible for Credit-Back because it does tion agency. not meet the criteria specified herein, (2) Variety. For the purpose of or for any other reason, the affected classifying receipts by variety to deter- handler may request the Public Rela- mine a handler’s disposition obligations and Advertising Committee to re- tion, ‘‘variety’’ shall mean that variety view the Board staff’s decision. If the of almonds which constitutes at least affected handler disagrees with the de- 90 percent of the lot: Provided, That cision of the Public Relations and Ad- lots containing a combination of Butte vertising Committee, the handler may and Padre varieties only, shall be clas- request that the Board review the Com- sified as ‘‘Butte-Padre’’, regardless of mittee decision. If the handler dis- the percentage of each variety in the agrees with the decision of the Board, lot. If no variety constitutes at least 90 the handler, through the Board, may percent of the almonds in a lot, the lot request that the Secretary review the shall be classified as ‘‘mixed’’: Provided Board’s decision. Handlers have the further, That if the variety or varieties right to request anonymity in the re- of almonds in a lot are not identified, view of their appeal. The Secretary the lot shall be classified as ‘‘mixed’’, maintains the right to review any deci- regardless of the percentage of each va- sions made by the aforementioned bod- riety in a lot. ies at his/her discretion. (3) Analysis of sample. Each sample [59 FR 35233, July 11, 1994, as amended at 64 shall be analyzed by or under the sur- FR 41028, July 29, 1999; 64 FR 58766, Nov. 1, veillance of the inspection agency to 1999; 70 FR 36818, June 27, 2005] determine the kernel content and the proportion of inedible kernels in the § 981.442 Quality control. sample. The inspection agency shall (a) Incoming. Pursuant to § 981.42(a), prepare a report for each handler show- the quantity of inedible kernels in each ing, by variety, the total adjusted ker- variety of almonds received by a han- nel weight received by handler, the in- dler, including almonds of his own pro- edible kernel weight and any other in- duction, shall be determined and dis- formation as the Board may prescribe. posed of in accordance with the provi- The report shall cover the handler’s sions of this paragraph. daily receipt or the handler’s total re- (1) Sampling. Each handler shall cause ceipts during a period not exceeding a representative sample of almonds to one week, and shall be submitted by be drawn from each lot of any variety the inspection agency to the Board and received. The sample shall be drawn be- the handler. fore inedible kernels are removed from (4) Disposition obligation. (i) Beginning the lot, or the lot is processed or stored August 1, 2006, the weight of inedible by the handler. For receipts at prem- kernels in excess of 0.50 percent of ker- ises with mechanical sampling equip- nel weight reported to the Board of any ment and under contracts providing for variety received by a handler shall con- payment by the handler to the pro- stitute that handler’s disposition obli- ducer for sound meat content, samples gation. For any almonds sold inshell, shall be drawn by the handler in a the weight may be reported to the manner acceptable to the Board and Board and the disposition obligation the inspection agency. The inspection for that variety reduced proportion- agency shall make periodic checks of ately.

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(ii) If a sufficient sample is not avail- tion shall be satisfied with dispositions able for any lot of almonds, the handler consisting of inedible kernels as de- may establish and substantiate, to the fined in § 981.408: Provided, That this 50 satisfaction of the Board, the received percent requirement shall not apply to weight, the edible and inedible kernel handlers with total annual obligations weights, and the adjusted kernel of less than 1,000 pounds. Each han- weight by providing sufficient informa- dler’s disposition obligation shall be tion as the Board may prescribe. If the satisfied when the almond meat con- handler is only able to establish and tent of the material delivered to ac- substantiate the approximate received cepted users equals the disposition ob- weight, an inedible disposition obliga- ligation, but no later than September tion of 10 percent of such received 30 succeeding the crop year in which weight may be applied, upon agreement the obligation was incurred. between the Board and the handler. (6) Inedible almonds unfit for proc- (5) Meeting the disposition obligation. essing. All lots received from growers Each handler shall meet its disposition as ‘‘inedible almonds unfit for proc- obligation by delivering packer essing,’’ shall be exempt from the re- pickouts, kernels rejected in blanch- quirements of paragraphs (a) (1) and (3) ing, pieces of kernels, meal accumu- of this section, but shall be disposed of lated in manufacturing, or other mate- in their entirety (other than as rial, to crushers, feed manufacturers, pickouts), as provided in paragraph feeders, or dealers in nut wastes on (a)(5) of this section. Disposition of record with the Board as accepted these lots shall not be credited toward users. Handlers shall notify the Board the disposition obligation of paragraph at least 72 hours prior to delivery: Pro- (a)(4) of this section. If a grower sells vided, That the Board or its employees or ships inedible almonds to a person may lessen this notification time other than a handler, the grower there- whenever it determines that the 72 by becomes a handler and subject to all hour requirement is impracticable. The the requirements of this paragraph. Board may supervise deliveries at its (7) Accepted Users. An accepted user’s option. In the case of a handler having eligibility shall be subject to the fol- an annual total obligation of less than lowing criteria: 1,000 pounds, delivery may be to the (i) Completion of an application with Board in lieu of an accepted user, in the Board for accepted user status; which case the Board would certify the (ii) Submission of a business data disposition lot and report the results to sheet to the Board; and the USDA. For dispositions by handlers (iii) The accurate and prompt sub- with mechanical sampling equipment, mission of ABC Form 8 Part B to the samples may be drawn by the handler Board for each lot of almonds received, in a manner acceptable to the Board supported by a public weighmaster and the inspection agency. For all weight certificate issued at the request other dispositions, samples shall be of the accepted user at the time of re- drawn by or under supervision of the ceipt. inspection agency. Upon approval by (iv) The Board may deny or revoke the Board and the inspection agency, accepted user status at any time if the sampling may be accomplished at the applicant or accepted user fails to meet accepted user’s destination. The edible the terms and conditions of § 981.442, or and inedible almond meat content of if the applicant or accepted user fails each delivery shall be determined by to meet the terms and conditions set the inspection agency and reported by forth in the accepted user application the inspection agency to the Board and (ABC Form 34). the handler. The handler’s disposition (v) The eligibility of accepted users obligation will be credited upon satis- shall be reviewed annually by the factory completion of ABC Form 8. Board. Handlers will not receive credit ABC Form 8, Part A, is filled out by towards their disposition obligations the handler, and Part B by the accept- pursuant to paragraph (a)(4) of this sec- ed user. Beginning August 1, 2006, at tion for lots where the difference be- least 50 percent of a handler’s total tween the weight of the lot reported by crop year inedible disposition obliga- the inspection agency on ABC Form 8

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and the weight of the lot reported on priate processes for the treatment of the public weighmaster weight certifi- almonds as defined in paragraph (b)(1) cate exceeds 2.0 percent. of this section, and meets the following (b) Outgoing. Pursuant to § 981.42(b), criteria: beginning September 1, 2007, and except (A) Knowledge about the equipment as provided in § 981.13 and in paragraph used for the treatment process; (b)(6) of this section, handlers shall (B) Experience in conducting appro- subject their almonds to a treatment priate studies to determine the ability process or processes prior to shipment of the equipment to deliver the appro- to reduce potential Salmonella bacteria priate treatment (such as heat penetra- contamination in accordance with the tion or heat distribution); and provisions of this section. (C) Able to determine that sufficient (1) Treatment process. Treatment proc- data has been gathered to identify the esses shall utilize technologies that critical factors needed to ensure the have been determined to achieve in quality of the final product. total a minimum 4-log reduction of Sal- (iii) Process authorities may be em- monella bacteria in almonds, pursuant ployees of the entity for which they are to a letter of determination issued by conducting validation. The Board shall the Food and Drug Administration provide process authorities specific (FDA), or acceptance by a scientific re- protocols and parameters for treat- view panel as identified by the Board ment processes that are FDA deter- (Technical Expert Review Panel or mined or TERP accepted. ‘‘TERP’’). Such panel shall be approved (iv) Process authorities must submit at least annually by the Board prior to an initial application to the Board on the beginning of each crop year, or as ABC Form No. 51, ‘‘Application for needed during the crop year. Process Authority for Almonds,’’ and be (2) On-site versus off-site treatment. approved by the TERP. Should the ap- Handlers shall subject almonds to a plicant disagree with the TERP’s deci- treatment process or processes prior to sion concerning approval, the applicant shipment either at their handling facil- may appeal the decision in writing to ity (on-site), or at an off-site treatment the Board, and ultimately to USDA. facility located within the production For subsequent crop years, approved area. Transportation of almonds by a applicants with no changes to their ini- handler to an off-site treatment facil- tial application must send the Board a ity shall not be deemed a shipment. letter, signed and dated, indicating (3) Validation by process authorities. that there are no changes to the appli- Handlers shall only use, or transport cation the Board has on file. their almonds to off-site treatment fa- (v) The TERP may revoke any ap- cilities that use treatment processes proval for cause. The TERP shall no- that have been validated by a Board- tify the process authority in writing of approved process authority. Treatment the reasons for revoking the approval. technology and equipment that have Should the process authority disagree been modified to a point where oper- with the TERP’s decision, he/she may ating parameters such as time, tem- appeal the decision in writing to the perature, or volume change, shall be Board, and ultimately to USDA. A revalidated. process authority whose approval has (i) Validation means that the treat- been revoked must submit a new appli- ment technology and equipment have cation to the TERP and await ap- been demonstrated to achieve in total proval. a minimum 4-log reduction of Sal- (4) Compliance and verification. In ac- monella bacteria in almonds. Validation cordance with the requirements of this data prepared by a Board-approved paragraph, handlers shall utilize either process authority must be submitted to an on-site verification program (tradi- and accepted by the TERP for each tional), or an audit-based verification piece of equipment used to treat al- program to ensure that their almonds monds prior to its use under the pro- have been subjected to a treatment gram. process to reduce Salmonella bacteria (ii) A process authority is a person prior to shipment. Each handler may that has expert knowledge of appro- decide which verification program

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would be the most cost-effective for his and maintaining documentation to or her operation. that effect. (i) By May 31, each handler shall sub- (v) An off-site treatment facility that mit to the Board a Treatment Plan for does not handle almonds, pursuant to the upcoming crop year. A Treatment § 981.16, shall provide access to the in- Plan shall describe how a handler plans spection agency and Board staff for to treat his or her almonds, and must verification of treatment and review of address specific parameters as outlined treatment records. A treatment proc- by the Board for the handler to ship al- ess at an off-site treatment facility monds. Such plan shall be reviewed by that has been validated by a Board ap- the Board, in conjunction with the in- proved process authority is deemed to spection agency, to ensure it is com- be approved by the Board for handler plete and can be verified, and be ap- use. The Board may revoke any such proved by the Board. Almonds sent by approval for cause. The Board shall no- a handler for treatment to an off-site tify the off-site treatment facility of facility affiliated with another handler the reasons for revoking the approval. shall be subject to the approved Treat- Should the off-site facility disagree ment Plan utilized at that facility. with the Board’s decision, it may ap- Handlers shall follow their own appeal the decision in writing to USDA. proved Treatment Plans for almonds Handlers may treat their almonds only sent to an off-site facility that is not at off-site treatment facilities that affiliated with another handler. have been deemed to be approved by (ii) Handlers utilizing an on-site the Board. verification program shall cause the (5) Records. Handlers shall maintain inspection agency to verify that their records and documentation that will be Treatment Plans have been followed, subject to audit by the Board for the and that their almonds have been sub- purpose of verifying compliance with jected to a treatment process that has this section. Records must be main- been validated by a Board-approved tained for two full years following the process authority. Such handlers shall end of the crop year, and must identify submit, or cause to be submitted, a lots from the point of treatment for- verification report to the Board. The ward to the point of shipment by the inspection agency must physically ob- handler. Lot identification shall also serve the treatment process to issue provide the ability to differentiate such report. treated from untreated product. Off- (iii) Handlers utilizing an audit-based site treatment facilities that do not verification program shall be subject handle almonds pursuant to § 981.16, to periodic audits conducted by the in- shall maintain treatment records for 2 spection agency. The inspection agency full years following the end of a crop shall provide copies of the audit report year and make such records available to the Board. Handlers who do not to the Board. comply with an audit-based (6) Exemptions. Handlers may ship un- verification program shall be required treated almonds under the following to revert to an on-site verification pro- conditions. For purposes of this sec- gram. tion, container means a box, bin, bag, (iv) Interhandler transfers of almonds carton, or any other type of receptacle may or may not be treated prior to used in the packaging of bulk almonds. transfer. Handlers receiving untreated (i) Handlers may ship untreated al- almonds from another handler shall be monds for further processing directly responsible for treating the product. to manufacturers located within the Handlers receiving treated almonds U.S., Canada or Mexico. This program from another handler must have proce- shall be termed the Direct Verifiable dures outlined in their Treatment Plan (DV) program. Handlers may only ship addressing how the integrity of the untreated almonds to manufacturers treated almonds will be maintained. In who have submitted ABC Form No. 52, all instances involving interhandler ‘‘Application for Direct Verifiable (DV) transfers, the receiving handler shall Program for Further Processing of Un- be responsible for ensuring that the al- treated Almonds,’’ and have been ap- monds are treated prior to shipment proved by the TERP. Such almonds

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must be shipped directly to approved monds to achieve a minimum 4-log re- manufacturing locations, as specified duction; on Form No. 52. Such manufacturers (B) Identify the manufacturing loca- DV users must submit an initial Form tions where treatment will occur; No. 52 to the Board and be approved by (C) Have their treatment technology the TERP. Should the applicant dis- and equipment validated by a Board- agree with the TERP’s decision con- approved process authority, and pro- cerning approval, it may appeal the de- vide documentation with their DV ap- cision in writing to the Board, and ulti- plication to verify that their treatment mately to USDA. For subsequent crop technology and equipment have been years, approved applicants with no validated by a Board-approved process changes to their initial application authority. Such documentation may must send the Board a letter, signed include, but not be limited to, a letter and dated, indicating that there are no from such process authority certifying changes to the application the Board the validation. Such documentation has on file. The TERP may revoke any shall be sufficient to demonstrate that approval for cause. The TERP shall no- the treatment processes and equipment tify the manufacturer in writing of the achieve a 4-log reduction in Salmonella reasons for revoking the approval. bacteria. Treatment technology and Should the manufacturer disagree with equipment that have been modified to a point where operating parameters the TERP’s decision, it may appeal the such as time, temperature, or volume decision in writing to the Board, and change, shall be revalidated; ultimately to USDA. A manufacturer (D) Have their technology and proce- whose approval has been revoked must dures verified by a Board-approved DV submit a new application to the TERP auditor to ensure they are being ap- and await approval. The Board shall plied appropriately. A DV auditor may issue a DV User code to an approved not be an employee of the manufac- manufacturer. Handlers must reference turer that he/she is auditing. DV audi- such code in all documentation accom- tors must submit a report to the Board panying the lot and identify each con- after conducting each audit. DV audi- tainer of such almonds with the term tors must submit an initial application ‘‘unpasteurized.’’ Such lettering shall be to the Board on ABC Form No. 53, ‘‘Ap- on one outside principal display panel, plication for Direct Verifiable (DV) 1 at least ⁄2 inch in height, clear and leg- Program Auditors,’’ and be approved by ible. If a third party is involved in the the TERP. Should the applicant dis- transaction, the handler must provide agree with the TERP’s decision con- sufficient documentation to the Board cerning approval, it may appeal the de- to track the shipment from the han- cision in writing to the Board, and ulti- dler’s facility to the approved DV user. mately to USDA. For subsequent crop While a third party may be involved in years, approved DV auditors with no such transactions, shipments to a third changes to their initial application party and then to a manufacturing lo- must send the Board a letter, signed cation are not permitted under the DV and dated, indicating that there are no program. Approved DV Users shall: changes to the application the Board (A) Subject such almonds to a treat- has on file. The TERP may revoke any ment process or processes using tech- approval for cause. The TERP shall no- nologies that achieve in total a min- tify the DV auditor in writing of the imum 4-log reduction of Salmonella bac- reasons for revoking the approval. teria as determined by the FDA, ac- Should the DV auditor disagree with cepted by the TERP, or established by the TERP’s decision, it may appeal the a process authority approved in accord- decision in writing to the Board, and ance with and subject to the provisions ultimately to USDA. A DV auditor and procedures of paragraph (b)(3) of whose approval has been revoked must this section. Establish means that the submit a new application to the TERP treatment process and protocol have and await approval; been evaluated to ensure the tech- (E) Maintain all records regarding nology’s ability to deliver a lethal validation and verification of treat- treatment for Salmonella bacteria in al- ment methods, processing, and product

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traceability. Such records shall be re- each delivery is certified to the Board tained for two years and shall be made by the handler on ABC Form 8. available for review by the Board; and, [42 FR 19322, Apr. 13, 1977] (F) Ship any almonds which will not be treated to a handler, to another ap- § 981.455 Interhandler transfers. proved DV user, to locations outside (a) Transfers of almonds. Interhandler the U.S., Canada, and Mexico (con- transfers of almonds pursuant to tainers must remain identified with § 981.55 shall be reported to the Board the term ‘‘unpasteurized’’), as specified on ABC Form 7. The report shall con- in § 981.442(b)(6)(i), or dispose of such al- tain the following information: monds in non-edible channels. (1) Date of transfer; (ii) Handlers may ship untreated al- (2) The names, and plant locations of monds directly or through a third both the transferring and receiving party to locations outside the U.S., handlers; Canada, and Mexico, provided that (3) The variety of almonds trans- each container of such almonds is iden- ferred; tified with the term ‘‘unpasteurized.’’ (4) Whether the almonds are shelled Such lettering shall be on one outside or unshelled; principal display panel, at least 1⁄2 inch (5) The name of the handler assuming in height, clear and legible. If a third reserve and assessment obligations on party is involved in the transaction, the almonds transferred; the handler must provide sufficient (6) Whether the almonds had been documentation to the Board to track treated to achieve a 4-log reduction in the shipment from the handler’s facil- Salmonella bacteria, pursuant to ity to the importer in the foreign coun- § 981.442(b); and try. (7) A unique handler identification (7) Other restrictions. The provisions number for each lot. of this section do not supersede any re- (b) Transfers of reserve credits. A han- strictions or prohibitions regarding al- dler may transfer reserve credits to another handler after having filed with monds grown in California under the the Board, in accordance with § 981.474, Federal Food, Drug and Cosmetic Act, a completed ABC Form 13/14 covering or any other applicable laws or regula- the almonds to be diverted to a non- tions or the need to comply with appli- competitive outlet and all the docu- cable food and sanitary regulations of mentation applicable thereto. Such a city, county, State or Federal agencies. transfer does not relieve the transfer- [42 FR 3160, Jan. 17, 1977] ring handler of any reserve obligations for the applicable crop year. The trans- EDITORIAL NOTE: For FEDERAL REGISTER ci- ferred credit shall not exceed the quan- tations affecting § 981.442, see the List of CFR tity needed by the receiving handler to Sections Affected, which appears in the cover that handler’s reserve obligation. Finding Aids section of the printed volume and at www.fdsys.gov. The Board shall complete the transfer upon receipt of an ABC Form 11 exe- § 981.450 Exempt dispositions. cuted by both handlers. No transfer of reserve credits shall be made to satisfy As provided in § 981.50 any handler a handler’s inedible disposition obliga- disposing of almonds for crushing into tion incurred pursuant to § 981.42(a). oil, or for poultry or animal feed, may (c) Transfers of reserve withholding ob- have the kernel weight of these al- ligation. A handler may transfer reserve monds excluded from his receipts, and withholding obligation to other han- exempt from program obligations so dlers pursuant to § 981.55 after having long as the handler qualifies as, or de- filed with the Board an ABC Form 11 livers such almonds to, a crusher, a executed by both handlers. The Board feeder, or dealer in nut waste; the shall approve the transfer upon receipt crusher, feeder, or dealer are accept- of the properly completed form. able to the Board; each delivery is (d) Transfer of inedible obligation made directly to the crusher, feeder, or may be made, with the approval of the dealer, by June 30 of the crop year; and Board, only when the inedible kernels

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are physically transferred with the en- during the crop year. Disposition by an tire lot of almonds. The transfer of the agent of the Board in eligible reserve lot shall be reported on ABC Form 9, outlets within a crop year in excess of showing date of transfer and, for the his reserve obligation shall be held to transferring handler, the (1) original be a disposition of salable almonds. inspection certificate number, (2) total Whenever such disposition has been in- weight shown on the certificate, and (3) spected and certified, if required, and weight of inedible kernels shown on the has complied with the terms, condi- certificate. For the receiving handler, tions, and documentation applicable to ABC Form 9 shall show the (1) new in- disposition of reserve almonds as deter- spection certificate number, (2) total weight shown on the certificate, and (3) mined by the Board, the disposition weight of inedible kernels shown on the may be credited against any reserve certificate. ABC Form 9 shall be signed obligation subsequently incurred by by both, the transferring handler and the handler during that crop year, or the receiving handler, and submitted the disposition may be credited pursu- by the receiving handler to the Board ant to § 981.455(b) against the reserve for approval. obligation of another handler. (c) Minimum prices. Minimum prices [42 FR 19322, Apr. 13, 1977, as amended at 44 FR 30076, May 24, 1979; 56 FR 19794, Apr. 30, shall apply to 1990–91 crop year reserve 1991; 62 FR 56051, Oct. 29, 1997; 72 FR 51992, almonds diverted to almond butter, Sept. 12, 2007] natural almond paste, foil packets for sales to airlines, and sales to govern- § 981.466 Almond butter. ment agencies, including federal and Almond butter as used in § 981.66(c) is state school lunch programs. Prices are hereby defined as a comminuted food F.O.B. handlers plant. The prices may product prepared by grinding shelled or contain a maximum of two percent bro- blanched almonds into a homogeneous kerage commission. No cash discounts plastic or semiplastic mass or liquid are allowed. The prices are as follows having very few particles larger than for various grades or categories of al- 1⁄16 inch in any dimension. To produce monds: chunky style almond butter, almond chunks or pieces may be added up to a Price per maximum of 25 percent by weight of Grade or category pound the finished product. The size of the al- U.S. Select Sheller Run or better, 75 cents. mond pieces used to make chunky unblanched. style almond butter may not exceed 5⁄16 U.S. Standard Sheller Run, unblanched ...... 74 cents. inch in any dimension. U.S. No. 1 Whole and Broken, unblanched .. 73 cents. U.S. No. 1 Pieces, unblanched ...... 73 cents. [48 FR 11250, Mar. 17, 1983] U.S. No. 1 Pieces or better, unblanched, to 60 cents. be used for almond butter manufactured § 981.467 Disposition in reserve outlets in the 48 contiguous states and shipped to by handlers. EEC countries. Blanched made from U.S. No. 1 Pieces or 95 cents. (a) Agents of Board. Beginning with better. August 1 of any crop year, a handler Blanched made from U.S. No. 1 Pieces or 82 cents. may become an agent of the Board pur- better to be used for almond butter manu- suant to § 981.67 for the purpose of dis- factured in the 48 continguous states and posing of reserve almonds of such crop shipped to EEC countries. year, in the authorized outlets. The agency shall be established upon a han- (d) For the 1990–91 crop year only, the dler executing a reserve agreement reserve disposition obligation date is (ABC Form 12) ABC, applicable to di- extended until September 1, 1992, and version, containing terms and condi- the date for submitting documentation tions specified by the Board. verifying reserve dispositions is ex- (b) Reserve credit. Credit in satisfac- tended to December 1, 1992. tion of a reserve obligation shall not [42 FR 19322, Apr. 13, 1977, as amended at 56 exceed the accrued reserve obligation FR 10508, Mar. 13, 1991; 56 FR 51150, Oct. 10, derived by applying the reserve per- 1991; 57 FR 27353, June 19, 1992; 61 FR 32922, centage to the quanity of almonds re- June 26, 1996] ceived by a handler for his own account

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§ 981.472 Report of almonds received. If the destination of any export is unknown to the handler, such handler (a) Each handler shall report to the shall have the broker/exporter furnish Board, on or before the 5th calendar this information to the Board. In sup- day of each month, on ABC Form 1, the port of this report, the handler shall total adjusted kernel weight of al- keep invoices on the shipments, or monds, by variety, received by it for its such other documentation as may be own account for the preceding month. acceptable to the Board. The reports (b) [Reserved] shall be received by the Board within [58 FR 34696, June 29, 1993, as amended at 61 five calendar days after the close of FR 32922, June 26, 1996; 62 FR 37488, July 14, each month of the crop year. 1997; 64 FR 18802, Apr. 16, 1999] (b) Reserve reports. In any crop year when reserve almonds are diverted to § 981.473 Redetermination reports. noncompetitive outlets, such handler Each handler shall furnish for use by shall report such handler’s intentions the Board in redetermination of the to divert on ABC Form 13 and the com- kernel weight of almonds received for pletion of diversion on ABC Form 14. his own account and for marketing pol- Upon notice to all handlers, the Board icy considerations, the information may waive the requirements to file listed and described in this section. ABC Form 13 for diversion of almonds Such information shall be reported to noncompetitive outlets which are within the applicable times specified in acceptable to the Board. § 981.73 on forms provided by the Board. (c) Handler information reports. Each (a) Handler carryover. Report the handler shall file no later than Sep- weight of all almonds, whether tember 1 of each year ABC Form 42, a unshelled or shelled, wherever located, Handler Information Sheet, listing the held by the handler for the handler’s handler’s name, address, phone num- own account, whether or not sold. ber, ownership or corporate informa- (b) Delivered sales. Report the weight tion and acknowledging receipt of mar- of salable almonds sold and delivered keting order program information. (shipments), showing the weight, and whether unshelled or shelled, including [50 FR 47709, Nov. 20, 1985, as amended at 51 FR 9763, Mar. 21, 1986; 54 FR 5409, Feb. 3, 1989; those disposed of pursuant to the re- 58 FR 34696, June 29, 1993] quirements for reserve disposition, or used in almond products. § 981.481 Interest and late payment (c) Transfers. A report of almonds charges. transferred to another handler showing (a) Pursuant to § 981.481, the Board the weight of each lot transferred, shall impose an interest charge on any whether unshelled or shelled. handler whose assessment payment has (d) Remaining inedible obligation. Re- not been received in the Board’s office, port the quantity of almonds the han- or the envelope containing the pay- dler intends to deliver to Board ap- ment legibly postmarked by the U.S. proved outlets to meet the disposition Postal Service, within 30 days of the obligation pursuant to § 981.42(a). invoice date shown on the handler’s [42 FR 19322, Apr. 13, 1977, as amended at 42 statement. The interest charge shall be FR 56488, Oct. 26, 1977; 58 FR 34696, June 29, a rate of one and one half percent per 1993] month and shall be applied to the unpaid assessment balance for the num- § 981.474 Other reports. ber of days all or any part of the un- (a) Report of shipments and commit- paid balance is delinquent beyond the ments. Each handler shall report on 30 day payment period. ABC Form 25–1 all shipments of al- (b) In addition to the interest charge monds, inshell, shelled, and products specified in paragraph (a) of this sec- by classification (domestic and export tion, the Board shall impose a late pay- by countries of destination); and on ment charge on any handler whose pay- ABC Form 25–2 all commitments (al- ment has not been received in the monds not shipped, but sold or other- Board’s office, or the envelope con- wise obligated) whether domestic containing the payment legibly post- tract, export contract, or non-contract. marked by the U.S. Postal Service,

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within 60 days of the invoice date. The 982.57 Exemptions. late payment charge shall be 10 percent MARKET DEVELOPMENT of the unpaid balance. 982.58 Research, promotion, and market de- [61 FR 64603, Dec. 6, 1996] velopment. PART 982—HAZELNUTS GROWN IN EXPENSES AND ASSESSMENTS OREGON AND WASHINGTON 982.60 Expenses. 982.61 Assessments. Subpart—Order Regulating Handling 982.62 Accounting. 982.63 Contributions. DEFINITIONS RECORDS AND REPORTS Sec. 982.1 Secretary. 982.64 Creditable promotion and advertising 982.2 Act. reports. 982.3 Person. 982.65 Carryover reports. 982.4 Hazelnuts. 982.66 Shipment reports. 982.5 Area of production. 982.67 Reports of disposition of restricted 982.6 Grower. hazelnuts. 982.7 To handle. 982.68 Other reports. 982.8 Handler. 982.69 Verification of reports. 982.11 Pack. 982.70 Confidential information. 982.12 Merchantable hazelnuts. 982.71 Records. 982.13 Substandard hazelnuts. 982.14 Restricted hazelnuts. MISCELLANEOUS PROVISIONS 982.15 Inshell handler carryover. 982.80 Right of the Secretary. 982.16 Inshell trade acquisitions. 982.81 Personal liability. 982.17 Marketing year. 982.82 Separability. 982.18 Board. 982.83 Derogation. 982.19 Disappearance. 982.84 Duration of immunities. 982.20 Part and subpart. 982.85 Agents. HAZELNUT CONTROL BOARD 982.86 Effective time, termination or suspension. 982.30 Establishment and membership. 982.87 Effect of termination or amendment. 982.31 Grower districts. 982.88 Amendments. 982.32 Initial members and nomination of successor members. Subpart—Grade and Size Regulation 982.33 Selection and term of office. 982.34 Qualification. 982.101 Grade requirements for shelled ha- 982.35 Vacancy. zelnuts. 982.36 Alternates. 982.37 Procedure. Subpart—Free and Restricted Percentages 982.38 Powers. 982.39 Duties. 982.254 Free and restricted percentages— 2006–2007 marketing year. MARKETING POLICY 982.255 Free and restricted percentages— 982.40 Marketing policy and volume regula- 2007–2008 marketing year. tion. 982.41 Free and restricted percentages. Subpart—Assessment Rates

GRADE AND SIZE REGULATION 982.340 Assessment rate. 982.45 Establishment of grade and size regu- Subpart—Administrative Rules and lations. Regulations 982.46 Inspection and certification. 982.446 Inspection documentation. CONTROL OF DISTRIBUTION 982.450 Application of restricted obligation. 982.50 Restricted obligation. 982.452 Disposition of restricted hazelnuts. 982.51 Restricted credit for ungraded inshell 982.453 Disposition of substandard hazel- hazelnuts and for shelled hazelnuts. nuts. 982.52 Disposition of restricted hazelnuts. 982.454 Sureties acceptable to the Board. 982.53 Substandard hazelnuts. 982.455 Exchange of certified merchantable 982.54 Deferment of restricted obligation. hazelnuts withheld. 982.55 Exchange of certified merchantable 982.456 Interhandler transfers. hazelnuts withheld. 982.460 Transfer of excess restricted credits. 982.56 Interhandler transfers. 982.461 Late payment and interest charges.

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982.466 Reports of inshell hazelnuts handled, § 982.7 To handle. shelled and withheld. 982.467 Report of receipts and dispositions To handle means to sell, consign, of hazelnuts grown outside the United transport or ship (except as a common States. carrier of hazelnuts owned by another 982.468 Report of hazelnut receipts, disposi- person), or in any other way to put ha- tion, and inventory. zelnuts, inshell or shelled, into the 982.471 Records. channels of trade either within the AUTHORITY: 7 U.S.C. 601–674. area of production or from such area to

SOURCE: 24 FR 6185, Aug. 1, 1959, unless oth- points outside thereof: Provided, That erwise noted. Redesignated at 26 FR 12751, sales or deliveries by growers to han- Dec. 30, 1961. dlers within the area of production or authorized disposition of restricted ha- EDITORIAL NOTE: Nomenclature changes to part 982 appear at 61 FR 17559, Apr. 22, 1996. zelnuts and substandard hazelnuts shall not be considered as handling.

Subpart—Order Regulating § 982.8 Handler. Handling Handler means any person who han- DEFINITIONS dles hazelnuts.

§ 982.1 Secretary. § 982.11 Pack. Secretary means the Secretary of Ag- Pack means a specific commercial riculture of the United States, or any classification according to size, inter- other officer or employee of the United nal quality, and external appearance States Department of Agriculture who and condition of hazelnuts packed in is, or who may be, authorized to per- accordance with any of the pack speci- form the duties of the Secretary of Ag- fications prescribed pursuant to riculture of the United States. § 982.45.

§ 982.2 Act. § 982.12 Merchantable hazelnuts. Act means Public Act No. 10, 73d Con- Merchantable hazelnuts means inshell gress, as amended and as reenacted and hazelnuts that meet the grade and size amended by the Agricultural Mar- regulations in effect pursuant to keting Agreement Act of 1937, as § 982.45 and are likely to be available amended (7 U.S.C. 601 et seq.; 48 Stat. for handling as inshell hazelnuts. 31, as amended). § 982.13 Substandard hazelnuts. § 982.3 Person. Substandard hazelnuts means hazel- Person means an individual, partner- nuts, inshell or shelled, that do not ship, corporation, association, or any meet the minimum standards effective other business unit. pursuant to § 982.45. § 982.14 Restricted hazelnuts. § 982.4 Hazelnuts. Restricted hazelnuts means inshell ha- Hazelnuts means hazelnuts or filberts zelnuts withheld in satisfaction of a re- produced in the States of Oregon and stricted obligation. Washington from trees of the genus Corylus. § 982.15 Inshell handler carryover. [61 FR 17559, Apr. 22, 1996] Inshell handler carryover as of any given date means all inshell hazelnuts § 982.5 Area of production. (except restricted hazelnuts) wherever Area of production means the States located then held by handlers or for of Oregon and Washington. their accounts, whether or not sold, including certified merchantable hazel- § 982.6 Grower. nuts and the estimated merchantable Grower is synonymous with producer content of those uncertified hazelnuts and means any person engaged, in a then held by handlers which are in- proprietary capacity, in the commer- tended for handling as inshell hazel- cial production of hazelnuts. nuts.

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§ 982.16 Inshell trade acquisitions. the same eligibility qualifications. The Inshell trade acquisitions means the 10 member positions shall be allocated quantity of inshell hazelnuts acquired as follows: by the trade from all handlers during a (b) Four of the members shall rep- marketing year for distribution in the resent handlers, as follows: continental United States and such (1) One member shall be nominated other distribution areas as may be rec- by the handler who handled the largest ommended by the Board and estab- volume of hazelnuts during the two lished by the Secretary. marketing years preceding the marketing year in which nominations are [61 FR 17559, Apr. 22, 1996] made; § 982.17 Marketing year. (2) One member shall be nominated by the handler who handled the second Marketing year means the 12 months largest volume of hazelnuts during the from July 1 to the following June 30, two marketing years preceding the both inclusive, or such other period of marketing year in which nominations time as may be recommended by the are made; Board and established by the Sec- (3) One member shall be nominated retary. by the handler who handled the third [51 FR 29546, Aug. 19, 1986] largest volume of hazelnuts during the two marketing years preceding the § 982.18 Board. marketing year in which nominations Board means the Hazelnut Marketing are made; Board established pursuant to § 982.30. (4) The fourth handler member shall be nominated by and represent all [46 FR 26038, May 11, 1981] other handlers. § 982.19 Disappearance. (c) Five members shall represent growers and shall be nominated for the Disappearance means the difference districts designated in or established between orchard-run production and pursuant to § 982.31. One grower mem- the available supply of merchantable ber shall represent each of the five hazelnuts and merchantable equivalent of shelled hazelnuts. grower districts unless changes are made pursuant to § 982.31(b). [46 FR 26038, May 11, 1981] (d) One member shall be a public member who is neither a grower nor a § 982.20 Part and subpart. handler. Part means the order, as amended, (e) The Secretary, or the Board with regulating the handling of hazelnuts the approval of the Secretary, may re- grown in Oregon and Washington, and vise the handler representation on the all rules, regulations, and supple- Board if the Board ceases to be rep- mentary orders issued thereunder. This resentative of the industry. order, as amended, regulating the handling of hazelnuts grown in Oregon and [51 FR 29546, Aug. 19, 1986, as amended at 61 Washington shall be a subpart of such FR 17559, Apr. 22, 1996] part. § 982.31 Grower districts. [24 FR 6185, Aug. 1, 1959. Redesignated at 26 (a) For the purpose of nominating FR 12751, Dec. 30, 1961, and further redesig- grower members and alternate mem- nated at 46 FR 26038, May 11, 1981] bers, the following districts within the HAZELNUT CONTROL BOARD production area are hereby established: (1) District 1—The State of Wash- § 982.30 Establishment and member- ington, and Clackamas and Multnomah ship. Counties in Oregon. (a) There is hereby established a Ha- (2) District 2—Marion and Polk Coun- zelnut Marketing Board consisting of ties in Oregon. 10 members, each of whom shall have (3) District 3—Linn, Lane, and Ben- an alternate member, to administer ton Counties in Oregon. the terms and provisions of this part. (4) District 4—Yamhill County in Or- Each member and alternate shall meet egon.

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(5) District 5—All other Oregon coun- weighted as one ton. Voting will be by ties within the production area. position, and each eligible handler can (b) The Secretary, upon the rec- vote for a member and an alternate ommendation of the Board, may rees- member. The person receiving the tablish districts within the production highest number of weighted votes for area and may reapportion grower mem- each position shall be the nominee for bership among the various districts: that respective position. Provided, That in recommending any (d) For the purposes of nominating such changes, the Board shall give con- and voting for handler members and al- sideration to (1) the relative impor- ternates, the tonnage of hazelnuts tance of production in each district and shall be credited to the handler respon- the number of growers in each district; sible under the order for the payment (2) the geographic location of districts of assessments of those hazelnuts. as they would affect the efficiency of (e) Nominees to successor grower administering this part; and (3) other member and alternate member posi- relevant factors. tions shall be submitted to the Sec- [51 FR 29547, Aug. 19, 1986] retary after the Board conducts balloting of growers, or officers or em- § 982.32 Initial members and nomina- ployees of growers, in the grower dis- tion of successor members. tricts according to the following proce- (a) Members and alternate members dure: Names of the candidates to be of the Board serving immediately prior shown on the ballot for a particular to the effective date of this amended district may be submitted to the Board subpart shall continue to serve on the on petitions signed by not less than 10 Board until their respective successors growers on record with the Board as have been selected. growers being in that district; each (b) Nominations for successor han- grower may sign only as many peti- dler members and alternate members tions as there are persons to be nomi- specified in § 982.30(b) (1) through (3) nated within that district. If such peti- shall be made by the largest, second tions fail to result in submission of at largest, and third largest handler de- least two names for a district, the termined according to the tonnage of Board shall request County Agricul- certified merchantable hazelnuts and, tural Extension Agents in that district when shelled hazelnut grade and size to recommend one or more eligible regulations are in effect, the inshell growers to be included on the ballot. equivalent of certified shelled hazel- Ballots, accompanied by the names of nuts (computed to the nearest whole all such candidates, with spaces to in- ton) recorded by the Board as handled dicate voters’ choices and spaces for by each such handler during the two write-in candidates, together with vot- marketing years preceding the mar- ing instructions, shall be mailed to all keting year in which nominations are growers who are on record with the made. Board. The person receiving the high- (c) Nominations for successor handler est number of votes shall be the mem- member and alternate handler member ber nominee for that district, and the positions specified in § 982.30(b)(4) shall person receiving the second highest be made by the handlers in that cat- number of votes shall be the alternate egory by mail ballot. All votes cast member. The Board shall recommend shall be weighted according to the ton- one candidate in case of a tie vote. nage of certified merchantable hazel- (f) Nominations received in the fore- nuts and, when shelled hazelnut grade going manner by the Board for all han- and size regulations are in effect, the dler and grower member and alternate inshell equivalent of certified shelled member positions shall be certified and hazelnuts (computed to the nearest sent to the Secretary at least 60 days whole ton) recorded by the Board as prior to the beginning of each two-year handled by each handler during the two term of office, together with all nec- marketing years preceding the mar- essary data and other information keting year in which nominations are deemed by the Board to be pertinent or made. If less than one ton is recorded requested by the Secretary. If nomina- for any such handler, the vote shall be tions are not made within the time and

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manner specified in this subpart, the and during the term of office, a grower Secretary may, without regard to or an officer, employee, or agent of a nominations, select the Board members grower in the district for which nomi- and alternates on the basis of the rep- nated. resentation provided for in this sub- (c) Each handler member and alter- part. nate shall be, at the time of selection (g) The members of the Board shall and during the term of office, a handler nominate the public member and alter- or an officer, employee, or agent of a nate public member at the first meet- handler. ing following the selection of members (d) Any member or alternate member for a new term of office. who at the time of selection was a (h) The Board with the approval of member (or employed by or an agent of the Secretary shall issue rules and regulations necessary to carry out the a member) of the group which nomi- provisions of this section or to change nated that person shall, upon ceasing the procedures in this section in the to be such, become disqualified to serve event they are no longer practical. further and that position shall be deemed vacant. In the event any grow- [51 FR 29547, Aug. 19, 1986, as amended at 61 er member or alternate member of the FR 17559, Apr. 22, 1996] Board handles hazelnuts produced by § 982.33 Selection and term of office. other growers or becomes an employee or agent of a handler, that person shall (a) Selection. Members and their re- be disqualified to continue to serve on spective alternates shall be selected by the Secretary from nominees sub- the Board in that capacity. mitted by the Board or from among (e) No person nominated to serve as a other qualified persons. public member or alternate member (b) Term of office. The term of office shall have a financial interest in any of Board members and their alternates hazelnut growing or handling oper- shall be for two years beginning on ation. July 1 and ending on June 30, but they (f) The Board, with the approval of shall serve until their respective suc- the Secretary, may issue rules and reg- cessors are selected and have qualified: ulations covering matters of qualifica- Provided, That beginning with the 1996– tions for members or alternate mem- 97 marketing year, no member shall bers. serve more than three consecutive two- year terms as member and no alternate [51 FR 29547, Aug. 19, 1986] member shall serve more than three § 982.35 Vacancy. consecutive two-year terms as alternate unless specifically exempted by To fill any vacancy occasioned by the the Secretary. Nomination elections death, removal, resignation, or dis- for all Board grower and handler mem- qualification of any member or alter- ber and alternate positions shall be nate of the Board, a successor for his held every two years. unexpired term shall be nominated and (c) The members on the Board shall selected in the manner provided in continue to serve until the new mem- §§ 982.32 and 982.33, so far as applicable, bers and alternates have been selected unless selection is deemed unnecessary and have qualified. by the Secretary. [51 FR 29547, Aug. 19, 1986, as amended at 61 FR 17559, Apr. 22, 1996] § 982.36 Alternates. An alternate for a member of the § 982.34 Qualification. Board shall act in the place of the (a) Any person prior to selection as a member during such member’s absence member or an alternate member of the or, upon the member’s death, removal, Board shall qualify by filing with the resignation, or disqualification, until a Secretary a written acceptance of will- successor for that member’s term has ingness to serve on the Board. been selected and has qualified. (b) Each grower member and alternate shall be, at the time of selection [51 FR 29548, Aug. 19, 1986]

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§ 982.37 Procedure. and transactions, and such books and records shall be available for examina- (a) Seven members of the Board shall tion by the Secretary at any time; constitute a quorum at an assembled (d) To furnish to the Secretary such meeting of the Board, and any action available information as he may re- of the Board shall require the concur- quest; ring vote of at least six members. At (e) To appoint such employees as it any assembled meeting, all votes shall deems necessary and determine the sal- be cast in person. aries, define the duties and fix the (b) The Board may vote by mail, tele- bonds of such employees; phone, telegraph, or other means of (f) To cause the books of the Board to communication: Provided, That any be audited by one or more public ac- votes (except mail votes) so cast shall countants approved by the Board at be confirmed at the next regularly least once for each marketing year and scheduled meeting. When any propo- at such other times as the Board deems sition is submitted for voting by any necessary or as the Secretary may re- such method, its adoption shall require quest, and to file with the Secretary 10 concurring votes. reports of all audits made; (c) The members of the Board and (g) To investigate the growing, ship- their alternates shall serve without ping and marketing conditions with re- compensation, but members and alter- spect to hazelnuts, and assemble data nates acting as members shall be al- in connection therewith; lowed their necessary expenses: Pro- (h) To give the Secretary the same vided, That the Board may request the notice of the meetings of the Board as attendance of one or more alternates is given to its members; and not acting as members at any meeting (i) To furnish to the Secretary a re- of the Board, and such alternates may port of the proceedings of each meeting be allowed their necessary expenses. of the Board held for the purpose of [26 FR 6185, Aug. 1, 1959. Redesignated at 26 making marketing policy recommenda- FR 12751, Dec. 30, 1961, as amended at 51 FR tions. 29548, Aug. 19, 1986; 61 FR 17559, Apr. 22, 1996] [24 FR 6185, Aug. 1, 1959, as amended at 46 FR § 982.38 Powers. 26039, May 11, 1981; 61 FR 17559, Apr. 22, 1996] The Board shall have the following MARKETING POLICY powers: (a) To administer the provisions of § 982.40 Marketing policy and volume this subpart in accordance with its regulation. terms; (a) General. As provided in this sec- (b) To make rules and regulations to tion, prior to September 20 of each effectuate the terms and provisions of marketing year, the Board may hold this subpart; meetings for the purpose of computing (c) To receive, investigate, and report its marketing policy for that year and to the Secretary complaints of viola- shall do so for the purpose of submit- tions of this subpart; ting any recommendations on its pol- (d) To recommend to the Secretary icy to the Secretary. The Board may amendments to this subpart. designate one of its employees to compute and announce the preliminary § 982.39 Duties. computed free and restricted percent- The Board shall have among others ages. the following duties: (b) Inshell trade demand. If the Board (a) To select from among its mem- determines that volume regulation bers such officers and adopt rules or would tend to effectuate the declared bylaws for the conduct of its meetings policy of the act, it shall compute and as it deems advisable; announce an inshell trade demand for (b) To act as intermediary between that year prior to September 20. The the Secretary and any handler or grow- inshell trade demand shall equal the er; average of the preceding three years’ (c) To keep minute books and records trade acquisitions of inshell hazelnuts: which will clearly reflect all of its acts Provided, That the Board may increase

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such average by no more than 25 per- ommendations to the Secretary shall cent if market conditions justify such include the following: an increase. If the trade acquisitions (i) The estimated tonnage of mer- during any or all of these years were chantable hazelnuts expected to be pro- abnormal because of crop or marketing duced during the marketing year. conditions, the Board may use a prior (ii) The estimated tonnage of inshell year or years in determining the three- hazelnuts held by handlers on the first year average. day of the marketing year which may (c) Inshell allocation—(1) Preliminary be available for handling as inshell ha- computed percentages. Prior to Sep- zelnuts thereafter. tember 20 of a marketing year, the (iii) Any other pertinent factors bear- Board shall compute and announce pre- ing on the marketing of hazelnuts dur- liminary computed free and restricted ing the marketing year. percentages for that year, to release 80 percent of the inshell trade demand for Whenever the Secretary finds, on the that year. The preliminary computed basis of the recommendation of the free percentage shall be computed by Board or other available information multiplying that trade demand, ad- that, to establish the interim final and justed by the declared carryin, by 80 final free and restricted percentages percent, and by dividing that amount would tend to effectuate the declared by the Board’s estimate of orchard-run policy of the act, the Secretary shall production less the average disappear- establish such percentages. ance during the preceding three years, (d) Grade and size regulations. Prior to plus the undeclared carryin. The dif- September 20, the Board may consider ference between 100 percent and the grade and size regulations in effect and preliminary free percentage shall be may recommend modifications thereof the preliminary computed restricted to the Secretary. percentage. At the same time, the (e) Revision of marketing policy. At Board may announce the portion of the any time prior to February 15 of the restricted supply that may be shelled marketing year, the Board may rec- or exported, and the remainder of that ommend to the Secretary revisions in supply to be disposed of in outlets ap- the marketing policy for that year: proved by the Board pursuant to Provided, That in no event shall any § 982.52. such recommendation provide for free (2) Interim final and final percentages. and restricted percentages based on an On or before November 15, the Board inshell trade demand which is more shall meet to recommend to the Sec- than 125 percent of the average of the retary the interim final and final free preceding three years’ trade acquisi- and restricted percentages, including tions computed pursuant to paragraph the portion of the restricted supply (b) of this section for that marketing that may be shelled or exported. The year. At any time during the period interim final percentages shall release December 1 through February 10 at the 100 percent of the inshell trade demand request of two or more handlers, who previously computed by the Board for during the preceding marketing year the marketing year. The final free and handled at least 10 percent of all hazel- restricted percentages may release an nuts handled, the Board shall meet to additional 15 percent of the average of determine whether the marketing pol- the preceding three years’ trade acqui- icy should be revised. sitions of inshell hazelnuts for desir- [51 FR 29548, Aug. 19, 1986, as amended at 61 able carryout. If the trade acquisitions FR 17560, Apr. 22, 1996] during any or all of these years were abnormal, the Board may use a prior § 982.41 Free and restricted percent- year or years in determining this ages. three-year average. The final free and The free and restricted percentages restricted percentages shall become ef- computed by the Board or established fective 30 days prior to the end of the by the Secretary pursuant to § 982.40 marketing year, or earlier as may be shall apply to all merchantable hazel- recommended by the Board and ap- nuts handled during the current mar- proved by the Secretary. The rec- keting year. Until the preliminary

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computed free and restricted percent- obligation, each handler shall, at his ages are computed by the Board for the own expense, cause such hazelnuts to current marketing year, the percent- be inspected and certified by the Fed- ages in effect at the end of the previous eral-State Inspection Service as meet- marketing year shall be applicable. ing the then effective grade and size [51 FR 29548, Aug. 19, 1986] regulations or, if inshell or shelled hazelnuts are withheld under § 982.51, the GRADE AND SIZE REGULATION applicable requirements specified in that section. The handler obtaining § 982.45 Establishment of grade and such inspection of hazelnuts shall size regulations. cause a copy of the certificate issued (a) Minimum standards. No handler by such inspection service applicable shall handle any inshell or shelled ha- to such hazelnuts to be furnished to zelnuts unless such inshell hazelnuts the Board. meet requirements of Oregon No. 1 (b) All hazelnuts so inspected and grade and medium size (as defined in certified shall be identified as pre- the Oregon Grade Standards Hazelnuts scribed by the Board. Such identifica- In Shell), and such shelled hazelnuts tion shall be affixed to the hazelnut meet such requirements as are estab- containers by the handler under direc- lished by the Secretary on the basis of tion and supervision of the Board or a recommendation of the Board, except the Federal-State Inspection Service, as may be otherwise provided in and shall not be removed or altered by § 982.57. These minimum standards may any person except as directed by the be modified by the Secretary on the Board. basis of a recommendation of the Board (c) Whenever the Board determines or other information whenever he finds that the length of time in storage and that such modification would tend to conditions of storage of any lot of cer- effectuate the declared policy of the tified merchantable hazelnuts have act. Such minimum standards and the been or are such as to normally cause provisions of this part relating to the administration thereof shall continue deterioration, it may require that such in effect irrespective of whether the lot of hazelnuts be reinspected at the season average price of hazelnuts is handler’s expense prior to handling. above the parity level specified in sec- [40 FR 53227, Nov. 17, 1975, as amended at 61 tion 2(1) of the act. FR 17560, Apr. 22, 1996] (b) Additional grade and size regulations. When the season average price of CONTROL OF DISTRIBUTION hazelnuts is not determined to be above parity, the Secretary may estab- § 982.50 Restricted obligation. lish additional grade and size regula- (a) No handler shall handle inshell tions for inshell hazelnuts in the form hazelnuts unless prior to or upon ship- of a more restrictive minimum stand- ment thereof, he: (1) Has withheld from ard than that specified in paragraph (a) handling a quantity, by weight, of cer- of this section, or pack specifications tified merchantable hazelnuts deter- as to grades and sizes that may be han- mined by dividing the quantity handled, if he finds, on the basis of a rec- dled, or to be handled, by the applica- ommendation of the Board or other in- ble free percentage and multiplying the formation, that such regulations would quotient by the restricted percentage; tend to effectuate the declared policy (2) has withheld from handling an of the act. equivalent quantity of creditable [24 FR 6185, Aug. 1, 1959. Redesignated at 26 ungraded inshell hazelnuts under FR 12751, Dec. 30, 1961, as amended at 37 FR § 982.51(a); or (3) has under § 982.51(b), 589, Jan. 14, 1972] declared in lieu of a quantity of certified merchantable hazelnuts, under § 982.46 Inspection and certification. paragraph (a)(1) of this section, the (a) Before or upon handling any ha- equivalent quantity, by weight as de- zelnuts, or before any inshell or shelled termined under that section, of shelled hazelnuts are credited (under § 982.50 or hazelnuts certified as meeting the § 982.51) in satisfaction of a restricted standards in effect for Oregon No. 1

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grade for shelled hazelnuts as con- merchantable hazelnuts in satisfaction tained in Oregon Grade Standards for of that handler’s restricted obligations, Hazelnut Kernels or such other stand- and the weight on which credit may be ards as may be recommended by the received shall be the shelled hazelnut Board and established by the Sec- equivalent weight as inspected by the retary. Any handler who intends to Federal-State Inspection Service mul- withhold shelled hazelnuts in satisfac- tiplied by 2.5. Any lot of ungraded ha- tion of a restricted obligation must zelnuts not meeting the moisture re- make such declaration to the Board quirements for certified merchantable prior to shelling any such hazelnuts. hazelnuts shall not be eligible for cred- Withholding may be temporarily de- it. All determinations as to the shelled ferred under the bonding provisions in § 982.54. The quantity of hazelnuts re- hazelnut equivalent weight shall be quired to be withheld shall be the re- made by the Federal-State Inspection stricted obligation. Certified mer- Service at the handler’s expense. Hazel- chantable hazelnuts handled in accord- nuts so withheld shall be subject to the ance with this subpart shall be deemed applicable requirements of § 982.50. The to be the handler’s quota fixed by the weight of all such lots for which a han- Secretary within the meaning of sec- dler has received credit shall be ad- tion 8a(5) of the Act. justed by the Board when the lots are (b) Inshell hazelnuts withheld by a handled or disposed of so that the cred- handler in satisfaction of his restricted itable weight is equal to the amount of obligation shall not be handled and certified merchantable inshell hazel- shall be held by him subject to exam- nuts or certified shelled hazelnuts that ination by and accounting control of, are subsequently handled or disposed of the Board until disposed of pursuant to from those lots. If this adjustment this part. causes the handler to no longer be in (c) A handler having certified mer- satisfaction of that handler’s restricted chantable hazelnuts which have not obligation as required by § 982.50, the been handled at the end of a marketing deficiency shall be satisfied in the sub- year may elect to have those hazelnuts sequent marketing year. If this adjust- bear the restricted and assessment ob- ment results in a handler disposing of, ligations of that year or of the marin restricted outlets, a quantity in ex- keting year in which handled. The cess of that handler’s restricted obliga- Board shall establish such procedures as are necessary to facilitate the ad- tion, such excess shall not be credited ministration of this option among han- to such handler’s restricted obligation dlers. during the subsequent marketing year. (d) Whenever the restricted percent- (b) A handler may withhold, in ac- age for a marketing year is reduced, cordance with § 982.50(a), certified each handler’s restricted obligation shelled hazelnuts in lieu of merchant- shall be reduced to conform with the able hazelnuts in satisfaction of such new restricted percentage. Any handler handler’s restricted obligation, subject who, upon such reduction, is with- to such terms and conditions as are holding restricted hazelnuts in excess recommended by the Board and estab- of his new restricted obligation may lished by the Secretary. The inshell have the excess freed from withholding equivalent of such hazelnuts shall be by complying with such procedures as determined by multiplying the weight the Board may require to insure identi- of the shelled hazelnuts by 2.5. fication of the remaining hazelnuts (c) The Secretary upon recommenda- withheld. tion of the Board and other available [40 FR 53227, Nov. 17, 1975, as amended at 46 data may modify these procedures, FR 26039, May 11, 1981] change the conversion factors, and specify factors for conversion for dif- § 982.51 Restricted credit for ungraded ferent varieties of hazelnuts. inshell hazelnuts and for shelled hazelnuts. [51 FR 29548, Aug. 19, 1986, as amended at 61 (a) A handler may withhold ungraded FR 17560, Apr. 22, 1996] inshell hazelnuts in lieu of certified

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§ 982.52 Disposition of restricted hazel- shall be entitled to receive a selling nuts. commission as authorized by the Hazelnuts withheld from handling as Board. The proceeds of all export sales, inshell hazelnuts pursuant to §§ 982.50 after deducting all expenses actually and 982.51 may be disposed of as fol- and necessarily incurred, shall be paid lows: to the handler whose certified mer- (a) Shelling. Any handler may dispose chantable restricted hazelnuts are so of such hazelnuts by shelling them sold by the Board. under the direction or supervision of (c) Other outlets. In addition to the the Board or by delivering them to an dispositions authorized in paragraphs authorized sheller. Any person who de- (a) and (b) of this section, the Board sires to become an authorized sheller may designate such other outlets into in any marketing year may submit which such hazelnuts may be disposed written application during such year to which it determines are noncompeti- the Board. Such application shall be tive with normal market outlets for granted only upon condition that the inshell hazelnuts. Such dispositions applicant agrees: shall be made under the direction or (1) To use such restricted hazelnuts supervision of the Board. as he may receive for no purpose other (d) Restricted credits. During any mar- than shelling; keting year, handlers who dispose of a (2) To dispose of or deliver such re- quantity of eligible hazelnuts in restricted hazelnuts, as inshell hazelnuts, stricted outlets in excess of their re- to no one other than another author- stricted obligations, may transfer such ized sheller; excess credits to another handler or (3) To comply fully with all laws and handlers. Upon a handler’s written re- regulations applicable to shelling of quest to the Board during a marketing hazelnuts; and year, the Board shall transfer any or (4) To make such reports, certified to all of such excess restricted credits to the Board and to the Secretary as to such other handler or handlers that the their correctness, as the Board may re- handler may designate. The Board, quire. with the approval of the Secretary, (b) Export. Sales of certified mer- shall establish rules and regulations chantable restricted hazelnuts for ship- for the transfer of excess restricted ment to destinations outside the conti- credits. nental United States and such other [40 FR 53227, Nov. 17, 1975, as amended at 51 distribution areas as may be rec- FR 29549, Aug. 19, 1986; 61 FR 17560, Apr. 22, ommended by the Board and estab- 1996] lished by the Secretary shall be made only by the Board. Any handler desir- § 982.53 Substandard hazelnuts. ing to export any part or all of that The Board shall, with the approval of handler’s certified merchantable re- the Secretary, establish such reporting stricted hazelnuts shall deliver to the and disposition procedures as it deems Board the certified merchantable re- necessary to insure that hazelnuts stricted hazelnuts to be exported, but which do not meet the effective inshell the Board shall be obligated to sell in or shelled hazelnut minimum standards export only such quantities for which do not enter normal market outlets for it may be able to find satisfactory ex- certified hazelnuts. port outlets. Any hazelnuts so delivered for export which the Board is un- § 982.54 Deferment of restricted obli- able to export shall be returned to the gation. handler delivering them. Sales for ex- (a) Bonding. Compliance by any han- port shall be made by the Board only dler with the requirements of § 982.50 on execution of an agreement to pre- when restricted hazelnuts may be with- vent exportation into the area des- held shall be temporarily deferred to ignated in § 982.16. A handler may be any date requested by the handler, but permitted to act as an agent of the not later than 60 days prior to the end Board, upon such terms and conditions of the marketing year. Such deferment as the Board may specify, in negoti- shall be conditioned upon the vol- ating export sales, and when so acting untary execution and delivery by the

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handler to the Board of a written un- and in the purchase of restricted cred- dertaking before beginning to handle its as provided in paragraph (d) of this merchantable hazelnuts during the section. marketing year. Such written under- (f) Transfer of restricted credit pur- taking shall be secured by a bond or chases. Restricted credits purchased as bonds with a surety or sureties accept- provided for in this section shall be able to the Board that on or prior to turned over to those handlers who have such date the handler will have fully defaulted on their bonds for liquidation satisfied the restricted obligation re- of their restricted obligation. The quired by § 982.50, subject to any adjust- quantity delivered to each handler ment pursuant to § 982.51. shall be that quantity represented by (b) Bonding requirement. Such bond or sums collected through default. bonds shall, at all times during their (g) Collection upon bonds. Collection effective period, be in such amounts upon any defaulted bond shall be that the aggregate thereof shall be no deemed a satisfaction of the restricted less than the total bonding value of the obligation represented by the collec- handler’s deferred restricted obligation. tion. The bonding value shall be the deferred restricted obligation poundage [40 FR 53228, Nov. 17, 1975, as amended at 46 multiplied by the applicable bonding FR 26039, May 11, 1981; 51 FR 29549, Aug. 19, 1986; 61 FR 17560, Apr. 22, 1996] rate. The cost of such bond or bonds shall be borne by the handler filing § 982.55 Exchange of certified mer- same. chantable hazelnuts withheld. (c) Bonding rate. Said bonding rate shall be an amount per pound as estab- Any handler who has withheld from lished by the Board. Such bonding rate handling certified merchantable hazel- shall be based on the estimated value nuts pursuant to the requirements of of restricted credits for the current § 982.50 may exchange therefor an equal marketing year. Until bonding rates quantity, by weight, of other certified for a marketing year are fixed, the merchantable hazelnuts. Any such ex- rates in effect for the preceding mar- change shall be made under the direc- keting year shall continue in effect. tion or supervision of the Board. The Board should make any necessary § 982.56 Interhandler transfers. adjustments once such new rates are fixed. Within the area of production, inter- (d) Restricted credit purchases. Any handler transfers of hazelnuts may be sums collected through default of a made as follows: handler on the handler’s bond shall be (a) Uncertified inshell hazelnuts may used by the Board to purchase re- be sold or delivered by one handler to stricted credits from handlers, who another for packing or shelling, and have such restricted credits in excess the receiving handler shall be respon- of their needs, and are willing to part sible for compliance with the regula- with them. The Board shall at all times tions effective pursuant to this part purchase the lowest priced restricted with respect to such hazelnuts. credits offered, and the purchases shall (b) Restricted hazelnuts withheld by be made from the various handlers as a handler may be sold or delivered to nearly as practicable in proportion to another handler for shelling, export, or the quantity of their respective offer- other authorized outlet subject to the ings of the restricted credits to be pur- disposition requirements set forth in chased. § 982.52. (e) Unexpended sums. Any unexpended (c) Certified hazelnuts other than re- sums which have been collected by the stricted hazelnuts may be sold or deliv- Board through default of a handler on ered by one handler to another and the the handler’s bond, remaining in the transferring handler shall be respon- possession of the Board at the end of a sible for compliance with the require- marketing year, shall be used to reim- ments effective pursuant to this part, burse the Board for its expenses, in- unless specified and agreed upon in cluding administrative and other costs writing by both handlers that the re- incurred in the collection of such sums, ceiving handler shall be responsible for

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such compliance and a copy of such marketing promotion including paid agreement is furnished to the Board. advertising as may be authorized. The (d) The Board, with the approval of expenses of such projects shall be paid the Secretary, shall establish proce- from funds collected pursuant to dures, including necessary reports, for § 982.61, § 982.63, or credited pursuant to such transfers. paragraph (b) of this section. (b) Creditable expenditures. The Board, § 982.57 Exemptions. with the approval of the Secretary, (a) General. The Board, with the ap- may provide for crediting all or any proval of the Secretary, may establish portion of a handler’s direct expendi- such rules, regulations, and safeguards tures for marketing promotion includ- that exempt from any or all require- ing paid advertising, that promotes the ments pursuant to this part such quan- sale of hazelnuts, hazelnut products, or tities of hazelnuts or types of ship- their uses. No handler shall receive ments as do not interfere with the vol- credit for any allowable direct expendi- ume and quality control objectives of tures that would exceed the total of this part, and shall require such re- the handler’s assessment obligation ports, certifications, or other condi- which is attributable to that portion of tions as are necessary to ensure that the handler’s assessment designated for such hazelnuts are handled or used marketing promotion including paid only as authorized. advertising. (b) Sales by growers direct to con- (c) Rules and regulations. Before any sumers. Any hazelnut grower may sell projects involving marketing pro- hazelnuts of such grower’s own produc- motion, including paid advertising and tion free of the regulatory and assess- the crediting of the pro rata expense ment provisions of this part if such assessment obligation of handlers is grower sells such hazelnuts in the area undertaken pursuant to this section, of production directly to end users at the Secretary, after recommendation such grower’s ranch or orchard or at by the Board, shall prescribe appro- roadside stands and farmers’ markets. priate rules and regulations as are nec- The Board, with the approval of the essary to effectively administer such Secretary, may establish such rules, projects. regulations, and safeguards and require [51 FR 29549, Aug. 19, 1986, as amended at 61 such reports, certifications, and other FR 17560, Apr. 22, 1996] conditions, as are necessary to ensure that such hazelnuts are disposed of EXPENSES AND ASSESSMENTS only as authorized. Mail order sales are not exempt sales under this part. § 982.60 Expenses. [51 FR 29549, Aug. 19, 1986, as amended at 61 The Board is authorized to incur such FR 17560, Apr. 22, 1996] expenses including maintenance of an operating reserve fund as the Secretary MARKET DEVELOPMENT may find are reasonable and likely to be incurred by it during each mar- § 982.58 Research, promotion, and keting year, for the maintenance and market development. functioning of the Board and for such (a) General. The Board, with the ap- purposes as the Secretary may, pursu- proval of the Secretary, may establish ant to the provisions of this subpart, or provide for the establishment of determine to be appropriate. The rec- projects involving production research, ommendation of the Board as to the ex- marketing research and development, penses and size of the operating reserve and marketing promotion, including for each such marketing year, together paid advertising, designed to assist, im- with all data supporting such rec- prove, or promote the marketing, dis- ommendations, shall be submitted to tribution, consumption, or efficient the Secretary at the beginning of the production of hazelnuts. The Board fiscal year in connection with which may also provide for crediting the pro such recommendation is made. The rata expense assessment obligations of funds to cover such expenses shall be a handler with such portion of such acquired by levying assessments as handler’s direct expenditures for such provided in § 982.61.

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§ 982.61 Assessments. tablish and maintain an operating (a) For each marketing year, the Sec- monetary reserve in an amount not to retary shall fix an assessment rate per exceed approximately one marketing pound of hazelnuts handled and with- year’s operational expenses or such held, including the creditable weight of lower limits as the Board with the ap- ungraded restricted hazelnuts withheld proval of the Secretary may establish. pursuant to § 982.51 and, when subject (b) Refunds. At the end of a mar- to regulation pursuant to § 982.45, the keting year funds in excess of the mar- inshell equivalent of shelled hazelnuts keting year’s expenses and reserve recertified which are produced from quirements shall be refunded to han- other than restricted hazelnuts that dlers from whom collected and each will provide sufficient funds to meet handler’s share of such excess funds the authorized expenses and reserve re- shall be the amount of assessments the quirements of the Board. At any time handler paid in excess of the handler’s during or after a marketing year when pro rata share of expenses of the Board. he determines, on the basis of a Board However, excess funds may be main- recommendation or other information, tained and used by the Board until De- that a different rate is necessary, the cember 1 following the end of any such Secretary may modify the assessment marketing year: Provided, That the rate and the new rate shall be applica- Board shall refund to each handler ble to all such hazelnuts. Each handler upon request, or credit to the handler’s shall pay to the Board on demand, as- account with the Board, the handler’s sessments on all such assessable hazel- share of such excess prior to January 1. nuts at the rate fixed by the Secretary, (c) Termination. Upon termination of less any amounts credited pursuant to § 982.58. The Board shall impose a late this subpart any money remaining un- payment charge on any handler who expended in possession of the Board fails to pay his assessment within the shall be distributed in such manner as time prescribed by the Board. In the the Secretary may direct: Provided, event the handler thereafter fails to That to the extent practical, such pay the amount outstanding, including funds shall be returned pro rata to the the late payment charge, within the persons from whom such funds were prescribed time, the Board shall im- collected. pose an additional charge in the form [24 FR 6185, Aug. 1, 1959, as amended at 46 FR of interest on such outstanding 26040, May 11, 1981] amount. The rate of such charges shall be prescribed by the Board, with the § 982.63 Contributions. approval of the Secretary. (b) In order to provide funds for the The Board may accept voluntary con- administration of the provisions of this tributions but these shall only be used part during the first part of a fiscal pe- to pay expenses incurred pursuant to riod before sufficient operating income § 982.58. Furthermore, such contribu- is available from assessments on the tions shall be free from any encum- current year’s shipments, the Board brances by the donor and the Board may accept the payment of assess- shall retain complete control of their ments in advance, and may also borrow use. money for such purpose. Further, pay- [61 FR 17560, Apr. 22, 1996] ment discounts may be authorized by the Board upon the approval of the RECORDS AND REPORTS Secretary to handlers making such advance assessment payments. § 982.64 Creditable promotion and ad- [24 FR 6185, Aug 1, 1959. Redesignated at 26 vertising reports. FR 12751, Dec. 30, 1961, as amended at 37 FR Each handler shall file such reports 589, Jan. 14, 1972; 51 FR 29550, Aug. 19, 1986; 61 of creditable promotion including paid FR 17560, Apr. 22, 1996] advertising conducted pursuant to § 982.62 Accounting. § 982.58 as recommended by the Board and approved by the Secretary. (a) Operating reserve. The Board with the approval of the Secretary may es- [51 FR 29550, Aug. 19, 1986]

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§ 982.65 Carryover reports. § 982.68 Other reports. As of January 1, May 1, and August 1, Each handler shall furnish to the or such other dates as the Board may Board such other reports as the Board, recommend and the Secretary approve, with the approval of the Secretary, each handler shall report within 10 may require to enable it to exercise its days to the Board the handler’s inven- powers and to perform its duties. tory of inshell and shelled hazelnuts. Such reports shall be certified to the § 982.69 Verification of reports. Board and the Secretary as to their ac- For the purpose of checking and curacy and completeness and shall verifying reports submitted by han- show, among other items, the fol- dlers, the Secretary and the Board, lowing: (a) Certified merchantable ha- through its duly authorized agents, zelnuts on which the restricted obliga- shall have access to each handler’s tion has been met; (b) merchantable premises at any time during reasonable hazelnuts on which the restricted obli- business hours and shall be permitted gation has not been met; (c) the mer- to inspect any hazelnuts held by such chantable equivalent of any hazelnuts handler and all records of the handler intended for handling as inshell hazel- with respect to hazelnuts held or dis- nuts; and (d) restricted hazelnuts with- posed of by such handler and all held. records of the handler with respect to [46 FR 26040, May 11, 1981] promotion and advertising activities conducted pursuant to § 982.58. Each § 982.66 Shipment reports. handler shall furnish all labor nec- Each handler shall report to the essary to facilitate such inspections as Board the respective quantities of the Secretary or the Board may make inshell and shelled hazelnuts handled of such handler’s holdings of any hazel- by him during such periods and in such nuts. Each handler shall store hazel- manner as are prescribed by the Board nuts in such manner as to facilitate in- with the approval of the Secretary. spection, and shall maintain adequate storage records which will permit accu- § 982.67 Reports of disposition of re- rate identification of all such hazelnuts stricted hazelnuts. held. (a) Each handler, before he disposes of any quantity of restricted hazelnuts [24 FR 6185, Aug. 1, 1959. Redesignated at 26 held by him, shall file with the Board a FR 12751, Dec. 30, 1961, as amended at 37 FR 589, Jan. 14, 1972; 51 FR 29550, Aug. 19, 1986] report of his intention to dispose of such quantity of restricted hazelnuts. § 982.70 Confidential information. This report shall be filed not less than five days prior to the date on which the All reports and records furnished or restricted hazelnuts are disposed of, submitted by handlers to the Board, unless the five-day period is expressly which include data or information con- waived by the Board. stituting a trade secret or disclosing of (b) Each handler, within 15 days after the trade position, financial condition, the disposition of any quantity of re- or business operations of the particular stricted hazelnuts, shall file with the handler from whom received, shall be Board a report of the actual disposition kept in the custody and under the con- of such quantity of restricted hazel- trol of one or more employees of the nuts. Such reports shall be certified to Board, and shall be disclosed to no per- the Board and to the Secretary as to son except the Secretary. their correctness and accuracy. (c) All reports required by this sec- § 982.71 Records. tion shall show the quantity, pack, and Each handler shall maintain such location of the hazelnuts covered by records of hazelnuts received, held, and such reports; the applicable handler’s disposed of by the handler, and such storage lot and inspection certificate records detailing such handler’s pro- numbers; and the disposition of the re- motion and advertising activities, as stricted hazelnuts which is intended or may be prescribed by the Board in which has been accomplished. order to perform its function under

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this part. Such records shall be re- act or otherwise, or, in accordance tained and be available for examina- with such powers, to act in the prem- tion by authorized representatives of ises whenever such action is deemed the Board or the Secretary for a period advisable. of two years after the end of the marketing year in which the transactions § 982.84 Duration of immunities. occurred. The benefits, privileges, and immuni- [40 FR 53228, Nov. 17, 1975, as amended at 51 ties conferred upon any person by vir- FR 29550, Aug. 19, 1986] tue of this subpart shall cease upon the termination of this subpart, except MISCELLANEOUS PROVISIONS with respect to acts done under and during the existence of this subpart. § 982.80 Right of the Secretary. The members of the Board (including § 982.85 Agents. successors, alternates, or other persons The Secretary may, by a designation selected by the Secretary), and any in writing, name any person, including agent or employee appointed or em- any officer or employee of the United ployed by the Board, shall be subject to States Department of Agriculture, to removal or suspension by the Sec- act as his agent or representative in retary, in his discretion, at any time. connection with any of the provisions Each and every order, regulation, decision, determination, or other act of the of this subpart. Board shall be subject to the con- § 982.86 Effective time, termination or tinuing right of the Secretary to dis- suspension. approve of the same at any time, and, upon such disapproval, shall be deemed (a) Effective time. The provisions of null and void except as to acts done in this subpart, as well as any amend- reliance thereon or in compliance ments to this subpart, shall become ef- therewith. fective at such time as the Secretary may declare, and shall continue in § 982.81 Personal liability. force until terminated or suspended in No member or alternate member of one of the ways specified in this sec- the Board, or any employee or agent tion. thereof, shall be held personally re- (b) Suspension or termination. (1) The sponsible, either individually or jointly Secretary may, at any time, terminate with others, in any way whatsoever, to the provisions of this subpart by giving any handler or any other person for er- at least one day’s notice by means of a rors in judgment, mistakes, or other press release or in any other manner acts either of commission or omission, which he may determine. as such member, alternate member, (2) The Secretary shall terminate or agent or employee, except for acts of suspend the operation of any or all of dishonesty. the provisions of this subpart whenever he finds that such provisions do not § 982.82 Separability. tend to effectuate the declared policy If any provision of this subpart is de- of the act. clared invalid, or the applicability (3) Referendum. The Board shall rec- thereof to any person, circumstance, or ommend to the Secretary during the thing is held invalid, the validity of the first half of every 10-year period start- remainder of this subpart or the appli- ing January 1, 1990, that a referendum cability thereof to any other person, be conducted to ascertain whether con- circumstance, or thing shall not be af- tinuance of this subpart is favored by fected thereby. the producers. (4) The Secretary shall terminate the § 982.83 Derogation. provisions of this subpart at the end of Nothing contained in this subpart is, any marketing year whenever the Sec- or shall be construed to be, in deroga- retary finds that such termination is tion or in modification of the rights of favored by a majority of the producers the Secretary or of the United States of hazelnuts who during the preceding to exercise any powers granted by the marketing year have been engaged in

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the production for marketing of hazel- tion issued pursuant to this subpart, or nuts in the States of Oregon and Wash- the issuance of any amendment to ei- ington: Provided, That such majority ther thereof, shall not (1) affect or have during such period produced for waive any right, duty, obligation, or li- market more than 50 percent of the ability which shall have arisen or volume of such hazelnuts produced for which may thereafter arise in connec- market within said States; but such tion with any provision of this subpart termination shall be effected only if or any regulation issued under this announced 30 days or more before the subpart, or (2) release or extinguish end of the then current marketing any violation of this subpart or of any year. regulation issued under this subpart, or (5) The provisions of this subpart (3) affect or impair any right or rem- shall, in any event, terminate when- edies of the Secretary or of any other ever the provisions of the act author- person, with respect to any such viola- izing them cease to be in effect. tion. (c) Proceedings after termination. (1) (b) All rules and regulations in this Upon the termination of the provisions part which are in effect immediately of this subpart, the members of the prior to this amendment of this sub- Board then functioning shall continue part and not inconsistent with such as joint trustees, for the purpose of liq- amendment shall continue in effect uidating the affairs of the Board, of all until otherwise prescribed pursuant to funds and property then in the posses- this subpart. sion or under the control of the Board, including claims for any funds unpaid § 982.88 Amendments. or property not delivered at the time of Amendments to this subpart may be such termination. Action by said trust- proposed, from time to time, by any eeship shall require the concurrence of person or by the Board. a majority of the said trustees. (2) Said trustees shall continue in Subpart—Grade and Size such capacity until discharged by the Secretary; shall, from time to time, ac- Regulation count for all receipts and disburse- § 982.101 Grade requirements for ments and deliver all property on hand, shelled hazelnuts. together with all books and records of (a) Pursuant to § 982.45(a), no handler the Board and the joint trustees, to shall handle any shelled hazelnuts un- such person as the Secretary may di- less such hazelnuts meet the grade re- rect; and shall, upon the request of the quirements for shelled hazelnuts as Secretary, execute such assignments or contained in exhibit A of this section. other instruments necessary or appro- (b) Pursuant to §§ 982.50(a) and priate to vest in such person full title 982.51(b), a handler may declare and and right to all of the funds, property, withhold shelled hazelnuts in lieu of and claims vested in the Board or the merchantable hazelnuts in satisfaction joint trustees pursuant to this subpart. of the handler’s restricted obligation. (3) Any person to whom funds, prop- Shelled hazelnuts so declared and with- erty, or claims have been transferred held shall, in lieu of the standards pre- or delivered by the Board or its mem- scribed in § 982.50(a)(3), meet the grade bers, pursuant to this section shall be requirements contained in exhibit A of subject to the same obligations im- this section. posed upon the members of the said Board and upon said joint trustees. EXHIBIT A [24 FR 6185, Aug. 1, 1959. Redesignated at 26 Grade Requirements for Shelled Hazelnuts FR 12751, Dec. 30, 1961, as amended at 46 FR 26040, May 11, 1981; 51 FR 29550, Aug. 19, 1986] Hazelnut kernels or portions of hazelnut kernels shall meet the following require- § 982.87 Effect of termination or ments: amendment. (1) Well dried and clean; (2) Free from foreign material, mold, ran- (a) Unless otherwise expressly pro- cidity, decay or insect injury; and vided by the Secretary, the termi- (3) Free from serious damage caused by se- nation of this subpart or of any regula- rious shriveling, or other means.

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Tolerances which appears in the Finding Aids section of the printed volume and at www.fdsys.gov. In order to allow for variations incident to proper grading and handling the following tolerances, by weight, are permitted as spec- Subpart—Free and Restricted ified: Percentages (1) For Foreign Material: 0.02 of one percent, for foreign material. § 982.254 Free and restricted percent- (2) For Defects: Five percent for kernels or ages—2006–2007 marketing year. portions of kernels which are below the requirements of this grade, including not more The final free and restricted percent- than the following: Two percent for mold, ages for merchantable hazelnuts for rancidity, decay or insect injury: Provided, the 2006–2007 marketing year shall be That not more than one percent shall be for 8.2840 percent and 91.7160 percent, re- mold, rancidity, or insect injury. spectively. Definitions [72 FR 2603, Jan. 22, 2007] (1) Well dried means that the kernels are firm and crisp, not containing more than 6 § 982.255 Free and restricted percent- percent moisture. ages—2007–2008 marketing year. (2) Clean means practically free from plain- (a) The interim final free and rely visible adhering dirt or other foreign ma- stricted percentages for merchantable terial. hazelnuts for the 2007–2008 marketing (3) Foreign material means any substance other than the hazelnut kernels, or portions year shall be 8.1863 and 91.8137 percent, of kernels. (Loose skins, pellicles or corky respectively. tissue which have become separated from the (b) On May 1, 2008, the final free and kernels shall not be considered as foreign restricted percentages for merchant- material, provided that this material does able hazelnuts for the 2007–2008 mar- not exceed .02 of one percent by weight.) keting year shall be 9.2671 and 90.7329 (4) Serious damage means any specific de- percent, respectively. fect described in this section, or any equally objectionable variation of any one of these [73 FR 9005, Feb. 19, 2008] defects, or any other defects, or any combination of defects, which seriously detracts Subpart—Assessment Rates from the appearance or the edible or marketing quality of the individual portion of § 982.340 Assessment rate. the kernel or of the lot as a whole. The following defects shall be considered as serious On and after July 1, 2000, an assess- damage. ment rate of $0.005 per pound is estab- (i) Serious shriveling means when the kernel lished for Oregon and Washington ha- is seriously shrunken, wrinkled and tough. zelnuts. (ii) Mold means that there is a visible growth of mold either on the outside or in- [65 FR 47247, Aug. 2, 2000] side of the kernel. (iii) Rancidity means that the kernel is no- Subpart—Administrative Rules and ticeably rancid to the taste. An oily appearance of the flesh does not necessarily indi- Regulations cate a rancid condition. (iv) Decay means that any portion of the SOURCE: 26 FR 4191, May 16, 1961, unless kernel is decomposed. otherwise noted. Redesignated at 26 FR 12751, (v) Insect injury means that the insect, Dec. 30, 1961. frass or web is present, or the kernel or portion of kernel show definite evidence of in- § 982.446 Inspection documentation. sect feeding. Pursuant to § 982.46(b), handlers are [47 FR 12611, Mar. 24, 1982, as amended at 48 required to use the following identi- FR 34015, July 27, 1983] fication on bags and cartons of 25 EDITORIAL NOTE: After January 1, 1979, pounds or larger capacity which con- ‘‘Budget of Expenses and Rate of Assessment’’ tain certified hazelnuts: regulations (e.g., sections .300 through .399) (a) The words ‘‘This Produce In- and ‘‘Marketing percentage’’ regulations (e.g., spected and Certified Per Federal Mar- sections .200 through .299) which are in effect for a year or less, will not be carried in the keting Order No. 982’’ shall be con- Code of Federal Regulations. For FEDERAL tained within an outline of the com- REGISTER citations affecting these regula- bined States of Oregon and Wash- tions, see the List of CFR Sections Affected, ington; and

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(b) This identification shall be print- tion of the applicant’s shelling oper- ed on the upper right quarter of the ation; (ii) the number of years such printed side of a bag; or person has operated a hazelnut shelling (c) This identification shall be print- plant; and (iii) the daily (8-hour) shelled on the upper right quarter of one of ing capacity of the plant. Designation the side panels of a carton. of an authorized sheller shall be effected by the board manager signing [54 FR 46720, Nov. 7, 1989] the application form and returning a § 982.450 Application of restricted obli- signed copy of the form to the appli- gation. cant. Each such designation shall continue in effect during the particular (a) Each handler required to withhold fiscal year so long as the authorized restricted hazelnuts pursuant to § 982.50 sheller is in compliance with the re- or § 982.51 shall hold such hazelnuts sep- quirements and conditions pursuant to arate from all other hazelnuts and § 982.52 applicable to authorized shell- shall maintain the identity of each lot ers. so withheld. The restricted product (2) When an authorized sheller com- withheld must be reported to the Board pletes the shelling of a lot of restricted on F/H Form 1d, Restricted Inshell Cer- hazelnuts, the sheller shall submit a tified. report thereon to the Board on F/H (b) Each handler making the election Form 7 showing: pursuant to § 982.50(c) in connection (i) The date shelling was completed; with certified merchantable hazelnuts (ii) The inspection certificate or lot which have not been handled, shall number; thereupon give written notification to (iii) The quantity shelled; the Board on F/H Form 4 of the par- (iv) The weight of the kernels pro- ticular election and of the weight and duced; and identity of the hazelnuts involved. (v) The location where restricted ha- (c) Pursuant to § 982.50(d), a handler zelnuts were held immediately prior to may withdraw from withholding re- shelling. stricted hazelnuts in excess of such (b) Exports. Any handler who desires handler’s restricted obligation upon ad- to act as agent of the Board in negoti- vising the Board of the weight and lot ating export sales of certified mer- identity of the hazelnuts to be with- chantable restricted hazelnuts may do drawn. When the quantity of restricted so upon the execution of an ‘‘Export hazelnuts to be withdrawn from with- Agreement’’, F/H Form A, wherein the holding consists of a part of a lot of handler agrees, among other things, to ungraded hazelnuts, no part of such lot negotiate such export sales at not less shall be withdrawn unless the remain- than such price as the Board may pre- der of such lot is reinspected and meets scribe, and in conformity to and com- the requirements of § 982.51. Handlers pliance with the other terms and condi- will use F/H Form 1d prior to the end of tions of the Export Agreement includ- the marketing year or F/H Form 7 after ing those set forth in § 982.52(b). the end of the marketing year, when (c) Other authorized outlets. Under the reporting the withdrawal of restricted direction or supervision of the Board, a hazelnuts from withholding status. handler may dispose of restricted ha- [54 FR 46720, Nov. 7, 1989] zelnuts for charitable purposes and for promoting the consumption of hazel- § 982.452 Disposition of restricted ha- nuts on behalf of the hazelnut industry zelnuts. in general. The report required under (a) Shelling. (1) Any person desiring § 982.67(b) following each such disposi- to shell restricted hazelnuts during a tion shall be accompanied by a certifi- fiscal year may do so upon being des- cation by the person receiving such ha- ignated by the Board as an authorized zelnuts from the handler that they will sheller for such year. Application for be used for charitable or promotional such designation shall be made in du- purposes, as authorized. plicate on F/H Form B and include, in [26 FR 4191, May 16, 1961. Redesignated at 26 addition to the conditions specified in FR 12751, Dec. 30, 1960, as amended at 54 FR § 982.52(a), the following: (i) The loca- 46721, Nov. 7, 1989]

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§ 982.453 Disposition of substandard culture as to their correctness, as the hazelnuts. Board with the approval of the Sec- The Board shall maintain a list of ap- retary may require. proved users who are crushers, live- [54 FR 24328, June 7, 1989] stock feed manufacturers, or livestock feeders, and of the locations of the fa- § 982.454 Sureties acceptable to the cilities to which substandard hazelnuts Board. may be shipped. Users interested in Bonds secured by cash, cashier’s or purchasing substandard hazelnuts or certified checks, or by assets that are hazelnut waste must make prior appli- entirely separate and apart from the cation to the Board on F/H Form D to handler named in the bond may be ac- be included on the approved list of such cepted by the Board pursuant to users. Each handler who disposes of § 982.54(a). As a condition of accepting substandard hazelnuts to an approved any surety, the Board may require such user shall, upon shipment, report to financial statements or other informa- the Board on F/H Form D1 the quan- tion relating to the ability of such sur- tities disposed of or shipped. Sub- ety to guarantee a handler’s bond as it standard hazelnuts disposed of to an deems necessary. Handlers are also re- approved user may only be shipped di- quired to submit F/H Form C to the rectly to an approved location where Board to document the handler’s exe- the crushing, feed manufacture, or cution of a bond. feeding is to take place. The Board may deny approval to any user applica- [54 FR 46721, Nov. 7, 1989] tion, or may remove any user from the approved list when such denial or re- § 982.455 Exchange of certified mer- moval is deemed necessary to ensure chantable hazelnuts withheld. control over disposition of substandard Each handler desiring to exchange hazelnuts. This may occur if the Board hazelnuts pursuant to § 982.55 shall determines that substandard hazelnuts prior thereto file a written notification are not properly shipped to, or utilized with the Board setting forth for the re- at, approved facilities, in compliance spective quantities of hazelnuts in- with this requirement. F/H Form D involved in the exchange, the inspection cludes the location and description of certificate numbers, quantities, loca- the disposal facilities to be used as well tions, and applicable lot numbers. as a certification to the Board and the [54 FR 46721, Nov. 7, 1989] Secretary of Agriculture that the applicant will: § 982.456 Interhandler transfers. (a) Crush, manufacture feed, or feed to livestock such hazelnuts at the loca- Each interhandler transfer of hazel- tion; nuts pursuant to § 982.56 (a) and (c) may (b) Use such hazelnuts for no other be made upon notification to the Board purpose than for crushing into oil, in triplicate by the receiving handler manufacturing into livestock feed, or on F/H Form 2 signed by both the livestock feeding; transferring handler and the receiving (c) Permit such inspection of prem- handler which shall include the fol- ises and of hazelnuts received and held, lowing information: and such examination of books and (a) Date of transfer; records covering hazelnut transactions (b) Names of the transferring and re- as the Board may require; ceiving handlers; (d) Keep a record of receipts, hold- (c) Locations between which the ha- ings, and use of substandard hazelnuts zelnuts were transferred; available for examination by author- (d) Whether uncertified inshell or ized representatives of the Board and certified merchantable; the U.S. Department of Agriculture for (e) Net weight of the hazelnuts trans- a period of two years after the end of ferred, by size and variety; the marketing year in which the re- (f) The inspection certificate, or lot corded transactions are completed; and number covering the hazelnuts; and (e) Make such reports, certified to (g) If certified merchantable, the the Board and the Secretary of Agri- name of the handler responsible for

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compliance with the applicable related interest. Any amount paid by a quirements pursuant to this part relat- handler as assessments, including any ing to such hazelnuts. charges imposed pursuant to this paragraph, shall be credited when the pay- [54 FR 46721, Nov. 7, 1989] ment is received in the Board’s office. § 982.460 Transfer of excess restricted [38 FR 5151, Feb. 26, 1973] credits. (a) Notification. Each handler having § 982.466 Reports of inshell hazelnuts handled, shelled and withheld. excess restricted credits who wants to transfer all or a portion thereof to an- Each handler shall report to the other handler or handlers, may notify Board monthly on F/H Form 1 and F/H the Board accordingly. The Board shall Forms 1a through 1e, as applicable, the make available to all handlers such in- quantities of inshell hazelnuts handled formation on a weekly basis. or withheld for restricted use and all (b) Application. Each handler who has product shelled and certified since the excess restricted credits and desires to last report. All reports shall be sub- transfer them to another handler, may mitted to include transactions through submit such request to the Board on F/ the end of each month, or other report- H Form 3. This form shall include: ing periods established by the Board, (1) The name and signature of the and are due in the Board office on the handler requesting the transfer; tenth day following the end of the re- (2) The name and signature of the porting period. The quantities of designated handler to whom the trans- inshell hazelnuts handled shall be refer is to be made; ported by size. The respective quan- (3) The amount of excess restricted tities of merchantable or ungraded ha- credits to be transferred; and zelnuts withheld as restricted product (4) Such other information as may be shall be reported separately, and with needed by the Board to enable the respect to hazelnuts certified for shell- Board to effect the requested transfer ing, or certified kernels withheld, the of the excess restricted credits. kernel weight and inshell equivalent (c) Transfer. The Board shall transfer weight shall be reported separately by the requested amount of the excess re- size. stricted credits from one handler to a [54 FR 46721, Nov. 7, 1989] designated handler upon receipt of a completed F/H Form 3 together with § 982.467 Report of receipts and dis- such information as may be required positions of hazelnuts grown out- by this section. side the United States. Each handler who receives hazelnuts [37 FR 3630, Feb. 18, 1972, as amended at 54 FR 46721, Nov. 7, 1989] grown outside the United States shall report to the Board monthly on F/H § 982.461 Late payment and interest Form 1f the receipt and disposition of charges. such hazelnuts. All reports submitted The Board shall impose a late pay- shall include transactions through the ment charge on any handler failing to end of each month, or other reporting pay his assessment within 30 days of periods established by the Board, and the billing date shown on the handler’s are due in the Board office on the tenth assessment statement received from day following the end of the reporting the Board. Such amount shall be shown period. The report shall include the quantity of such hazelnuts received, on the statement as the ‘‘Assessment the country of origin for such hazel- Due’’. The late payment charge shall be 5 percent of the unpaid balance of that nuts, inspection certificate number, amount. In the event the handler fails whether such hazelnuts are inshell or to pay the delinquent amount, includ- kernels, the disposition outlet, and ing the late payment charge, within 60 shipment date of such hazelnuts. With days following the billing date, an ad- each report, the handler shall submit ditional 1 percent interest charge shall copies of the applicable inspection cer- be applied monthly thereafter to the tificates. unpaid balance, including any accumu- [67 FR 5445, Feb. 6, 2002]

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§ 982.468 Report of hazelnut receipts, 983.11 Districts. disposition, and inventory. 983.12 Domestic shipments. 983.14 Handle. On or before January 15 and July 15, 983.15 Handler. or any other date requested by the 983.16 Inshell pistachios. Board with the approval of the Sec- 983.17 Inspector. retary, each handler shall: 983.18 Lot. (a) Report to the Board on F/H Form 983.20 Part and subpart. 6 such handler’s receipts and disposi- 983.21 Person. tion of inshell hazelnuts and produc- 983.22 Pistachios. 983.23 Processing. tion of hazelnut kernels during the re- 983.24 Producer. spective preceding six-month period of 983.25 Production area. July 1 to December 31, and the pre- 983.26 Production year. ceding 12-month period of July 1 to 983.27 Proprietary capacity. June 30; and 983.28 Secretary. (b) Report to the Board on F/H Form 983.29 Shelled pistachios. 5 such handler’s inventory of hazelnuts 983.30 Substandard pistachios. as of January 1 and July 1, respec- ADMINISTRATIVE COMMITTEE tively, showing the quantities of 983.41 Establishment and membership. inshell hazelnuts separately in terms of 983.42 Initial members and nomination of certified merchantable, graded successor members. uncertified merchantable, restricted, 983.43 Procedure. and ungraded. The certified merchant- 983.44 Powers. able hazelnuts shall be reported on the 983.45 Duties. basis of whether located within or out- RESEARCH side the production area and whether or not the restricted obligation has 983.46 Research. been met. MARKETING POLICY [54 FR 46721, Nov. 7, 1989] 983.47 Marketing policy.

§ 982.471 Records. REGULATIONS Each handler shall maintain com- 983.50 Aflatoxin levels. plete and accurate records showing the 983.51 Quality regulations. receipt, shipment and sale of all hazel- 983.51 Failed lots/rework procedure. nuts handled, used or otherwise dis- 983.53 Testing of minimal quantities. posed of and shall retain such records 983.54 Commingling. 983.55 Reinspection. for the two-year period prescribed in 983.56 Inspection, certification and identi- § 982.71. Handlers shall also maintain a fication. current record of all hazelnuts held in 983.57 Substandard pistachios. inventory. 983.58 Interhandler transfers. 983.59 Modification or suspension of regula- [54 FR 46721, Nov. 7, 1989] tions. PART 983—PISTACHIOS GROWN IN REPORTS, BOOKS AND RECORDS CALIFORNIA, ARIZONA, AND 983.64 Reports. NEW MEXICO 983.65 Confidential information. 983.66 Records. 983.67 Random verification audits. Subpart—Order Regulating Handling 983.68 Verification of reports. DEFINITIONS EXPENSES AND ASSESSMENTS Sec. 983.70 Expenses. 983.1 Accredited laboratory. 983.71 Assessments. 983.2 Act. 983.3 Affiliation. 983.72 Contributions. 983.4 Aflatoxin. 983.73 Delinquent assessments. 983.5 Aflatoxin inspection certificate. 983.74 Accounting. 983.6 Assessed weight. 983.75 Implementation and amendments. 983.7 Certified pistachios. MISCELLANEOUS PROVISIONS 983.8 Committee. 983.9 Confidential data or information. 983.80 Compliance. 983.10 Department or USDA. 983.81 Right of the Secretary.

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983.82 Personal liability. terms ‘‘controlling’’, ‘‘controlled by’’, 983.83 Separability. and ‘‘under the common control with’’) 983.84 Derogation. means the possession, direct or indi- 983.85 Duration of immunities. 983.86 Agents. rect, of the power to direct or cause the 983.87 Effective time. direction of the management and poli- 983.88 Suspension or termination. cies of a handler or a producer, whether 983.89 Termination. through voting securities, membership 983.90 Procedure upon termination. in a cooperative, by contract or other- 983.91 Effect of termination or amendment. wise. 983.92 Exemption. § 983.4 Aflatoxin. Subpart—Rules and Regulations Aflatoxin is one of a group of myco- 983.150 Aflatoxin regulations. toxins produced by the molds Asper- 983.152 Failed lots/rework procedure. gillus flavus and Aspergillus parasiticus. 983.155 Reinspection. Aflatoxins are naturally occurring 983.164 Reports. compounds produced by molds, which Subpart—Assessment Rate can be spread in improperly processed and stored nuts, dried fruits and grains. 983.253 Assessment rate.

AUTHORITY: 7 U.S.C. 601–674. § 983.5 Aflatoxin inspection certificate.

SOURCE: 69 FR 17850, Apr. 4, 2004, unless Aflatoxin inspection certificate is a cer- otherwise noted. tificate issued by an accredited laboratory or by a USDA laboratory. DEFINITIONS § 983.6 Assessed weight. § 983.1 Accredited laboratory. Assessed weight means pounds of An accredited laboratory is a labora- inshell pistachios, with the weight tory that has been approved or accred- computed at 5 percent moisture, re- ited by the U.S. Department of Agri- ceived for processing by a handler culture. within each production year: Provided, [74 FR 56539, Nov. 2, 2009] That for loose kernels, the actual weight shall be multiplied by two to § 983.2 Act. obtain an inshell weight; Provided further, That the assessed weight may be Act means Public Act No. 10, 73rd based upon quality requirements for Congress (May 12, 1933), as amended inshell pistachios that may be rec- and as re-enacted and amended by the ommended by the Committee and ap- Agricultural Marketing Order Act of proved by the Secretary. 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.). [74 FR 56539, Nov. 2, 2009]

§ 983.3 Affiliation. § 983.7 Certified pistachios. Affiliation. This term normally ap- Certified pistachios are those that pears as ‘‘affiliate of’’, or ‘‘affiliated meet the inspection and certification with’’, and means a person such as a requirements under this part. producer or handler who is: A producer [74 FR 56539, Nov. 2, 2009] or handler that directly, or indirectly through one or more intermediaries, § 983.8 Committee. owns or controls, or is controlled by, or is under common control with the pro- Committee means the Administrative ducer or handler specified; or a pro- Committee for Pistachios established ducer or handler that directly, or indi- pursuant to § 983.41. rectly through one or more inter- [74 FR 56539, Nov. 2, 2009] mediaries, is connected in a proprietary capacity, or shares the ownership § 983.9 Confidential data or informa- or control of the specified producer or tion. handler with one or more other pro- Confidential data or information sub- ducers or handlers. As used in this mitted to the committee consists of part, the term ‘‘control’’ (including the data or information constituting a 534

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trade secret or disclosure of the trade handlers and from the orchard to the position, financial condition, or busi- processing facility is not handling. ness operations of a particular entity or its customers. § 983.15 Handler. Handler means any person who han- § 983.10 Department or USDA. dles pistachios. Department or USDA means the United States Department of Agri- § 983.16 Inshell pistachios. culture. Inshell pistachios means pistachios § 983.11 Districts. that have a shell that has not been removed. (a) Districts shall consist of the following: § 983.17 Inspector. (1) District 1 consists of Tulare, Kern, San Bernardino, San Luis Obispo, Inspector means any inspector au- Santa Barbara, Ventura, Los Angeles, thorized by the USDA to inspect pis- Orange, Riverside, San Diego, and Im- tachios. perial Counties of California. (2) District 2 consists of Kings, Fres- § 983.18 Lot. no, Madera, and Merced Counties of Lot means any quantity of pistachios California. that is submitted for testing purposes (3) District 3 consists of all counties in under this part. California where pistachios are produced that are not included in Districts § 983.20 Part and subpart. 1 and 2. Part means the order regulating the (4) District 4 consists of the States of handling of pistachios grown in the Arizona and New Mexico. States of California, Arizona and New (b) With the approval of the Sec- Mexico, and all the rules, regulations retary, the boundaries of any district and supplementary orders issued there- may be changed by the committee to under. The aforesaid order regulating ensure proper representation. The the handling of pistachios grown in boundaries need not coincide with California, Arizona and New Mexico county lines. shall be a subpart of such part. [69 FR 17850, Apr. 4, 2004, as amended at 72 FR 69141, Dec. 7, 2007; 74 FR 56539, Nov. 2, [74 FR 56539, Nov. 2, 2009] 2009] § 983.21 Person. § 983.12 Domestic shipments. Person means an individual, partner- Domestic shipments means shipments ship, limited liability corporation, cor- to the fifty states of the United States poration, trust, association, or any or to territories of the United States other business unit. and the District of Columbia. [69 FR 17850, Apr. 4, 2004. Redesignated at 74 § 983.14 Handle. FR 56539, Nov. 2, 2009] Handle means to engage in: § 983.22 Pistachios. (a) Receiving pistachios; (b) Hulling and drying pistachios; Pistachios means the nuts of the pis- (c) Further preparing pistachios by tachio tree of the genus and species sorting, sizing, shelling, roasting, Pistacia vera grown in the production cleaning, salting, and/or packaging for area, whether inshell or shelled. marketing in or transporting to any [74 FR 56539, Nov. 2, 2009] and all markets in the current of interstate or foreign commerce; and/or § 983.23 Processing. (d) Placing pistachios into the cur- Processing means hulling and drying rent of commerce from within the pro- pistachios in preparation for market. duction area to points outside thereof: Provided, however, that transportation [69 FR 17850, Apr. 4, 2004. Redesignated at 74 within the production area between FR 56539, Nov. 2, 2009]

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§ 983.24 Producer. § 983.29 Shelled pistachios. Producer means any person engaged Shelled pistachios means pistachio within the production area in a propri- kernels, or portions of kernels, after etary capacity in the production of pis- the pistachio shells have been removed. tachios for sale. [69 FR 17850, Apr. 4, 2004. Redesignated at 74 [69 FR 17850, Apr. 4, 2004. Redesignated at 74 FR 56539, Nov. 2, 2009] FR 56539, Nov. 2, 2009] § 983.30 Substandard pistachios. § 983.25 Production area. Substandard pistachios means pis- Production Area means the States of tachios, inshell or shelled, which do California, Arizona, and New Mexico. not meet regulations established pursuant to §§ 983.50 and 983.51. [74 FR 56539, Nov. 2, 2009] [74 FR 56540, Nov. 2, 2009] § 983.26 Production year. Production year is synonymous with ADMINISTRATIVE COMMITTEE fiscal period and means the period be- ‘‘ ’’ § 983.41 Establishment and member- ginning on September 1 and ending on ship. August 31 of each year or such other period as may be recommended by the There is hereby established an ad- committee and approved by the Sec- ministrative committee for pistachios retary. Pistachios harvested and re- to administer the terms and provisions ceived in August of any year shall be of this part. This committee, con- applied to the subsequent production sisting of twelve (12) member positions, year for marketing order purposes. each of whom shall have an alternate, shall be allocated as follows: [69 FR 17850, Apr. 4, 2004. Redesignated at 74 (a) Handlers. Two of the members FR 56539, Nov. 2, 2009] shall represent handlers, as follows: (1) One handler member nominated § 983.27 Proprietary capacity. by one vote for each handler; and Proprietary capacity means the capac- (2) One handler member nominated ity or interest of a producer or handler by voting based on each handler cast- that, either directly or through one or ing one vote for each ton (or portion more intermediaries, is a property thereof) of the assessed weight of pis- owner together with all the appur- tachios processed by such handler dur- tenant rights of an owner including the ing the two production years preceding right to vote the interest in that ca- the production year in which the nomi- pacity as an individual, a shareholder, nations are made. member of a cooperative, partner, (b) Producers. Nine members shall trustee or in any other capacity with represent producers. Producers within respect to any other business unit. the respective districts shall nominate [69 FR 17850, Apr. 4, 2004. Redesignated at 74 four producers from District 1, three FR 56539, Nov. 2, 2009] producers from District 2, one producer from District 3, and one producer from § 983.28 Secretary. District 4. The Secretary, upon rec- Secretary means the Secretary of Ag- ommendation of the committee, may riculture of the United States or any reapportion producer representation officer or employee of the United among the districts to ensure proper States Department of Agriculture who representation. is, or who may hereafter be, authorized (c) Public member. One member shall to act in his/her stead. be a public member who is neither a producer nor a handler and shall have [69 FR 17850, Apr. 4, 2004. Redesignated at 74 all the powers, rights and privileges of FR 56539, Nov. 2, 2009] any other member of the committee. The public member and alternate public member shall be nominated by the

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committee and selected by the Sec- committee. For the first handler mem- retary. ber seat, the person receiving the highest number of votes shall be the han- [69 FR 17850, Apr. 4, 2004. Redesignated and amended at 74 FR 56541, Nov. 2, 2009] dler member nominee for that seat, and the person receiving the second highest § 983.42 Initial members and nomina- number of votes shall be the alternate tion of successor members. member nominee. For the second han- Nomination of committee members dler member seat, the person receiving and alternates shall follow the proce- the highest number of votes rep- dure set forth in this section or as may resenting handler volume shall be the be changed as recommended by the handler member nominee for that seat, committee and approved by the Sec- and the person receiving the second retary. highest number of votes representing (a) Initial members. Nominations for handler volume shall be the alternate initial producer and handler members member nominee. In case of a tie vote, shall be conducted by the Secretary by the nominee shall be selected by a either holding meetings of handlers drawing. and producers, or by mail. (c) Handlers. Only handlers, including (b) Successor members. Subsequent to duly authorized officers or employees the first nomination of committee of handlers, may participate in the members under this part, persons to be nomination of the two handler member nominated to serve on the committee nominees and their alternates. Nomi- as producer or handler members shall nation of the two handler members and be selected pursuant to nomination their alternates shall be as follows: procedures that shall be established by (1) For one handler member nomina- the committee with the approval of the tion, each handler entity shall be enti- Secretary: Provided, That: tled to one vote; (1) Any qualified individuals who (2) For the second handler member seek nomination as a producer member nomination, each handler entity shall shall submit to the committee an in- be entitled to cast one vote respec- tent to seek office in one designated tively for each ton of assessed weight district on such form and with such in- of pistachios processed by that handler formation as the committee shall des- during the two production years pre- ignate; ballots, accompanied by the ceding the production year in which names of all such candidates, with the nominations are made. For the pur- spaces to indicate voters’ choices and poses of nominating handler members spaces for write-in candidates, together and alternates by volume, the assessed with voting instructions, shall be weight of pistachios shall be credited mailed to all producers who are on to the handler responsible under the record with the committee within the order for the payment of assessments respective districts; the person(s) re- of those pistachios. The committee ceiving the highest number of votes with the approval of the Secretary, shall be the member nominee(s) for may revise the handler representation that district, and the person(s) receiv- on the committee if the committee ing the second highest number of votes ceases to be representative of the in- shall be the alternate member nomi- dustry. nee(s). In case of a tie vote, the nomi- (d) Producers. Only producers, includ- nee shall be selected by a drawing. ing duly authorized officers or employ- (2) Any qualified individuals who ees of producers, may participate in seek nomination as a handler member the nomination of nominees for pro- shall submit to the committee an in- ducer members and their alternates. tent to seek office with such informa- Each producer shall be entitled to cast tion as the committee shall designate; only one vote, whether directly or ballots, accompanied by the names of through an authorized officer or em- all such candidates, with spaces to in- ployee, for each position to be filled in dicate voters’ choices and spaces for the district in which the producer pro- write-in candidates, together with vot- duces pistachios. If a producer is en- ing instructions, shall be mailed to all gaged in producing pistachios in more handlers who are on record with the than one district, such producer shall

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select the district in which to partici- shall act as a member on the com- pate in the nomination. If a person is mittee until a successor member is se- both a producer and a handler of pis- lected and has been qualified. tachios, such person may participate in (h) Selection by Secretary. Nomina- both producer and handler nominations under paragraph (g) of this sections, provided, however, that a single tion received by the committee for all member may not hold concurrent seats handler and producer members and alas both a producer and handler. ternate member positions shall be cer- (e) Member’s affiliation. Not more tified and sent to the Secretary at than two members and not more than least 60 days prior to the beginning of two alternate members shall be persons each two-year term of office, together employed by or affiliated with pro- with all necessary data and other infor- ducers or handlers that are affiliated mation deemed by the committee to be with the same handler and/or producer. pertinent or requested by the Sec- Additionally, only one member and one retary. From those nominations, the alternate in any one district rep- Secretary shall select the ten producer resenting producers and only one mem- and handler members of the committee ber and one alternate representing han- and an alternate for each member. dlers shall be employed by, or affiliated (i) Acceptance. Each person to be se- with the same handler and/or producer. lected by the Secretary as a member or No handler, and all of its affiliated as an alternate member of the com- handlers, can be represented by more mittee shall, prior to such selection, than one handler member. qualify by advising the Secretary that (f) Cooperative affiliation. In the case if selected, such person agrees to serve of a producer cooperative, a producer in the position for which that nomina- shall not be deemed to be connected in tion has been made. a proprietary capacity with the cooper- (j) Failure to nominate. If nominations ative notwithstanding any outstanding are not made within the time and man- retains, contributions or financial in- ner specified in this part, the Secretary debtedness owed by the cooperative to may, without regard to nominations, a producer if the producer has not mar- select the committee members and al- keted pistachios through the coopera- ternates qualified to serve on the basis tive during the current and one pre- of the representation provided for in ceding production year. A cooperative § 983.41. that has as its members one or more (k) Term of office. Selected members other cooperatives that are handlers and alternate members of the com- shall not be considered as a handler for mittee shall serve for terms of two the purpose of nominating or voting years: Provided, That four of the ini- under this part. tially selected producer members and (g) Alternate members. Each member one handler member and their alter- of the committee shall have an alternates shall, by a drawing, be seated for nate member to be nominated in the terms of one year so that approxi- same manner as the member. Any al- mately half of the memberships’ terms ternate serving in the same district as expire each year. Each member and al- a member where both are employed by, ternate member shall continue to serve or connected in a proprietary capacity until a successor is selected and has with the same corporation, firm, part- qualified. The term of office shall begin nership, association, or business orga- on July 1st of each year. Committee nization, shall serve as the alternate to members and alternates may serve up that member. An alternate member, in to four consecutive, two-year terms of the absence of the member for whom office. In no event shall any member or that alternate is selected shall serve in alternate serve more than eight con- place of that member on the com- secutive years on the committee. For mittee, and shall have and be able to purposes of determining when a mem- exercise all the rights, privileges, and ber or alternate has served four con- powers of the member when serving on secutive terms, the accrual of terms the committee. In the event of death, shall begin following any period of at removal, resignation, or the disquali- least twelve consecutive months out of fication of a member, the alternate office.

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(l) Qualifications. (1) Each producer quire twelve (12) concurring votes of member and alternate shall be, at the the voting members regarding any rec- time of selection and during the term ommendation to the Secretary for of office, a producer or an officer, or adoption or change in: employee, of a producer in the district (i) Quality regulation; for which nominated. (ii) Aflatoxin regulation; (2) Each handler member and alter- (iii) Research under § 983.46; and nate shall be, at the time of selection (2) Actions of the committee with re- and during the term of office, a handler spect to the following issues shall re- or an officer or employee of a handler. quire eight (8) concurring votes of the (3) Any member or alternate member voting members regarding rec- who at the time of selection was em- ommendation to the Secretary for ployed by or affiliated with the person adoption or change in: who is nominated, that member shall, (i) Inspection programs; upon termination of that relationship, (ii) The establishment of the com- become disqualified to serve further as mittee. a member and that position shall be (b) Voting. Members of the committee deemed vacant. may participate in a meeting by at- (4) No person nominated to serve as a tendance in person or through the use public member or alternate public member shall have a financial interest of a conference telephone or similar in any pistachio growing or handling communication equipment, as long as operation. all members participating in such a (m) Vacancy. Any vacancy on the meeting can communicate with one an- committee occurring by the failure of other. An action required or permitted any person selected to the committee to be taken by the committee may be to qualify as a member or alternate taken without a meeting, if all mem- member due to a change in status mak- bers of the committee shall consent in ing the member ineligible to serve, or writing to that action. due to death, removal, or resignation, (c) Compensation. The members of the shall be filled, by a majority vote of committee and their alternates shall the committee for the unexpired por- serve without compensation, but mem- tion of the term. However, that person bers and alternates acting as members shall fulfill all the qualifications set shall be allowed their necessary ex- forth in this part as required for the penses: Provided, That the committee member whose office that person is to may request the attendance of one or fill. The qualifications of any person to more alternates not acting as members fill a vacancy on the committee shall at any meeting of the committee, and be certified in writing to the Secretary. such alternates may be allowed their The Secretary shall notify the com- necessary expenses; and, Provided fur- mittee if the Secretary determines ther, That the public member and the that any such person is not qualified. alternate for the public member may (n) The committee, with the approval be paid reasonable compensation in ad- of the Secretary, may issue rules and dition to necessary expenses. regulations implementing §§ 983.41, [69 FR 17850, Apr. 4, 2004. Redesignated and 983.42 and 983.43. amended at 74 FR 56541, Nov. 2, 2009] [69 FR 17850, Apr. 4, 2004. Redesignated and amended at 74 FR 56541, Nov. 2, 2009] § 983.44 Powers. The committee shall have the fol- § 983.43 Procedure. lowing powers: (a) Quorum. A quorum of the com- (a) To administer the provisions of mittee shall be any seven voting com- this part in accordance with its terms; mittee members. The vote of a major- (b) To make and adopt bylaws, rules ity of members present at a meeting at and regulations to effectuate the terms which there is a quorum shall con- and provisions of this part with the ap- stitute the act of the committee: Pro- proval of the Secretary; vided, That: (c) To receive, investigate, and report (1) Actions of the committee with re- to the Secretary complaints of viola- spect to the following issues shall re- tions of this part; and

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(d) To recommend to the Secretary (h) To act as intermediary between amendments to this part. the Secretary and any producer or handler with respect to the operations of [69 FR 17850, Apr. 4, 2004. Redesignated at 74 FR 56541, Nov. 2, 2009] this part; (i) To investigate and assemble data § 983.45 Duties. on the growing, handling, shipping and The committee shall have, among marketing conditions with respect to others, the following duties: pistachios; (a) To adopt bylaws and rules for the (j) To apprise the Secretary of all conduct of its meetings and the selec- committee meetings in a timely man- tion of such officers from among its ner; membership, including a chairperson (k) To submit to the Secretary such and vice-chairperson, as may be nec- available information as the Secretary essary, and define the duties of such of- may request; ficers; and adopt such other bylaws, (l) To investigate compliance with regulations and rules as may be nec- the provisions of this part; essary to accomplish the purposes of (m) To provide, through communica- the Act and the efficient administration to producers and handlers, infor- tion of this part; mation regarding the activities of the (b) To employ or contract with such committee and to respond to industry persons or agents as the committee inquiries about committee activities; deems necessary and to determine the (n) To oversee the collection of as- duties and compensation of such per- sessments levied under this part; sons or agents; (o) To borrow such funds, subject to (c) To select such subcommittees as may be necessary; the approval of the Secretary and not (d) To submit to the Secretary a to exceed the expected expenses of one budget for each fiscal period, prior to fiscal year, as are necessary for admin- the beginning of such period, including istering its responsibilities and obliga- a report explaining the items appearing tions under this part. therein and a recommendation as to [69 FR 17850, Apr. 4, 2004. Redesignated at 74 the rate of assessments for such period; FR 56541, Nov. 2, 2009] (e) To keep minutes, books, and records which will reflect all of the RESEARCH acts and transactions of the committee and which shall be subject to examina- § 983.46 Research. tion by the Secretary; The committee, with the approval of (f) To prepare periodic statements of the Secretary, may establish or provide the financial operations of the com- for the establishment of projects in- mittee and to make copies of each volving research designed to assist or statement available to producers and improve the efficient production and handlers for examination at the office postharvest handling of quality pis- of the committee; tachios. The committee, with the ap- (g) To cause its financial statements proval of the Secretary, may also es- to be audited by a certified public ac- tablish or provide for the establish- countant at least once each fiscal year and at such times as the Secretary ment of projects designed to determine may request. Such audit shall include the effects of pistachio consumption on an examination of the receipt of assess- human health and nutrition. Pursuant ments and the disbursement of all to § 983.43(a), such research projects funds. The committee shall provide the may only be established with 12 con- Secretary with a copy of all audits and curring votes of the voting members of shall make copies of such audits, after the committee. The expenses of such the removal of any confidential indi- projects shall be paid from funds col- vidual or handler information that lected pursuant to §§ 983.71 and 983.72. may be contained in them, available [74 FR 56542, Nov. 2, 2009] for examination at the offices of the committee;

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MARKETING POLICY no handler shall ship pistachios for domestic human consumption unless they § 983.47 Marketing policy. meet the applicable requirements as Prior to August 1st each year, the evidenced by certification acceptable committee shall prepare and submit to to the committee. the Secretary a report setting forth its [74 FR 56541, Nov. 2, 2009] recommended marketing policy covering quality regulations for the pend- § 983.52 Failed lots/rework procedure. ing crop. In the event it becomes advis- (a) Substandard pistachios. Each lot of able to modify such policy, because of substandard pistachios may be re- changed crop conditions, the com- worked to meet aflatoxin or quality re- mittee shall formulate a new policy quirements. The committee may estab- and shall submit a report thereon to lish, with the Secretary’s approval, ap- the Secretary. In developing the mar- propriate rework procedures. keting policy, the committee shall give (b) Failed lot reporting. If a lot fails to consideration to the production, har- meet the aflatoxin and/or the quality vesting, processing and storage condi- requirements of this part, a failed lot tions of that crop. The committee may notification report shall be completed also give consideration to current and sent to the committee within 10 prices being received and the probable working days of the test failure. This general level of prices to be received form must be completed and submitted for pistachios by producers and han- to the committee each time a lot fails dlers. Notice of the committee’s mar- either aflatoxin or quality testing. The keting policy, and of any modifications accredited laboratories shall send the thereof, shall be given promptly by rea- failed lot notification reports for sonable publicity, to producers and aflatoxin tests to the committee, and handlers. the handler, under the supervision of [69 FR 17850, Apr. 4, 2004. Redesignated at 74 an inspector, shall send the failed lot FR 56541, Nov. 2, 2009] notification reports for the lots that do not meet the quality requirements to REGULATIONS the committee. § 983.50 Aflatoxin regulations. [74 FR 56542, Nov. 2, 2009] The committee shall establish, with § 983.53 Testing of minimal quantities. the approval of the Secretary, such aflatoxin sampling, analysis, and in- (a) Aflatoxin. Handlers who handle spection requirements applicable to less than 1 million pounds of assessed pistachios to be shipped for domestic weight per year have the option of uti- human consumption as will contribute lizing both of the following methods for to orderly marketing or be in the pub- testing for aflatoxin: lic interest. No handler shall ship, for (1) The handler may have an inspec- human consumption, pistachios that tor sample and test his or her entire in- exceed an aflatoxin level established by ventory of hulled and dried pistachios the committee with approval of the for the aflatoxin certification before Secretary. All domestic shipments further processing. must be covered by an aflatoxin inspec- (2) The handler may segregate re- tion certificate. ceipts into various lots at the handler’s discretion and have an inspector sam- [74 FR 56541, Nov. 2, 2009] ple and test each specific lot. Any lots that are found to have less aflatoxin § 983.51 Quality regulations. than the level established by the com- For any production year, the committee and approved by the Secretary mittee may establish, with the ap- can be certified by an inspector to be proval of the Secretary, such quality negative as to aflatoxin. Any lots that and inspection requirements applicable are found to have aflatoxin exceeding to pistachios to be shipped for domestic the level established by the committee human consumption as will contribute and approved by the Secretary may be to orderly marketing or be in the pub- tested after reworking in the same lic interest. In such production year, manner as specified in § 983.50.

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(b) Quality. The committee may, with aflatoxin and quality requirements es- the approval of the Secretary, establish tablished pursuant to §§ 983.50 and 983.51 regulations regarding the testing of shall not be shipped for domestic minimal quantities of pistachios for human consumption. quality. [74 FR 56540, Nov. 2, 2009] [74 FR 56540, Nov. 2, 2009] § 983.58 Interhandler transfers. § 983.54 Commingling. Within the production area, any han- Certified lots may be commingled dler may transfer pistachios to another with other certified lots, but the com- handler for additional handling, and mingling of certified and uncertified any assessments, inspection require- lots shall cause the loss of certification ments, aflatoxin testing requirements, for the commingled lots. and any other marketing order requirements with respect to pistachios so [74 FR 56540, Nov. 2, 2009] transferred may be assumed by the re- § 983.55 Reinspection. ceiving handler. The committee, with the approval of the Secretary, may es- The Secretary, upon recommendation tablish methods and procedures, in- of the committee, may establish rules cluding necessary reports, to maintain and regulations to establish conditions accurate records for such transfers. under which pistachios would be subject to reinspection. [74 FR 56541, Nov. 2, 2009] [69 FR 17850, Apr. 4, 2004. Redesignated at 74 § 983.59 Modification or suspension of FR 56540, Nov. 2, 2009] regulations. (a) In the event that the committee, § 983.56 Inspection, certification and identification. at any time, finds that by reason of changed conditions, any regulations Upon recommendation of the com- issued pursuant to §§ 983.50 through mittee and approval of the Secretary, 983.58 should be modified or suspended, all pistachios that are required to be it shall, pursuant to § 983.43, so rec- inspected and certified in accordance ommend to the Secretary. with this part shall be identified by ap- (b) Whenever the Secretary finds propriate seals, stamps, tags, or other from the recommendations and infor- identification to be affixed to the con- mation submitted by the committee or tainers by the handler. All inspections from other available information, that shall be at the expense of the handler, a regulation should be modified, sus- Provided, That for handlers making pended, or terminated with respect to shipments from facilities located in an any or all shipments of pistachios in area where inspection costs for inspec- order to effectuate the declared policy tor travel and shipment of samples for of the Act, the Secretary shall modify aflatoxin testing would otherwise ex- or suspend such provisions. If the Sec- ceed the average of those same inspec- retary finds that a regulation obstructs tion costs for comparable handling op- or does not tend to effectuate the de- erations located in Districts 1 and 2, clared policy of the Act, the Secretary such handlers may be reimbursed by shall suspend or terminate such regula- the committee for the difference be- tion. tween their respective inspection costs (c) The Secretary, upon recommenda- and such average, or as otherwise rection of committee, may issue rules and ommended by the committee and ap- regulations implementing §§ 983.50 proved by the Secretary. through 983.58. [74 FR 56540, Nov. 2, 2009] [74 FR 56541, Nov. 2, 2009]

§ 983.57 Substandard pistachios. REPORTS, BOOKS AND RECORDS The committee shall, with the approval of the Secretary, establish such § 983.64 Reports. reporting and disposition procedures as Upon the request of the committee, it deems necessary to ensure that pis- with the approval of the Secretary, tachios which do not meet the each handler shall furnish such reports

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and information on such forms as are the matter will be referred to the Sec- needed to enable the Secretary and the retary for appropriate action. committee to perform their functions and enforce the regulations under this [69 FR 17850, Apr. 4, 2004. Redesignated at 74 FR 56541, Nov. 2, 2009] part. The committee shall provide a uniform report format for the handlers. § 983.68 Verification of reports. [69 FR 17850, Apr. 4, 2004. Redesignated at 74 For the purpose of checking and FR 56541, Nov. 2, 2009] verifying reports filed by handlers or the operation of handlers under the § 983.65 Confidential information. provisions of this part, the Secretary All reports and records furnished or and the committee, through their duly submitted by handlers to the com- authorized agents, shall have access to mittee which include confidential data any premises where pistachios and or information constituting a trade se- records relating thereto may be held by cret or disclosing the trade position, fi- any handler and at any time during nancial condition, or business oper- reasonable business hours, shall be per- ations of the particular handler or mitted to inspect any pistachios so their customers shall be received by, held by such handler and any and all and at all times kept in the custody records of such handler with respect to and under the control of, one or more the acquisition, holding, or disposition employees of the committee, who shall of all pistachios which may be held or disclose such data and information to which may have been shipped by him/ no person except the Secretary. How- her. ever, such data or information may be disclosed only with the approval of the [69 FR 17850, Apr. 4, 2004. Redesignated at 74 FR 56541, Nov. 2, 2009] Secretary, to the committee when reasonably necessary to enable the com- EXPENSES AND ASSESSMENTS mittee to carry out its functions under this part. § 983.70 Expenses. [69 FR 17850, Apr. 4, 2004. Redesignated at 74 The committee is authorized to incur FR 56541, Nov. 2, 2009] such expenses as the Secretary finds are reasonable and likely to be in- § 983.66 Records. curred by it during each production Records of pistachios received, held year for the maintenance and func- and shipped by him, as will substan- tioning of the committee and for such tiate any required reports and will other purposes as the Secretary may, show performance under this part will pursuant to the provisions of this part, be maintained by each handler for at determine to be appropriate. least three years beyond the crop year [69 FR 17850, Apr. 4, 2004. Redesignated at 74 of their applicability. FR 56541, Nov. 2, 2009] [69 FR 17850, Apr. 4, 2004. Redesignated at 74 FR 56541, Nov. 2, 2009] § 983.71 Assessments. (a) Each handler who receives pis- § 983.67 Random verification audits. tachios for processing in each produc- (a) All handlers’ pistachio inventory tion year, except as provided in § 983.58, shall be subject to random verification shall pay the committee on demand, an audits by the committee to ensure assessment based on the pro rata share compliance with the terms of the of the expenses authorized by the Sec- order, and regulations adopted pursu- retary for that year attributable to the ant thereto. assessed weight of pistachios received (b) Committee staff or agents of the by that handler in that year. committee, based on information from (b) The committee, prior to the be- the industry or knowledge of possible ginning of each production year, shall violations, may make buys of handler recommend and the Secretary shall set product in retail locations. If it is de- the assessment for the following pro- termined that violations of the order duction year, which shall not exceed have occurred as a result of the buys, one-half of one percent of the average

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price received by producers in the pre- tion year as credit for such person, to- ceding production year. The com- ward the committee’s fiscal operations mittee, with the approval of the Sec- of the following production year; retary, may revise the assessment if it (2) The committee, with the approval determines, based on information in- of the Secretary, may carry over such cluding crop size and value, that the excess into subsequent production action is necessary, and if the revision years as a reserve: Provided, That funds does not exceed the assessment limita- already in the reserve do not exceed ap- tion specified in this section and is proximately two production years’ made prior to the final billing of the budgeted expenses. In the event that assessment. funds exceed two production years’ [69 FR 17850, Apr. 4, 2004. Redesignated and budgeted expenses, future assessments amended at 74 FR 56540, Nov. 2, 2009] will be reduced to bring the reserves to an amount that is less than or equal to § 983.72 Contributions. two production years’ budgeted ex- The committee may accept voluntary penses. Such reserve funds may be contributions but these shall only be used: used to pay for committee expenses un- (i) To defray expenses, during any less specified in support of research production year, prior to the time as- under § 983.46. Furthermore, research sessment income is sufficient to cover contributions shall be free of addi- such expenses; tional encumbrances by the donor and (ii) To cover deficits incurred during the committee shall retain complete any production year when assessment control of their use. income is less than expenses; (iii) To defray expenses incurred dur- [74 FR 56540, Nov. 2, 2009] ing any period when any or all provi- § 983.73 Delinquent assessments. sions of this part are suspended; and (iv) To cover necessary expenses of Any handler who fails to pay any as- liquidation in the event of termination sessment within the time required by of this part. Upon such termination, the committee, shall pay to the com- any funds not required to defray the mittee a late payment charge of 10 per- necessary expenses of liquidation shall cent of the amount of the assessment be disposed of in such manner as the determined to be past due and, in addi- Secretary may determine to be appro- tion, interest on the unpaid balance at priate: Provided, That to the extent the rate of one and one-half percent per practical, such funds shall be returned month. The late payment and interest pro rata to the persons from whom such charges may be modified by the Sec- funds were collected. retary upon recommendation of the (b) All funds received by the com- committee. mittee pursuant to the provisions of [69 FR 17850, Apr. 4, 2004. Redesignated at 74 this part shall be used solely for the FR 56540, Nov. 2, 2009] purpose specified in this part and shall be accounted for in the manner pro- § 983.74 Accounting. vided in this part. The Secretary may (a) If, at the end of a production year, at any time require the committee and the assessments collected are in excess its members to account for all receipts of expenses incurred, such excess shall and disbursements. be accounted for in accordance with (c) Upon the removal or expiration of one of the following: the term of office of any member of the (1) If such excess is not retained in a committee, such member shall account reserve, as provided in paragraph (a)(2) for all receipts and disbursements for of this section, it shall be refunded pro- which that member was personally re- portionately to the persons from whom sponsible, deliver all committee prop- it was collected in accordance with erty and funds in the possession of such § 983.71: Provided, That any sum paid by member to the committee, and execute a person in excess of his/her pro rata such assignments and other instru- share of the expenses during any pro- ments as may be necessary or appro- duction year may be applied by the priate to vest in the committee full committee at the end of such produc- title to all of the committee property,

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funds, and claims vested in such mem- dishonesty, willful misconduct, or ber pursuant to this part. gross negligence. [69 FR 17850, Apr. 4, 2004. Redesignated and [69 FR 17850, Apr. 4, 2004. Redesignated at 74 amended at 74 FR 56540, Nov. 2, 2009] FR 56540, Nov. 2, 2009]

§ 983.75 Implementation and amend- § 983.83 Separability. ments. If any provision of this part is de- The Secretary, upon the rec- clared invalid, or the applicability ommendation of a majority of the com- thereof to any person, circumstance, or mittee, may issue rules and regulations thing is held invalid, the validity of the implementing or modifying §§ 983.64 remainder, or the applicability thereof through 983.74 inclusive. to any other person, circumstance, or thing, shall not be affected thereby. [74 FR 56540, Nov. 2, 2009] [69 FR 17850, Apr. 4, 2004. Redesignated at 74 MISCELLANEOUS PROVISIONS FR 56540, Nov. 2, 2009]

§ 983.80 Compliance. § 983.84 Derogation. Except as provided in this part, no Nothing contained in this part is, or handler shall handle pistachios, the shall be construed to be, in derogation handling of which has been prohibited or in modification of the rights of the or otherwise limited by the Secretary Secretary or of the United States to in accordance with provisions of this exercise any powers granted by the Act part; and no handler shall handle pis- or otherwise, or, in accordance with tachios except in conformity to the such powers, to act in the premises provision of this part. whenever such action is deemed advisable. [69 FR 17850, Apr. 4, 2004. Redesignated at 74 FR 56540, Nov. 2, 2009] [69 FR 17850, Apr. 4, 2004. Redesignated at 74 FR 56540, Nov. 2, 2009] § 983.81 Right of the Secretary. § 983.85 Duration of immunities. The members of the committee (including successors or alternates) and The benefits, privileges, and immuni- any agent or employee appointed or ties conferred upon any person by vir- employed by the committee, shall be tue of this part shall cease upon its ter- subject to removal or suspension at the mination, except with respect to acts discretion of the Secretary, at any done under and during the existence time. Each and every decision, deter- thereof. mination, or other act of the com- [69 FR 17850, Apr. 4, 2004. Redesignated at 74 mittee shall be subject to the con- FR 56540, Nov. 2, 2009] tinuing right of the Secretary to disapprove of the same at any time, and § 983.86 Agents. upon such disapproval, shall be deemed The Secretary may, by a designation null and void. in writing, name any person, including [69 FR 17850, Apr. 4, 2004. Redesignated at 74 any officer or employee of the United FR 56540, Nov. 2, 2009] States Government, or name any service, division or branch in the United § 983.82 Personal liability. States Department of Agriculture, to No member or alternate member of act as agent or representative of the the committee, nor any employee, rep- Secretary in connection with any of resentative, or agent of the committee the provisions of this part. shall be held personally responsible to [69 FR 17850, Apr. 4, 2004. Redesignated at 74 any handler, either individually, or FR 56540, Nov. 2, 2009] jointly with others, in any way whatsoever, to any person, for errors in judg- § 983.87 Effective time. ment, mistakes, or other acts, either of The provisions of this part, as well as commission or omission, as such mem- any amendments, shall become effec- ber, alternate member, employee, rep- tive at such time as the Secretary may resentative, or agent, except for acts of declare, and shall continue in force

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until terminated or suspended in one of nation shall be announced on or before the ways specified in § 983.88 or § 983.89. the end of the production year. (e) The provisions of this part shall, [74 FR 56540, Nov. 2, 2009] in any event, terminate whenever the § 983.88 Suspension or termination. provisions of the Act authorizing them cease. The Secretary shall terminate or suspend the operation of any or all of the [69 FR 17850, Apr. 4, 2004. Redesignated at 74 provisions of this part, whenever he/she FR 56540, Nov. 2, 2009] finds that such provisions do not tend to effectuate the declared policy of the § 983.90 Procedure upon termination. Act. Upon the termination of this part, the members of the committee then [69 FR 17850, Apr. 4, 2004. Redesignated at 74 FR 56540, Nov. 2, 2009] functioning shall continue as joint trustees, for the purpose of liquidating § 983.89 Termination. the affairs of the committee. Action by such trustees shall require the concur- (a) The Secretary may at any time terminate the provisions of this part. rence of a majority of said trustees. Such trustees shall continue in such (b) The Secretary shall terminate or capacity until discharged by the Sec- suspend the operations of any or all of retary, and shall account for all re- the provisions of this part whenever it is found that such provisions do not ceipts and disbursements and deliver tend to effectuate the declared policy all property on hand, together with all of the Act. books and records of the committee and the joint trustees, to such persons (c) The Secretary shall terminate the provisions of this part at the end of as the Secretary may direct; and shall any fiscal period whenever it is found upon the request of the Secretary, exe- that such termination is favored by a cute such assignments or other instru- majority of producers who, during a ments necessary or appropriate to vest representative period, have been en- in such person full title and right to all gaged in the production of pistachios: the funds, properties, and claims vested Provided, That such majority has, dur- in the committee or the joint trustees, ing such representative period, pro- pursuant to this part. Any person to duced for market more than fifty per- whom funds, property, or claims have cent of the volume of such pistachios been transferred or delivered by the produced for market, but such termi- committee or the joint trustees, pursu- nation shall be announced at least 90 ant to this section, shall be subject to days before the end of the current fis- the same obligations imposed upon the cal period. members of said committee and upon (d) Within six years of the effective said joint trustees. date of this part the Secretary shall [69 FR 17850, Apr. 4, 2002. Redesignated at 74 conduct a referendum to ascertain FR 56540, Nov. 2, 2009] whether continuance of this part is favored by producers. Subsequent § 983.91 Effect of termination or referenda to ascertain continuance amendment. shall be conducted every six years thereafter. The Secretary may termi- Unless otherwise expressly provided nate the provisions of this part at the by the Secretary, the termination of end of any fiscal period in which the this part or of any regulation issued Secretary has found that continuance pursuant thereto, or the issuance of of this part is not favored by a two any amendment to either thereof, shall thirds (2⁄3) majority of voting pro- not: ducers, or a two thirds (2⁄3) majority of (a) Affect or waive any right, duty, volume represented thereby, who, dur- obligation, or liability which shall ing a representative period determined have arisen or which may thereafter by the Secretary, have been engaged in arise, in connection with any provi- the production for market of pistachios sions of this part or any regulation in the production area. Such termi- issued there under,

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(b) Release or extinguish any viola- (c) Transfers between handlers. Trans- tion of this part or any regulation fers between handlers within the pro- issued there under, or duction area are exempt from the (c) Affect or impair any rights or aflatoxin regulation of this section. remedies of the Secretary, or of any (d) Aflatoxin testing procedures. To ob- other persons, with respect to such vio- tain an aflatoxin inspection certificate, lation. each lot to be certified shall be unique- ly identified, be traceable from testing [69 FR 17850, Apr. 4, 2004. Redesignated at 74 through shipment by the handler, and FR 56540, Nov. 2, 2009] be subjected to the following: § 983.92 Exemption. (1) Samples for testing. Prior to testing, a sample shall be drawn from each Any handler may handle pistachios lot (‘‘lot samples’’) of sufficient weight within the production area free of the to comply with Table 1 and Table 2 of requirements in §§ 983.50 through 983.58 this section. and § 983.71 if such pistachios are han- (2) Test samples for aflatoxin. Prior to dled in quantities not exceeding 5,000 submission of samples to an accredited dried pounds during any production laboratory for aflatoxin analysis, one year. The Secretary, upon rec- sample (‘‘test sample’’) shall be created ommendation of the committee, may from the pistachios designated for issue rules and regulations changing aflatoxin testing in compliance with the 5,000 pound quantity applicable to Tables 1 and 2 of this paragraph for this exemption. inshell and kernel pistachio lots that [74 FR 56540, Nov. 2, 2009] weigh up to and including 4,400 pounds. For lot sizes larger than 4,400 pounds, two samples (‘‘test samples’’) shall be Subpart—Rules and Regulations created equally from the pistachios designated for aflatoxin testing in § 983.150 Aflatoxin regulations. compliance with the requirements to (a) Maximum level. No handler shall Tables 1 and 2 of this paragraph. The ship for domestic human consumption, test samples shall be prepared by, or pistachios that exceed an aflatoxin under the supervision of an inspector, level of 15 ppb. All shipments must also or as approved under an alternative be covered by an aflatoxin inspection USDA-recognized inspection program. certificate. Pistachios that fail to meet The test samples shall be designated by the aflatoxin requirements shall be dis- an inspector as Test Sample #1 and posed in such manner as described in Test Sample #2. Each sample shall be Failed lots/rework procedure of this placed in a suitable container, with the part. lot number clearly identified, and then (b) Change in level. The committee submitted to an accredited laboratory. may recommend to the Secretary The gross weight of the inshell lot sam- changes in the aflatoxin level specified ple for aflatoxin testing and the min- in this section. If the Secretary finds, imum number of incremental samples on the basis of such recommendation required are shown in Table 1 of this or other information, that such an ad- paragraph. The gross weight of the ker- justment of the aflatoxin level would nel lot sample for aflatoxin testing and tend to effectuate the declared policy the minimum number of incremental of the Act, such change shall be made samples required is shown in the Table accordingly. 2 of this paragraph.

TABLE 1 TO § 983.150(d)(2)—INSHELL PISTACHIO LOT SAMPLING INCREMENTS FOR AFLATOXIN CERTIFICATION

Minimum number Total weight of Weight of test Lot weight of incremental lot sample sample (lbs.) samples for the lot sample (kilograms) (kilograms)

220 or less ...... 10 2.0 2.0 221–440 ...... 15 3.0 3.0 441–1,100 ...... 20 4.0 4.0 1,101–2,200 ...... 30 6.0 6.0

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TABLE 1 TO § 983.150(d)(2)—INSHELL PISTACHIO LOT SAMPLING INCREMENTS FOR AFLATOXIN CERTIFICATION—Continued

Minimum number Lot weight of incremental Total weight of Weight of test (lbs.) samples for the lot sample sample lot sample (kilograms) (kilograms)

2,201–4,400 ...... 40 8.0 8.0 4,401–11,000 ...... 60 12.0 6.0 11,001–22,000 ...... 80 16.0 8.0 22,001–150,000 ...... 100 20.0 10.0

TABLE 2 TO § 983.150(d)(2)—SHELLED PISTACHIO KERNEL LOT SAMPLING INCREMENTS FOR AFLATOXIN CERTIFICATION

Minimum number Lot weight of incremental Total weight of Weight of test (lbs.) samples for the lot sample sample lot sample (kilograms) (kilograms)

220 or less ...... 10 1.0 1.0 221–440 ...... 15 1.5 1.5 441–1,100 ...... 20 2.0 2.0 1,101–2,200 ...... 30 3.0 3.0 2,201–4,400 ...... 40 4.0 4.0 4,401–11,000 ...... 60 6.0 3.0 11,001–22,000 ...... 80 8.0 4.0 22,001–150,000 ...... 100 10.0 5.0

(3) Testing of pistachios. Test samples below 20 ppb, the accredited laboratory shall be received and logged by an ac- may at the handler’s discretion analyze credited laboratory and each test sam- Test Sample #2 and the test results of ple shall be prepared and analyzed Test Samples #1 and #2 will be aver- using High Pressure Liquid Chroma- aged. Alternately, the handler may tography (HPLC), Vicam Method elect to withdraw the lot from testing, (Aflatest), or other methods as rec- rework the lot, and resubmit it for ommended by not fewer than eight testing after reworking. If the handler members of the committee and ap- directs the laboratory to proceed with proved by the Secretary. The aflatoxin the analysis of Test Sample #2, a lot level shall be calculated on a kernel will be certified as negative to weight basis. aflatoxin and the laboratory shall issue (4) Certification of lots ‘‘negative’’ as to an aflatoxin inspection certificate if aflatoxin. (i) Lots which require a sin- the averaged results of Test Sample #1 gle test sample will be certified as and Test Sample #2 is at or below 15 ‘‘negative’’ on the aflatoxin certificate ppb. If the averaged aflatoxin level of if the sample has an aflatoxin level at Test Samples #1 and #2 is above 15 ppb, or below 15 ppb. If the aflatoxin level is the lot fails and the accredited labora- above 15 ppb, the lot fails and the ac- tory shall fill out a failed lot notifica- credited laboratory shall fill out a tion report as specified in §§ 983.52 and failed lot notification report as specified in §§ 983.52 and 983.152. 983.152. (ii) Lots which require two test sam- (iii) The accredited laboratory shall ples will be certified as ‘‘negative’’ on send a copy of the failed lot notifica- the aflatoxin inspection certificate if tion report to the Committee and to Test Sample #1 has an aflatoxin level the failed lot’s owner within 10 work- at or below 10 ppb. If the aflatoxin level ing days of any failure described in this of Test Sample #1 is above 20 ppb, the section. If the lot is certified as nega- lot fails and the accredited laboratory tive as described in this section, the shall fill out a failed lot notification aflatoxin inspection certificate shall report as specified in §§ 983.52 and certify the lot using a certification 983.152. If the aflatoxin level of Test form identifying each lot by weight, Sample #1 is above 10 ppb and at or

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grade, and date. The certification ex- aflatoxin regulations in § 983.150, then pires for the lot or remainder of the lot 100% of the product within that lot after 12 months. shall be removed from the bulk and/or (5) Certification of aflatoxin levels. retail packaging containers and re- Each accredited laboratory shall com- worked to remove the portion of the plete aflatoxin testing and reporting lot that caused the failure. Reworking and shall certify that every lot of pis- shall consist of mechanical, electronic, tachios shipped domestically does not or manual procedures normally used in exceed the aflatoxin levels as required the handling of pistachios. After the in paragraph (a) of this section or as rework procedure has been completed, provided under § 983.50. Each handler the total weight of the accepted prod- shall keep a record of each test, along uct and the total weight of the rejected with a record of final shipping disposi- product shall be reported to the com- tion. These records must be maintained mittee. The reworked lot shall be sam- for three years beyond the production pled and tested for aflatoxin as speci- year of their applicability, and are sub- fied in § 983.150. ject to audit by the Secretary or the committee at any time. [74 FR 56531, Nov. 2, 2009] (6) Test samples that are not used for analysis. If a handler does not elect to § 983.155 Reinspection. use Test Sample #2 for certification (a) Any lot of inshell pistachios that purposes, the handler may request that is pin-picked, hand-sorted, color-sort- the laboratory return it to the handler. ed, and/or resized is considered to be [74 FR 56530, Nov. 2, 2009, as amended at 75 ‘‘materially changed.’’ Pistachios which FR 43048, July 23, 2010] are roasted, salted, flavored, air- legged, dyed, color-coated, cleaned, and § 983.152 Failed lots/rework procedure. otherwise subjected to similar proc- (a) Inshell rework procedure for esses are not considered to be materi- aflatoxin. If inshell rework is selected ally changed. as a remedy to meet the aflatoxin regu- (b) Each handler who handles pis- lations of this part, then 100% of the tachios shall cause any lot or portion product within that lot shall be re- of a lot initially certified for aflatoxin, moved from the bulk and/or retail and subsequently materially changed, packaging containers and reworked to to be reinspected for aflatoxin and cer- remove the portion of the lot that tified as a new lot or new lots: Pro- caused the failure. Reworking shall vided, That, handlers exempted from consist of mechanical, electronic, or order requirements under § 983.92 are manual procedures normally used in exempt from all reinspection require- the handling of pistachios. After the ments. rework procedure has been completed, the total weight of the accepted prod- [70 FR 61226, Oct. 21, 2005, as amended at 71 uct and the total weight of the rejected FR 51987, Sept. 1, 2006; 72 FR 69141, Dec. 7, product shall be reported to the com- 2007. Redesignated and amended at 74 FR mittee. The reworked lot shall be sam- 56530, Nov. 2, 2009] pled and tested for aflatoxin as speci- § 983.164 Reports. fied in § 983.150, except that the lot sample size and the test sample size (a) ACP–2, Failed Lot Notification. shall be doubled. If, after the lot has Each handler shall notify the Adminis- been reworked and tested, it fails the trative Committee for Pistachios (com- aflatoxin test for a second time, the lot mittee) of all lots that fail to meet the may be shelled and the kernels re- order’s maximum aflatoxin require- worked, sampled, and tested in the ments by completing section A of this manner specified for an original lot of form. Handlers shall furnish this report kernels, or the failed lot may be used to the committee no later than 10 days for non-human consumption or other- after completion of the aflatoxin test. wise disposed of. Each USDA-approved aflatoxin testing (b) Kernel rework procedure for laboratory shall complete section C of aflatoxin. If pistachio kernel rework is this report, and forward this report and selected as a remedy to meet the the failing aflatoxin test results to the

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committee and to the handler within 10 of pistachios during the current pro- days of the test failure. duction year, the names of the han- (b) ACP–3, Failed Lot Disposition and dlers’ producing entities, business type, Rework Report. Each handler who re- and the following information con- works a failing lot of pistachios shall cerning each producing entity: Federal complete this report and shall forward Tax Identification number; mailing it to the committee no later than 10 and e-mail address; telephone and fax days after the rework is completed. If number; total bearing acres; county of rework is not selected as a remedy, the production; and for the current produc- handler shall submit the form to the tion year, the total receipts of open committee office within 10 days of dis- inshell, closed shell, shelling stock of position of the lot. each producing entity; and total (c) ACP–4, Federal Marketing Order Ex- pounds of processed pistachios pro- empt Handler Notification. Each handler duced by each producing entity. who handles less than 5,000 pounds of (h) Exemptions. Handlers who handle assessed weight pistachios in a produc- less than 5,000 pounds of assessed tion year shall complete and furnish weight pistachios during any produc- this report to the committee no later tion year are exempt from filing all than November 15 of each production forms, with the exception of the ACP– year. 4. (d) ACP–5, Minimal Testing Form. Each (i) Records. Each handler shall main- handler who handles less than 1,000,000 tain all records of pistachios received, pounds of dried weight pistachios in a held, shipped, and disposed of for at production year and who wishes to re- least 3 years following each crop year quest permission to handle under the to show compliance with the mar- minimal quantities provisions (§ 983.53) keting order provisions. of the order shall furnish this report to [70 FR 39907, July 12, 2005, as amended at 71 the committee office no later than Au- FR 51987, Sept. 1, 2006; 72 FR 69141, Dec. 7, gust 1 of each production year. 2007; 73 FR 18705, Apr. 7, 2008. Redesignated (e) ACP–6, Inter-handler Transfer. and amended at 74 FR 56530, Nov. 2, 2009] Each handler who transfers uninspected pistachios to another han- Subpart—Assessment Rate dler within the production area shall complete the ACP–6 and sign Part A. § 983.253 Assessment rate. The transferring handler shall forward (a) On and after September 1, 2006, a the original ACP–6 and one copy to the continuing assessment rate of $0.0007 handler who receives the uninspected per pound of assessed-weight pistachios pistachios. The transferring handler is established for pistachios. The as- shall furnish one copy of ACP–6 to the sessment obligation of each handler committee within 30 days of the trans- shall be computed by applying the as- fer. The handler receiving the sessment rate to the assessed weight uninspected pistachios (receiving han- computed pursuant to § 983.6. dler) shall sign Part B of the original (b) Each handler who receives pis- ACP–6 and shall file it with the com- tachios for processing shall furnish the mittee within 30 days of the transfer. Receipts/Assessment Report and pay (f) ACP–7 Monthly Report of Inventory/ all due assessments to the committee Shipments. Each handler of pistachios by December 15 of the applicable pro- shall file this report with the com- duction year. mittee by the 10th day of each month for the previous month’s inventory and [70 FR 9846, Mar. 1, 2005, as amended at 71 FR shipment information. 66645, Nov. 16, 2006; 74 FR 56531, Nov. 2, 2009] (g) ACP–8, Producer Delivery Report. Each handler of pistachios shall file PART 984—WALNUTS GROWN IN this report with the committee by the CALIFORNIA 15th day of December of each production year: Provided, That for the 2007–08 Subpart—Order Regulating Handling production year, handlers must file this report with the committee by DEFINITIONS April 17, 2008, to report his/her receipts Sec.

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984.1 Secretary. 984.71 Reports of handler carryover. 984.2 Act. 984.72 Reports of merchantable walnuts 984.3 Person. handled. 984.4 Area of production. 984.73 Reports of walnut receipts. 984.5 Grower. 984.76 Other reports. 984.6 Board. 984.77 Verification of reports. 984.7 Marketing year. 984.78 Certification of reports. 984.8 Walnuts. 984.9 Inshell walnuts. 984.79 Confidential information. 984.10 Shelled walnuts. 984.80 Books and other records. 984.11 Merchantable walnuts. 984.12 Substandard walnuts. MISCELLANEOUS PROVISIONS 984.13 To handle. 984.83 Rights of the Secretary. 984.14 Handler. 984.84 Personal liability. 984.15 Pack. 984.85 Separability. 984.19 Manufacturer. 984.86 Derogation. 984.20 Kernelweight. 984.21 Handler carryover. 984.87 Duration of immunities. 984.22 Trade demand. 984.88 Agents. 984.23 Free walnuts. 984.89 Effective time and termination. 984.26 Reserve walnuts. 984.90 Effect of termination or amendment. 984.31 Part and subpart. 984.91 Relationship with the California Wal- 964.32 To certify. nut Commission. 984.33 Hold. Subpart—Assessment Rates ADMINISTRATIVE BODY 984.35 California Walnut Board. 984.347 Assessment rate. 984.36 Term of office. 984.37 Nominations. Subpart—Administrative Rules and 984.38 Eligibility. Regulations 984.39 Qualify by acceptance. 984.40 Alternate. 984.437 Method for proposing names of addi- 984.41 Vacancy. tional candidates to be included on wal- 984.42 Expenses. nut grower’s nomination ballots. 984.43 Powers. 984.445 Procedures for voting by mail, e- 984.44 Duties. mail, telephone, videoconference, fac- 984.45 Procedure. simile, or any other means of commu- 984.46 Research and development. nication. 984.450 Grade and size regulations. MARKETING POLICY 984.451 Inspection and certification of 984.48 Marketing estimates and rec- inshell and shelled walnuts. ommendations. 984.452 Certification of shelled walnuts for 984.49 Volume regulation. processing. 984.456 Disposition of reserve walnuts and QUALITY CONTROL walnuts used for reserve disposition cred- 984.50 Grade, quality and size regulations. it. 984.51 Inspection and certification of inshell 984.459 Reports of interhandler transfers. and shelled walnuts. 984.464 Disposition of substandard walnuts. 984.52 Processing of shelled walnuts. REPORTS RESERVE WALNUTS 984.471 Reports of handler inventory. 984.54 Establishment of obligation. 984.472 Reports of merchantable walnuts 984.56 Disposition of reserve walnuts. shipped. 984.59 Interhandler transfers. 984.473 Report of walnut receipts. 984.64 Disposition of substandard walnuts. 984.476 Report of walnut receipts from out- 984.65 Compliance. side of the United States. 984.66 Assistance of the Board in meeting 984.480 Books and other records. reserve obligation. 984.67 Exemptions. AUTHORITY: 7 U.S.C. 601–674.

EXPENSES AND ASSESSMENTS Subpart—Order Regulating 984.68 Expenses. 984.69 Assessments. Handling

REPORTS, BOOKS AND OTHER RECORDS SOURCE: 27 FR 9094, Sept. 13, 1962, unless 984.70 Contributions. otherwise noted.

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DEFINITIONS § 984.9 Inshell walnuts. Inshell walnuts means walnuts the § 984.1 Secretary. kernels of which are contained in the Secretary means the Secretary of Ag- shell. riculture of the United States, or any other officer or employee of the United § 984.10 Shelled walnuts. States Department of Agriculture who Shelled walnuts means walnut kernels is, or who may be, authorized to per- after the shells are removed. form the duties of the Secretary of Ag- riculture of the United States. § 984.11 Merchantable walnuts. (a) Inshell. Merchantable inshell wal- § 984.2 Act. nuts means all inshell walnuts meeting Act means Public Act No. 10, 73d Con- the minimum grade and size regula- gress, as amended and as reenacted and tions effective pursuant to § 984.50. amended by the Agricultural Mar- (b) Shelled. Merchantable shelled wal- keting Agreement Act of 1937, as nuts means all shelled walnuts meeting amended (7 U.S.C. 601 et seq.). the minimum grade and size regulations effective pursuant to § 984.50. § 984.3 Person. [27 FR 9094, Sept. 13, 1962, as amended at 39 Person means an individual, partner- FR 35328, Oct. 1, 1974] ship, corporation, association, or any § 984.12 Substandard walnuts. other business unit. Substandard walnuts means all wal- § 984.4 Area of production. nuts (whether inshell or shelled) the kernels of which do not meet the min- Area of production means the State of imum standard prescribed for mer- California. chantable shelled walnuts. [41 FR 31542, July 29, 1976] § 984.13 To handle. § 984.5 Grower. To handle means to pack, sell, con- Grower is synonymous with producer sign, transport, or ship (except as a and means any person engaged in a common or contract carrier of walnuts proprietary capacity in the commercial owned by another person), or in any production of walnuts. other way to put walnuts, inshell or shelled, into the current of commerce § 984.6 Board. either within the area of production or from such area to any point outside Board means the California Walnut thereof, or for a manufacturer or re- Board established pursuant to § 934.35. tailer within the area of production to [73 FR 11336, Mar. 3, 2008] purchase directly from a grower: The term ‘‘to handle’’ shall not include sales § 984.7 Marketing year. and deliveries within the area of production by growers to handlers, or be- Marketing year means the twelve tween handlers. months from September 1 to the following August 31, both inclusive, or [73 FR 11337, Mar. 3, 2008] any other such period deemed appropriate and recommended by the Board § 984.14 Handler. for approval by the Secretary. Handler means any person who handles inshell or shelled walnuts. [73 FR 11337, Mar. 3, 2008] [73 FR 11337, Mar. 3, 2008] § 984.8 Walnuts. § 984.15 Pack. Walnuts means only walnuts of the ‘‘English’’ (Juglans regia) varieties Pack means to bleach, clean, grade, grown in California. shell or otherwise prepare walnuts for market as inshell or shelled walnuts. [41 FR 31542, July 29, 1976] [73 FR 11337, Mar. 3, 2008]

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§ 984.19 Manufacturer. dling of walnuts grown in California shall be a subpart of such part. Manufacturer means any person who uses walnuts in the production of bak- [41 FR 31542, July 29, 1976] ery goods, ice cream, candy, or other food products, except walnut oil. § 984.32 To certify. To certify means the issuance of a cer- § 984.20 Kernelweight. tification of inspection of walnuts by Kernelweight means the determined the inspection service. weight of the kernels in a quantity of [41 FR 31542, July 29, 1976] walnuts regardless of their quality. [39 FR 35328, Oct. 1, 1974] § 984.33 Hold. Hold means to maintain possession or § 984.21 Handler inventory. keep control of, in proper storage at all Handler inventory as of any date times, the kernelweight of certified means all walnuts, inshell or shelled merchantable walnuts necessary to (except those held in satisfaction of a meet a reserve obligation. reserve obligation), wherever located, [41 FR 31542, July 29, 1976] then held by a handler or for his or her account. ADMINISTRATIVE BODY

[73 FR 11337, Mar. 3, 2008] § 984.35 California Walnut Board. § 984.22 Trade demand. (a) A California Walnut Board is hereby established consisting of 10 (a) Inshell. The quantity of merchant- members selected by the Secretary, able inshell walnuts that the trade will each of whom shall have an alternate acquire from all handlers during a mar- nominated and selected in the same keting year for distribution in the way and with the same qualifications United States and its territories. as the member. The members and their (b) Shelled. The quantity of mer- alternates shall be selected by the Sec- chantable shelled walnuts that the retary from nominees submitted by trade will acquire from all handlers each of the following groups or from during a marketing year for distribu- other eligible persons belonging to tion in the United States and its terri- such groups: tories. (1) Two handler members from Dis- [73 FR 11337, Mar. 3, 2008] trict 1; (2) Two handler members from Dis- § 984.23 Free walnuts. trict 2; (3) Two grower members from Dis- Free walnuts means walnuts which trict 1; are included in the free percentage es- (4) Two grower members from Dis- tablished by the Secretary pursuant to trict 2; § 984.49. (5) One grower member nominated at- [39 FR 35328, Oct. 1, 1974] large from the production area; and, (6) One member and alternate who § 984.26 Reserve walnuts. shall be selected after the selection of Reserve walnuts means those walnuts the nine handler and grower members which are held to meet a reserve obli- and after the opportunity for such gation. members to nominate the tenth member and alternate. The tenth member [41 FR 31542, July 29, 1976] and his or her alternate shall be neither a walnut grower nor a handler. § 984.31 Part and subpart. (b) In the event that one handler han- Part means the order regulating the dles 35% or more of the crop the mem- handling of walnuts grown in Cali- bership of the Board shall be as follows: fornia, and all rules, regulations, and (1) Two handler members to rep- supplementary orders issued there- resent the handler that handles 35% or under. This order regulating the han- more of the crop;

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(2) Two members to represent grow- (3) The equitable relationship be- ers who market their walnuts through tween Board apportionment and dis- the handler that handles 35% or more tricts; of the crop; (4) Changes in industry structure (3) Two handler members to rep- and/or the percentage of crop represent handlers that do not handle 35% resented by various industry entities or more of the crop; resulting in the existence of two or (4) One member to represent growers more major handlers; from District 1 who market their wal- (5) Other relevant factors. nuts through handlers that do not han- [73 FR 11337, Mar. 3, 2008] dle 35% or more of the crop; (5) One member to represent growers § 984.36 Term of office. from District 2 who market their wal- The term of office for Board members nuts through handlers that do not han- and their alternates shall be for a pe- dle 35% or more of the crop; riod of two years ending on August 31 (6) One member to represent growers of odd-numbered years, but they shall who market their walnuts through serve until their respective successors handlers that do not handle 35% or are selected and have qualified. more of the crop shall be nominated at [74 FR 18464, Apr. 23, 2009] large from the production area; and, (7) One member and alternate who § 984.37 Nominations. shall be selected after the selection of (a) Nominations for all grower mem- the nine handler and grower members bers shall be submitted by ballot pur- and after the opportunity for such suant to an announcement by press re- members to nominate the tenth mem- leases of the Board to the news media ber and alternate. The tenth member in the walnut producing areas. Such re- and his or her alternate shall be nei- leases shall provide pertinent voting ther a walnut grower nor a handler. information, including the names of (c) Grower Districts: candidates and the location where bal- (1) District 1. District 1 encompasses lots may be obtained. Ballots shall be the counties in the State of California accompanied by full instructions as to that lie north of a line drawn on the their markings and mailing and shall south boundaries of San Mateo, Ala- include the names of incumbents who meda, San Joaquin, Calaveras, and Al- are willing to continue serving on the pine Counties. Board and such other candidates as (2) District 2. District 2 shall consist may be proposed pursuant to methods of all other walnut producing counties established by the Board with the ap- in the State of California south of the proval of the Secretary. Each grower, boundary line set forth in paragraph regardless of the number and location (c)(1) of this section. of his or her walnut orchard(s), shall be entitled to cast only one ballot in the (d) The Secretary, upon recommenda- nomination and each vote shall be tion of the Board, may reestablish dis- given equal weight. If the grower has tricts, may reapportion members orchards in both grower districts, he or among districts, and may revise the she shall advise the Board of the dis- groups eligible for representation on trict in which he/she desires to vote. the Board as specified in paragraphs (a) The person receiving the highest num- and (b) of this section: Provided, That ber of votes for each grower position any such recommendation shall require shall be the nominee. at least six concurring votes of the vot- (b) Nominations for handler members ing members of the Board. In recom- shall be submitted on ballots mailed by mending any such changes, the fol- the Board to all handlers in their re- lowing shall be considered: spective Districts. All handlers’ votes (1) Shifts in acreage within districts shall be weighted by the kernelweight and within the production area during of walnuts certified as merchantable by recent years; each handler during the preceding mar- (2) The importance of new production keting year. Each handler in the pro- in its relation to existing districts; duction area may vote for handler

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member nominees and their alternates. gardless of the number and location of However, no handler with less than 35% his or her walnut orchard(s), shall be of the crop shall have more than one entitled to cast only one ballot in the member and one alternate member. nomination and each vote shall be The person receiving the highest num- given equal weight. If the grower has ber of votes for each handler member orchard(s) in both grower districts he position shall be the nominee for that or she shall advise the Board of the disposition. trict in which he or she desires to vote. (c) A calculation to determine wheth- The person receiving the highest num- er or not a handler who handles 35 per- ber of votes for grower position shall be cent or more of the crop shall be made the nominee. prior to nominations. For the first (4) Nominations for handler members nominations held upon implementation representing handlers that do not han- of this language, the 35 percent thresh- dle 35% or more of the crop shall be old shall be calculated using an aver- submitted on ballots mailed by the age of crop handled for the year in Board to those handlers. The votes of which nominations are made and one these handlers shall be weighted by the year’s handling prior. For all future kernelweight of walnuts certified as nominations, the 35 percent handling merchantable by each handler during calculation shall be based in the aver- the preceding marketing year. Each age of the two years prior to the year handler in the production area may in which nominations are made. In the vote for handler member nominees and event that one handler handles 35% or their alternates of this subsection. more of the crop the membership of the However, no handler shall have more Board, nominations shall be as follows: than one person on the Board either as (1) Nominations of growers who mar- member or alternate member. The per- ket their walnuts to the handler that son receiving the highest number of handles 35% or more of the crop shall votes for a handler member position of be conducted by that handler and the this subsection shall be the nominee names of the nominees shall be for- for that position. warded to the Board for approval and (d) Each grower is entitled to partici- appointment by the Secretary. (2) Nominations for the two handler pate in only one nomination process, members representing the major han- regardless of the number of handler en- dler shall be conducted by the major tities to whom he or she delivers wal- handler and the names of the nominees nuts. If a grower delivers walnuts to shall be forwarded to the Board for ap- more than one handler entity, the proval and appointment by the Sec- grower must choose which nomination retary. process he or she participates in. (3) Nominations on behalf of all other (e) The nine members shall nominate grower members (Groups (b)(4), (5) and one person as member and one person (6) of § 984.35) shall be submitted after as alternate for the tenth member posi- ballot by such growers pursuant to an tion. The tenth member and alternate announcement by press releases of the shall be nominated by not less than 6 Board to the news media in the walnut votes cast by the nine members of the producing areas. Such releases shall Board. provide pertinent voting information, (f) Nominations in the foregoing including the names of candidates and manner received by the Board shall be the location where ballots may be ob- reported to the Secretary on or before tained. Ballots shall be accompanied June 15 of each odd-numbered year, to- by full instructions as to their mark- gether with a certified summary of the ings and mailing and shall include the results of the nominations. If the names of incumbents who are willing Board fails to report nominations to to continue serving on the Board and the Secretary in the manner herein such other candidates as may be pro- specified by June 15 of each odd-num- posed pursuant to methods established bered year, the Secretary may select by the Board with the approval of the the members without nomination. If Secretary. Each grower in Groups nominations for the tenth member are (Groups (b)(4), (5) and (6) of § 984.35), re- not submitted by September 1 of any

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such year, the Secretary may select disapproval of the Secretary, a tem- such member without nomination. porary substitute to attend such meet- (g) The Board may recommend, sub- ing. At such meeting such temporary ject to the approval of the Secretary, a substitute may act in the place of such change to these nomination procedures member. should the Board determine that a revision is necessary. [73 FR 11338, Mar. 3, 2008] [73 FR 11337, Mar. 3, 2008] § 984.41 Vacancy. Any vacancy occasioned by the re- § 984.38 Eligibility. moval, resignation, disqualification, or No person shall be selected or con- death of any member of alternate, or tinue to serve as a member or alternate any need to select a successor through to represent one of the groups specified failure of any person selected as a in § 984.35(a)(1) through (6) or member or alternate to qualify, shall § 984.38(b)(1) through (6), unless he or be recognized by the Board causing a she is engaged in the business he or she nomination to be made by the appro- is to represent, or represents, either in priate group and certifying to the Sec- his or her own behalf or as an officer or retary a new nominee within 60 cal- employee if the business unit engaged endar days. in such business. Also, each member or alternate member representing growers [39 FR 35330, Oct. 1, 1974, as amended at 41 FR in District 1 or District 2 shall be a 31543, July 29, 1976] grower, or officer or employee of the group he or she is to represent. § 984.42 Expenses. The members and their alternates of [73 FR 11338, Mar. 3, 2008] the Board shall serve without com- § 984.39 Qualify by acceptance. pensation, but shall be allowed their necessary expenses incurred by them in Any person nominated to serve as a the performance of their duties under member or alternate member of the this part. Board shall, prior to selection by USDA, qualify by filing a written qual- [73 FR 11338, Mar. 3, 2008] ification and acceptance statement indicating such person’s willingness to § 984.43 Powers. serve in the position for which nomi- The Board shall have the following nated. powers: [73 FR 11338, Mar. 3, 2008] (a) To administer the provisions of this part in accordance with its terms; § 984.40 Alternate. (b) To make rules and regulations to (a) An alternate for a member of the effectuate the terms and provisions of Board shall act in the place and stead this part; of such member in his or her absence or (c) To receive, investigate, and report in the event of his or her death, re- to the Secretary complaints of viola- moval, resignation, or disqualification, tions of this part; and until a successor for his or her unex- (d) To recommend to the Secretary pired term has been selected and has amendments to this part. qualified. (b) In the event any member of the § 984.44 Duties. Board and his or her alternate are both The duties of the Board shall be as unable to attend a meeting of the follows: Board, any alternate for any other (a) To act as intermediary between member representing the same group the Secretary and any handler or grow- as the absent member may serve in the er; place of the absent member, or in the (b) To keep minute books and records event such other alternate cannot at- which will clearly reflect all of its acts tend, or there is no such other alter- and transactions, and such minute nate, such member, or in the event of books and records shall at any time be his disability or a vacancy, his or her subject to the examination of the Sec- alternate may designate, subject to the retary;

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(c) To furnish to the Secretary a promptly in writing: Provided, That if complete report of all meetings and any assembled meeting is held, all such other available information as he votes shall be cast in person. may request; [27 FR 9094, Sept. 13, 1962, as amended at 39 (d) To appoint such employees as it FR 35330, Oct. 1, 1974; 73 FR 11338, Mar. 3, may deem necessary and to determine 2008] the salaries, define the duties, and fix the bonds of such employees; § 984.46 Research and development. (e) To cause the books of the Board The Board, with the approval of the to be audited by one or more com- Secretary, may establish or provide for petent public accountants at least once the establishment of production re- for each marketing year and at such search, marketing research and devel- other times as the Board deems nec- opment projects, and marketing pro- essary or as the Secretary may re- motion, including paid advertising, de- quest, and to file with the Secretary signed to assist, improve, or promote three copies of all audit reports made; the marketing, distribution, and con- (f) To investigate the growing, ship- sumption or efficient production of ping and marketing conditions with re- walnuts. The expenses of such projects spect to walnuts and to assemble data shall be paid from funds collected pur- in connection therewith; suant to § 984.69 and § 984.70. (g) To investigate compliance with the provisions of this part; and [73 FR 11339, Mar. 3, 2008] (h) To recommend rules and regulations for the purpose of administering MARKETING POLICY this subpart. § 984.48 Marketing estimates and rec- § 984.45 Procedure. ommendations. (a) The members of the Board shall (a) Each marketing year the Board select a chairman from their member- shall hold a meeting, prior to October ship, and shall select such other offi- 20, for the purpose of recommending to cers and adopt such rules for the con- the Secretary a marketing policy for duct of Board business as they deem such year. Each year such rec- advisable. The Board shall give the ommendation shall be adopted by the Secretary the same notice of its meet- affirmative vote of at least 60% of the ings as is given to members of the Board and shall include the following, Board. and where applicable, on a (b) All decisions of the Board, except kernelweight basis: where otherwise specifically provided (1) Its estimate of the orchard-run (see § 984.35(d)), shall be by a sixty-per- production in the area of production cent (60%) super-majority vote of the for the marketing year; members present. A quorum of six (2) The Board’s estimate of the han- members, or the equivalent of sixty dler inventory on September 1 of percent (60%) of the Board, shall be re- inshell and shelled walnuts; quired for the conduct of Board busi- (3) Its estimate of the merchantable ness. and substandard walnuts in the produc- (c) The Board may vote by mail or tion; telegram, or by any other means of (4) The Board’s estimate of the trade communication, upon due notice to all demand for such marketing year for members. The Board, with the approval shelled and inshell walnuts, taking of the Secretary, shall prescribe the into consideration trade inventory, im- minimum number of votes that must ports, prices, competing nut supplies, be cast when voting is by any of these and other factors; methods, and any other procedures (5) The Board’s recommendation for necessary to carry out the objectives of desirable handler inventory of inshell this paragraph. and shelled walnuts on August 31 of (d) The Board may provide for meet- each marketing year; ings by telephone, or other means of (6) Its recommendation as to the free communication and any vote cast at and reserve percentages to be estab- such a meeting shall be confirmed lished for walnuts;

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(7) Its recommendation of the per- (2) Any time prior to July 1, the centage of reserve walnuts that may be Board may recommend an increase in exported pursuant to § 984.56, when it the export percentage, if it finds that determines that the quantity of reserve there is an insufficient volume of re- walnuts that may be exported should serve walnuts available for export and be limited; additional demand exists, which would (8) Its opinion as to whether grower not adversely affect the disposition of prices are likely to exceed parity; and the oncoming crop. On the basis of the (9) Its recommendation for change, if Board’s recommendation or other in- any, in grade and size regulations. formation, the Secretary may establish (b) [Reserved] such revision. [39 FR 35330, Oct. 1, 1974; 39 FR 35999, Oct. 7, 1974, as amended at 41 FR 31543, July 29, 1976; [41 FR 31543, July 29, 1976] 73 FR 11339, Mar. 3, 2008] EFFECTIVE DATE NOTE: At 60 FR 40064, Aug. 7, 1995, in § 989.49, in paragraph (b)(1), the § 984.49 Volume regulation. words ‘‘On or before February 15 of the mar- (a) Free, reserve, and export percent- keting year,’’ were suspended. ages. Whenever the Secretary finds, on the basis of the Board’s recommenda- QUALITY CONTROL tion or other information, that limiting the quantity of walnuts that may § 984.50 Grade, quality and size regula- be handled in domestic markets for tions. merchantable free walnuts during a (a) Minimum standard for inshell wal- marketing year will tend to effectuate nuts. Except as provided in § 984.64, no the declared policy of the act, he shall handler shall handle inshell walnuts establish a free percentage to prescribe unless such walnuts are equal to or the portion of such walnuts which may better than the requirements of U.S. be handled as free walnuts, and a re- No. 2 grade and baby size as defined in serve percentage to prescribe the por- the then effective United States Stand- tion that must be withheld as reserve ards for Walnuts (Juglans regia) in the walnuts. Whenever the Board rec- Shell. This minimum standard may be ommends an export percentage pursu- modified by the Secretary on the basis ant to § 984.48(a)(7), the Secretary shall of a Board recommendation or other establish a percentage if he finds it information. would tend to effectuate the declared (b) Minimum standard for shelled wal- policy of the act. nuts. Except as provided in § 984.64, no (b) Revision of percentages. (1) On or handler shall handle shelled walnuts before February 15 of the marketing unless such walnuts are equal to or year, the Board may recommend that better than the requirements of the the free percentage be increased and U.S. Commercial grade as defined in the reserve percentage be decreased. On the basis of the Board’s recommenda- the then effective United States Stand- tion or other information the Sec- ards for Shelled Walnuts (Juglans retary may establish such revisions. If regia) and the minimum size shall be the reserve percentage is reduced when pieces not more than 5 percent of an export percentage is in effect, an in- which will pass through a round open- 6 crease shall be made in the export per- ing ⁄64 inch in diameter. This minimum centage so that the quantity pre- standard may be modified by the Sec- viously authorized for export will not retary on the basis of a Board rec- be reduced. If the revised reserve quan- ommendation or other information. tity is less than the quantity pre- (c) Effective period. The minimum viously authorized for export the ex- standards established pursuant to para- port percentage shall be 100 percent. graphs (a) and (b) of this section and Upon revision, all reserve obligations the provisions of this part relating to that are theretofore accrued on mer- the administration thereof, shall con- chantable walnuts certified during tinue in effect irrespective of whether such year on the basis of the previously the season average price for walnuts is effective percentages shall be adjusted above the parity level specified in sec- accordingly. tion 2(1) of the Act.

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(d) Additional grade, size or other qual- Board, with the approval of the Sec- ity regulation. The Board may rec- retary, may prescribe procedures for ommend to the Secretary additional the administration of this provision. grade, size or other quality regula- (b) Inshell merchantable walnuts cer- tions, and may also recommend dif- tified shall be converted to the ferent regulations for different market kernelweight equivalent at 45 percent destinations. If the Secretary finds on of their inshell weight. This conversion the basis of such recommendation or percentage may be changed by the other information that such additional Board with the approval of the Sec- regulations would tend to effectuate retary. the declared policy of the Act, he or (c) Upon inspection, all walnuts for she shall establish such regulations. use as free or reserve walnuts shall be (e) Minimum requirements for reserve. identified by tags, stamps, or other The Board, with the approval of the means of identification prescribed by Secretary, may specify the minimum the Board and affixed to the container kernel content and related require- by the handler under the supervision of ments for any lot of walnuts acceptable the Board or of a designated inspector for disposition for credit against a re- and such identification shall not be al- serve obligation: Provided, That reserve tered or removed except as directed by walnuts exported must meet the re- the Board. The assessment require- quirements of paragraph (a) of this sec- ments in § 984.69 shall be incurred at tion if inshell, or paragraph (b) of this the time of certification. section if shelled. (d) Whenever the Board determines [27 FR 9094, Sept. 13, 1962, as amended at 39 that the length of time in storage or FR 35330, Oct. 1, 1974; 41 FR 31543, July 29, conditions of storage of any lot of mer- 1976; 73 FR 11339, Mar. 3, 2008] chantable walnuts which has been previously inspected have been or are such § 984.51 Inspection and certification of as normally to cause deterioration, inshell and shelled walnuts. such lot of walnuts shall be reinspected (a) Before or upon handling of any at the handler’s expense and recertified walnuts for use as free or reserve wal- as merchantable prior to shipment. nuts, each handler at his or her own expense shall cause such walnuts to be [39 FR 35330, Oct. 1, 1974, as amended at 41 FR inspected to determine whether they 31543, July 29, 1976; 73 FR 11339, Mar. 3, 2008] meet the then applicable grade and size regulations. Such inspection shall be § 984.52 Processing of shelled walnuts. performed by the inspection service or (a) No handler shall slice, chop, services designated by the Board with grind, or in any manner change the the approval of the Secretary; Pro- form of shelled walnuts unless such vided, That if more than one inspection walnuts have been certified as mer- service is designated, the functions per- chantable or unless such walnuts meet formed by each service shall be sepa- quality regulations established under rate, and shall not duplicate each § 984.50(d) if such regulations are in ef- other. Handlers shall obtain a certifi- fect. cate for each inspection and cause a (b) Any lot of shelled walnuts which, copy of each certificate issued by the upon inspection, fails to meet the min- inspection service to be furnished to imum standard effective pursuant to the Board. Each certificate shall show § 984.50 solely due to excess shriveling the identity of the handler, quantity of may be certified for processing pro- walnuts, the date of inspection, and for vided that the total amount of shrivel inshell walnuts the grade and size of does not exceed 20 percent, by weight, such walnuts as set forth in the United of the lot. All such walnuts must be re- States Standards for Walnuts (Juglans inspected after processing and shall be regia) in the Shell. Certificates cov- certified as merchantable if the proc- ering reserve shelled walnuts for export essed material meets the effective min- shall also show the grade, size, and imum standard. The provisions of this color of such walnuts as set forth in paragraph may be modified by the Sec- the United States Standards for retary, upon recommendation of the Shelled Walnuts (Juglans regia). The Board or other information.

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(c) The Board shall establish such Zone, the quantity of reserve walnuts procedures as are necessary to insure permitted to be exported by the export that all such walnuts are inspected percentage establishment pursuant to prior to being placed into the current § 984.49. Reserve walnuts may be ex- of commerce. ported by any handler as an agent of [39 FR 35330, Oct. 1, 1974, as amended at 73 FR the Board under the terms and condi- 11339, Mar. 3, 2008] tions specified by the Board. (c) Pooling. At any time during the RESERVE WALNUTS marketing year a handler may deliver reserve walnuts and any substandard § 984.54 Establishment of obligation. walnuts meeting the minimum kernel (a) Reserve obligation. Whenever free content requirements effective pursu- and reserve percentages are in effect ant to § 984.50(e) to the Board for pool- for a marketing year, each handler ing and crediting against his reserve shall withhold a kernelweight of cer- obligation. Any reserve walnuts that tified merchantable walnuts equal to a the handler as agent of the Board has quantity derived by the application of not disposed of by the end of the mar- the reserve percentage to the keting year shall thereafter be deliv- kernelweight of merchantable walnuts ered to the Board for pooling on de- certified. The kernelweight of certified mand. The Board shall dispose of these merchantable walnuts which handlers walnuts for use in the following out- are required to withhold shall be the lets: Government agencies, charitable ‘‘reserve obligation.’’ The walnuts han- institutions, poultry or animal feed, dled for use as free walnuts by any han- walnut oil or other markets non- dler in accordance with the provisions competitive with markets for mer- of this part shall be deemed to be that chantable free walnuts. The Board may handler’s quota fixed by the Secretary rent and operate or arrange the use of within the meaning of section 8(a)(5) of facilities for storage and disposition of the act. reserve walnuts delivered to it. (b) Holding requirements. Each handler (d) Crediting. The kernelweight of shall at all times hold in his possession walnuts disposed of in accordance with or under his control in proper storage this section shall be credited to the the kernelweight of certified mer- handler’s reserve obligation. At any chantable walnuts necessary to meet time during the marketing year, upon his reserve obligation less: a handler’s written request, the Board (1) Any quantity which was disposed shall transfer part or all of the han- of by him pursuant to § 984.56; and dler’s credit in excess of his reserve ob- (2) Any quantity for which he is oth- ligation to any handler he designates. erwise relieved by the Board of respon- (e) Pool proceeds. The proceeds re- sibility to so hold walnuts. maining after the payment of all ex- [41 FR 31543, July 29, 1976] penses incurred by the Board in receiving, holding, and disposing of pooled § 984.56 Disposition of reserve wal- walnuts shall be distributed pro rata nuts. by the Board to each handler in propor- (a) General. The Board shall have tion to his contribution thereto, meas- power and authority to sell or dispose ured in kernelweight, or such other of any and all reserve walnuts withheld basis as the Board may adopt with the upon the best terms and at the highest approval of the Secretary. returns obtainable consistent with the (f) Rules and regulations. The Board, ultimate complete disposition of re- with the approval of the Secretary, serve, subject to all conditions of this may prescribe such rules and regula- section. The Board may dispose of re- tions as are necessary to carry out the serve walnuts through handlers acting provisions of this section. as agents of the Board under the terms and conditions specified by the Board. [41 FR 31544, July 29, 1976] (b) Export. The Board may export or authorize the disposition in export to § 984.59 Interhandler transfers. the destinations outside the United For the purposes of this part, trans- States, Puerto Rico, and the Canal fer means the sale of inshell and

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shelled walnuts within the area of pro- reserve obligation, or in accounting duction by one handler to another. The for, or disposing of reserve walnuts. Board, with the approval of the Sec- retary, may establish methods and pro- [41 FR 31544, July 29, 1976] cedures, including necessary reports, § 984.67 Exemptions. for such transfers. (a) Exemption from volume regula- [73 FR 11339, Mar. 3, 2008] tion. Reserve percentages shall not apply to lots of merchantable inshell § 984.64 Disposition of substandard walnuts. walnuts which are of jumbo size or larger as defined in the then effective Substandard walnuts may be dis- United States Standards for Walnuts in posed of only for manufacture into oil, the Shell, or to such quantities as the livestock feed, or such other uses as Board may, with the approval of the the Board determines to be non- Secretary, prescribe. competitive with existing domestic and (b) Exemptions from assessments, qual- export markets for merchantable wal- ity, and volume regulations—(1) Sales by nuts and with proper safeguards to pre- growers direct to consumers. Any walnut vent such walnuts from thereafter entering channels of trade in such mar- grower may handle walnuts of his own kets. Wherever free and reserve per- production free of the regulatory and centages are in effect, the assessement provisions of this part if kernelweight of any walnuts meeting he sells such walnuts in the area of the minimum kernel content require- production directly to consumers under ments effective pursuant to § 984.50(e), the following types of exemptions. may be pooled and the disposition cred- (i) At roadside stands and farmers’ ited to the handler’s reserve obligation markets; pursuant to § 984.56. Each handler shall (ii) In quantities not exceeding an ag- submit, in such form and at such inter- gregate of 500 pounds of inshell walnuts vals as the Board may determine, re- or 200 pounds of shelled walnuts during ports of (a) his production and holdings any marketing year (at locations other of substandard walnuts and (b) the dis- than those specified in (b)(i) of this sec- position of all substandard walnuts to tion); and any other person, showing the quan- (iii) If shipped by parcel post or ex- tity, lot, date, name and address of the press in quantities not exceeding 10 person to whom delivered, the approved pounds of inshell walnuts or 4 pounds use and such other information per- of shelled walnuts to any one consumer taining thereto as the Board may in any one calendar day. specify. (2) Green walnuts. Walnuts which are [41 FR 31544, July 29, 1976] green and which are so immature that they cannot be used for drying and sale § 984.65 Compliance. as dried walnuts may be handled with- Except as provided in this subpart, out regard to the provisions of this no person shall handle walnuts, inshell part. or shelled, during any marketing year (3) Noncompetitive outlets. Any person in which this subpart and any regula- may handle walnuts, free of the provi- tions issued by the Secretary here- sions of this part, for use by charitable under are in effect, unless such person institutions, relief agencies, govern- has previously met the obligations im- mental agencies for school lunch proposed by each such regulation and the grams, and diversion to animal feed or provisions of this subpart. oil manufacture pursuant to an authorized governmental diversion program. § 984.66 Assistance of the Board in (c) Rules and modifications. The Board meeting reserve obligation. may establish, with the approval of the The Board may assist any handler in Secretary, such rules, regulations and accounting for his reserve obligation safeguards and such modifications as and may aid any handler in acquiring walnuts to meet any deficiency in his

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will promote the objectives of this sub- lected and each handler’s share of such part. excess funds shall be the amount of assessments he or she has paid in excess [27 FR 9094, Sept. 13, 1962, as amended at 41 FR 31544, July 29, 1976; 73 FR 11339, Mar. 3, of his or her pro rata share of the ac- 2008] tual expenses of the Board. (2) Excess funds may be used tempo- EXPENSES AND ASSESSMENTS rarily by the Board to defray expenses of the subsequent marketing year: Pro- § 984.68 Expenses. vided, That each handler’s share of The Board is authorized to incur such such excess shall be made available to expenses as the Secretary finds are rea- him or her by the Board within five sonable and likely to be incurred by it months after the end of the year. during each marketing year for the (3) The Board may carry over such maintenance and functioning of the excess into subsequent marketing Board, and for such other purposes as years as a reserve: Provided, That the Secretary may, pursuant to this funds already in reserve do not exceed part, determine to be appropriate. The approximately two years’ budgeted ex- Board shall file a proposed budget of penses. In the event that funds exceed expenses and a rate of assessment with two marketing years’ budgeted ex- the Secretary as soon as practicable penses, future assessments will be re- after the beginning of each marketing duced to bring the reserves to an year. amount that is less than or equal to [41 FR 31544, July 29, 1976] two marketing years’ budgeted expenses. Such reserve funds may be § 984.69 Assessments. used: (a) Requirement for payment. Each (i) To defray expenses, during any handler shall pay the Board, on de- marketing year, prior to the time as- mand, his pro rata share of the ex- sessment income is sufficient to cover penses authorized by the Secretary for such expenses; each marketing year. Each handler’s (ii) To cover deficits incurred during pro rata share shall be the rate of as- any year when assessment income is sessment per kernelweight pound of less than expenses; walnuts fixed by the Secretary times (iii) To defray expenses incurred dur- the kernelweight of merchantable wal- ing any period when any or all provi- nuts he has certified. At any time dur- sions of this part are suspended; ing or after the marketing year the (iv) To meet any other such costs Secretary may increase the assessment recommended by the Board and ap- rate as necessary to cover authorized proved by the Secretary. expenses and each handler’s pro rata (d) Termination. Any money collected share shall be adjusted accordingly. from assessments hereunder and re- (b) Reserve walnut pool expenses. The maining unexpended in the possession Board is authorized temporary use of of the Board upon termination of this funds derived from assessments col- part shall be distributed in such man- lected pursuant to paragraph (a) of this ner as the Secretary may direct. section to defray expenses incurred in [27 FR 9094, Sept. 13, 1962, as amended at 41 disposing of reserve walnuts pooled. All FR 31544, July 29, 1976; 73 FR 11339, Mar. 3, such expenses shall be deducted from 2008] the proceeds obtained by the Board from the sale or other disposal of § 984.70 Contributions. pooled reserve walnuts. The Board may accept voluntary con- (c) Accounting. If at the end of a mar- tributions but these shall only be used keting year the assessments collected to pay expenses incurred pursuant to are in excess of expenses incurred, such § 984.46, Research and development. excess shall be accounted for in accord- Furthermore, such contributions shall ance with one of the following: be free from any encumbrances by the (1) If such excess is not retained in a donor and the Board shall retain com- reserve, as provided in paragraph (c)(2) plete control of their use. or (c)(3) of this section, it shall be refunded to handlers from whom col- [73 FR 11339, Mar. 3, 2008]

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REPORTS, BOOKS, AND OTHER RECORDS furnish all labor necessary to facilitate such inspections at no expense to the § 984.71 Reports of handler inventory. Board or the Secretary. Each handler Each handler shall submit to the shall store all walnuts held by him in Board in such form and on such dates such manner as to facilitate inspection as the Board may prescribe, reports and shall maintain adequate storage showing his or her inventory of inshell records which will permit accurate and shelled walnuts. identification with respect to inspection certificates of respective lots and [73 FR 11339, Mar. 3, 2008] of all such walnuts held or disposed of § 984.72 Reports of merchantable wal- theretofore. The Board, with the ap- nuts handled. proval of the Secretary, may establish Each handler who handles merchant- any methods and procedures needed to able walnuts, inshell or shelled, at any verify reports. time during a marketing year shall [41 FR 31544, July 29, 1976] submit to the Board in such form and at such intervals as the Board may pre- § 984.78 Certification of reports. scribe, reports showing the quantity so All reports submitted to the Board as handled and such other information required in this part shall be certified pertinent thereto as the Board may to the Secretary and the Board as to specify. the completeness and correctness of the information contained therein. § 984.73 Reports of walnut receipts. Each handler shall file such reports § 984.79 Confidential information. of his or her walnut receipts from All reports and records submitted by growers, handlers, or others in such handlers to the Board, which include form and at such times as may be re- data or information constituting a quested by the Board with the approval trade secret or disclosing the trade po- of the Secretary. sition, or financial condition or busi- [73 FR 11339, Mar. 3, 2008] ness operations of the handler shall be kept in custody of one or more employ- § 984.76 Other reports. ees of the Board and shall be disclosed Upon request of the Board made with to no person except the Secretary. the approval of the Secretary each handler shall furnish such other reports § 984.80 Books and other records. and information as are needed to en- Each handler shall maintain such able the Board to perform its duties records of walnuts received, held and and exercise its powers under this sub- disposed of by him as may be pre- part. scribed by the Board for the purpose of performing its functions under this § 984.77 Verification of reports. subpart. Such books and records shall For the purpose of verifying and be retained and be available for exam- checking reports filed by handlers or ination by authorized representatives the operations of handlers, the Sec- of the Board and the Secretary for a retary and the Board through its duly period of two years after the end of the authorized representatives shall have marketing year in which the recorded access to any premises where walnuts transactions are completed. and walnut records are held. Such access shall be available at any time dur- MISCELLANEOUS PROVISIONS ing reasonable business hours. Author- ized representatives shall be permitted § 984.83 Rights of the Secretary. to inspect any walnuts held and any The members and alternates of the and all records of the handler with re- Board and any agent or employee ap- spect to matters within the purview of pointed or employed by the Board, this part. Each handler shall maintain shall be subject to removal or suspen- complete records on the receiving, sion by the Secretary, at his discre- holding, and disposition of both inshell tion, at any time. Each and every deci- and shelled walnuts. Each handler shall sion, determination, or other act of the

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Board shall be subject to the con- § 984.89 Effective time and termi- tinuing right of the Secretary to dis- nation. approve of the same at any time, and (a) Effective time. The provisions of upon such disapproval, shall be deemed this subpart shall become effective at null and void. such time as the Secretary may declare § 984.84 Personal liability. above his signature attached to this subpart, and shall continue in force No member or alternate of the Board, until terminated in one of the ways nor any employee or agent thereof hereinafter specified. shall be held personally responsible ei- (b) Termination. (1) The Secretary ther individually or jointly with oth- may, at any time, terminate the provi- ers, in any way whatsoever, to any sions of this subpart by giving at least handler or any person for errors in one day’s notice by means of a press re- judgment, mistakes, or other acts ei- lease or in any other manner which he ther of commission or omission, as may determine. such member, alternate employee or agent, except for acts of dishonesty. (2) The Secretary may terminate or suspend the operation of any or all of [39 FR 35332, Oct. 1, 1974, as amended at 41 FR the provisions of this subpart, when- 31545, July 29, 1976] ever he finds that such provisions do not tend to effectuate the declared pol- § 984.85 Separability. icy of the act. If any provision of this subpart is de- (3) The Secretary shall terminate the clared invalid, or the applicability provisions of this subpart at the end of thereof to any person, circumstance, or any marketing year whenever he finds thing is held invalid, the validity of the that such termination is favored by a remainder hereof or the applicability majority of the producers of walnuts thereof to any other person, cir- who during the preceding marketing cumstance, or thing shall not be af- year have been engaged in the produc- fected thereby. tion for market of walnuts in the State of California: Provided, That such ma- § 984.86 Derogation. jority have during such period pro- Nothing contained in this subpart is, duced for market more than 50 percent or shall be construed to be, in deroga- of the volume of such walnuts produced tion or in modification of the rights of for market within said States, but such the Secretary or of the United States termination shall be effected only if to exercise any powers granted by the announced on or before July 1 of the act or otherwise, or in accordance with then current marketing year. such powers, to act in the premises (4) Within six years of the effective whenever such action is deemed advis- date of this amendment the Secretary able. shall conduct a referendum to ascertain whether continuance of this part § 984.87 Duration of immunities. is favored by producers. Subsequent The benefits, privileges, and immuni- referenda to ascertain continuance ties conferred upon any person by vir- shall be conducted every six years tue of this subpart shall cease upon the thereafter. The Secretary may termi- termination hereof except with respect nate the provisions of this part at the to acts done under and during the ex- end of any fiscal period in which the istence hereof. Secretary has found that continuance of this part is not favored by a two- § 984.88 Agents. thirds (2⁄3) majority of voting pro- The Secretary may, by a designation ducers, or a two-thirds (2⁄3) majority of in writing, name any person, including volume represented thereby, who, dur- any officer or employee of the Govern- ing a representative period determined ment, or name any subdivision of the by the Secretary, have been engaged in United States Department of Agri- the production for market of walnuts culture, to act as his agent or rep- in the production area. Such termi- resentative in connection with any of nation shall be announced on or before the provisions of this subpart. the end of the production year.

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(5) The provisions of this subpart pair any rights or remedies of the Sec- shall, in any event, terminate when- retary or of any other person, with re- ever the provisions of the act author- spect to any such violation. izing them cease to be in effect. EDITORIAL NOTE: After January 1, 1979, (c) Proceedings after termination. (1) ‘‘Budget of Expenses and Rate of Assessment’’ Upon the termination of the provisions regulations (e.g., sections .300 through .399) of this subpart, the members of the and ‘‘Marketing percentage’’ regulations (e.g., Board then functioning shall continue sections .200 through .299) which are in effect as joint trustees, for the purpose of liq- for a year or less, will not be carried in the uidating the affairs of the Board, of all Code of Federal Regulations. For FEDERAL funds and property then in the posses- REGISTER citations affecting these regula- sion or under the control of the Board, tions, see the List of CFR Sections Affected, which appears in the Finding Aids section of including claims for any funds unpaid the printed volume and at www.fdsys.gov. or property not delivered at the time of such termination. Action by said trust- § 984.91 Relationship with the Cali- eeship shall require the concurrence of fornia Walnut Commission. a majority of the said trustees. In conducting Board activities and (2) Said trustees shall continue in other objectives under this part, the such capacity until discharged by the Board may deliberate, consult, cooper- Secretary; shall from time to time, ac- ate and exchange information with the count for all receipts and disburse- California Walnut Commission, whose ments and deliver all property on hand, activities compliment those of the together with all books and records of Board. Any sharing of information the Board and the joint trustees to gathered under this subpart shall be such person as the Secretary may di- kept confidential in accordance with rect; and shall, upon the request of the provisions under section 10(i) of the Secretary, execute such assignments or Act. other instruments necessary or appropriate to vest in such person full title [73 FR 11340, Mar. 3, 2008] and right to all of the funds, property, and claims vested in the Board or the Subpart—Assessment Rates joint trustees pursuant hereto. (3) Any person to whom funds, prop- § 984.347 Assessment rate. erty or claims have been transferred or On and after September 1, 2010, an as- delivered by the Board or its members, sessment rate of $0.0174 per pursuant to this section, shall be sub- kernelweight pound is established for ject to the same obligation imposed California merchantable walnuts. upon the members of the said Board [75 FR 55947, Sept. 15, 2010] and upon said joint trustees. [27 FR 9094, Sept. 13, 1962, as amended at 41 Subpart—Administrative Rules and FR 31545, July 29, 1976; 73 FR 11340, Mar. 3, Regulations 2008] § 984.437 Methods for proposing names § 984.90 Effect of termination or of additional candidates to be in- amendment. cluded on walnut growers’ nomina- Unless otherwise expressly provided tion ballots. by the Secretary, the termination of (a) With regard to Board grower this subpart or of any regulation issued member positions specified in pursuant to this subpart, or the § 984.35(a)(5) and (b)(6), any ten or more issuance of any amendment to either such growers who marketed an aggre- thereof, shall not (a) affect or waive gate of 500 or more tons of walnuts any right, duty, obligation, or liability through handlers who did not handle which shall have arisen or which may 35% or more of the crop during the thereafter arise in connection with any marketing year preceding the year in provision of this subpart or any regula- which Board nominations are held, tion issued under this subpart, or (b) may petition the Board to include on release or extinguish any violation of the nomination ballot the name of an this subpart or of any regulation issued eligible candidate for this position, and under this subpart, or (c) affect or im- the name of an eligible candidate to

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serve as his or her alternate. The position credit. For purposes of §§ 984.54 names of the eligible candidates pro- and 984.56, no lot of inshell walnuts posed pursuant to this paragraph shall may be held, exported, or disposed of be included on the ballot together with for use by governmental agencies or the names of any incumbents who are charitable institutions unless it meets willing to continue serving on the the minimum requirements for mer- Board. chantable inshell walnuts effective (b) Any ten or more growers eligible pursuant to § 984.50(a). The disposition to serve in the grower member posi- of any lot of inshell walnuts pursuant tions specified in § 984.35(a)(3) and (4) or to § 984.64 having at least a certified § 984.35(b)(4) and (5) and who marketed kernelweight of not less than 10 per- an aggregate of 500 or more tons of wal- cent of the inshell weight of the lot nuts through handlers who did not han- may be credited against a handler’s re- dle 35% or more of the crop during the serve obligation. marketing year preceding the year in (b) Minimum kernel content require- which Board nominations are held, ments for shelled walnuts for reserve dis- may petition the Board to include on position credit. For the purposes of the nomination ballot for a district the §§ 984.54 and 984.56, no lot of shelled name of an eligible candidate for the walnuts may be held, exported, or dis- applicable position, and the name of an posed of for use by government agen- eligible candidate to serve as his or her cies or charitable institutions unless it alternate. The names of the eligible meets the minimum requirements for candidates proposed pursuant to this merchantable shelled walnuts effective paragraph shall be included on the bal- pursuant to § 984.50(b). The disposition lot together with the names of any in- of any lot of shelled walnuts pursuant cumbents who are willing to continue to § 984.64 having at least a certified serving on the Board. kernelweight of kernels six sixty- (c) Petitions made pursuant to para- fourths of an inch or larger of not less graphs (a) and (b) of this section shall than 10 percent of the total weight of be on forms supplied by the Board and the lot may be credited against a han- filed no later than April 1 of the nomi- dler’s reserve obligation: Provided, nation year. That such minimum kernel content re- [41 FR 54476, Dec. 14, 1976, as amended at 73 quirements shall not apply to any lot FR 73997, Dec. 5, 2008; 74 FR 9047, Mar. 2, 2009] of walnut meal certified by the designated inspection service as having § 984.445 Procedures for voting by been derived from chopping, slicing, or mail, e-mail, telephone, video- dicing merchantable shelled conference, facsimile, or any other means of communication. (c) Inspection and certification of shelled walnuts that are manufactured (a) Whenever the Board votes upon into products. For purposes of §§ 984.50(d) any proposition by mail, e-mail, or fac- and 984.52(c), shelled walnuts may be simile, at least six members or alter- cut or diced without prior inspection nates acting as members must vote and and certification: Provided, That the one dissenting vote shall prevent its end product, except for walnut meal, is adoption. Each proposition to be voted inspected and certified. For purposes of upon by mail, e-mail, or facsimile shall this section, end product shall be de- specify a time limit for members to fined as walnut pieces equal to or larg- vote, after which the alternates shall er than eight sixty-fourths of an inch be given the opportunity to vote. in diameter. Walnut meal shall be de- (b) Whenever the Board conducts fined as walnut pieces smaller than meetings by telephone, video- eight sixty-fourths of an inch in diame- conference, or any technology that enter. ables member interaction, the vote (1) End product. End product must be shall be conducted by roll call. sized, inspected and certified, and the [75 FR 1527, Jan. 12, 2010] size must be noted on the inspection certificate. The end product quality § 984.450 Grade and size regulations. must be equal to or better than the (a) Minimum kernel content require- minimum requirements of U.S. Com- ments for inshell walnuts for reserve dis- mercial grade as defined in the United

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States Standards for Shelled Walnuts § 984.456 Disposition of reserve wal- (Juglans regia). nuts and walnuts used for reserve (2) Walnut meal. Walnut meal that is disposition credit. accumulated during the cutting or dic- (a) Beginning September 1 of any ing of shelled walnuts to create end marketing year, a handler may become product must be presented with the an agent of the Board to dispose of re- smallest end product from that manu- serve walnuts of such marketing year. facturing run that is inspected and cer- The agency shall be established upon tified. If the end product meets the ap- execution of an ‘‘Agency Agreement for plicable U.S. Commercial grade re- Reserve Walnuts’’ setting forth the quirements, the walnut meal accumu- terms and conditions specified by the lated during the manufacture of that Board for the sale of reserve walnuts in end product shall be identified and ref- authorized outlets. erenced on a separate meal certificate (b) Any handler who desires to trans- as ‘‘meal derived from walnut pieces fer disposition credit in excess of his/ that meet U.S. Commercial grade re- her reserve obligation to another han- quirements.’’ The certificate number of dler shall submit a request to the the smallest end product will be ref- Board for such transfer on CWB Form erenced on the meal certificate. No. 17 signed by both handlers and the (3) Failed lots. If the end product fails Board shall credit such transfer. to meet applicable U.S. Commercial (c) Any reserve walnuts that a han- grade requirements, the end product dler has not disposed of by the end of may be reconditioned, re-sampled, in- the marketing year shall be delivered spected again, and certified. However, to the Board for pooling on demand. the walnut meal accumulated during The Board may delay such demand the manufacture of that end product with respect to reserve walnuts for shall be rejected and disposed of pursu- which the handler has agreed to under- ant to the requirements of § 984.64. take disposition pursuant to the [41 FR 54476, Dec. 14, 1976, as amended at 75 Board’s authority. Each lot of reserve FR 51929, Aug. 24, 2010] or substandard walnuts delivered to the Board for pooling and disposition § 984.451 Inspection and certification shall be separately weighed at the han- of inshell and shelled walnuts. dler’s expense by a public weighmaster (a) The inspection service shall be either upon removal from the handler’s the DFA of California. premises or in transit to Board storage (b) Each handler shall make each facilities or diversion point. A copy of container of each lot of walnuts acces- each weighmaster’s certificate showing sible for sampling and sealing or the net weight of the walnuts shall be stamping in connection with the in- forwarded to the Board by the handler. spection and certification of any lot of Walnuts delivered to the Board shall be inshell or shelled walnuts. delivered F.O.B. handler’s warehouse or (c) Inshell and shelled walnuts for ex- point of storage. port pursuant to § 984.56(b) shall have been inspected and certified not more [41 FR 54476, Dec. 14, 1976, as amended at 74 than 60 days prior to shipment from FR 56696, Nov. 3, 2009] the handler’s plant. § 984.459 Reports of interhandler [41 FR 54476, Dec. 14, 1976] transfers. (a) Any handler who transfers wal- § 984.452 Certification of shelled walnuts for processing. nuts to another handler within the State of California shall submit to the Each certificate issued for shelled Board, not later than 10 calendar days walnuts for processing pursuant to following such transfer, a report show- § 984.52(b) shall bear the notation ‘‘Cer- ing the following: tified for Processing Only.’’ Shelled (1) The date of transfer; walnuts so certified for processing may (2) The net weight, in pounds, of the not be processed by anyone other than walnuts transferred; the handler obtaining such certificate. (3) Whether such walnuts were cer- [28 FR 1863, Feb. 28, 1963] tified by the inspection service;

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(4) Whether such walnuts were (1) Crush, manufacture feed, or feed inshell or shelled; such walnuts at the location; (5) The name and address of the (2) Use such walnuts for no other pur- transferring handler; and pose than for crushing into oil, manu- (6) The name and address of the re- facturing into livestock feed, or live- ceiving handler. stock feeding; (b) The transferring handler shall (3) Permit such inspection of his send two copies of the report to the re- premises and of walnuts received and ceiving handler at the time the report held by him, and such examination of is submitted to the Board. The receiv- his books and records covering walnut ing handler shall certify, on one copy transactions as the Board may require; of the report, to the receipt of such (4) Keep a record of his receipts, hold- walnuts and submit it to the Board ings, and use of substandard walnuts within 10 calendar days after the wal- available for examination by author- nuts, or copies of such report, have ized representatives of the Board and the U.S. Department of Agriculture for been received, whichever is later. a period of two years after the end of [65 FR 39286, June 26, 2000] the marketing year in which the recorded transactions are completed; and § 984.464 Disposition of substandard (5) Make such reports, certified to walnuts. the Board and the Secretary as to their (a) Whenever free and reserve per- correctness, as the Board may require. centages are in effect during a mar- (c) Each handler who disposes of sub- keting year substandard walnuts meet- standard walnuts to an approved ing the requirements of § 984.450 may be crusher, livestock feed manufacturer or delivered by a handler to the Board for livestock feeder shall upon shipment pooling at any time during the year report to the Board on CWB Form No. and the disposition credited to the han- 20, the quantities disposed of or dler’s reserve obligation. shipped. (b) The Board shall maintain a list of [41 FR 54476, Dec. 14, 1976, as amended at 74 approved crushers, livestock feed man- FR 56696, Nov. 3, 2009] ufacturers and livestock feeders, and of the locations of the facilities within REPORTS the area of production to which sub- § 984.471 Reports of handler inventory. standard walnuts may be shipped. The Board may deny approval to any appli- Reports of handler inventory as of cant or remove any approved crusher, September 1, January 1, and April 1 of feed manufacturer, or feeder from the each marketing year shall be sub- list when such denial or removal is mitted to the Board on CWB Form No. deemed necessary to insure control of 4 for inshell walnuts and on CWB Form substandard walnut disposition or the No. 5 for shelled walnuts, on or before Board determines that substandard September 15, January 15, and April 15 walnuts are not shipped to such facili- respectively, of that marketing year. ties. Substandard walnuts disposed of [74 FR 56696, Nov. 3, 2009] to an approved crusher, livestock feed manufacturer, or livestock feeder, may § 984.472 Reports of merchantable wal- only be shipped directly to an approved nuts shipped. location where the crushing, feed man- (a) Reports of merchantable walnuts ufacture, or feeding is to take place. shipped during a month shall be sub- Applications for approval to crush, mitted to the Board on CWB Form No. manufacture livestock feed, or feed 6 not later than the 5th day of the fol- substandard walnuts shall be sub- lowing month. Such reports shall in- mitted to the Board on a form preclude all shipments during the prescribed by the Board and which in- ceding month and shall show for cludes the location and a description of inshell and shelled walnuts: the quan- the disposal facilities to be used and a tity shipped; whether they were certification to the Board and the Sec- shipped into domestic or export chan- retary of Agriculture that the appli- nels; and for exports, the quantity by cant will: country of destination. If a handler

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makes no shipments during any month ber of containers and the U.S. Custom’s he/she shall submit a report marked Service entry number, whether such ‘‘None.’’ If a handler has completed his/ walnuts are inshell or shelled, the her shipments for the season, he/she quantity of such walnuts received, the shall mark the report ‘‘Completed,’’ and country of origin for such walnuts, the he/she shall not be required to submit name of the DFA of California inspec- any additional CWB Form No. 6 reports tor who issued the product tag, and the during the remainder of that mar- date such tag was issued. keting year. [74 FR 56696, Nov. 3, 2009] (b) Reports of walnuts purchased directly from growers by handlers who § 984.480 Books and other records. are manufacturers or retailers shall be Each handler shall maintain true and submitted to the Board on CWB Form complete records of all inshell and No. 6, not later than the 5th day of the shelled walnuts and walnut material, month following the month in which by categories, received, held, or dis- the walnuts were purchased. Such re- posed of by him. The records shall be ports shall show the quantity of wal- maintained in such form as to permit nuts purchased and the quantity in- verification of all transactions inspected and certified as merchantable volved and shall be made available dur- walnuts. ing normal business hours to author- [74 FR 56696, Nov. 3, 2009] ized representatives of the Board or the Secretary of Agriculture. These records § 984.473 Report of walnut receipts. shall include the following: Each handler shall file a report of his (a) The names and addresses of the walnut receipts from growers on or be- persons from whom received, and the fore January 15 of each marketing year quantities received from each such per- on forms supplied by the Board. son; (b) The names and addresses of the [40 FR 22267, May 22, 1975] persons to whom disposal is made, and § 984.476 Report of walnut receipts the quantities disposed of to each such from outside of the United States. person; (c) The quantities used by the han- Each handler who receives walnuts dler for such purposes as manufac- from outside of the United States shall turing, production of oil, and livestock file with the Board, on CWB Form No. feeding; and 7, a report of the receipt of such wal- (d) The quantities held on September nuts. The report shall be filed as fol- 1, January 1, and April 1 of each mar- lows: On or before December 5 for such keting year. walnuts received during the period Sep- tember 1 to November 30; on or before [40 FR 22268, May 22, 1975, as amended at 74 March 5 for such walnuts received dur- FR 56697, Nov. 3, 2009] ing the period December 1 to February 28 (February 29 in a leap year); on or PART 985—MARKETING ORDER before June 5 for such walnuts received REGULATING THE HANDLING OF during the period March 1 to May 31; SPEARMINT OIL PRODUCED IN and on or before September 5 for such THE FAR WEST walnuts received during the period June 1 to August 31. The report shall Subpart—Order Regulating Handling include the quantity of such walnuts received, the country of origin for such DEFINITIONS walnuts, and whether such walnuts are Sec. inshell or shelled. With each report, 985.1 Secretary. the handler shall submit a copy of a 985.2 Act. product tag issued by a DFA of Cali- 985.3 Person. fornia inspector for each receipt of 985.4 Spearmint oil. 985.5 Production area. such walnuts that includes the name of 985.6 Producer. the person from whom such walnuts 985.7 Handler. were received, the date such walnuts 985.8 Handle. were received by the handler, the num- 985.9 Marketing year.

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985.10 Crop. 985.153 Issuance of additional allotment 985.11 Salable oil. base to new and existing producers. 985.12 Salable quantity. 985.154 Issuance of annual allotments. 985.13 Annual allotment. 985.155 Identification of oil by producer. 985.14 Part and subpart. 985.156 Transfer of excess oil by producers.

ADMINISTRATIVE COMMITTEE AUTHORITY: 7 U.S.C. 601–674.

985.20 Establishment and membership. SOURCE: 45 FR 25040, Apr. 14, 1980, unless 985.21 Eligibility. otherwise noted. 985.22 Term of office. 985.23 Nominations. 985.24 Selection. Subpart—Order Regulating 985.25 Alternate members. Handling 985.26 Vacancies. 985.27 Powers. DEFINITIONS 985.28 Duties. 985.29 Procedure. § 985.1 Secretary. 985.30 Expenses and compensation. Secretary means the Secretary of Ag- RESEARCH riculture of the United States, or any 985.31 Research and development projects. other officer or employee of the U.S. Department of Agriculture who is, or EXPENSES AND ASSESSMENTS who may be, authorized to perform the 985.40 Expenses. duties of the Secretary of Agriculture 985.41 Assessments. 985.42 Accounting. of the United States.

VOLUME LIMITATIONS § 985.2 Act. 985.50 Marketing policy. Act means Public Act No. 10, 73d Con- 985.51 Recommendations for volume regula- gress, as amended, and reenacted and tion. amended by the Agricultural Mar- 985.52 Issuance of volume regulation. keting Agreement Act of 1937, as 985.53 Allotment base. 985.54 Issuance of annual allotments. amended (sections 1–19, Stat. 31, as 985.55 Identification. amended; 7 U.S.C. 601–674). 985.56 Excess oil. 985.57 Reserve pool requirements. § 985.3 Person. 985.58 Exempt oil. 985.59 Transfers. Person means an individual, partnership, corporation, association, or any REPORTS AND RECORDS other business unit. 985.60 Reports. 985.61 Records. § 985.4 Spearmint oil. 985.62 Verification of reports and records. Spearmint oil, hereinafter referred to 985.63 Confidential information. as oil, means essential oil extracted by MISCELLANEOUS PROVISIONS distillation from plants, grown in the 985.64 Compliance. production area, of the genus Mentha, 985.65 Rights of the Secretary. species Cardiaca (commonly referred to 985.66 Derogation. as Scotch Spearmint), Spicata (com- 985.67 Agents. monly referred to as Native Spear- 985.68 Personal liability. mint), or such other species, grown in 985.69 Duration of immunities. the production area, that produce a 985.70 Separability. spearmint flavored oil. Oil shall be seg- 985.71 Effective time. 985.72 Termination. regated into the following classes: 985.73 Proceedings after termination. Class 1: Oil extracted from the first cutting 985.74 Effect of termination or amendment. of Scotch Spearmint. Subpart—Administrative Rules and Class 2: Oil extracted from the second cutting of Scotch Spearmint. Regulations Class 3: Oil extracted from Native Spearmint. 985.104 Changed classes of spearmint oil. Class 4: Oil which has a spearmint flavor, ex- 985.141 Assessment rate. tracted from plants other than Scotch or 985.152 Handling report. Native Spearmint.

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The Committee, with the approval of § 985.9 Marketing year. the Secretary, may change these class- Marketing year means the 12 months es to recognize new, or delete obsolete, from June 1 to the following May 31, classes. inclusive, or such other period as the Committee, with the approval of the § 985.5 Production area. Secretary, may establish. Production area means all the area within the States of Washington, § 985.10 Crop. Idaho, Oregon, and that portion of Ne- Crop means that oil produced by a vada north of the 37th parallel and that producer during the marketing year. portion of Utah west of the 111th me- ridian. The area shall be divided into § 985.11 Salable oil. the following districts: Salable oil means that oil which is (a) District 1. State of Washington free to be handled. (b) District 2. The State of Idaho and that portion of the States of Nevada § 985.12 Salable quantity. and Utah included in the production Salable quantity means the total area. quantity of each class of oil which han- (c) District 3. The State of Oregon. dlers may purchase from, or handle on [61 FR 32924, June 26, 1996] behalf of, producers during a marketing year. § 985.6 Producer. § 985.13 Annual allotment. Producer is synonymous with grower and means any person engaged in a Annual allotment means that portion proprietary capacity in the commercial of the salable quantity prorated to a production of oil or who causes it to be producer. produced. § 985.14 Part and subpart. § 985.7 Handler. Part means the order regulating the Handler means any person who han- handling of oil grown in the production dles oil. area, and all rules and regulations issued thereunder. The order shall be a § 985.8 Handle. subpart of such part.

Handle means to prepare oil for mar- ADMINISTRATIVE COMMITTEE ket, acquire oil from a producer, use oil commercially of own production, or § 985.20 Establishment and member- sell, transport, or ship (except as a ship. common or contract carrier of oil A Spearmint Oil Administrative owned by another), or otherwise place Committee is hereby established (here- oil into the current of commerce with- inafter referred to as Committee) and in the production area or from the area shall consist of eight members, each of to points outside thereof: Provided, whom shall have an alternate, to ad- That: minister the terms and provisions of (a) The preparation for market of sal- this part. Four of the members and al- able oil by producers who are not deal- ternates shall be producers in District ers or users, 1; two members and alternates shall be (b) The sale or transportation of sal- producers in District 2; and one mem- able oil by a producer to a handler of ber and alternate shall be a producer in record within the production area, or District 3. One member and alternate (c) The transfer of excess oil by the shall represent the public. producer to another producer to enable that producer to fill a deficiency in an § 985.21 Eligibility. annual allotment, or Each member and alternate member (d) The delivery of excess oil by the of the Committee shall be, at the time producer to the Committee or its des- of selection and during the term of of- ignees, shall not be construed as han- fice, a producer, or an officer or em- dling. ployee of a producer, in the district for

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which selected: Provided, That these re- member or alternate position shall be quirements should not apply to the the nominee for that position. public member and alternate member. (4) The producer members of the Committee shall nominate the public § 985.22 Term of office. member and alternate and member at The term of office of each member the first meeting following the selec- and alternate member of the Com- tion of members for a new term of of- mittee shall be for two calendar years: fice. Provided, That one-half of the initial (b) Initial members. As soon as prac- members and alternates shall serve for ticable following the effective date of terms ending December 31, 1980, and this subpart, the Secretary shall hold, one-half of the initial members and al- or cause to be held, nomination meet- ternates shall serve for terms ending ings of producers in each district to December 31, 1981. Members and alter- nominate the initial members of the nates shall serve in such capacity for Committee. the term of office for which they are (c) The Committee with the approval selected and have qualified and until of the Secretary shall issue rules and their respective successors are selected regulations necessary to carry out the and have qualified. No member shall provisions of this section or to change serve more than two consecutive terms the procedures in this section in the as member and no alternate shall serve event they are no longer practical. more than two consecutive terms as alternate. § 985.24 Selection. Committee members shall be selected § 985.23 Nominations. by the Secretary from nominees sub- (a) Procedure. (1) Nominations for mitted by the Committee or from producer members of the Committee among other eligible persons. Each per- and their alternates shall be made at son so selected shall qualify by filing a nomination meetings of producers in written acceptance with the Secretary each District. Such meetings shall be prior to assuming the duties of the po- held at such times (on or before No- sition. vember 1 of each year) and places as the Committee shall designate. One § 985.25 Alternate members. nominee shall be elected for each posi- An alternate for a member shall act tion to be filled. The names and ad- in the place of such member (a) in the dresses of each nominee shall be sub- member’s absence, (b) in the event of mitted to the Secretary not later than the member’s death, removal, resigna- December 1 of each year. tion, or disqualification, until a suc- (2) Only producers, including duly au- cessor for the member’s unexpired term thorized officers or employees of pro- has been selected and has qualified, or ducers present and eligible to serve as (c) when requested and designated by producer members of the Committee, the member. shall participate in the nomination. If a producer produces oil in more than § 985.26 Vacancies. one district, the producer shall select To fill any vacancy occasioned by the the district in which that producer will failure of any person appointed as a participate and notify the Committee member or as an alternate member of of the choice. the Committee to qualify, or in the (3) Should the Committee find it im- event of the death, removal, resigna- practical to hold nomination meetings, tion, or disqualification of any member nominations may be submitted to the or alternate member of the Committee, Secretary based on the results of bal- a successor to fill the unexpired term loting by mail. Ballots to be used may shall be nominated and appointed in contain the names of candidates and a the manner specified in §§ 985.23 and blank space for write-in candidates for 985.24. If the names of the nominees to each position, together with voting in- fill any such vacancy are not made structions. The eligible person receiv- available to the Secretary within 30 ing the highest number of votes for a days after such vacancy occurs, the

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Secretary may fill such vacancy with- (h) To investigate and assemble data out regard to nominations, which ap- on the growing, handling, and mar- pointment shall be made on the basis keting conditions with respect to oil; of representation provided for in (i) To submit to the Secretary such § 985.20. available information as may be requested or that the Committee may § 985.27 Powers. deem desirable and pertinent; The Committee shall have the fol- (j) To notify producers and handlers lowing powers: of all meetings of the Committee to (a) To administer this subpart in ac- consider recommendations for regula- cordance with its terms and provisions; tions and of all regulatory actions (b) To make rules and regulations to taken affecting producers and handlers; effectuate the terms and provisions of (k) To give the Secretary the same this subpart; notice of meetings of the Committee (c) To receive, investigate, and report and its subcommittees as is given to its to the Secretary complaints of viola- members; tions of this part; and (l) To investigate compliance and use (d) To recommend to the Secretary means available to prevent violations amendments to this subpart. of the provisions of this part; (m) With the approval of the Sec- § 985.28 Duties. retary, to redefine the districts into The Committee shall have, among which the production area is divided others, the following duties; and to reapportion the representation (a) To select from among its member- of any district on the Committee: Pro- ship such officers and adopt such rules vided, That such changes shall reflect or by-laws for the conduct of its meet- insofar as practical, shifts in oil pro- ings as it deems necessary; duction within the production area and (b) To appoint such employees as it numbers of producers; and may deem necessary, and to determine (n) To establish with the approval of the compensation and to define the du- the Secretary such rules and regula- ties of each employee; tions as are necessary or incidental to (c) To appoint such subcommittees administration of this subpart, as are and consultants as it may deem nec- consistent with its provisions, and as essary; would tend to accomplish the purposes (d) To keep minutes, books, and of this subpart and the act. records which will reflect all of the acts and transactions of the Committee § 985.29 Procedure. and which shall be subject to examina- (a) At an assembled meeting, all tion by the Secretary; votes shall be cast in person and seven (e) To prepare periodic statements of members of the Committee shall con- the financial operations of the Com- stitute a quorum. Decisions of the mittee and to make copies of each such Committee shall require the concur- statement available to producers and ring vote of at least six members. If handlers for examination at the office both a Committee member and appro- of the Committee; priate alternate are unable to attend a (f) To cause the books of the Com- Committee meeting, the Committee mittee to be audited by a certified pub- may designate any other alternate lic accountant at such times as the from the same district who is present Committee may deem necessary, or as at the meeting to serve in the mem- the Secretary may request, to submit ber’s place. copies of each audit report to the Sec- (b) The Committee may vote by mail, retary, and to make available a copy telephone, telegraph, or other means of which does not contain confidential communication: Provided, That each data for inspection at the offices of the proposition is explained accurately, committee by producers and handlers; fully, and identically to each member. (g) To act as intermediary between All votes shall be confirmed promptly the Secretary and any producer or han- in writing. Seven concurring votes and dler; no dissenting votes shall be required

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for approval of a Committee action by the handler handles as the first handler such method. thereof. The payment of assessments for the maintenance and functioning of § 985.30 Expenses and compensation. the Committee and for such purposes Members of the Committee, their alas the Secretary may, pursuant to this ternates, subcommittees including any subpart, determine to be appropriate, special subcommittees, shall serve may be required under this part without compensation but shall receive throughout the period it is in effect, ir- such allowances for necessary ex- respective of whether particular provi- penses, incurred in performing their sions thereof are suspended or become duties, as may be approved by the Com- inoperative. mittee. (b) Rate of assessment. The Secretary shall fix the rate of assessment to be RESEARCH paid by each handler. At any time dur- § 985.31 Research and development ing or after the marketing year, the projects. Secretary may increase the rate of as- The Committee, with the approval of sessment as necessary to cover author- the Secretary, may establish or provide ized expenses. Such increase shall be for the establishment of production re- applied to all oil handled during the search, marketing research and devel- applicable marketing year. In order to opment projects designed to assist, im- provide funds for the administration of prove, or promote the marketing, dis- this part before sufficient operating in- tribution and consumption or efficient come is available from assessments, production of oil. The Committee shall the Committee may accept advance as- consider ongoing research, by industry sessments and may also borrow money and grower organizations, in making for such purpose. Advance assessments its recommendations. The expense of received from a handler shall be cred- such projects shall be paid from funds ited toward assessments levied against collected pursuant to § 985.41. the handler during the marketing year.

EXPENSES AND ASSESSMENTS § 985.42 Accounting. § 985.40 Expenses. (a) Excess funds. At the end of a marketing year, funds in excess of the The Committee is authorized to incur year’s expenses may be placed in an op- such expenses as the Secretary finds erating reserve not to exceed approxi- are reasonable and likely to be in- mately one marketing year’s oper- curred by it for such purposes as the Secretary may, pursuant to this sub- ational expenses or such lower limits part, determine to be appropriate, and as the Committee, with the approval of for the maintenance and functioning of the Secretary, may establish. Funds in the Committee during each marketing such reserve shall be available for use year. The Committee shall submit to by the Committee for expenses author- the Secretary a budget for each mar- ized pursuant to § 985.40. Funds in ex- keting year, including an explanation cess of those placed in the operating re- of the items appearing therein, and a serve shall be refunded to handlers: recommendation as to the rate of as- Provided, That any sum paid by a first sessment for such year. handler in excess of that handler’s pro rata share of the expenses during any § 985.41 Assessments. marketing year may be applied by the (a) Requirements for payment. Each Committee at the end of such mar- person who first handles salable oil keting year to any outstanding obliga- shall pay to the Committee, upon de- tions due the Committee from such mand, that handler’s pro rata share of person. Each handler’s share of such the expenses authorized by the Sec- excess funds shall be the amount of as- retary for each marketing year. Each sessments paid in excess of that han- handler’s pro rata share shall be the dler’s pro rata share. rate of assessment fixed by the Sec- (b) Disposition of funds upon termi- retary times the quantity of oil which nation of order. Upon termination of

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this part, any funds not required to de- thereof and notice and contents thereof fray the necessary expenses of liquida- shall be submitted to producers and tion shall be disposed of in such man- handlers by bulletins or through appro- ner as the Secretary may determine to priate media. be appropriate: Provided, That to the (d) As soon as practicable following extent practicable, such funds will be the effective date of this subpart and returned pro rata to the first handler the organization of the Committee, the from whom such funds were collected. Committee may adopt a marketing policy for the 1980–81 marketing year. VOLUME LIMITATIONS § 985.51 Recommendations for volume § 985.50 Marketing policy. regulation. (a) The Committee shall meet on or (a) If the Committee’s marketing pol- before January 15 of each year to adopt icy considerations indicate a need for a marketing policy for the ensuing limiting the quantity of oil of each marketing year or years. As soon as is class marketed, the Committee shall practical following the meeting or recommend to the Secretary a salable meetings, the Committee shall submit quantity and allotment percentage for to the Secretary recommendations for the ensuing marketing year. Such rec- volume regulations deemed necessary ommendations shall be made prior to to meet market requirements and es- February 15, or such other date as the tablish orderly marketing conditions. Committee, with the approval of the Additional reports shall be submitted Secretary, may establish. to the Secretary of the Committee sub- (b) At any time during the marketing sequently adopts a new or revised pol- year for which the Secretary, pursuant icy because of changes in the demand to § 985.52(a), has established a salable and supply situation with respect to quantity and an allotment percentage the various classes of oil. for each class of oil, the Committee (b) In determining such marketing may recommend to the Secretary that policy, Committee consideration shall such quantity be increased with an ap- include but not be limited to: propriate increase in the allotment (1) The estimated quantity of salable percentage. Each such recommenda- oil of each class held by producers and tion, together with the Committee’s handlers; reason for such recommendation, shall (2) The estimated demand for each be submitted promptly to the Sec- class of oil; retary. (3) Prospective production of each (c) As soon as practical following the class of oil; effective date of this subpart and the (4) Total of allotment bases of each organization of the Committee, the class of oil for the current marketing Committee may recommend a salable year and the estimated total of allot- quantity for the 1980–81 marketing ment bases of each class for the ensu- year. ing marketing year; § 985.52 Issuance of volume regulation. (5) The quantity of reserve oil, by class, in storage; (a) Whenever the Secretary finds, on (6) Producer prices of oil, including the basis of the Committee’s rec- prices for each class of oil; ommendation or other information, (7) General market conditions for that limiting the total quantity of a each class of oil, including whether the class of oil of any crop that handlers estimated season average price to pro- may purchase from or handle on behalf ducers is likely to exceed parity. of producers during a marketing year, (c) Notice of the marketing policy would tend to effectuate the declared recommendations for a marketing year policy of the act, the Secretary shall and any later changes shall be an- establish the salable quantity for that nounced publicly by the Committee, oil. and be submitted promptly to the Sec- The salable quantity shall be prorated retary and all producers and handlers. among producers by applying an allot- The Committee shall publicly an- ment percentage to each producer’s al- nounce its marketing policy or revision lotment base for that class of oil. The

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allotment percentage shall be estab- cent of oil of that class currently avail- lished for each class of oil by dividing able for sale; or the salable quantity by the total of all (iii) The quantity of that class of oil producers’ allotment bases for the sold during the 1979 marketing year, same class of oil. plus the quantity of that class of oil (b) When an allotment percentage for currently available for sale. a class of oil is established for any (2) If a producer has spearmint plant- marketing year, no handler shall pur- ed by February 27, 1979, but has no chase from or handle on behalf of pro- sales history during the representative ducers any oil of that class during such period, the producer’s allotment base year unless: shall be established by multiplying its (1) It is, at the time of handling, acreage to be harvested for spearmint within the unused portion of a pro- oil by the average amount of oil per ducer’s annual allotment, and acre sold in the allotment base of other (2) Such handler notifies the Com- producers in the state or area, which- mittee of the handling in such manner ever is more representative, in which as it may prescribe. the acreage is located: Provided, That, § 985.53 Allotment base. the Committee shall review and adjust these allotment bases in accordance (a) Initial issuance. Each producer de- with paragraph (c) of this section on siring an allotment base for one or the basis of the producer’s sales of more classes of oil shall register with spearmint oil. the Committee and furnish to it, on (c) Periodically, but at least once forms provided by the Committee, a re- every five years, the Committee shall port of the number of pounds of each review and adjust each producer’s al- class of oil sold during each of the mar- lotment base to recognize changes and keting years of 1977, of 1978, and of 1979, trends in production and demand. Any which is the representative base period, such adjustment shall be made in ac- and the number of pounds of each class cordance with a formula prescribed by of oil currently available for sale and the Committee with the approval of the location of such oil, the name and the Secretary. address of each handler, the quantity of oil by class sold to each handler, the (d)(1) Beginning with the 1982–83 mar- acreage and location of each year’s pro- keting year, the Committee annually duction of spearmint, and any addi- shall make additional allotment bases tional information requested by the available for each class of oil in the Committee. A producer who has amount of no more than 1 percent of changed or changes identity from an the total allotment base for that class individual producer to a partnership or of oil. Fifty percent of these additional corporate producer, or from a partner- allotment bases shall be made avail- ship to a corporate or individual pro- able for new producers and 50 percent ducer, or from a corporate to a partner- made available for existing producers. ship or individual producer, may for (2) Any person may apply for an addi- the purpose of establishing the initial tional allotment base for any class of and subsequent allotment base, reg- oil by filing an application with the ister with the Committee as one and Committee on or before December 1 of the same person. the marketing year preceding the mar- (b)(1) Initially, the allotment base for keting year for which the additional al- each class of oil shall be established by lotment bases will be made available. the Committee for each registered pro- (3) The Committee shall, with the ap- ducer, at the option of such producer, proval of the Secretary, establish rules as follows: and regulations to be used for deter- (i) The average annual number of mining the distribution of additional pounds of oil of that class sold during allotment bases. In establishing such any two marketing years of the rep- rules, the Committee shall take into resentative base period; or account, among other things, the min- (ii) The average annual number of imum economic enterprise require- pounds of that class of oil sold during ments for oil production, the appli- the representative period plus 331⁄3 per- cant’s ability to produce oil, the area

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where the oil will be produced and cable marketing year, but shall be other economic and marketing factors. charged against the producer’s annual (e) The right to each producer receiv- allotment for that year. ing an allotment base, or any legal successor in interest, to retain all or part § 985.55 Identification. of an allotment base, shall be depend- (a) Each producer shall, under super- ent on continuance to make a bona fide vision of the Committee, identify each effort to produce the annual allotment class of oil within 15 days following its referable thereto and failing to do so, production, or such other period of such allotment base shall be reduced time as is recommended by the Com- by an amount equivalent to such mittee with the approval of the Sec- unproduced portions. retary. Identification of oil shall be ac- EFFECTIVE DATE NOTE: At 50 FR 41480, Oct. complished before its delivery either to 11, 1985, in § 985.53, paragraph (d)(2) was sus- a handler for handling as salable oil, or pended indefinitely. to the Committee or its designees for storage as excess oil. § 985.54 Issuance of annual allotments. (b) Identification shall indicate (a) Whenever the Secretary estab- whether the oil is salable or excess oil lishes a salable quantity and allotment and include the name of the producer, percentage for a class of oil that may the class of oil, the net weight, the be freely marketed during a marketing container number and such other infor- year, the Committee shall issue an an- mation as may be required by the Com- nual allotment to each producer hold- mittee. ing an allotment base for that class of (c) Identification shall be accom- oil. Each producer’s annual allotment plished in accordance with rules and for a class of oil shall be determined by regulations established by the Com- multiplying the producer’s allotment mittee with the approval of the Sec- base for that class of oil by the applica- retary. ble allotment percentage. (d) No handler shall handle as salable (b) On or before December 1, the oil, and the Committee shall not re- Committee shall furnish each reg- ceive as excess oil, any oil that has not istered holder of an allotment base a been identified as provided in this sec- form for the producer to apply for an tion, and no person shall alter or re- annual allotment for the ensuing mar- move any identification except when keting year. The Committee, with the incidental to final disposition. approval of the Secretary, shall establish rules and regulations prescribing § 985.56 Excess oil. the information to be submitted on Oil of any class in excess of a pro- this form. The Committee shall notify ducer’s applicable annual allotment each producer of the producer’s annual shall be identified as excess oil and allotment for each class of oil within 10 shall be disposed of as follows: days after the Secretary establishes (a) Before October 15, or such date as the salable quantity and allotment per- the Committee, with the approval of centage. the Secretary, may establish, a pro- (c) Through 1981, a handler may ac- ducer, following notification of the quire oil of a producer’s own produc- Committee, may transfer excess oil to tion to fulfill a written contract en- another producer to enable that pro- tered into by these two persons prior to ducer to fill a deficiency in that pro- February 27, 1979. The terms of this ducer’s annual allotment, or contract shall require the producer to (b) Before November 1, or such other deliver to that handler a specified date as the Committee, with the ap- quantity of a class of oil from that pro- proval of the Secretary, may establish, ducer’s production at a specific price excess oil, not used to fill another pro- from a specified acreage and produced ducer’s deficiency, shall be delivered to prior to 1982. The quantity of oil ac- the Committee or its designees for quired by the handler pursuant to that storage. Such oil shall be stored for the contract during the 1980–81 or 1981–82 account of the producer. All costs of marketing year may exceed the pro- storage including identification and in- ducer’s annual allotment for the appli- surance shall be paid by the producer

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of excess oil. No handler shall handle retary. The Committee may establish excess oil and no producer shall deliver rules and regulations governing the of- excess oil to other than the Committee fers and sale to handlers. or its designees. (5) The Committee may use reserve (c) The Committee, with the approval oil for market development projects of the Secretary, may establish such approved by the Secretary. Such rules and regulations as it deems nec- projects may be conducted by the Com- essary for the transfer or storage of ex- mittee or in conjunction with or cess oil. through handlers. (c) Pool expenses and proceeds. Ex- § 985.57 Reserve pool requirements. penses incurred by the Committee in (a) On November 1, or such other date handling and storing reserve oil shall as the Committee, with the approval of be paid by the equity holders. The pro- the Secretary may establish, the Com- ceeds from the disposition of reserve mittee shall pool identified excess oil oil shall be distributed, after deduction as reserve oil in such manner as to ac- of any expenses incurred by the Com- curately account for its receipt, stor- mittee in receiving, handling, storing, age, and disposition. The Committee and disposing thereof, to the equity shall store reserve oil for the account holders or their successors in interest, of the producer and maintain the iden- on the basis of the number of pounds, tity of the reserve oil by producer’s class of oil and quality credited to each name, the year produced, the class of equity holder’s account in the pool. A oil, and such other identification as full accounting to each equity holder, may be used in normal commercial or successor in interest, in each reserve trade practices. The Committee shall pool shall be made by the Committee designate a Committee employee as re- annually. serve pool manager. (b) Disposition. (1) When, in any mar- § 985.58 Exempt oil. keting year, a producer has produced Oil held by a producer or handler on less than the annual allotment of a the effective date of this subpart shall class of oil, the producer may, upon no- not be regulated under this subpart if tification of the Committee, fill the de- reported and identified to the Com- ficiency with the same class of reserve mittee not later than 60 days after that oil from the producer’s prior produc- date. Any such oil not reported and tion. identified to the Committee shall be (2) Prior to March 15 of any year, or subject to all regulation under this such other date as recommended by the subpart. Committee and approved by the Sec- retary, a producer may notify the Com- § 985.59 Transfers. mittee of a possible deficiency in the (a) Nothing contained in this part producer’s ensuing year’s production of shall prevent a producer from transfer- oil and wishes to use reserve oil from ring the location where that producer’s own production to fill the ensuing annual allotment is produced to an- year’s annual allotment. The Com- other location except that the producer mittee shall approve the producer’s re- shall report the transfer to the Com- quest if the oil is still available at the mittee within 30 days after the trans- time of the request. fer. (3) Under supervision of the Com- (b) A producer may transfer all or mittee, a producer may exchange sal- part of an allotment base to another able oil for the same class and quantity producer under rules and regulations of reserve oil from own production so established by the Committee, with the long as the oil is properly identified. approval of the Secretary: Provided, (4) When the Committee finds that That the allotment base obtained by additional oil is needed to fill the nor- transfer from another producer or mal market demand, it shall offer all issued pursuant to § 985.53(d)(1) shall or a portion of the reserve oil for sale not be transferred for at least 2 years to handlers. Offers to sell, extension of following transfer or issuance, and that offers and withdrawal of offers shall be the person receiving the allotment base subject to disapproval by the Sec- submit to the Committee, evidence of

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an ability to produce and sell oil from by the employees of the Committee, such allotment base in the first mar- which contain data or information con- keting year following the transfer or stituting a trade secret or disclosing issuance of the allotment base. the trade position, financial condition, or business operations of the particular REPORTS AND RECORDS handler from whom received, shall be treated as confidential and the reports § 985.60 Reports. and all information obtained from (a) Inventory. Each handler shall file records shall, at all times, be kept in with the Committee a certified report the custody and under the control of showing such information as the Com- one or more employees of the Com- mittee may specify with respect to any mittee who shall disclose such infor- oil which was held by the handler at mation to no person other than the such times as the Committee may des- Secretary. ignate. (b) Receipts. Each handler shall, upon MISCELLANEOUS PROVISIONS request of the Committee, file with the Committee a certified report showing § 985.64 Compliance. for each lot of oil received, the identi- No person shall handle oil except in fying marks, class of oil, weight, place conformity with the provisions of this of production, and the producer’s name part. and address at such times as the Com- mittee may designate. § 985.65 Rights of the Secretary. (c) Other reports. Upon the request of Members of the Committee and sub- the Committee, each handler shall fur- committees, and any agents, employees nish such other information as may be or representatives thereof, shall be sub- necessary to enable the Committee to ject to removal or suspension by the exercise its powers and perform its du- Secretary at any time. Each and every ties under this part. decision, determination, and other act of the Committee shall be subject to § 985.61 Records. the continuing right of disapproval by Each handler shall maintain such the Secretary at any time. Upon such records pertaining to all oil handled as disapproval, the disapproved action of will substantiate the required reports. the Committee shall be deemed null All such records shall be maintained and void, except as to acts done in reli- for not less than 2 years after the ter- ance thereon or in accordance there- mination of the marketing year to with prior to such disapproval by the which such records relate. Secretary.

§ 985.62 Verification of reports and § 985.66 Derogation. records. Nothing contained in this part is, or For the purpose of assuring compli- shall be construed to be, in derogation ance with record keeping requirements or in modification of the rights of the and verifying reports filed by producers Secretary or of the United States (a) to and handlers, the Secretary and the exercise any powers granted by the act Committee, through its duly author- or otherwise, or (b) in accordance with ized employees, shall have access to such powers, to act in the premises any premises where applicable records whenever such action is deemed advis- are maintained, where oil is received or able. held, and at any time during reasonable business hours, shall be permitted § 985.67 Agents. to inspect such handlers’ premises, and The Secretary may, by designation in any and all records of such handlers writing, name any officer or employee with respect to matters within the pur- of the United States or name any agen- view of this part. cy or division in the U.S. Department of Agriculture, to act as the Sec- § 985.63 Confidential information. retary’s agent or representative in con- All reports and records furnished or nection with any of the provisions of submitted by handlers to, or obtained this part.

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§ 985.68 Personal liability. May 31 of the then current marketing No member or alternative member of year. the Committee and no employee or (c) Termination of act. The provisions agent of the Committee shall be held of this subpart shall, in any event, ter- personally responsible, either individ- minate whenever the provisions of the ually or jointly with others, in any way act authorizing them cease to be in ef- whatsoever, to any person for errors in fect. judgment, mistakes, or other acts, either of commission or omission, as § 985.73 Proceedings after termination. such member, alternate, employee, or Upon termination of the provisions of agent, except for acts of dishonesty, this part, the Committee shall, for the willful misconduct, or gross neg- purpose of liquidating the affairs of the ligence. Committee, continue as trustees of all the funds and property then in its pos- § 985.69 Duration of immunities. session or under its control, including The benefits, privileges, and immuni- claims for any funds unpaid or prop- ties conferred upon any person by vir- erty not delivered at the time of such tue of this part shall cease upon its ter- termination. The said trustees shall (a) mination, except with respect to acts continue in such capacity until dis- done under and during the existence of charged by the Secretary; (b) from this part. time to time account for all receipts and disbursements and deliver all prop- § 985.70 Separability. erty on hand, together with all books If any provision of this part is de- and records of the Committee and of clared invalid or the applicability the trustees, to such persons as the thereof to any person, circumstance or Secretary may direct; and (c) upon the thing is held invalid, the validity of the request of the Secretary execute such remainder of this part or the applica- assignments or other instruments nec- bility thereof to any other person, cir- essary or appropriate to vest in such cumstance, or thing shall not be af- person full title and right to all of the fected thereby. funds, property, and claims vested in the Committee or the trustees pursu- § 985.71 Effective time. ant thereto. Any person to whom The provisions of this subpart, and of funds, property, or claims have been any amendment thereto, shall become transferred or delivered, pursuant to effective at such time as the Secretary this section, shall be subject to the may declare and shall continue in force same obligation imposed upon the until terminated or suspended in one of Committee and upon trustees. the ways specified in § 985.72. § 985.74 Effect of termination or § 985.72 Termination. amendment. (a) Failure to effectuate. The Sec- Unless otherwise expressly provided retary shall terminate or suspend the by the Secretary, the termination of operation of any or all of the provi- this subpart or of any regulation issued sions of this part upon a finding that pursuant to this subpart, or the such provisions obstruct or do not tend issuance of any amendment to either to effectuate the declared policy of the thereof, shall not (a) affect or waive act. any right, duty, obligation, or liability (b) Referendum. The Secretary shall which shall have risen or which may terminate the provisions of this sub- thereafter arise in connection with any part at the end of any marketing year provision of this subpart or any regula- upon a finding that such termination is tion issued hereunder, or (b) release or favored by a majority of the producers extinguish any violation of this sub- who, during the preceding marketing part or any regulation issued here- year, produced for market more than 50 under, or (c) affect or impair any rights percent of the volume of oil so pro- or remedies of the Secretary or any duced: Provided, That termination shall other person with respect to any such be effective only if announced before violation.

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Subpart—Administrative Rules and § 985.153 Issuance of additional allot- Regulations ment base to new and existing producers. § 985.104 Changed classes of spearmint (a) Definitions. (1) New producer means oil. any person who never was issued an allotment base by the Committee for a Pursuant to § 985.4, the classes of class of oil in any capacity either as an spearmint oil contained in that section individual, or as a member of a part- are changed by deleting the term and nership, corporation, or any other busi- definition Class 2 Oil and changing the ness unit. definition of Class 1 Oil. The changed (2) Existing producer means any per- classes are as follows: son who was issued an allotment based Class 1: Oil extracted from Scotch Spear- by the Committee for a class of oil in mint. any capacity either as an individual, or Class 3: Oil extracted from Native Spearmint. as a member of a partnership, corpora- Class 4: Oil which has a spearmint flavor, ex- tion, or any other business unit. Any tracted from plants other than Scotch or person who was initially issued an al- Native Spearmint. lotment base for a class of oil and changed identity of operation, as set [48 FR 53400, Nov. 28, 1983] forth in § 985.53(a), since April 14, 1980, § 985.141 Assessment rate. and requests additional allotment base for that class of oil pursuant to this On and after June 1, 2003, an assess- section, shall be deemed to be an exist- ment rate of $0.10 per pound is estab- ing producer. lished for Far West spearmint oil. Un- (b) Requests. Any new or existing pro- expended funds may be carried over as ducer desiring additional allotment a reserve. base for any class of oil made available by the Committee pursuant to [68 FR 32330, May 30, 2003] § 985.53(d)(1) shall request such base by § 985.152 Handling report. a date specified by the Committee prior to the marketing year for which Whenever an allotment percentage such base will be made available. has been established for a class of oil, (c) Issuance—(1) New producers—(i) each handler shall furnish to the Com- Regions: For the purpose of issuing ad- mittee at least the following informa- ditional allotment base to new pro- tion for each lot of that class of oil ac- ducers, the production area is divided quired by the handler from a producer: into the following regions: (a) Name of producer; (b) name of han- (A) Region A. The State of Wash- dler; (c) class of oil acquired; (d) date of ington. acquisition; (e) date when oil was pro- (B) Region B. All areas of the produc- duced; (f) net weight of oil in the lot; tion area outside the State of Wash- (g) quantity of that class of oil in the ington. producer’s annual allotment available (ii) Each year, the Committee shall for handler before this acquisition; and determine the size of the minimum (h) quantity of oil remaining in the economic enterprise required to producer’s annual allotment after this produce each class of oil. The Com- mittee shall thereafter calculate the acquisition. This information shall be number of new producers who will re- furnished in such manner as the Com- ceive allotment base under this section mittee may prescribe. Upon acquisition for each class of oil. The Committee the handler or the handler’s agent also shall include that information in its shall include the applicable informa- announcements to new producers in tion on the back of the producer’s An- each region informing them when to nual Allotment Certificate, showing submit requests for allotment base. that the acquired oil was within the The Committee shall determine wheth- unused portion of the producer’s an- er the new producers requesting addi- nual allotment. tional base have ability to produce spearmint oil. The names of all eligible [46 FR 43130, Aug. 27, 1981] new producers from each region shall

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be placed in separate lots per class of § 985.154 Issuance of annual allot- oil. For each class of oil, separate ments. drawings shall be held from a list of all (a) Each producer who is a registered applicants from Region A, from a list holder of an allotment base, and desir- of all applicants from Region B, and ing an annual allotment for the ensu- from a list of all remaining applicants ing marketing year, shall apply to the from Regions A and B combined. If, in Committee for that allotment. The any marketing year, there are no re- registered holder shall furnish at least quests in a class of oil from eligible the following information: new producers in a region, such unused (1) The number of acres of each spe- allotment base shall be issued to two cies (Scotch or Native) of spearmint eligible new producers whose names are planted, or intended to be planted for selected by drawing from a lot con- harvest in the ensuing marketing year; taining the names of all remaining eli- (2) Whether the spearmint to be har- gible new producers from the other re- vested in the ensuing marketing year gion for that class of oil. The Com- is baby mint (first year harvest) or ma- mittee shall immediately notify each ture mint (second year or older har- new producer whose name was drawn vest); and and issue that producer an allotment (3) Any changes in location or pro- base in the appropriate amount. duction as reported for the preceding (2) Existing producers. (i) The Com- year. mittee shall review all requests from (b) In order to enable the Committee to insure compliance and verify fur- existing producers for additional allot- nished information, each producer re- ment base. questing an annual allotment shall per- (ii) Each existing producer of a class mit the Committee or its representa- of spearmint oil who requests addi- tives, whenever necessary, to measure tional allotment base and who has the the producer’s spearmint acreage. ability to produce additional quantities of that class of spearmint oil, [46 FR 43130, Aug. 27, 1981] shall be eligible to receive a share of § 985.155 Identification of oil by pro- the additional allotment base for that ducer. class of oil. Additional allotment base to be issued by the Committee for a Following the distillation of oil and class of oil shall be distributed equally prior to delivery either to a handler for handling as salable oil or to the Com- among the eligible producers for that mittee or its designee for storage as ex- class of oil. The Committee shall im- cess oil, each producer shall furnish the mediately notify each producer who is following information to the Com- to receive additional allotment base by mittee: Provided, That any class of oil issuing that producer an allotment retained by a producer shall be re- base in the appropriate amount. ported to the Committee within 15 days (d) The person receiving any addi- following the completion of its distilla- tional allotment base pursuant to this tion. section shall submit to the Committee, (a) Producer’s name and address; evidence of an ability to produce and (b) Date the oil was put into the sell oil from such allotment base in the drum; first marketing year following issuance (c) Class of oil in the drum; of such base. Allotment base issued (d) Drum identification number; under this section shall not be trans- (e) Approximate net weight of the oil; ferred for at least two years following (f) Handler’s pickup receipt number, issuance. when applicable; [47 FR 41332, Sept. 20, 1982, as amended at 50 (g) Destination of oil for storage; FR 41480, Oct. 11, 1985; 51 FR 45450, Dec. 19, (h) Name of the firm where the oil 1986; 56 FR 51829, Oct. 16, 1991; 57 FR 28595, was distilled; and June 26, 1992; 62 FR 43465, Aug. 14, 1997; 65 FR (i) Name of the person submitting the 30344, May 11, 2000; 68 FR 25486, May 13, 2003] information. [46 FR 43130, Aug. 27, 1981]

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§ 985.156 Transfer of excess oil by pro- MARKET DEVELOPMENT ducers. 987.33 Research and promotion. Before November 1 a producer, fol- MARKETING POLICY lowing notification of the Committee, may transfer excess oil to another pro- 987.34 Development. ducer to enable that producer to fill a 987.35 Modifications. 987.36 Notice. deficiency in that producer’s annual al- 987.38 Handlers of record. lotment. GRADE REGULATION [45 FR 71760, Oct. 30, 1980] 987.39 The establishment of minimum EDITORIAL NOTE: After January 1, 1979, standards. ‘‘Budget of Expenses and Rate of Assessment’’ 987.40 Additional grade or size regulations. regulations (e.g., sections .300 through .399) 987.41 Inspection. and ‘‘Marketing percentage’’ regulations (e.g., sections .200 through .299) which are in effect VOLUME REGULATION for a year or less, will not be carried in the 987.43 Outlets and specifications for mar- Code of Federal Regulations. For FEDERAL ketable dates. REGISTER citations affecting these regula- 987.44 Free and restricted percentages. tions, see the List of CFR Sections Affected, 987.45 Withholding restricted dates. which appears in the Finding Aids section of 987.46 Revisions of percentages. the printed volume and at www.fdsys.gov. 987.47 Surplus. PART 987—DOMESTIC DATES PRO- CONTAINER REGULATION DUCED OR PACKED IN RIVERSIDE 987.48 Container regulation.

COUNTY, CALIFORNIA QUALIFICATIONS TO REGULATION Subpart—Order Regulating Handling 987.50 Application after end of crop year. 987.51 Interhandler transfers. DEFINITIONS 987.52 Exemption. 987.53 Application of regulations to re- Sec. packers. 987.1 Secretary. 987.2 Act. DISPOSITION OF OTHER THAN FREE DATES 987.3 Person. 987.4 Area of production. 987.55 Outlets for restricted dates. 987.56 Outlets for utility and cull dates. 987.5 Dates. 987.57 Approved manufacturers or feeders. 987.6 Crop year. 987.58 Terminal date. 987.7 Producer. 987.59 Safeguards. 987.8 Handler. 987.8a Repacker. REPORTS AND RECORDS 987.9 Handle. 987.10 Handler carry-over. 987.61 Reports of handler carryover. 987.11 Trade demand. 987.62 Reports of dates shipped. 987.12 Marketable dates. 987.63 Reports on restricted dates withheld. 987.13 Free dates. 987.64 Reports on disposition of restricted, 987.14 Restricted dates. other marketable, utility, and cull dates. 987.15 Substandard dates. 987.65 Other reports. 987.16 Cull dates. 987.66 Certification of reports. 987.17 Graded dates. 987.67 Confidential information. 987.18 Committee. 987.68 Verification of reports and records. 987.20 Part and subpart. EXPENSES AND ASSESSMENTS CALIFORNIA DATE ADMINISTRATIVE 987.71 Expenses. COMMITTEE 987.72 Assessments. 987.21 Establishment and membership. MISCELLANEOUS PROVISIONS 987.23 Term of office. 987.24 Nomination and selection. 987.76 Compliance. 987.25 Qualification. 987.77 Personal liability. 987.26 Vacancies. 987.78 Separability. 987.27 Alternates. 987.79 Derogation. 987.28 Expenses. 987.80 Duration of immunities. 987.29 Powers. 987.81 Agents. 987.30 Duties. 987.82 Effective time, suspension, or termi- 987.31 Procedure. nation.

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987.83 Effect of termination or amendment. to whom authority has heretofore been 987.84 Amendments. delegated, or to whom authority may hereafter be delegated, to act in his Subpart—Administrative Rules stead. DEFINITIONS 987.101 Lot. § 987.2 Act. 987.102 Lot number. Act means Public Act No. 10, 73d Con- 987.104 Major marketing promotion. gress, as amended and as reenacted and 987.105 Whole equivalent of pitted dates. amended by the Agricultural Mar- IDENTIFICATION AND OUTLET SPECIFICATIONS keting Agreement Act of 1937, as 987.112 Identification of dates. amended (sections 1–19, 48 Stat. 31, as 987.112a Grade, size, and container require- amended; 7 U.S.C. 601 et seq.). ments for each outlet category. § 987.3 Person. NOMINATIONS Person means an individual, partner- 987.124 Nomination and polling. 987.138 Handlers of record. ship, corporation, association, or any other business unit. INSPECTION 987.141 Inspection and certification. § 987.4 Area of production.

VOLUME REGULATION Area of production means Riverside County, Calif. 987.145 Withholding obligation. [36 FR 15037, Aug. 12, 1971] SURPLUS 987.147 Surplus. § 987.5 Dates.

QUALIFICATION TO REGULATION Dates means the Deglet Noor, Zahidi, Halawy, and Khadrawy varieties of do- 987.151 Interhandler transfers. 987.152 Exemption from regulations. mestic dates produced or packed in the 987.157 Approved date product manufactur- area of production. ers. § 987.6 Crop year. REPORTS AND RECORDS Crop year means the 12-month period 987.161 Handler carryover. 987.162 Handler acquisition and disposition. beginning October 1 of each year and 987.164 Shipments of product dates and dis- ending September 30 of the following position of restricted dates in approved year. product outlets. 987.165 Other reports. [43 FR 4250, Feb. 1, 1978] 987.168 Handler records. 987.172 Adjustment of assessment obliga- § 987.7 Producer. tion. Producer is synonymous with grower Subpart—Assessment Rates and means any person engaged in a proprietary capacity in the production 987.339 Assessment rate. of dates for sale. AUTHORITY: 7 U.S.C. 601–674. § 987.8 Handler. Subpart—Order Regulating Handler means any person handling Handling dates which have not been inspected and certified for handling in the hands SOURCE: 27 FR 6818, July 19, 1962, unless of a previous holder and any repacker: otherwise noted. Provided, That for the purposes of §§ 987.21 and 987.24 a person shall qualify DEFINITIONS as a handler only if he has acquired the § 987.1 Secretary. dates directly from producers. Secretary means the Secretary of Ag- [32 FR 12595, Aug. 31, 1967, as amended at 43 riculture of the United States, or any FR 4250, Feb. 1, 1978] officer or employee of the Department

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§ 987.8a Repacker. cable requirements in effect pursuant Repacker means any wholesaler or to § 987.40. Marketable dates shall in- jobber who receives packed dates cer- clude but not be limited to the fol- tified for handling pursuant to lowing: § 987.41(a), repackages them in con- (a) DAC dates. DAC dates are market- tainers other than those in which re- able whole or pitted dates that are in- ceived, and handles such repackaged spected and certified as meeting the dates. grade, size, container, and identification requirements established by the [32 FR 12595, Aug. 31, 1967] Committee, with the approval of the Secretary, for a specific variety for § 987.9 Handle. handling in the United States and Can- Handle means to sell, consign, trans- ada. port, or ship (except as a common or (b) Dates for further processing. Dates contract carrier of dates owned by an- for further processing (FP) are market- other person) or in any way to put able whole dates acquired by one han- dates into the current of commerce in- dler from another handler that are cer- cluding the shipment or delivery of tified as meeting the same grade and utility dates or cull dates into size requirements for DAC dates, with nonhuman consumption outlets, except the exception of moisture require- that sales or deliveries, by producers, ments, and such identification require- of other than cull dates, to a handler ments applicable to FP dates that are within the area of production, or the established by the Committee, with the movement of dates by a handler to approval of the Secretary, for any spe- storage for his account within the area cific variety. of production, or counties adjoining (c) Export dates. Export dates are the area of production, shall not be marketable whole or pitted dates that considered handling. The Committee, are inspected and certified as meeting with the approval of the Secretary, the grade, size, container, and identi- may establish monitoring procedures fication requirements established by for storage of dates in Orange, San the Committee, with the approval of Diego, and Yuma Counties. the Secretary, for a specific variety, to [36 FR 15037, Aug. 12, 1971, as amended at 43 be handled in export to any country or FR 4250, 4251, Feb. 1, 1978] group of countries with the exeption of Canada. The Committee may establish § 987.10 Handler carry-over. different requirements for different Handler carry-over means, as of any countries. date, all marketable dates then held by (d) Product dates. Product dates are a handler or for his account (whether marketable dates that are inspected or not sold), plus the estimated quan- and certified as meeting the applicable tity of marketable dates in ungraded or grade and size requirements for dates unprocessed lots then held by said han- to be handled in such forms as rings, dler. chunks, pieces, butter, macerate, paste, or any other forms which the § 987.11 Trade demand. Committee deems appropriate and Trade demand means those quantities which will result in dates moving into of marketable dates which the Com- consumption in a form other than that mittee finds are required to satisfy the of whole or pitted dates. need for dates in specific outlets in [43 FR 4250, Feb. 1, 1978] which marketable dates are handled. [43 FR 4250, Feb. 1, 1978] § 987.13 Free dates. Free dates means dates of any variety § 987.12 Marketable dates. that are at the time of certification Marketable dates means those dates destined for consumption in whole or which are certified as equal to or high- pitted form in the United States and er than the applicable minimum grade Canada (and such other countries as and size requirements in effect pursu- the Committee determines are likely ant to § 987.39, and any additional appli- to acquire them at prices reasonably

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comparable with prices received do- CALIFORNIA DATE ADMINISTRATIVE mestically) and which are free to be COMMITTEE handled pursuant to any free percentage established by the Secretary in ac- § 987.21 Establishment and member- cordance with § 987.44. ship. [43 FR 4251, Feb. 1, 1978] A California Date Administrative Committee consisting of nine members § 987.14 Restricted dates. is hereby established to administer the Restricted dates means those dates terms and conditions of this part. For which must be withheld by handlers each member there shall be an alter- pursuant to any restricted percentage nate member, and the provisions of established by the Secretary in accord- this part applicable to the number, ance with § 987.44. nomination, qualification and selection of members shall apply in like manner § 987.15 Substandard dates. to alternate members. Three of the members, referred to in this part as Utility dates means those dates which producer members , shall be producers fail to meet the requirements for mar- ‘‘ ’’ ketable dates but are not cull dates. or officers or employees of producers, and shall not be handlers, or directors, [27 FR 6818, July 19, 1962, as amended at 43 officers, or employees exercising a su- FR 4251, Feb. 1, 1978] pervisory or managerial function of a handler. The six remaining members, § 987.16 Cull dates. referred to in this part as ‘‘producer- Cull dates means dates which fail to handlers’’, shall be selected from (a) meet the requirements (with respect to handlers, or directors, officers or em- freedom from defects) prescribed in ployees of a handler, or (b) producers title 3, group 4, article 24, section 24, who are also handlers or directors, offi- section 1434 of the Food and Agricul- cers or employees exercising a super- tural Code of California for dates for visory or managerial function of a han- use in products or by-products other dler. The Committee, with the approval than alcohol, brandy, and products not of the Secretary, may issue rules and intended for human consumption and regulations covering matters of eligi- any dates residual from field or pack- bility for producer members, or revis- inghouse grading operations. ing the composition of the Committee [27 FR 6818, July 19, 1962, as amended at 43 prescribed in this section if it no longer FR 4251, Feb. 1, 1978] is representative following a substantial change in the industry. § 987.17 Graded dates. [43 FR 4251, Feb. 1, 1978] Graded dates means those dates which are eligible for certification as market- § 987.23 Term of office. able dates. The term of office for members and alternate members shall be 2 years be- § 987.18 Committee. ginning August 1, except such term Committee means the California Date may be shorter if the Committee com- Administrative Committee established position is changed in the interim pur- pursuant to § 987.21. suant to § 987.21. Each member and al- [36 FR 15037, Aug. 12, 1971] ternate member shall, unless otherwise ordered by the Secretary, continue to § 987.20 Part and subpart. serve until his successor has been se- Part means the order regulating the lected and has qualified. handling of domestic dates produced or [43 FR 4251, Feb. 1, 1978] packed in Riverside County, Calif., and all rules, regulations, and supple- § 987.24 Nomination and selection. mentary orders issued thereunder. The (a) Nomination for members and al- aforesaid order shall be a subpart of ternate members of the Committee such part. shall be made not later than June 15 of [36 FR 15037, Aug. 12, 1971] every other year.

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(b) Opportunity shall be provided pro- § 987.26 Vacancies. ducers and handlers to nominate indi- In the event of any vacancy occa- viduals to serve on the Committee by establishing a day for polling and also sioned by the failure to qualify, dec- for casting absentee ballots. Persons lination to serve, removal, resignation, will only be able to vote in nomina- disqualification, or death of any person tions for the group in which they would nominated to serve on the Committee, be qualified to serve on the Committee, or any member or alternate member and shall nominate the applicable selected by the Secretary, the Com- number of individuals for the positions mittee shall promptly submit its rec- prescribed pursuant to § 987.21. Each ommendation to the Secretary of a producer, regardless of the number and nominee eligible to serve in accordance locations of his date gardens, voting in with the requirements specified for the the nominations for producer members group in § 987.21. If the vacancy is for a and producer alternate members, shall member position, the Committee shall be entitled to one vote for each mem- recommend appointment of the alter- ber and alternate member position to nate member if that person is willing be filled. The individual receiving the to serve in that position. If the Com- highest number of votes for a position mittee’s recommendation is not sub- shall be the nominee. Each person vot- mitted within 30 calendar days after ing in the nominations for producer- handler members and producer-handler such vacancy occurs, the Secretary alternate members, shall be given the may fill such vacancy without regard opportunity to vote for one member to nominations, and the selection shall and one alternate member position. His be made on the basis of representation ballot shall be weighted by the pounds provided in § 987.21. of dates he had certified as marketable [43 FR 4251, Feb. 1, 1978] dates, from the beginning of the then current crop year through April which § 987.27 Alternates. he produced in his own gardens or acquired from other producers. The indi- An alternate for a member of the vidual receiving the highest weighted Committee shall act in the place and vote for a producer-handler position stead of such member during his ab- shall be the nominee. The Committee, sence or in the event of his removal, with the approval of the Secretary, resignation, disqualification, or death, may issue rules and regulations on the until a successor for such member’s un- manner in which nominees for a posi- expired term has been selected and has tion may be obtained, polling, bal- qualified. In the event a member and loting, absentee ballots, and the his alternate are unable to attend a weighting of votes for producer-handler meeting of the Committee, such mem- positions when the Committee is re- ber or alternate, in that order, may structured during a term of office. designate an alternate from the group [43 FR 4251, Feb. 1, 1978] he represents to act in his place. If neither a member nor his alternate has § 987.25 Qualification. designated an alternate as his replace- Each person selected as a member or ment, or such designated alternate is alternate member of the Committee unable to serve as the replacement, the shall, prior to serving on the Com- chairman may, with the concurrence of mittee, qualify by filing with the Sec- a majority of the members including retary a written acceptance after re- alternates acting as members, rep- ceiving notice of his selection. Any resenting such group, designate an al- member or alternate who, at the time ternate from such group who is present of his selection, was a member of or at the meeting and is not acting as a employed by a member of the group member to act in the place and stead of which nominated him shall, upon ceas- the absent member. ing to be such member or employee, become disqualified to serve further and [27 FR 6818, July 19, 1962, as amended at 36 his position on the Committee shall be FR 15038, Aug. 12, 1971; 43 FR 4251, Feb. 1, deemed vacant. 1978]

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§ 987.28 Expenses. (g) To investigate compliance and to The members of the Committee shall use means available to the Committee serve without compensation but shall to prevent violations of this part. be allowed their necessary expenses. (h) To furnish the Committee view- points of the consumer, the Committee § 987.29 Powers. may utilize a consumer consultant. The Committee shall have the fol- The consumer consultant shall have no lowing powers: financial interest in the date industry (a) To administer the terms and pro- and shall receive no compensation, visions of this subpart. however, such person shall be reim- (b) To make rules and regulations to bursed for necessary expenses attend- effectuate the terms and provisions of ant to those assignments that the this subpart. Committee has given prior support and (c) To receive, investigate, and report approval. to the Secretary complaints of viola- [27 FR 6818, July 19, 1962, as amended at 43 tions of this subpart, and FR 4252, Feb. 1, 1978] (d) To recommend to the Secretary amendments to this subpart. § 987.31 Procedure. (a) A majority of the Committee § 987.30 Duties. shall constitute a quorum. The Committee shall have, among (b) The Committee shall, from among other things, the following duties: its members, select a chairman and (a) To act as intermediary between such other officers and adopt such the Secretary and any producer or han- rules for the conduct of its business as dler. it may deem advisable. (b) To keep minutes, books, and (c) For any decision of the Com- records which will clearly reflect all of mittee to be valid, a concurring vote of its transactions and such minutes, at least five members is required, ex- books, and other records shall be sub- cept as follows: ject to examination by the Secretary (1) In matters relating to restruc- at any time. (c) To investigate the growing, han- turing Committee composition pursu- dling, and marketing conditions with ant to § 987.21, concurrence by at least respect to dates, to assemble data in eight members is required; connection therewith. (2) In matters relating to establish- (d) To furnish to the Secretary such ment, modification and application of available information as may be free and restricted percentages pursu- deemed pertinent to the administra- ant to §§ 987.44 and 987.46, concur- tion of this subpart or as he may re- rence by at least seven members is request and to give to the Secretary the quired; and same notice of meetings of the Com- (3) In matters relating to rec- mittee as is given to the members of ommendation of any program of paid the Committee. advertising or major program of mar- (e) To appoint such employees as it ket promotion pursuant to § 987.33, con- may deem necessary and to determine currence by at least six members is re- the salaries, define the duties and quired. where desirable fix the bonds of such (d) At all assembled meetings each employees. vote shall be cast in person. (f) To cause the books of the Com- (e) The Committee may vote upon mittee to be audited by a certified pub- any proposition by mail, or telephone lic accountant at least once each crop when confirmed in writing within 2 year and at such other times as the weeks, or telegram, upon due notice Committee may deem necessary or the and full and identical explanation to Secretary may request. The report of all members, including alternates act- each such audit shall show among ing as members, but any such action other things the receipt and expendi- shall not be considered valid unless ture of funds pursuant hereto. Two cop- unanimously approved. ies of such audit shall be submitted to (f) If the total number of members of the Secretary. the Committee is changed pursuant to

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§ 987.21, the minimum voting require- (1) The estimated production of dates ments shall be in the same ratio to the during the crop year; revised total number of members, as (2) The estimated production of DAC nearly as practicable, as the minimum dates, export dates, and product dates; voting requirements prescribed in (3) The handler carryin on October 1 paragraph (c) of this section are to of dates of those qualities; nine. (4) The estimated trade demand in [36 FR 15038, Aug. 12, 1971, as amended at 43 each outlet during the crop year; and FR 4252, Feb. 1, 1978] (5) The desirable carryout, by outlet. (b) If dates to be handled as free MARKET DEVELOPMENT dates are not synonymous with those to be handled in DAC outlets, the Com- § 987.33 Research and promotion. mittee shall consider such additional (a) The Committee, with the approval factors as: of the Secretary, may establish or pro- (1) The supply of marketable dates vide for the establishment of mar- that will be available from the esti- keting research and development mated production, and from the Octo- projects, including marketing pro- ber 1 carryin, that could be used as free motion and paid advertising, designed dates, and to assist, improve, or promote the mar- (2) The estimated trade demand for keting, distribution, and consumption free dates during the current crop year, of dates. The expenses of such projects and the desirable carryout for free shall be paid from funds collected pur- dates. suant to § 987.72. Upon conclusion of (c) The Committee shall submit its each program, but at least annually, recommendation as to grade, size, and the Committee shall summarize and re- container regulations and its rec- port on the program status and accom- ommendation whether free and re- plishments, to its members and the stricted percentages should be estab- Secretary. A similar report to the lished and if so, the free and restricted Committee shall be required of any percentages and the appropriate with- contracting party on any paid adver- holding factor. tising or major program. Also, for each advertising or major program the con- [43 FR 4252, Feb. 1, 1978] tracting party shall be required to maintain records of money received § 987.35 Modifications. and expenditures and such shall be In the event the Committee subse- available to the Committee and the quently determines that the marketing Secretary. The Committee shall, with policy should be modified due to chang- the approval of the Secretary, establish ing supply or demand conditions, it criteria which will determine such shall formulate and submit to the Sec- major program. retary its modified marketing policy (b) [Reserved] along with the data which it considered [32 FR 12595, Aug. 31, 1967, as amended at 36 in connection with such modification. FR 15038, Aug. 12, 1971; 43 FR 4252, Feb. 1, 1978] § 987.36 Notice. The Committee shall give notice MARKETING POLICY through newspapers having general circulation in the area of production or by § 987.34 Development. other means of communication to pro- As early as practicable, but no later ducers and handlers of the contents of than October 31, the Committee shall each marketing policy report sub- prepare and submit to the Secretary, a mitted to the Secretary and of each re- report setting forth its marketing pol- port modifying such marketing policy. icy, including data on which it is Copies of all such reports shall be based, by variety, for regulation of maintained in the office of the Com- dates in the crop year. mittee where they shall be available (a) The committee shall consider for examination by producers and han- such factors as: dlers.

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§ 987.38 Handlers of record. Notice of the minimum standard regulation shall be sent by the Committee Each crop year but no later than Oc- to all handlers of record. On and after tober 10 for continuing handlers and prior to handling dates in the case of the effective date of such regulations new handlers, any person desiring to no handler shall handle dates except in handle dates shall submit a report to accordance with such minimum stand- the Committee on a form prescribed by ard. it containing the following information [32 FR 12596, Aug. 31, 1967, as amended at 43 with respect to all dates which such FR 4252, Feb. 1, 1978] person expects to handle: (a) The name and address of each pro- § 987.40 Additional grade or size regu- ducer; lations. (b) The location of each date garden; Whenever the Committee deems it and advisable to establish grade or size re- (c) The acreage and estimated cur- quirements for any variety of dates, in rent season’s production thereon. addition to the minimum standard pro- Those reports required to be filed by vided pursuant to § 987.39, to govern October 10 shall reflect producers who dates of such variety to be handled in are signed up with the handlers as of any designated outlet or to be withheld October 1 of the then current crop to meet withholding obligation, or year. The Committee, with the ap- both, it shall recommend to the Sec- proval of the Secretary, may issue retary requirements as to grade based rules and regulations to carry out the on the effective United States Stand- provisions of this section. ards for Grades of Dates or any modi- [43 FR 4252, Feb. 1, 1978] fication thereof, and such size requirements as it may deem appropriate. If GRADE REGULATION the Secretary finds, upon the basis of such recommendation or other infor- § 987.39 The establishment of min- mation available to him, that such ad- imum standards. ditional grade or size regulation, or In order to effectuate the declared both such regulations, will tend to ef- policy of the act, all dates handled as fectuate the declared policy of the act, marketable dates shall meet the re- he shall establish such regulations. No- quirements of U.S. Grade C, or if for tice thereof, showing the effective further processing, U.S. Grade C (Dry) date, shall be sent by the Committee to of the effective U.S. Standards for all handlers of record. On and after the Grades of Dates, 7 CFR 52.1001: Pro- effective date no handler shall handle vided, That the Secretary, may upon dates of such variety in any designated recommendation of the Committee, outlet or withhold such dates to meet prescribe other minimum standards of withholding obligation except in ac- grades and sizes for marketable dates cordance with such regulations. of any variety to be handled in any designated outlet. To aid the Secretary in [27 FR 6818, July 19, 1962, as amended at 43 FR 4252, Feb. 1, 1978] prescribing such other minimum standards, the Committee shall furnish to § 987.41 Inspection. the Secretary the data upon which it acted in recommending such standards. (a) Packed dates. Prior to handling The provisions hereof relating to min- any dates packed for handling each imum standards of grades and sizes for handler shall, at his own expense, marketable dates and inspection re- cause: quirements, within the meaning of sec- (1) An inspection to be made of such tion 2(3) of the act, and any other pro- dates in order to ascertain if such dates visions relating to the administration meet the applicable grade and size reg- and enforcement thereof shall continue ulations prescribed or provided for in in effect irrespective of whether the this part; and season average price to producers for (2) A certification for handling to be dates is or is not in excess of the parity made of all such dates as meet such level specified in section 2(1) of the act. grade and size regulations.

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(b) Dates for further processing. Prior § 987.44 Free and restricted percent- to handling any dates for further proc- ages. essing each handler shall, at his own (a) Whenever the Committee finds expense, cause: (1) An inspection to be that the available supply of market- made to ascertain if such dates meet able dates of applicable grade and size the applicable grade and size require- available to supply the trade demand ments effective pursuant to § 987.39 or for free dates of any variety is likely to § 987.40, except for character associated be excessive, and that limiting the vol- with moisture; and (2) a certification ume of marketable dates to be handled for further processing to be made of all as free dates through establishment of such dates as meet such grade and size free and restricted percentages applica- requirements: Provided, That such in- ble to such variety of such dates would spection and certification require- tend to effectuate the declared policy ments shall not apply to inter-handler of the act, it shall recommend such transfers within the area of production percentages to the Secretary. If the of field-run dates or graded dates. Secretary finds, upon the basis of the (c) Identification and service. All dates Committee’s recommendation and sup- handled shall be identified by seals, porting data or other information available to him, that the establish- stamps, or other means prescribed by ment of such percentages would tend to the Committee and affixed to the con- effectuate the declared policy of the tainers by the handlers under the su- act, he shall establish such percent- pervision of the Committee or the des- ages. The sum of the free and restricted ignated inspectors. Inspection shall be percentages for any crop year shall performed by inspectors of the United equal 100 percent. States Department of Agriculture’s (b) The dates handled by any handler Processed Products Standardization in accordance with the provisions here- and Inspection Branch or such other of shall be determined to be that han- inspection service as may be rec- dler’s quota fixed by the Secretary ommended by the committee and ap- within the meaning of section 8a(5) of proved by the Secretary. Handlers shall the act. cause a copy of each inspection certifi- [27 FR 6818, July 19, 1962, as amended at 43 cate to be furnished to the Committee. FR 4252, Feb. 1, 1978]

VOLUME REGULATION § 987.45 Withholding restricted dates. § 987.43 Outlets and specifications for (a) Whenever free and restricted per- marketable dates. centages for any variety of dates have been established for a crop year by the Marketable dates shall not be han- Secretary in accordance with § 987.44, dled or otherwise disposed of except as each handler shall, at the time of hav- provided in this subpart. This shall not ing dates of such variety certified for preclude dates of better grades or sizes handling as free dates (including those being handled or otherwise disposed of for further processing that are to be in any outlet established for dates of handled as free dates), withhold from lesser grades or sizes. The Committee, handling a quantity of marketable with the approval of the Secretary, dates of such variety having a weight may modify the designations specified equal to the restricted percentage for in § 987.12 to reflect new major outlets such variety referrable to the dates so and regulatory requirements needed far certified. The withholding require- because of changes in marketing condi- ment shall not apply to dates certified tions. Marketable dates shall include for delivery directly to an excess sup- but not be limited to the following: ply removal program of the Secretary. DAC dates, Dates for further proc- The weight required to be withheld essing, Export dates, and Product shall be determined by dividing the re- dates. stricted percentage by the free percentage and applying the resultant with- [43 FR 4252, Feb. 1, 1978] holding factor, rounded to the nearest one-tenth of one percent, to the weight

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of dates so certified. The withholding dates), during the crop year in which factor, computed as aforesaid, shall be the default occurred. established by the Secretary. When pit- (c) At any time during the crop year ted dates are certified, the weight to be free dates may be inspected and cer- withheld shall be determined by divid- tified for handling or for further proc- ing the weight of the pitted dates cer- essing as provided in § 987.41. Dates so tified for handling or further proc- certified shall, at the time of certifi- essing by a divisor established by the cation, be identified by appropriate Committee with the approval of the seals, stamps, or tags to be furnished Secretary and applying the with- by the Committee and to be affixed to holding factor. the containers by the handler under (b) Compliance by any handler with the direction and supervision of the the withholding of restricted dates Committee or its designated inspec- may be deferred to any date not later tors. The assessment requirements in than January 31 of any crop year, upon § 987.72 as well as the withholding obli- request to the Committee and when ac- gation prescribed in paragraph (a) of companied by a written undertaking this section shall be met at the time of that on or prior to such date, he will certification. However, a handler who have fully satisfied his withholding ob- has had more free dates certified for ligation. Such undertaking shall be se- handling or further processing than he cured by a bond or bonds to be filed subsequently shipped or otherwise han- with, and acceptable to, the Committee dled may, upon request to the Com- and with a surety or sureties accept- mittee and with its approval, have any able to the Committee, running in of such excess quantity of the certified favor of the Committee and the Sec- dates suspended from certification of retary in an amount conditioned upon record or, if damaged or the outlet full compliance with such undertaking. changed, removed from certification, The amount shall be determined by and his withholding and assessment ob- multiplying the poundage of the de- ligations adjusted accordingly. A han- ferred restricted obligation by a bond- dler, who has had dates certified for ing rate per pound which would provide handling or further processing and has funds estimated to be sufficient for the not had them so suspended from cer- Committee to purchase on the open tification of record or removed from market a volume of dates equivalent to certification, may carry such certified the deferred obligation. Such bonding free dates over into the new crop year rate shall be established annually, and and need not pay the assessment nor modified as necessary, by the Com- meet the requirements of any with- mittee. Any sums collected through de- holding percentages established for fault by a handler on his bond shall be such year. used by the Committee to purchase (d) Dates withheld to meet the with- dates to meet the violated restricted holding obligation shall be stored at obligation, reimburse the Committee the expense of the handler, in storage for expenses relative to the default, of his own choosing and disposed of in and any excess money remaining shall accordance with § 987.55. All such dates be refunded to the defaulting handler. shall be inspected and identified by ap- The dates so purchased by the Com- propriate seals, stamps, or tags to be mittee shall be turned over to the de- furnished by the Committee and to be faulting handler for disposition as re- affixed to the containers by the han- stricted dates. In the event the Com- dler under the direction and super- mittee is unable to purchase a pound- vision of the Committee or its des- age of dates equal to the defaulted vol- ignated inspectors. All withholding and ume, the sums collected shall, after re- movement of restricted dates, shall be imbursement of Committee expenses in subject to the supervision and account- connection with the default, be distrib- ing control of the Committee and re- uted among all handlers other than the ports shall be filed as required by this defaulting handler in proportion to the part. Any handler who during a crop volume of certified dates handled as year disposes in restricted outlets of a free dates (including those for further quantity of marketable dates in excess processing that were handled as free of his withholding obligation of such

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year may: (1) On written request deliv- the handler will promptly set aside ered to the Committee not later than such additional or substitute quantity September 30 of such crop year have a of graded dates as is necessary to cor- part or all of such excess transferred, rect the deficiency. by the Committee, to such other han- (f) Upon the Committee prescribing, dler or handlers as he may name, for with the approval of the Secretary, crediting such other handlers’ with- minimum standards for inspection of holding obligations incurred in that field-run dates and appropriate admin- crop year; and in addition (2) have a istrative rules and regulations, a han- part or all of the remainder of such ex- dler may, in accordance therewith and cess credited to his restricted obliga- the provisions of this paragraph, sat- tion of the subsequent crop year: Pro- isfy all or any part of his obligation to vided, That the amount of any such withhold restricted dates by setting credit shall not exceed that established aside field-run dates or by disposing of by the Committee, with the approval of field-run dates in outlets prescribed in, the Secretary, as the percentage of or pursuant to, § 987.56. The field-run such withholding obligation. dates shall be of such quality or size as (e) On request to the Committee and shall be prescribed in such rules and with its approval, a handler may, in ac- regulations. The setting aside, direct cordance with the provisions of this disposal, and disposal of any field-run paragraph and any applicable rules and dates set aside shall occur prior to Sep- regulations which the Committee may tember 30 of the crop year in which the prescribe with the approval of the Sec- withholding obligation occurs. Prior to retary, defer until any date not later the disposal or setting aside of the field than September 30 of the crop year the run dates, the handler shall have had meeting of any portion of his obliga- them inspected to determine the tion to withhold restricted dates by weight of dates eligible to satisfy with- setting aside such amount of graded holding obligation. Upon such disposal dates as will assure a quantity of mar- or setting aside of the field-run dates, ketable dates equal at least to the the handler shall be credited with sat- quantity needed to be withheld to meet isfaction of his restricted obligation to his withholding obligation. With re- the extent of the eligible weight of spect to any such dates the handler dates. In permitting the handler to so may set aside in connection with such satisfy his withholding obligation the a deferment, the Committee may re- Committee shall require the handler to quire, if it deems it necessary, the han- agree in writing that: dler to have made, at his own expense, (1) Any field-run dates set aside will such inspection as may be necessary be held separate and apart from other for a determination as to whether such dates and appropriately marked; dates conform to the applicable re- (2) Such dates will not be removed quirements for dates that may be set from the stacks in which so set aside aside under this paragraph. As a condi- for substitution of other dates, disposition to the Committee approving the tion, or for any other reason without deferment, the handler shall agree in prior written permission of the Com- writing that: mittee; and (1) He will adequately mark and iden- (3) Inspection of said dates by the tify the set-aside graded dates as such Committee will be permitted at any and hold them separate and apart from reasonable time. In order to satisfy a other dates; withholding obligation by direct dis- (2) The graded dates will not be re- posal of field-run dates into cull out- moved from the stacks in which so set lets, the disposal shall be under the su- aside without the prior written permis- pervision of the Committee and sion of the Committee; through persons on a Committee ap- (3) Inspection of the dates by the proved list of feeders and manufactur- Committee will be permitted at any ers. The handler may, upon giving reasonable time; and prior notice to the Committee of any of (4) If the quantity, quality, or size of the following proposed actions with re- the set-aside dates is found by the spect to field-run dates withheld and Committee at any time to be deficient, obtaining its approval, (i) dispose of

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any such set-aside, field-run dates in shall be disposed of by it, in those out- the same manner as provided for direct lets specified in § 987.56, at the best disposal (ii) grade such dates and have prices attainable and the proceeds re- the graded dates certified as market- turned pro rata, after deduction of able dates and withhold or dispose of Committee costs, to equity holders. such marketable dates as restricted The Committee may assist handlers dates, or (iii) substitute for the set- with the cleaning, storage, or delivery aside, field-run dates an equivalent of surplus dates and may, with the ap- quantity of marketable dates which he proval of the Secretary, establish rules shall withhold or dispose of as re- and regulations necessary and inci- stricted dates. dental to administration of this regula- [27 FR 6818, July 19, 1962, as amended at 29 tion. FR 9707, July 18, 1964; 36 FR 15039, Aug. 12, 1971; 43 FR 4253, Feb. 1, 1978] [27 FR 6818, July 19, 1962, as amended at 43 FR 4251, Feb. 1, 1978] § 987.46 Revisions of percentages. CONTAINER REGULATION The Secretary may, on recommendation of the Committee submitted prior § 987.48 Container regulation. to January 31 of the crop year, or on the basis of other information avail- Whenever the Committee deems it able to him, increase the free percent- advisable to establish a container regu- age to conform with such new relation lation for any variety of dates, it shall as may be found to exist between trade recommend to the Secretary the size, demand for free dates and available capacity, weight, or pack of the con- supply of marketable dates of applica- tainer, or containers, which may be ble grade and size. Upon any revision in used in the handling or packaging of the free and restricted percentages the dates, or both. If the Secretary finds control obligation of each handler with upon the basis of such recommendation respect to free dates handled or cer- or other information available to him tified for handling or for further proc- that such container regulation would essing by him for the entire crop year tend to effectuate the declared policy shall be recomputed in accordance with of the act he shall establish such regu- such revised control percentages. The lation and notice thereof showing the handler shall be permitted to select, effective date shall be sent by the Com- insofar as practicable, under the super- mittee to all handlers of record. After vision and direction of the Committee, the effective date of such regulation, the particular dates to be removed no handler shall handle dates of such from any dates withheld. variety except in accordance with such [27 FR 6818, July 19, 1962, as amended at 43 regulation and all other applicable re- FR 4253, Feb. 1, 1978] quirements in effect pursuant to this part. § 987.47 Surplus. All cull dates and all substandard QUALIFICATIONS TO REGULATION dates, including such dates blended with varieties within the generic term § 987.50 Application after end of crop dates not regulated by this part, except year. any utility dates released to human Unless otherwise specified the regula- consumption outlets pursuant to tions and the bonding rates established § 987.56, are surplus dates of any crop for any crop year shall continue in ef- year. No handler shall ship or deliver fect with respect to all free dates for such surplus dates to other than the which control obligations have not Committee or its designee(s) for dis- been previously met, until regulations position in eligible outlets for such and bonding rates are established for dates, except that any producer or han- the new crop year. Thereupon the with- dler may dispose of any such surplus holding obligations for all free dates dates of his own production within his handled or certified for handling or for own livestock feeding operations. Sur- plus dates delivered to the Committee further processing during such crop

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year shall be adjusted to the newly es- shall issue, with the approval of the tablished percentages and a similar ad- Secretary, appropriate rules and regu- justment shall be made in any bond or lations establishing the bases on which bonds already given for that crop year. exemptions may be granted. [27 FR 6818, July 19, 1962, as amended at 43 FR 4253, Feb. 1, 1978] § 987.53 Application of regulations to repackers. § 987.51 Interhandler transfers. Repackers shall be exempt from Transfers of dates may be made from those requirements of this part, includ- one handler to another, and each han- ing reporting requirements, with re- dler who so transfers any such dates spect to packed dates which had been shall immediately upon the completion certified for handling, pursuant to of the particular transfer notify the § 987.41(a), prior to receipt, except that: Committee of the transfer, specifying (a) A repacker who processes such the date of the transfer, the quantity dates by machine pitting shall comply and variety of dates involved, and the with the grade, size, inspection, certifi- name of the receiving handler. If such cation, and identification require- transfer is wholly within the area of ments, and (b) a repacker who repack- production, the assessment and with- ages such dates in containers other holding obligations shall be placed on than those in which received, shall the handler agreeing to assume them: comply with the then effective con- Provided, That in the absence of the tainer regulations established pursuant Committee receiving notice of a spe- to § 987.48. cific agreement on such obligations, the buying handler shall be held ac- [32 FR 12596, Aug. 31, 1967] countable. If such transfer is from within the area of production to any DISPOSITION OF OTHER THAN FREE point outside thereof, the assessment DATES and withholding obligations shall be met by the handler within the area of § 987.55 Outlets for restricted dates. production. Except for packed dates in- Restricted dates may be disposed of spected and certified for handling prior only through exportation to such coun- to transfer and which are not repacked, tries as the Committee may approve or any receiving handler (other than a re- by diversion in product outlets de- packer not otherwise a handler, who scribed in § 987.43 which the Committee shall comply with § 987.53) shall comply concludes to be appropriate and which with the requirements of § 987.41 on all will result in dates moving into con- dates, but this shall apply to repacked sumption in a form other than that of dates previously inspected and cer- whole or pitted dates. To facilitate tified for handling only if the handler sales and promote orderly marketing of also packs dates received as field-run any variety of restricted dates handled dates. in export, the Committee may partici- [32 FR 12596, Aug. 31, 1967] pate in or negotiate for handlers, the sale of such dates to meet all or a sub- § 987.52 Exemption. stantial part of the needs of the par- The Committee may exempt from ticular country, and, in connection regulation, upon written request of any with each such sale, the Committee producer or handler, the dates he sells shall extend to all handlers an oppor- to consumers through roadside stands, tunity to participate therein and shall local date shops, mail order or spe- distribute the returns therefrom to cialty outlets, if it determines that the participating handlers according to particular request is not likely to ma- their respective contributions of dates. terially interfere with the objectives of The Committee, with the approval of this part. All dates handled pursuant the Secretary, may prescribe rules and to exemptions under this section shall regulations governing the opportunity be reported to the Committee in such to participate in such sales. The provi- manner and in such form as the Com- sions of this section shall not preclude mittee may prescribe. The Committee restricted dates being disposed of in

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outlets for utility and cull dates pre- Committee written approval of his ap- scribed in § 987.56. plication. The application and approval [43 FR 4253, Feb. 1, 1978] shall be in accordance with such rules, regulations and safeguards as may be § 987.56 Outlets for utility and cull prescribed pursuant to § 987.59. dates. (b) [Reserved] Subject to the provisions of § 987.47, [27 FR 6818, July 9, 1962, as amended at 43 FR utility dates and cull dates may be dis- 4251, 4253, Feb. 1, 1978] posed of without inspection, but only in feed, non-table syrup, alcohol, or § 987.58 Terminal date. brandy outlets, or in such other outlets Dates covered by §§ 987.55 and 987.56 for non-human food products as the shall, by September 30 of the subse- Committee with the approval of the quent crop year (a) in accordance with Secretary, may specify: Provided, That whenever the Committee concludes and the applicable requirements of such the Secretary finds that the use of util- sections, be disposed of, or be con- ity dates of any variety in certain verted from their whole or pitted form; products for human consumption would or (b) be set aside and marked for dis- tend to effectuate the declared policy position pursuant to the applicable re- of the act, the Secretary shall specify quirements of such sections. The Com- such products, and dates of such vari- mittee may prescribe, with the ap- ety that are inspected and certified as proval of the Secretary, such rules, utility dates may be disposed of for regulations and safeguards, pursuant use, or used, in such products: And pro- to § 987.59, as may be necessary to pre- vided further, That whenever the Com- vent dates covered by §§ 987.55 and mittee concludes and the Secretary 987.56 from interfering with the objec- finds that the disposition of utility tives of this part. dates of any variety through any export outlet would tend to effectuate § 987.59 Safeguards. the declared policy of the act, the Sec- The Committee may prescribe, with retary shall specify such export outlet, the approval of the Secretary, such and dates of such variety that are in- rules, regulations and safeguards as are spected and certified as meeting such necessary to prevent dates covered by grade, size, container, and identification requirements as may be prescribed §§ 987.55 and 987.56 from interfering with by the Committee with the approval of the objectives of this part. the Secretary for such outlet may be so REPORTS AND RECORDS exported. [29 FR 9707, July 18, 1964, as amended at 43 § 987.61 Reports of handler carryover. FR 4251, 4253, Feb. 1, 1978] Each handler shall file each year § 987.57 Approved manufacturers or with the Committee written reports of feeders. his carryover of dates as of March 1, October 1, and at such other times as (a) Diversion of dates, pursuant to the Committee may prescribe: Pro- § 987.55 or § 987.56, shall be accomplished only by such persons (which may in- vided, That during those seasons when clude handlers) as are approved manu- volume regulations are established by facturers or feeders. Any person may the Secretary, the handler shall file an become an approved manufacturer or additional report on his January 1 car- feeder if he (1) submits an application ryover. Such reports shall be filed to the Committee in which he agrees, within 10 days of the date of the carry- as a condition to approval of his appli- over. These reporting dates specified cation, to furnish to the Committee may be changed, upon recommendation such information as it may require and of the Committee, together with sub- to comply with the requirements and stantiation of the need therefore, with restrictions relative to the use and dis- the approval of the Secretary. position of such dates, as set forth in this part, and (2) receives from the [43 FR 4253, Feb. 1, 1978]

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§ 987.62 Reports of dates shipped. disclosed to no person other than the Secretary. Each handler who ships dates during a crop year shall submit to the Com- § 987.68 Verification of reports and mittee, in such form and at such inter- records. vals as the Committee may prescribe, reports showing the net weight of dates For the purpose of checking compli- shipped by him and such other infor- ance with record keeping requirements mation pertinent thereto as the Com- and verifying reports filed by handlers, mittee may specify. the Secretary and the Committee, through its duly authorized employees, § 987.63 Reports on restricted dates shall have access to any premises withheld. where dates are held and, at any time Each handler from time to time, on during reasonable business hours, shall demand of the Committee, shall file be permitted to examine any dates held with it a report of the restricted dates and any and all records with respect to withheld by him in satisfaction of his matters within the purview of this withholding obligation. Such reports part. Handlers shall furnish labor nec- shall show such information as the essary to facilitate such examinations Committee may require and may be in at no expense to the Committee. All such form as the Committee may pre- handlers shall maintain complete scribe. records establish and which accurately show the quantity of dates handled, § 987.64 Reports on disposition of re- disposed of, and withheld. The Com- stricted, other marketable, utility, mittee, with the approval of the Sec- and cull dates. retary, may establish the type of records to be maintained. Such records Each handler disposing of any dates shall be retained by handlers for not pursuant to §§ 987.55 and 987.56 shall less than two years subsequent to the promptly thereafter report such dis- termination of each crop year. position to the Committee in such form as the Committee may prescribe. [27 FR 6818, July 19, 1962, as amended at 36 FR 15039, Aug. 12, 1971; 43 FR 4253, Feb. 1, [43 FR 4253, Feb. 1, 1978] 1978]

§ 987.65 Other reports. EXPENSES AND ASSESSMENTS Upon request of the Committee each handler shall furnish to it in such man- § 987.71 Expenses. ner and at such times as it prescribes, The Committee is authorized to incur such other information as will enable such expenses, including maintenance the Committee to perform its duties of an operating reserve fund, as the and exercise its powers hereunder. Secretary may find are reasonable and are likely to be incurred by it during § 987.66 Certification of reports. each crop year for the maintenance and All reports submitted to the Com- functioning of the Committee and for mittee as required in this part shall be such other purposes as he determines certified to the United States Depart- to be appropriate. The recommendation ment of Agriculture and to the Com- of the Committee as to total expenses mittee as to the completeness and cor- and allocation thereof for each crop rectness of the information therein. year, together with all data supporting such recommendation, shall be sub- § 987.67 Confidential information. mitted to the Secretary within a rea- All data or other information consti- sonable time after the marketing pol- tuting a trade secret or disclosing a icy for each crop year is recommended. trade position or business condition shall be received by, and kept in the § 987.72 Assessments. custody of, one or more designated em- (a) Requirement for payment. Each ployees of the Committee and informa- handler shall pay to the Committee tion which would reveal the cir- upon demand, on all dates he has cer- cumstances of a single handler shall be tified as meeting the requirements for

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marketable dates and utility dates uti- (d) Refunds. Funds held by the Com- lized in product outlets including the mittee at the conclusion of the crop eligible portion of any field-run dates year in excess of the crop year’s ex- certified and set aside or disposed of penses, including reserve requirements, pursuant to § 987.45(f), his pro rata may be used to defray expenses for no share of all expenses which the Sec- more than the ensuing four months, retary finds are reasonable and likely and thereafter within a reasonable to be incurred by the Committee dur- time the Committee shall credit, or ing each crop year. Should the condi- upon demand, refund the aforesaid ex- tion arise wherein the utility portion cess to handlers who contributed to of dates handled in certain other out- such excess: Provided, That the excess lets should not be, in the opinion of the due any handler may be applied, in Committee, subject to the payment of whole or in part, by the Committee to assessments on that portion, the Com- any outstanding obligation due the mittee may recommend and the Sec- Committee from such handler. A han- retary approve by rulemaking, such ex- dler’s share of the excess funds shall be clusion. Each handler’s pro rata share the amount of assessments he paid in shall be the rate of assessment per hun- excess of his actual pro rata share of dredweight fixed by the Secretary. At the expenses, including reserve require- any time during or after a crop year ments, of the Committee for the pre- the Secretary may increase such as- ceding crop year. Upon termination of sessment rate to secure sufficient funds this subpart any money in possession to cover unanticipated expenses or a of the Committee shall be distributed deficit in assessable poundage. Any in such manner as the Secretary may such increase shall apply to all assess- direct: Provided, That, to the extent able poundage of the crop year. The practicable, such funds shall be re- Committee may accept payments of as- turned pro rata to the persons from sessments in advance and may borrow whom such funds were collected. money in any amount not to exceed 10 [27 FR 6818, July 19, 1962, as amended at 29 percent of the estimated expenses set FR 9707, July 18, 1964; 43 FR 4253, Feb. 1, 1978] forth in its budget for the then crop year. The assessment weight of pitted MISCELLANEOUS PROVISIONS dates shall be determined by dividing the weight of such dates by a divisor § 987.76 Compliance. established by the Committee with the No handler shall handle any dates approval of the Secretary. (including dates for further processing) (b) Surplus expenses. The Committee except in conformity with, and as au- is authorized to use temporarily funds thorized by or pursuant to, the applica- derived from assessments collected ble provisions of this part, including pursuant to paragraph (a) of this sec- but not being limited to the regulation to defray expenses incurred in dis- tions relating to grade, size, and vol- posing of surplus dates. All such ex- ume; and no handler shall use or other- penses shall be deducted from the pro- wise dispose of restricted dates or any ceeds obtained by the Committee from other dates which have not been cer- such disposal. tified for handling or for further proc- (c) Operating reserve. The Committee, essing except in conformity with, and with the approval of the Secretary, as authorized by or pursuant to, the ap- may establish and maintain during one plicable provisions of this part. or more crop years an operating monetary reserve in an amount not to ex- § 987.77 Personal liability. ceed 50 percent of the average of ex- No member or alternate member of penses incurred during the most recent the committee, or any employee or five preceding crop years, except that agent thereof, shall be held personally an established reserve need not be re- responsible, either individually or duced to conform to any recomputed jointly with others, in any way whatso- average. Funds in reserve shall be ever, to any handler or any other per- available for use by the Committee for son for errors in judgment, mistakes, expenses authorized pursuant to or other acts either of commission or § 987.71. omission, as such member, alternate

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member, agent, or employee, except for (2) When favored by growers. The Sec- acts of dishonesty, willful misconduct retary shall terminate the provisions or gross negligence. of this part at the end of any crop year whenever he finds that such termi- § 987.78 Separability. nation is favored by a majority of the If any provision of this part is de- growers of dates who, during that crop clared invalid, or the applicability year, have been engaged in the produc- thereof to any person, circumstance, or tion for market of dates in the area of thing is held invalid, the validity of the production: Provided, That such major- remainder of this part or the applica- ity have, during such period, produced bility of this part to any other person, for market more than 50 percent of the circumstance, or thing shall not be af- volume of such dates produced for mar- fected thereby. ket within said area; but such termination shall be effective only if an- § 987.79 Derogation. nounced on or before August 1 of the Nothing contained in this part is, or then current crop year. shall be construed to be, in derogation (3) If enabling legislation is terminated. or in modification of the rights of the The provisions of this part shall, in any Secretary or of the United States to event, terminate whenever the provi- exercise any powers granted by the act sions of the act authorizing them cease or otherwise, or, in accordance with to be in effect. such powers, to act in the premises (c) Proceedings after termination—(1) whenever such action is deemed advis- Designation of trustees. Upon the termi- able. nation of the provisions hereof, the § 987.80 Duration of immunities. members of the Committee then functioning shall continue as joint trust- The benefits, privileges, and immuni- ees, for the purpose of liquidating the ties conferred upon any person by vir- affairs of the Committee, of all funds tue of this subpart shall cease upon its and property then in the possession or termination except with respect to acts under the control of the Committee, in- done under and during its existence. cluding claims for any funds unpaid or § 987.81 Agents. property not delivered at the time of such termination. Action by said trust- The Secretary may, by a designation eeship shall require the concurrence of in writing, name any person, including a majority of the said trustees. any officer or employee of the United States Government, or name any bu- (2) Duties of trustees. Said trustees reau or division of the United States shall continue in such capacity until Department of Agriculture, to act as discharged by the Secretary; shall, his agent or representative in connec- from time to time, account for all re- tion with any of the provisions of this ceipts and disbursements and deliver part. all property on hand, together with all books and records of the Committee § 987.82 Effective time, suspension, or and the joint trustees, to such person termination. as the Secretary may direct; and shall, (a) Effective time. The provisions of upon request of the Secretary, execute this part, as well as any amendments such assignments or other instruments hereto, shall become effective at such necessary or appropriate to vest in time as the Secretary may declare, and such persons full title and right to all shall continue in force until termi- funds, property, and claims vested in nated or suspended in one of the ways the Committee or the joint trustees hereinafter specified in this section. pursuant hereto. (b) Suspension or termination—(1) Fail- (3) Obligations of persons other than ure to effectuate policy of act. The Sec- Committee members and trustees. Any retary shall terminate or suspend the person to whom funds, property, or operation of any or all of the provi- claims have been transferred or deliv- sions of this part, whenever he finds ered by the Committee or its members, that such provisions do not tend to ef- pursuant to this section, shall be sub- fectuate the declared policy of the act. ject to the same obligations imposed

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upon the members of the said Com- from those of any other lot coded with- mittee and upon the said joint trust- in a 3-year period. ees. § 987.104 Major marketing promotion. [27 FR 6818, July 19, 1962, as amended at 36 FR 15039, Aug. 12, 1971] A major marketing promotion program is one requiring the expenditure § 987.83 Effect of termination or of more than $500 of Committee funds. amendment. [43 FR 28435, June 30, 1978] Unless otherwise expressly provided by the Secretary, the termination § 987.105 Whole equivalent of pitted hereof or of any regulation issued pur- dates. suant to this part, or the issuance of any amendment to either thereof, shall For the purposes of this part, the not— whole date equivalent weight of pitted (a) Affect or waive any right, duty, dates shall be determined by dividing obligation, or liability which shall the weight of the pitted dates by 0.83. have arisen or which may thereafter [53 FR 39226, Oct. 6, 1988] arise in connection with any provision of this part or any regulation issued IDENTIFICATION AND OUTLET hereunder, or SPECIFICATIONS (b) Release or extinguish any violation of this part or of any regulation § 987.112 Identification of dates. issued hereunder, or (a) General. Prior to applying the (c) Affect or impair any rights or markings required by this section, each remedies of the Secretary or of any handler shall remove or delete from other person, with respect to any such each container all former identifying violation. marks which conflict with those applicable to the dates currently in the con- § 987.84 Amendments. tainer. Dates of each outlet category Amendments hereto may be pro- shall be held, stored, or shiped in a posed, from time to time by any person manner to preserve their identity. Ex- or by the Committee. cept as provided in paragraph (d) of this section, the markings on the con- Subpart—Administrative Rules tainers shall be not less than five-sixteenths (5⁄16) inch in height on con- SOURCE: 37 FR 23325, Nov. 2, 1972, unless tainers exceeding 5 pounds net weight otherwise noted. and not less than one-eighth (1⁄8) inch in height on smaller containers. All DEFINITIONS markings shall be legible. (b) DAC dates. Each handler shall § 987.101 Lot. mark every shipping or storage con- Lot means the aggregate quantity of tainer (excluding subcontainers) of dates of the same variety, style, type DAC dates with his name or that of the and grade in like containers with like distributor for whom the handler is identification either (a) packed as a packing, and the lot number. Under the continuous production segment, or (b) supervision of the inspection service offered for inspection as a shipping, every container shall be marked with storage, or other unit. the date of inspection, the name or in- signia of the inspection service, and § 987.102 Lot number. the letters ‘‘DAC’’. Lot number is synonymous with code (c) FP dates. Each handler shall mark and means a combination of letters or every shipping or storage container numbers, or both, acceptable to the (excluding subcontainers) of FP dates Committee, showing at least the date with his name or that of the dis- of packing, the variety, and the outlet tributor for whom the handler is pack- category of the dates. The combination ing, and the lot number. Under the su- of letters or numbers, or both, im- pervision of the inspection service printed on the containers shall differ every container shall be marked with

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the date of inspection, the name or in- outlets. These standards shall continue signia of the inspection service, and in effect irrespective of whether the the letters ‘‘FP’’. season average price to producers for (d) Export dates. Each handler shall dates is or is not in excess of the parity mark every shipping or storage con- level specified in section 2(1) of the act. tainer (excluding subcontainers) of Ex- (b) DAC dates. (1) All varieties of DAC port dates with his name or that of the dates may be handled in the United exporting firm, and the lot number. If States, Canada, or any other outlet es- the dates, including fieldrun dates with tablished for dates of lesser grades or cull dates removed, are certified as sizes. meeting the grade and size require- (2) DAC dates of any variety shall at ments for export to approved countries least meet the requirements of U.S. other than Mexico, the containers shall Grade B, except that up to 25 percent, be marked ‘‘Export’’. Dry dates for proc- by weight, of the dates may possess essing packed for shipment to approved semi-dry of dry calyx ends, but not countries shall be marked ‘‘Export more than 5 percent, by weight, of the Dry’’. Dates packed for export to Mex- dates may possess dry calyx ends. Also, ico shall be marked ‘‘Export Mexico’’. with respect to whole dates of the However, ‘‘Export Mexico’’ shall be in Deglet Noor variety, the individual letters not less than three-fourths (3⁄4) dates in the sample from the lot shall inch in height on containers exceeding weigh at least 6.5 grams, but up to 10 5 pounds net weight, and not less than percent, by weight, may weigh less one-eighth (1⁄8) inch in height on small- than 6.5 grams, except beginning Feb- er containers. DAC dates and FP dates, ruary 21, 1997, and ending October 31, marked pursuant to paragraphs (b) and 1997, the 10 percent tolerance shall be (c), respectively, of this section, may increased to 15 percent. These size re- be exported without change of mark- quirements are in addition to, and do ing. not supersede, the requirements as to (e) Product and utility dates. Each uniformity of size prescribed in the handler shall mark every shipping or grade standards. storage container (excluding subcon- (3) DAC dates of any variety, when tainers) of Product dates, or Utility packed in plastic containers, other dates when approved for use in prod- than bags and master shipping con- ucts, with the lot number and, if for tainers, shall contain a net weight (i) shipment outside the area of produc- for whole dates, of either eight ounces, tion, with the word Product or Utility, twelve ounces, 1 pound 8 ounces, or two as applicable. Whenever a handler, or pounds or more, and (ii) for pitted an approved date product manufac- dates, of either seven ounces, ten turer, utilizes a procedure that main- ounces, one pound, one pound eight tains the identity of the lot and ounces, or two pounds or more. DAC assures that the dates will be used in dates packed in other than plastic con- products or exported, the Committee tainers may be handled without regard may waive the requirements of this to the net weight content. For the pur- paragraph for that lot. pose of this subparagraph, plastic con- (f) Unidentified dates. If a handler tainer means any containers of any loses the identity of any lot of dates shape made from plastic and in which previously inspected and certified as dates are packed without the use of marketable dates, the certification as cardboard boats, trays, or other like to such lot shall be void. stiffening material: Provided, That DAC [43 FR 28436, June 30, 1978] dates shipped for sale in Canada in plastic containers are exempt from the § 987.112a Grade, size, and container net weight requirements of this sub- requirements for each outlet cat- paragraph. egory. (4) The California Date Administra- (a) In lieu of the minimum standards tive Committee may designate with prescribed in § 987.39, the following the approval of the Secretary such standards are prescribed as the min- other types and sizes of containers for imum grades and sizes for marketable testing in connection with a research dates to be handled in the applicable project conducted by or in cooperation

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with the Committee. The time period Egypt, and Sudan; the following date and the quantity of dates which may be processing and consuming countries marketed by handlers during that pe- north of the Mediterranean Sea: Spain, riod shall be designated by the Com- France, Belgium, West Germany, Italy, mittee for each market research France, Greece, and the Netherlands; project. The handling of each lot of and the following date processing and dates in such test containers shall be consuming country in Asia: Japan. subject to the prior approval, and Such dates shall at least meet U.S. under the supervision, of the Com- Grade C (dry) except for defects remov- mittee. able by washing: Provided, That Deglet (c) Dates for further processing. (1) Ex- Noor dates shall score not less than 31 cept as provided in § 987.152(b)(1), all va- points for character and 24 points for rieties of FP dates may be disposed of absence of defects but up to 40 percent, only (i) to persons in the United States by weight, of the dates may be dam- capable of processing and packing the aged by broken skin. dates and having them certified as DAC (3) Dates of any variety identified as dates, or (ii) exported to the countries ‘‘Export—Mexico’’ and inspected and designated in paragraph (d)(2) of this certified as at least meeting the re- section. quirements of U.S. Grade C may be ex- (2) FP dates of any variety shall at ported only to Mexico. No dates shall least meet the requirements of U.S. Grade B (dry). Also, with respect to be exported to Mexico unless the han- whole dates of the Deglet Noor variety, dler certifies to the Committee and the the individual dates in the sample from U.S. Department of Agriculture, on the lot shall weigh at least 6.5 grams, CDAC Form No. 11(a), which shall be but up to 10 percent, by weight, may submitted to the Committee, that the weigh less than 6.5 grams, except be- importing buyer has agreed that such ginning February 21, 1997, and ending dates will not reenter the United October 31, 1997, the 10 percent toler- States or be shipped to Canada. The ance shall be increased to 15 percent. form shall show the identity of the These size requirements are in addition handler, the trucker, the importer, the to, and do not supersede, the require- destination of the dates, the location of ments as to uniformity of size pre- the border-crossing station, and such scribed in the grade standards. other information as the Committee (d) Export dates. (1) Dates of any vari- deems appropriate to perform its duties ety identified as ‘‘Export’’ dates and in- and excercise its powers under this spected and certified as meeting the re- part. quirements of this subparagraph may (4) Whenever field-run dates of any only be exported to any country except variety are authorized for export to Canada. Such dates shall at least meet any country, each lot shall consist of the requirements of U.S. Grade C: Pro- at least 85 percent, by weight, of sound vided, That Deglet Noor dates shall dates. Sound dates means individual score not less than 31 points for char- dates which are at least U.S. Grade C acter and 24 points for absence of de- in character and are free of the defects but up to 40 percent, by weight, of fects—other than those removable by the dates may be damaged by broken washing—scored to determine the point skin. requirement applicable to their in- (2) Export of dry dates. Dates of any tended destination. variety identified and certified as (5) Dates meeting the grade and size meeting the requirements of this sub- requirements of this paragraph may be paragraph only may be exported to the following designated date producing fect. That order, among other things, pro- and processing countries in North Afri- hibits the exports to Libya of any goods, 1 ca: Morocco, Algeria, Tunisia, Libya, technology (including technical data or other information) or services from the 1 Executive Order 12543 of January 7, 1986 United States, except publications and dona- (51 FR 875), prohibits trade and certain tions of articles intended to relieve human transactions involving Libya, and is applica- suffering, such as food, clothing, medicine ble to exports of dates under this marketing and medical supplies intended strictly for order as long as the executive order is in ef- medical purposes.

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disposed of in outlet categories estab- be reinspected and recertified, as appli- lished for dates of lesser grades and cable. sizes. [43 FR 28436, June 30, 1978, as amended at 47 (e) Product dates. (1) Dates of any va- FR 4489, Feb. 1, 1982; 47 FR 23417, May 28, riety identified as ‘‘Product’’ dates and 1982; 48 FR 176, Jan. 11, 1983; 51 FR 4478, Feb. inspected and certified as at least 5, 1986; 52 FR 35530, Sept. 22, 1987; 53 FR 35994, meeting the requirements of this para- Sept. 16, 1988; 56 FR 778, Jan. 9, 1991; 57 FR graph may be disposed of by handlers 61779, Dec. 29, 1992; 62 FR 7663, Feb. 20, 1997] for use or used by them in the produc- NOMINATIONS tion of table syrup, rings, chunks, pieces, butter, paste, and macerated § 987.124 Nomination and polling. dates or other products approved by (a) Date producers and producer-han- the Committee. If the handler does not dlers shall be provided an opportunity use the dates in products, he may sell to nominate and vote for individuals to them to: (i) Other handlers within the serve on the Committee. For this pur- area of production for conversion into pose, the Committee shall, no later products, or (ii) to date product manu- than June 15 of each even-numbered facturers approved by the Committee year, provide date producers and pro- regardless of their location. Once the ducer-handlers nomination and bal- dates have been converted from their loting material by mail or equivalent whole or pitted form, they may be electronic means, upon which pro- shipped to any market in the United ducers and producer-handlers may States, Canada, or foreign country. nominate candidates and cast their (2) Product dates of any variety and votes for members and alternate mem- identified as ‘‘Product’’ shall meet the bers of the Committee in accordance requirements of U.S. Grade C, except with the requirements in paragraphs that mashing and mechanical injury (b)(1) and (b)(2) of this section, respec- not affecting eating quality shall not tively. All ballots are subject to verification. Balloting material should be considered in determining the defect be provided to voters at least 2 weeks factor. before the due date and should contain, (f) Change of outlet. A handler may at least, the following information: change the outlet category for any lot (1) The names of incumbents who are of dates: Provided, That prior to such willing to continue to serve on the change, the handler files a completed committee; CDAC Form No. 1(a) and a new inspec- (2) The names of other persons will- tion certificate with the Committee. If ing and eligible to serve; the grade and size requirements of the (3) Instructions on how voters may new outlet category are the same as or add write-in candidates; less than the requirements of the out- (4) The date on which the ballot is let category previously intended, only due to the committee or its agent; and a condition inspection is required. If (5) How and where to return ballots. the grade and size requirements of the (b)(1) Producers. Each producer may new outlet category are greater, a com- vote for three producer members and plete inspection is required. The han- three producer alternate members. No dler shall change the marking on the producer may vote more than once for containers to conform with the identi- any one person. The three individuals fication requirements prescribed in receiving the highest number of votes § 987.112 for the new outlet. for the producer member positions (g) Deteriorated dates. Any market- shall be the producer member nomi- able dates which deteriorated in qual- nees. Individuals nominated for pro- ity so that they are either utility or ducer member and failing to receive cull dates may be disposed of only in enough votes to become a producer member nominee shall have their the applicable outlets for such dates or names listed with those nominated for they may be reconditioned and upon producer alternate members and the reconditioning, the modified lot may votes cast for them as member shall be counted with any votes they received

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for producer alternate member. The the dates and whether or not they meet three individuals receiving the highest the applicable grade, size, container, number of votes for the producer alter- and identification requirements, or (2) nate member positions shall be the pro- are field-run dates, a certification ducer alternate member nominees. showing the percentage by weight, of (2) Producer-handlers. Each producer- sound dates in the lot, and whether or handler may vote for one producer-han- not they meet the identification re- dler member and one producer-handler quirements for such dates. alternate member, and these votes shall be weighted as provided in § 987.24. [43 FR 28437, June 30, 1978] No producer-handler may vote more VOLUME REGULATION than once for any one person. The six individuals receiving the highest § 987.145 Withholding obligation. weighted votes for the producer-handler member positions shall be the pro- (a) Satisfying the withholding obliga- ducer-handler member nominees. Indi- tion. Any handler may satisfy all or viduals nominated for producer-han- part of his withholding obligation for dler member and failing to receive any variety of dates for which free and enough votes to become a producer- restricted percentages have been estab- handler member nominee shall have lished by having an adequate quantity their names listed with those nomi- of that variety inspected and certified nated for producer-handler alternate as meeting the applicable grade, size, members and the votes cast for them and container requirements prescribed as member shall be counted with any by the Committee for any approved re- votes they received for producer-han- stricted date outlet. dler alternate member. The six individ- (b) Credit for excess disposition in re- uals receiving the highest weighted stricted outlets. Disposition of market- vote for producer-handler alternate able dates in restricted outlets in ex- member positions shall be the alter- cess of a handler’s withholding obliga- nate member nominees. tion may be: (1) Transferred pursuant to § 987.45 upon such handler filing a [43 FR 28437, June 30, 1978, as amended at 74 completed CDAC Form No. 14 with the FR 61267, Nov. 24, 2009] Committee, or (2) credited to the han- § 987.138 Handlers of record. dler’s withholding obligation of the following crop year so long as the excess Prior to handling dates, each person disposition exceds 199 pounds. However, shall file CDAC Form No. 18 with the the quantity so credited shall never ex- Committee at the times, and con- ceed 40 percent of the handler’s with- taining the information, prescribed in holding obligation of the crop year in § 987.38. which the excess disposition occurred [43 FR 28437, June 30, 1978] and 100 percent of the withholding obligation incurred by him during October INSPECTION through December of the crop year following the crop year in which such ex- § 987.141 Inspection and certification. cess disposition occurred. All such Each handler shall furnish, or cause crediting or accumulation shall be con- the inspection service to furnish, to the tingent upon the Committee receiving, Committee a copy of the inspection in due course, confirmation that the certificate issued to him on each lot of dates were disposed of in eligible re- dates, and such certificate shall con- stricted outlets. With respect to ex- tain at least the following information: ports, the withholding credit shall be (a) The date of inspection; (b) the name granted upon the Committee receiving of the handler; (c) the lot number and notification from the inspection serv- the applicable outlet category set forth ice, and in due course a copy of the on in § 987.112a; (d) the variety of dates and board bill of lading or other documen- weight of the lot; (e) the number and tary evidence satisfactory to the Com- type of containers in the lot; and (f) if mittee. the dates (1) are other than field-run (c) FP dates. Withholding obligations dates, a certification as to the grade of on FP dates shall be based on the

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weight of such dates when they are in- stricted dates held by him a like quan- spected and certified. However, if such tity of dates of the same variety and of dates are subsequently processed and the same or more recent year’s produc- packed within the area of production, tion which have been certified and the withholding obligation shall be ad- identified as meeting the requirements justed to reflect any increase in for restricted dates. weight. (d) Dates for deferment of withholding. [43 FR 28437, June 30, 1978] Any handler may defer his certification SURPLUS and withholding or disposition of restricted dates by pledging a com- § 987.147 Surplus. parable volume of graded or field-run dates as a surety that he will meet his (a) General. Surplus dates delivered withholding obligation at a later date. to the Committee pursuant to § 987.47 Such deferment shall not be effective shall be pooled for sale to livestock until: (1) The handler files with the feeders, distillers, or manufacturers of Committee a CDAC Form No. 12 to set inedible products: Provided, That if any aside graded dates or CDAC Form No. portion of the deliveries differs suffi- 13 to set aside field-run dates; and (2) ciently to require separate handling, the pledged dates are set aside as a lot and earn a different average return, and identified by the handler as ‘‘Re- such portion shall be handled as a sepa- stricted’’ and as ‘‘Graded’’ or ‘‘Field- rate pool. The income from sale of sur- Run’’, as appropriate, and as to the plus, after deduction of committee ex- number of containers, the date of set- penses, shall be paid to the respective aside and whether or not the dates equity holders in the pool or pools, or have been inspected. If the handler sets to their assignees, on the basis of the aside field-run dates or disposes of weight of dates each delivered. field-run dates in outlets prescribed in (b) Delivery. The Committee may or pursuant to § 987.56 to obtain with- refuse delivery of any surplus dates holding credit for the sound date por- which it determines are excessively tion in the lot, the field-run dates shall soured, fermented, or adulterated by meet the requirements prescribed in palm debris, rocks, paper, wood, plastic paragraph (f) of this section for eligible liners, or other foreign material. If the field-run dates, as determined by the Committee refuses delivery, the deliv- inspection service. erer shall be permitted to clean such (e) Identification of restricted dates. dates sufficiently to make them ac- Any lot of restricted dates not imme- ceptable to the Committee. The weight diately disposed of through exportation of each accepted delivery shall be that to countries approved by the Com- determined by a public weightmaster mittee or directed to approved product or, in the absence of such weight, that outlets shall be stored as a lot separate determined by the Committee on the from all other dates and in a specified basis of the number and size of the con- location with a USDA inspection serv- tainers used in the delivery. Upon de- ice tag marked ‘‘Restricted’’. livery of surplus dates to the Com- (f) Field-run dates. Field-run dates set mittee, the deliverer, or a designee of aside for the purpose of deferring or the Committee shall execute CDAC meeting any part or all of a with- Form SP–1, Delivery Manifest, show- holding obligation shall consist of at ing: least 70 percent, by weight, of sound (1) The person to receive payment of dates but may contain 10 percent, by the net proceeds for the surplus, weight, of cull dates of which not more than 5 percent may be hidden culls— (2) The date and place of loading, i.e., dates with internal defects includ- (3) If field surplus, the location and ing souring, mold, fermentation, insect owner of the garden, infestation, or foreign material. (4) The type and number of con- (g) Substitution. Any handler may, tainers loaded or dumped, under the direction and supervision of (5) The net weight of the load, and the Committee or the inspection serv- (6) If the delivery is directly to a buy- ice, substitute for any quantity of re- er’s truck, the driver, truck and buyer.

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QUALIFICATION TO REGULATION least meet the requirements for FP dates. It may permit any handler to § 987.151 Interhandler transfers. sell to a candy manufacturer hand-pit- When any handler transfers dates, ted dates which meet the grade re- other than product dates, to another quirements for DAC dates except for handler, the selling handler shall size, or damage due to cutting and pit- promptly notify the Committee by fil- ting. Also, it may permit any handler ing with it a completed CDAC Form to sell hand-layered dates in tin, wood, No. 1 and shall show the name and ad- plastic, or other type of container ex- dress of the transferring or selling han- empt from §§ 987.41(a) and 987.48, or to dler and of the receiving or buying han- make shipments by common carrier of dler, the variety and processed cat- up to 150 pounds to any one purchaser egory or classification of the dates, the in any one day exempt from the provi- lot number and inspection certificate sions of § 987.41(a): Provided, That the number on any lot of packed and cer- hand-layered dates or the shipment to tified dates, the number and type of a single purchaser in any 1 day have containers, the net weight of the trans- been packed from dates certified as ferred dates, and if applicable, the meeting the grade requirements for transferring handler’s statement on as- DAC dates and have not been commin- suming the withholding and assess- gled with other dates. Permission to ment obligation. A transfer of products use these exemptions shall be granted dates between handlers shall be re- only upon the handler filing with the ported as a disposition by the selling Committee its CDAC Form No. 10 handler filing with the Committee a wherein he describes how he plans to completed CDAC Form No. 8. sell, and agrees to sell only specific [37 FR 23325, Nov. 2, 1972, as amended at 43 dates and to report such sales. FR 28438, June 30, 1978] (2) Donations. The Committee may permit any handler to donate market- § 987.152 Exemption from regulations. able dates other than DAC dates to (a) Producer exemption. The Com- needy persons, prisoners, or Indians on mittee may permit any producer to sell reservations. Before such donation is dates from such producer’s own produc- made, such handler shall file a request tion free of the requirements of for donation with the Committee de- §§ 987.41, 987.45, 987.48, and 987.72 when tailing the quantity and grade of dates sold directly to consumers through a involved and the name and address of roadside stand or date shop owned or the intended donee. The donation may operated by the producer within 25 be subject to Committee surveillance, miles of the city limits of Indio, Cali- verification by written documentation fornia, through shipments by parcel of receipt by the donee, and any other post or express, or by certified pro- safeguards necessary to assure con- ducers at certified farmers’ markets, as sumption in these outlets. these terms are defined by the State of [37 FR 23325, Nov. 2, 1972, as amended at 43 California. Permission to so sell dates FR 28438, June 30, 1978; 53 FR 35994, Sept. 16, shall be granted only upon the pro- 1988; 57 FR 39112, Aug. 28, 1992] ducer filing with the Committee a completed CDAC Form No. 9 wherein the § 987.157 Approved date product man- producer describes how the producer ufacturers. plans to sell such dates and agrees to Any person, including date handlers, sell only dates of DAC date quality of with facilities for converting dates into the producer’s own production in direct products may apply to the committee, sales; and to report such sales to the by filing CDAC Form No. 3, for listing Committee. If the producer fails to as an approved date product manufac- comply with this agreement, the Com- turer. mittee may revoke any or all exemp- (a) The applicant shall indicate on tions granted the producer. such form: The products he/she intends (b) Handler exemptions—(1) Specialty to make; the quantity of dates he/she sales. The Committee may permit any may use; the location of his/her facili- handler to sell to health food stores or ties; and agree that all dates obtained health food outlets, dates which at for manufacturing into products shall

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be used for that purpose, none shall be fuses to submit reports or to pay as- resold or disposed of as whole or pitted sessments required by the committee, dates. such date product manufacturer shall (b) As a condition to become an ap- become ineligible to continue as an approved date product manufacturer: proved date product manufacturer. Each applicant is subject to an inspec- Prior to making a determination to re- tion of his/her manufacturing plant to move a date product manufacturer verify that proper equipment to con- from the approved date product manu- vert dates into products is in place and facturer list, the committee shall no- that the plant meets appropriate sani- tify such manufacturer in writing of its tation requirements; the applicant also intention and the reasons for removal. shall agree to file a report of the dis- The committee shall allow the date position of each lot of dates on the product manufacturer an opportunity Committee’s CDAC Form No. 8 within to respond. In the event that a date 24 hours of the transaction, and to file product manufacturer’s name has been an annual usage and inventory report removed from the list of approved date on CDAC Form No. 4 by October 10 of product manufacturers, a new applica- each year; and an applicant who is also tion must be submitted to the com- a handler under the order shall be in mittee and the applicant must await compliance with the order, including approval. the assessment payment and reporting [70 FR 11119, Mar. 8, 2005] requirements. (c) The committee shall approve each REPORTS AND RECORDS such application on the basis of information furnished or its own investiga- § 987.161 Handler carryover. tion, and may revoke any approval for Each handler shall file with the Com- cause. The name and address of all ap- mittee, a report of his carryover of proved manufacturers shall be placed dates as of March 1 and October 1 and, on a list and made available to each when volume regulation is established, date handler in Riverside County. as of January 1. This report shall be on (d) If an application is disapproved, CDAC Form No. 5 and shall show, by the committee shall notify the appli- variety, at least: cant in writing of the reasons for dis- (a) The quantity of DAC dates held approval, and allow the applicant an within and outside the area, opportunity to respond to the dis- (b) The quantity of FP dates held approval. When the applicant has com- within the area, plied with all the qualification require- (c) The quantity of export dates, and ments to become an approved manufac- (d) The quantity of dates held graded turer, the committee shall notify the but not certified, and as field-run, seg- applicant in writing of such approval. regated as to outlet category. The applicant’s name shall be added to the list of approved manufacturers, [43 FR 28438, June 30, 1978, as amended at 53 which shall be made available to each FR 35995, Sept. 16, 1988] date handler in Riverside County. (e) Each approved manufacturer of § 987.162 Handler acquisition and dis- date products is required to renew position. their approved manufacturer status (a) Handlers shall file CDAC Form with the committee by submitting an No. 6 with the committee by the 16th of updated CDAC Form No. 3 at the end of each month or such other date as the a crop year, but no later than October committee may prescribe, reporting at 10 of the new crop year. In addition, least the following for the preceding the approved manufacturer must con- month: tinue to meet the other approved man- (1) Their acquisitions of field run ufacturer qualification requirements. dates; (f) In the event an approved date (2) Their shipments of marketable product manufacturer who is also a dates in each outlet category; regulated date handler within the area (3) Their shipments of free dates and of production does not remain in com- disposition of restricted dates, when- pliance with the order, or fails or re- ever applicable; and

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(4) Their purchases from other han- This report shall be filed promptly dlers of DAC, export, product, graded, after the end of each crop year. and field run dates. [37 FR 23325, Nov. 2, 1972, as amended at 43 (b) In addition, this report shall in- FR 28439, June 30, 1978] clude the names and addresses of any producers not previously identified § 987.168 Handler records. pursuant to § 987.38, the quantity of Each handler shall establish com- dates acquired from each producer, the plete records which accurately show location of such producer’s date gar- the quantity of dates handled, disposed den, the acreage of that garden, and of, and withheld. These records shall be the estimated current season’s produc- maintained for at least 2 years after tion from that garden. the end of the crop year of record. [74 FR 61267, Nov. 24, 2009] Records shall show: (a) For grower deliveries of dates, the § 987.164 Shipments of product dates name of each grower, the varieties de- and disposition of restricted dates livered and the net weight of each vari- in approved product outlets. ety; Each handler shall file with the Com- (b) For shipments of dates, the vari- mittee a completed CDAC Form No. 8 ety, type of pack, net weight and des- showing the shipment of each lot of tination or name and address of the product dates or the disposition of re- person to whom each shipment was stricted dates in approved product out- sent; lets. This report shall be filed promptly (c) If different from shipments, the after shipment or disposition of those variety, type of pack, net weight and dates and shall identify the lot, the purchaser of each quantity of dates outlet, the number of containers, and sold; and the net weight of the dates. If such (d) Manifests, invoices, weight cer- dates are sold to an approved date tificates, inventory tabulations, or any product manufacturer, a copy of the other documents necessary to prepare, completed form shall be signed and file, or substantiate the reports re- dated by the manufacturer and required to be filed with the Committee. turned to the Committee. If the lot was [37 FR 23325, Nov. 2, 1972, as amended at 43 certified as product dates and is ex- FR 28439, June 30, 1978] ported to Mexico, the handler shall submit completed CDAC Form No. 8 to- § 987.172 Adjustment of assessment ob- gether with completed CDAC Form No. ligation. 11(a) to the Committee. In accordance with §§ 987.45 and 987.72, [43 FR 28439, June 30, 1978, as amended at 53 the assessment obligation of FP dates FR 35995, Sept. 16, 1988] shall be based on the weight of the dates at the time of inspection and cer- § 987.165 Other reports. tification. However, if such dates are (a) Exempt sales. Each handler shall subsequently processed and packed file with the Committee, a completed within the area of production, the as- CDAC Form No. 2 showing the quantity sessment obligation shall be adjusted and variety of dates sold under exemp- to reflect any increase in weight and tion during the crop year. The report the obligation shall be placed on the shall be filed upon the completion of handler agreeing to assume it. such sales or promptly after the end of [43 FR 28439, June 30, 1978] the crop year. (b) Products. Each approved date Subpart—Assessment Rates product manufacturer shall file with the Committee a completed CDAC § 987.339 Assessment rate. Form No. 4 showing his beginning and ending inventories of product dates, On and after October 1, 2010, an as- the quantity received during the crop sessment rate of $1.00 per hundred- year, the quantity used, the type and weight is established for California quantity of products manufactured, dates. and his year-end inventory of products. [75 FR 70573, Nov. 18, 2010]

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PART 989—RAISINS PRODUCED 989.59 Regulation of the handling of raisins subsequent to their acquisition by han- FROM GRAPES GROWN IN CALI- dlers. FORNIA 989.60 Exemption. 989.61 Above-parity situations. Subpart—Order Regulating Handling TRADE PRACTICES DEFINITIONS 989.62 Authorization for prohibition of trade Sec. practices. 989.1 Secretary. VOLUME REGULATION 989.2 Act. 989.3 Person. 989.65 Free and reserve tonnage. 989.4 Area. 989.66 Reserve tonnage generally. 989.5 Raisins. 989.67 Disposal of reserve raisins. 989.7 Golden Seedless raisins. 989.70 Storage of raisins held on memo- 989.8 Natural condition raisins. randum receipt and of packer-owned ton- 989.9 Packed raisins. nage. 989.10 Varietal types. 989.71 Disposition of unsold reserve tonnage 989.11 Producer. in above parity situations. 989.12 Dehydrator. 989.72 Exemption of educational institu- 989.12a Cooperative bargaining association. tions. 989.13 Processor. REPORTS AND RECORDS 989.14 Packer. 989.15 Handler. 989.73 Reports. 989.16 Blend. 989.75 Confidential information. 989.17 Acquire. 989.76 Records. 989.18 Committee. 989.77 Verification of reports and records. 989.20 Ton. EXPENSES AND ASSESSMENTS 989.21 Crop year. 989.22 District. 989.79 Expenses. 989.23 File. 989.80 Assessments. 989.24 Standard raisins, off-grade raisins, 989.81 Accounting. other failing raisins, and raisin residual 989.82 Expenses of reserve raisin operations. material. 989.83 Funds. 989.24a Non-normal outlets. MISCELLANEOUS PROVISIONS 989.25 Part and subpart. 989.84 Disposition limitation. RAISIN ADMINISTRATIVE COMMITTEE 989.85 Personal liability. 989.26 Establishment and membership. 989.86 Separability. 989.27 Eligibility. 989.87 Derogation. 989.28 Term of office. 989.88 Duration of immunities. 989.29 Initial members and nomination of 989.89 Agents. successor members. 989.90 Effective time. 989.30 Selection. 989.91 Suspension or termination. 989.31 Failure to nominate. 989.92 Proceedings after termination. 989.32 Acceptance. 989.93 Effect of termination or amendment. 989.94 Amendments. 989.33 Alternate members. 989.95 Right of Secretary. 989.34 Vacancies. 989.35 Powers. 989.36 Duties. Subpart—Administrative Rules and 989.37 Obligation. Regulations 989.38 Procedure. DEFINITIONS 989.39 Compensation and expenses. 989.102 Inspection service. RESEARCH AND DEVELOPMENT 989.104 Lot. 989.53 Research and development. 989.105 Inspection point. 989.106 Ship. MARKETING POLICY 989.107 Inspection certificate. 989.110 Varietal types. 989.54 Marketing policy. 989.111 Independent producer and small co- 989.55 Regulation by the Secretary. operative producer. 989.56 Raisin diversion program. 989.115 Independent handler, major cooperative marketing association handler, and GRADE AND CONDITION STANDARDS small cooperative marketing association 989.58 Natural condition raisins. handler.

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RAISIN ADMINISTRATIVE COMMITTEE Subpart—Order Regulating 989.122 Districts for independent and small Handling cooperative producer representation on the Committee. 989.126 Representation of the Committee. SOURCE: 25 FR 12813, Dec. 14, 1960; 27 FR 989.129 Voting at nomination meetings. 2506, Mar. 16, 1962, unless otherwise noted. 989.139 Compensation for attendance of alternates at Committee meetings. DEFINITIONS

MARKETING POLICY § 989.1 Secretary. 989.154 Marketing policy computations. Secretary means the Secretary of Ag- 989.156 Raisin diversion program. riculture of the United States or any QUALITY CONTROL officer or employee of the United States Department of Agriculture to 989.157 Raisins produced from grapes grown whom authority has heretofore been outside of California. 989.158 Natural condition raisins. delegated or to whom authority may 989.159 Regulation of the handling of raisins hereafter be delegated, to act in his subsequent to their acquisition. stead. 989.160 Exemptions. § 989.2 Act. VOLUME REGULATION Act means Public Act No. 10, 73d Con- 989.166 Reserve tonnage generally. gress, as amended, and as re-enacted 989.167 Disposal of reserve raisins. and amended by the Agricultural Mar- REPORTS AND RECORDS keting Agreement Act of 1937, as 989.173 Reports. amended (sections 1–19, 48 Stat. 31, as 989.176 Records. amended; 7 U.S.C. 601–674). [42 FR 37201, July 20, 1977] Subpart—Supplementary Regulations 989.210 Handling of varietal types of raisins § 989.3 Person. acquired pursuant to a weight dockage Person means an individual, partner- system. ship, corporation, association, or any 989.212 Substandard dockage. 989.213 Maturity dockage. other business unit. 989.221 Sale and export of reserve raisins by handlers. § 989.4 Area. 989.257 Final free and reserve percentages. Area means the State of California.

Subpart—Assessment Rates § 989.5 Raisins. 989.347 Assessment rate. Raisins means grapes of any variety grown in the area, from which a signifi- Subpart—Schedule of Payments cant part of the natural moisture has 989.401 Payments for services performed been removed by sun-drying or artifi- with respect to reserve tonnage raisins. cial dehydration, either prior to or after such grapes have been removed Subpart—Conversion Factors from the vines. Removal of a signifi- 989.601 Conversion factors for raisin weight. cant part of the natural moisture means removal which has progressed to Subpart—Quality Control the point where the grape skin devel- ops wrinkles characteristic of wrinkles 989.701 Minimum grade and condition stand- in fully formed raisins. ards for natural condition raisins. 989.702 Minimum grade standards for [37 FR 19622, Sept. 21, 1972] packed raisins. § 989.7 Golden Seedless raisins. Subpart—Antitrust Immunity and Liability Golden Seedless raisins means raisins, 989.801 Restrictions applicable to com- the production of which includes soda mittee personnel. dipping, sulfuring, and artificial dehy- AUTHORITY: 7 U.S.C. 601–674. dration.

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§ 989.8 Natural condition raisins. § 989.12a Cooperative bargaining asso- Natural condition raisins means rai- ciation. sins the production of which includes Cooperative bargaining association sun-drying or artificial dehydration means a nonprofit cooperative associa- but which have not been further proc- tion of raisin producers engaged within essed to a point where they meet any the area in bargaining with handlers as of the conditions for ‘‘packed raisins’’, to price and otherwise arranging for as defined in § 989.9. the sale of natural condition raisin of its members. [25 FR 12813, Dec. 14, 1960, as amended at 42 FR 37201, July 20, 1977] [32 FR 12158, Aug. 24, 1967]

§ 989.9 Packed raisins. § 989.13 Processor. Packed raisins means raisins which Processor means any person who re- have been stemmed, graded, sorted, ceives or acquires natural condition cleaned, or seeded, and placed in any raisins, off-grade raisins, other failing container customarily used in the mar- raisins or raisin residual material and keting of raisins or in any container uses them or it within the area, with or suitable or usable for such marketing. without other ingredients, in the pro- Raisins in the process of being packed duction of a product other than raisins, or raisins which are partially packed for market or distribution. shall be subject to the same requirements as packed raisins. [32 FR 12158, Aug. 24, 1967; 33 FR 2983, Feb. 15, 1968, as amended at 42 FR 37201, July 20, 1977] § 989.10 Varietal types. § 989.14 Packer. Varietal types means raisins generally recognized as possessing characteris- Packer means any person who, within tics differing from other raisins in a de- the area, stems, sorts, cleans, or seeds gree sufficient to make necessary or raisins, grades stemmed raisins, or desirable separate identification and packages raisins for market as raisins: classification. Varietal types are the Provided, That: following: Natural (sun-dried) Seedless, (a) No producer with respect to the Dipped Seedless, Golden Seedless, raisins produced by him, and no group Muscats (including other raisins with of producers with respect to raisins seeds), Sultana, Zante Currant, produced by the producers comprising Monukka, and Oleate and Related the group, and not otherwise a packer, Seedless: Provided, That the Committee shall be deemed a packer if he or it may, subject to approval of the Sec- sorts or cleans (with or without water) retary, change this list of varietal such raisins in their unstemmed form; types. (b) Any dehydrator shall be deemed to be a packer, with respect to raisins [48 FR 32974, July 20, 1983] dehydrated by him, only if he stems, cleans with water subsequent to such § 989.11 Producer. dehydration, seeds or packages them Producer means any person engaged for market as raisin; in a proprietary capacity in the pro- (c) The committee may, with the ap- duction of grapes which are sun-dried proval of the Secretary restrict the ex- or dehydrated by artificial means until ceptions as to permitted cleaning if they become raisins: Provided, That a necessary to cause delivery of sound ‘‘producer’’ shall include any person raisins; and whose production unit has qualified for (d) No person shall be deemed a pack- diversion under a diversion program er by reason of the fact he repackages announced by the Committee. for market (with or without additional [50 FR 1831, Jan. 14, 1985] preparation) packed raisins which, in the hands of a previous holder, have § 989.12 Dehydrator. been inspected and certified as meeting the applicable minimum grade stand- Dehydrator means any person who ards for packed raisins. produces raisins by dehydrating grapes by artificial means. [32 FR 12158, Aug. 24, 1967]

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§ 989.15 Handler. § 989.18 Committee. Handler means: (a) Any processor or Committee means the Raisin Adminis- packer; (b) any person who places, trative Committee established under ships, or continues natural condition § 989.26. raisins in the current of commerce [41 FR 32412, Aug. 3, 1976] from within the area to any point outside thereof; (c) any person who deliv- § 989.20 Ton. ers off-grade raisins, other failing rai- Ton means a short ton of 2,000 sins or raisin residual material to pounds. other than a packer or other than into any eligible non-normal outlet; or (d) § 989.21 Crop year. any person who blends raisins: Pro- Crop year means the 12-month period vided, That blending shall not cause a beginning with August 1 of any year person not otherwise a handler to be a and ending with July 31 of the fol- handler on account of such blending if lowing year. he is either: (1) A producer who, in his [41 FR 32412, Aug. 3, 1976] capacity as a producer, blends raisins entirely of his own production in the § 989.22 District. course of his usual and customary District means any one of the geo- practices of preparing raisins for deliv- graphical areas referred to in § 989.26, ery to processors, packers, or and designated in the rules and regula- dehydrators; (2) a person who blends tions. raisins after they have been placed in [48 FR 32974, July 20, 1983] trade channels by a packer with other such raisins in trade channels; or (3) a § 989.23 File. dehydrator who, in his capacity as a File means transmit or deliver to the dehydrator, blends raisins entirely of Secretary or committee, as the case his own manufacture. may be, and such act shall be deemed [37 FR 19622, Sept. 21, 1972] to have been accomplished at the time: (a) Of actual receipt by the Secretary § 989.16 Blend. or committee in the event of personal Blend means to mix or commingle delivery; raisins. (b) Of receipt at the office of the telegraph company, in case submission is § 989.17 Acquire. by telegram; or (c) Shown by the postmark, in case Acquire means to have or obtain submission is by mail. physical possession of raisins by a handler at his packing or processing plant § 989.24 Standard raisins, off-grade or at any other established receiving raisins, other failing raisins, and station operated by him: Provided, That raisin residual material. a handler shall not be deemed to ac- (a) Standard raisins means raisins quire any raisins (including raisins pro- which meet the then effective min- duced or dehydrated by him) while: imum grade and condition standards (a) He stores them for another person for natural condition raisins. or as handler-produced tonnage in com- (b) Offgrade raisins means raisins pliance with the provisions of §§ 989.58 which do not meet the then effective and 989.70; minimum grade and condition standards for natural condition raisins: Pro- (b) He reconditions them, or; vided, That raisins which are certified (c) He has them in his possession for as off-grade raisins shall continue to be the purpose of inspection; and Provided such until successfully reconditioned further, That the term shall apply only or become ‘‘other failing raisins.’’ to the handler who first acquires the (c) Other failing raisins means any rai- raisins. sins received or acquired by a handler, either as standard raisins or off-grade raisins, which are processed to a point

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where they qualify as packed raisins (b) Producer members representing but fail to meet the applicable min- cooperative bargaining association(s) imum grade standards for packed rai- shall be members of such associations, sins. and the number of those members shall (d) Raisin residual material means de- be equal to the product, rounded to the fective raisins, stemmer waste, nearest whole number, obtained by sweepings, and other residue accumu- multiplying 35 by the ratio the raisins lated by a handler from reconditioning acquired by handlers from bargaining raisins or from processing standard rai- association members are to the total sins and other failing raisins. acquisitions of all handlers during the preceding crop year. [25 FR 12813, Dec. 14, 1960, as amended at 42 FR 37201, July 20, 1977] (c) All other producer members who shall not be members of a cooperative § 989.24a Non-normal outlets. bargaining association(s), cooperative marketing association(s) engaged in Non-normal outlets means outlets the handling of raisins which acquired other than those customarily used for 10 percent or more of the total acquisi- commercial disposition of raisins meet- tions during the preceding crop year, ing the then applicable minimum nor sold for cash to cooperative mar- standards for natural condition raisins keting association(s), shall represent or packed raisins. all producers not defined in paragraph [29 FR 9483, July 11, 1964] (a) or (b) of this section and shall be selected in the number and, when appro- § 989.25 Part and subpart. priate, for the districts as designated Part means the order regulating the in the rules and regulations. handling of raisins produced from (d) The handler members shall be di- grapes grown in California, and all vided into two groups and include the rules, regulations, and supplementary following: orders issued thereunder. This order (1) Handler members shall be selected regulating the handling of raisins pro- from and represent cooperative mar- duced from grapes grown in California keting association(s) engaged in the shall be a subpart of such part. handling of raisins each of which acquired not less than 10 percent of the RAISIN ADMINISTRATIVE COMMITTEE total raisin acquisitions during the preceding crop year, and the number of § 989.26 Establishment and member- those members shall be equal to the ship. product, rounded to the nearest whole A Raisin Administrative Committee number, obtained by multiplying 10 by is hereby established consisting of 47 the ratio of the cooperative marketing members of whom 35 shall represent association(s) raisin acquisitions are to producers, 10 shall represent handlers, the total acquisitions of all handlers 1 shall represent the cooperative bar- during the preceding crop year. gaining association(s) and 1 shall be a (2) The remaining handler members public member. The producer members shall be selected from and represent all shall be selected as follows: other handlers, which would include all (a) Producer members representing independent handlers and small cooper- the cooperative marketing associa- ative marketing association(s) who action(s) shall be members of such asso- quired less than 10 percent of the total ciation(s) engaged in the handling of raisin acquisitions during the pre- raisins, each of which acquired not less ceding crop year. Handler nominees for than 10 percent of the total raisin ac- this group shall be nominated by all quisitions during the preceding crop handlers in the group in a manner de- year, and those members shall be equal termined by the Committee, with the to the product, rounded to the nearest approval of the Secretary, and speci- whole number, obtained by multiplying fied in the rules and regulations. 35 by the ratio the cooperative mar- (e) The ‘‘cooperative’’ bargaining asso- keting association(s) raisin acquisi- ciation’(s) member shall be selected tions are to the acquisitions of all han- from the cooperative bargaining asso- dlers during the preceding crop year. ciation(s). The public member shall be

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nominated by the Committee and se- (1) The Committee shall notify the lected by the Secretary as public mem- cooperative marketing association(s) ber. engaged in handling not less than 10 (f) For each member of the Com- percent of the total raisin acquisitions mittee there shall be an alternate during the preceding crop year, and co- member who shall have the same quali- operative bargaining association(s), of fications as the member for whom he is the date by which nominations to fill an alternate. member and alternate member posi- [48 FR 32974, July 20, 1983] tions shall be made. The Committee shall give reasonable publicity of a § 989.27 Eligibility. meeting or meetings of producers who No person shall be selected or con- are not members of cooperative bar- tinue to serve as a member or alternate gaining association(s), or cooperative member of the Committee who is not marketing association(s) which han- actively engaged in the business of the dled 10 percent or more of the total rai- group which he represents either in his sin acquisitions during the preceding own behalf, or as an officer, agent, or crop year, and of independent handlers employee of a business unit engaged in and cooperative marketing associa- such business: Provided, That only pro- tion(s) who handled less than 10 per- ducers, as defined in § 989.11, engaged as cent of the total raisin acquisitions such with respect to the most recent during the preceding crop year, for the grape crop, are eligible to serve on the purpose of making nominations to fill Committee. Only handlers who packed the member and alternate member po- or processed raisins during the then sitions prescribed in § 989.26 (c) and (d): current crop year shall be eligible to Provided, That member and alternate represent handlers on the Committee. member nominations by independent Any handler eligible to represent a par- handlers and cooperative marketing ticular group shall continue to rep- association(s) who acquired less than 10 resent handlers for the entire term for percent of the total raisin acquisitions which he was selected. during the preceding crop year may be made to the Committee by mail in lieu [48 FR 32974, July 20, 1983] of meetings. § 989.28 Term of office. (2)(i) Any producer representing independent producer and producers who The term of office of all representa- are affiliated with cooperative mar- tives serving on the Committee shall keting association(s) handling less be for two years and shall end on April than 10 percent of the total raisin ac- 30 of even numbered calendar years, quisitions during the preceding crop but each such member and alternate year must have produced grapes which member shall continue to serve until were made into raisins in the par- their successor is selected and has ticular district for which they are nom- qualified. inated to represent said district as a [48 FR 32975, July 20, 1983] producer member or alternate producer member on the committee. In the § 989.29 Initial members and nomina- event any such nominee is engaged as a tion of successor members. producer in more than one district, (a) Initial members. Members and al- such producer may be a nominee for ternate members of the Committee only one district. One or more pro- serving immediately prior to the effec- ducers may be nominated for each such tive date of this amended subpart shall, producer member or alternate member if thereafter they are eligible, serve on position. the Committee until April 30, 1984, and (ii) Each such producer whose name until their respective successors have is offered in nomination shall be given been selected and qualified. the opportunity to provide the com- (b) Nominations for successor members. mittee a short statement outlining Nominations for successor qualifications and desire to represent members and alternate members of the on the committee independent pro- Committee shall be made as follows: ducers or producers who are affiliated

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with cooperative marketing associa- (4) Each vote cast shall be on behalf tion(s) handling less than 10 percent of of the person voting, the person’s the total raisin acquisitions during the agent, subsidiaries, affiliates, and rep- preceding crop year. These brief state- resentatives. Voting at each handler ments, together with a ballot and vot- meeting shall be in person. The results ing instructions, shall be mailed to all of each ballot at each handler meeting independent producers and producers shall be announced at that meeting. who are affiliated with cooperative (5) Each nomination shall be certified marketing associations handling less by the Committee to the Secretary on than 10 percent of the total raisin ac- or before April 5 immediately pre- quisitions during the preceding crop ceding the commencement of the term year of record with the committee in of office of the member or alternate each district. The producer receiving member position for which the nomina- the highest number of votes shall be tion is certified. designated as the first member nomi- [48 FR 32975, July 20, 1983, as amended at 54 nee, the second highest shall be des- FR 34137, Aug. 18, 1989] ignated as the second member nominee or alternate member nominee, as the § 989.30 Selection. case may be, until nominees for all The Secretary shall select producer, member and alternate member posi- handler, cooperative bargaining asso- tions have been filled. ciation(s), and public members and al- (iii) Each independent producers or ternate members in the number speci- producers affiliated with cooperative fied in 989.26, as applicable, and with marketing association(s) handling less the qualifications specified in § 989.27. than 10 percent of the total raisin ac- Such selections may be made from quisitions during the preceding crop nominations certified pursuant to year shall cast only one vote with re- § 989.29 or from other eligible producers, spect to each position for which nomi- handlers, or cooperative bargaining as- nations are to be made. Write-in can- sociation(s) officers or employees. didates shall be accepted. The person receiving the most votes with respect [48 FR 32975, July 20, 1983] to each position to be filled, in accordance with paragraph (b)(2)(ii) of this § 989.31 Failure to nominate. section, shall be the person to be cer- In the event nomination for a mem- tified to the Secretary as the nominee. ber or alternate member position on The committee may, subject to the ap- the committee is not certified pursuant proval of the Secretary, establish rules to and within the time specified in and regulations to effectuate this sec- § 989.29, the Secretary may select an el- tion. igible person to fill such position with- (3) One or more eligible handlers for out regard to nomination. each handler position to be filled may [41 FR 32412, Aug. 3, 1976] be proposed for nomination to represent independent handlers and coop- § 989.32 Acceptance. erative marketing association(s) which Each person to be selected by the acquired less than 10 percent of the Secretary as a member or as an alter- total raisin acquisitions during the nate member of the Committee shall, preceding crop year on the Committee. prior to such selection, qualify by ad- Nominations shall be made by and vising the Secretary that he/she agrees from handlers, or employees, rep- to serve in the position for which nomi- resentatives or agents of handlers fall- nated for selection. ing within such groups. Each handler shall cast only one vote with respect to [48 FR 32975, July 20, 1983] each position for which nomination is to be made. The person receiving the § 989.33 Alternate members. most votes with respect to each han- The alternate for a member of the dler member of handler alternate mem- committee shall act in the place and ber position shall be the person to be stead of such member (a) during his ab- certified to the Secretary as the nomi- sence, and (b) in the event of his re- nee for each such position. moval, resignation, disqualification, or

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death, until a successor for such mem- (d) To investigate and assemble data ber’s unexpired term has been selected on the production, handling and mar- and has qualified. ket conditions with respect to raisins; (e) To submit to the Secretary such [41 FR 32412, Aug. 3, 1976] available information with respect to § 989.34 Vacancies. raisins and grapes as he may request, and such other information as the com- To fill any vacancy occasioned by the mittee may deem desirable and perti- failure of any person selected as a nent; member or as an alternate member of (f) To select from among its members the committee to qualify, or in the a chairman and other officers, and to event of the removal, resignation, dis- adopt such rules and regulations for qualification, or death of any member the conduct of its business as it may or alternate member, a successor for deem advisable; such person’s unexpired term shall be (g) To appoint or employ such other nominated and selected in the manner persons as it may deem necessary, and set forth in §§ 989.29 and 989.30, insofar to determine the salaries and define as such provisions are applicable. If the duties of each such person; nomination to fill any vacancy is not (h) To cause the books of the com- filed within 40 calendar days after such mittee to be audited by certified public vacancy occurs, the Secretary may se- accountants at least once each year, or lect an eligible person to fill such va- at such other times as the committee cancy without regard to nomination. may deem necessary or as the Sec- [41 FR 32412, Aug. 3, 1976] retary may request, and the report of each such audit shall show, among § 989.35 Powers. other things, the receipts and expendi- The committee shall have the fol- tures of funds, and at least two copies lowing powers: of each such audit shall be submitted to the Secretary; (a) To administer the terms and provisions of this part; (i) To prepare quarterly statements of its financial operations and make (b) To make rules and regulations to such statements, together with the effectuate the terms and provisions of minutes of its meetings, available at this part; the office of the committee for inspec- (c) To recommend to the Secretary tion by producers, handlers and amendments to this part; and dehydrators; (d) To receive, investigate, and report (j) To give reasonable advance notice to the Secretary complaints of viola- of the times, places, and purposes of its tions of this part. meetings by mail or other appropriate [41 FR 32412, Aug. 3, 1976, as amended at 48 means to each member and alternate FR 32975, July 20, 1983] member and such notice shall be given as widespread publicity as is prac- § 989.36 Duties. ticable; The committee shall have, among (k) To conduct meetings for the pur- others, the following duties: pose of making nominations for mem- (a) To act as intermediary between bership on the committee and the cer- the Secretary and any producer, pack- tifying of nominations made for such er, dehydrator, processor or coopera- purposes to the Secretary; tive bargaining association; (l) To establish, with the approval of (b) To investigate compliance and to the Secretary, such rules and proce- use means available to it to prevent dures relative to administration of this violations of this part; subpart as may be consistent with the (c) To keep minutes, books, and other provisions contained in this subpart records, which shall clearly reflect all and as may be necessary to accomplish of its acts and transactions, and such the purposes of the act and the effi- minutes, books, and other records shall cient administration of this subpart. be subject to examination by the Sec- [41 FR 32412, Aug. 3, 1976, as amended at 48 retary at any time; FR 32975, July 20, 1983]

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§ 989.37 Obligation. RESEARCH AND DEVELOPMENT Upon the removal, resignation, dis- § 989.53 Research and development. qualification, or expiration of the term (a) General. The Committee, with the of office of any member or alternate approval of the Secretary, may estab- member, such member or alternate lish or provide for the establishment of member shall account for all receipts projects involving marketing research and disbursements and deliver to his and development and marketing pro- successor, to the committee, or to a motion including paid advertising, de- designee of the Secretary all property signed to assist, improve, or promote (including, but not limited to, all the marketing, distribution, and con- books and records) in his possession or sumption of raisins in domestic and under his control as member or alter- foreign markets. These projects may nate member, and he shall execute include, but need not be limited to such assignments and other instru- those designed to: ments as may be necessary or appro- (1) Improve through research the ac- priate to vest in such successor, com- curacy of raisin production estimates; mittee, or designee full title to such (2) Improve through research the property and funds, and all claims vest- preparation for market, sanitation, ed in such member or alternate mem- quality, condition, storability, proc- ber. Upon the death of any member or essing, or packaging of raisins; (3) Ascertain through research the alternate member of the committee, factors affecting acceptance of raisins full title to such property, funds, and by manufacturers or consumers; claims vested in such member or alter- (4) Promote the marketing, distribu- nate member shall be vested in his suc- tion, or consumption of raisins in do- cessor or, until such successor has been mestic and foreign markets by col- selected and has qualified, in the com- lecting data thereon, consulting with mittee. members of the trade, and making the [41 FR 32412, Aug. 3, 1976] information available to producers, handlers, and exporters; and § 989.38 Procedure. (5) Promote the marketing, distribution, or consumption of raisins in for- The Committee shall meet at the call eign markets through the use of mer- of the chairman, or vice-chairman chandising programs. when acting as chairman, or at the call The expense of any such project relat- of any three members. All decisions of ing solely to free tonnage raisins shall the Committee reached shall be by ma- be paid from funds collected pursuant jority vote of the members present. All to § 989.80. The expense of any such votes shall be cast in person and a project relating solely to reserve ton- quorum must be present. The presence nage raisins shall be paid from the sale of 25 members shall be required to con- proceeds of such raisins. If any such stitute a quorum. The Committee shall project encompasses both free tonnage give to the Secretary the same notice and reserve tonnage raisins, such as of meetings of the Committee as it one which is designed to promote the gives to its members. consumption in export outlets of raisins generally on a long-term basis, the [48 FR 32976, July 20, 1983] expense of the project may be allocated § 989.39 Compensation and expenses. between the assessment fund and the pool fund. The members and alternate members (b) Creditable expenditures. The Com- of the committee shall serve without mittee, with the approval of the Sec- compensation, but shall be allowed retary, may provide for crediting all or their necessary expenses as approved any portion of a handler’s direct ex- by the committee. penditures for marketing promotion, including paid advertising, that pro- [54 FR 34137, Aug. 18, 1989] motes the sale of raisins, raisin products, or their use. No handler shall receive credit for any allowable direct

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expenditures that would exceed the that the Committee may extend this total of his assessment obligation date not more than five business days which is attributable to that portion of if warranted by a late crop), the Com- his assessment designated for mar- mittee shall estimate the production of keting promotion including paid adver- any varietal type of raisins for which it tising. has computed a trade demand. If the (c) Criteria. Before any project involv- Committee determines that volume ing marketing promotion, including regulation is desirable during the crop paid advertising, and the year for that varietal type, it shall crediting of the handler’s pro rata ex- compute and announce preliminary pense assessment obligation of han- free and reserve percentages for that dlers is undertaken pursuant to this varietal type: Provided, That such pro- section, the Secretary after rec- duction estimate shall include by vari- ommendation by the Committee, shall etal type the raisins handlers are ex- approve appropriate criteria to effec- pected to acquire from producers and tively regulate such activity. the total tonnage of raisins diverted under a raisin diversion program. The [48 FR 32976, July 20, 1983] Committee shall compute a prelimi- MARKETING POLICY nary free percentage to release 85 percent of the computed trade demand, if § 989.54 Marketing policy. it determines that a field price has (a) Trade demand. On or before Au- been established for that varietal type, gust 15 of each crop year, the Com- or 65 percent of the trade demand if no mittee shall hold a meeting to review field price has been established. The shipment data, inventory data, and preliminary free percentage shall be other matters relating to the quantity computed by multiplying the trade of raisins of all varietal types. For any demand by either 85 percent or 65 per- varietal type for which a free tonnage cent (as the case may be) and dividing percentage may be recommended, the the product by the estimated produc- Committee shall compute a trade de- tion of that varietal type and rounding mand. The trade demand shall be 90 the resulting percentage to the nearest percent of the prior crop year’s ship- full percent. The difference between 100 ments (converted to a natural condi- percent and the preliminary free per- tion weight) of free tonnage and re- centage shall be the preliminary reserve tonnage sold for free use for that serve percentage. varietal type, into all market outlets, (c) Interim percentages. Prior to Feb- adjusted by the carryin on August 1 of ruary 15, the Committee may modify the current crop year and the desirable the preliminary free and reserve per- carryout for the varietal type at the centages to release less than the trade end of that crop year. If the prior demand. year’s shipments were limited because (d) Final percentages. No later than of crop conditions, the Committee may February 15, the Committee shall rec- select the shipments of one of the three ommend to the Secretary, final free years preceding the prior crop year. and reserve percentages which will The desirable carryout shall be intend to release the full trade demand creased from 45,000 to 60,000 tons for for any varietal type for which prelimi- Natural (sun-dried) Seedless raisins at nary or interim percentages have been a rate of 5,000 tons per year for three computed and announced. The dif- crop years following the effective date ference between any final free percent- of this amended subpart. The desirable age designated by the Secretary and carryout for Dipped Seedless raisins 100 percent shall be the final reserve shall be 1,500 tons, and for Oleate and percentage. With its recommendation, Related Seedless raisins, 1,500 tons. the committee shall report on its con- The trade demand computed by the sideration of the factors in paragraph Committee shall be announced by the (e) of this section. Committee in accordance with para- (e) Factors. When computing prelimi- graph (h) of this section. nary and interim percentages, or deter- (b) Preliminary percentages. On or be- mining final percentages for rec- fore October 5 of each crop year (except ommendation to the Secretary, the

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Committee shall give consideration to liminary percentages have been com- the following factors: puted and announced. One offer shall (1) The estimated tonnage held by consist of a quantity equal to 10 per- producers, handlers, and for the ac- cent of the prior year’s (or the alter- count of the Committee at the begin- native year selected by the Committee ning of the crop year; pursuant to paragraph (a) of this sec- (2) The expected general quality and tion) shipments of free tonnage and re- any modifications of the minimum serve tonnage sold for free use into all grade standards; market outlets to equate the current (3) The estimated tonnage of stand- year’s supply with the prior year’s ard and off-grade raisins which will be shipments. This offer shall be allocated produced; to handlers on the basis of their prior (4) If different than the computed year’s acquisitions. The second offer, trade demand, the estimated trade de- to provide for market expansion, shall mand for raisins in free tonnage out- consist of a quantity equal to 10 per- lets; cent of the prior year’s (or the alter- (5) If not estimated as provided in native year selected by the Committee paragraph (a) of this section, an esti- pursuant to paragraph (a) of this sec- mated desirable carryout at the end of tion) shipments of free tonnage and re- the crop year for free tonnage and, if serve tonnage sold for free use. This applicable, for reserve tonnage; offer shall be allocated to handlers on (6) The estimated market require- the basis of their prior year’s shipments for raisins outside free tonnage ments of free tonnage and reserve ton- outlets, considering the estimated nage sold for free use. Each offer shall world raisin supply and demand situa- be open to handlers not more than five tion; business days, and subsequently, two (7) Current prices being received and the probable general level of prices to offers of any tonnage unsold in the be received for raisins by producers and original offers open not more than two handlers; business days each, may be made. The (8) The trend and level of consumer reoffer tonnage shall be allocated to income; handlers who purchase 100 percent of (9) Any prohibition of trade prac- their allocation in preceding offers, tices, pursuant to § 989.62 intended for and shall be on the basis of the quan- the crop year; and tity each handler purchased, as a per- (10) Any other pertinent factors bear- centage of the total quantity pur- ing on the marketing of raisins includ- chased by all handlers eligible to paring the estimated supply of and de- ticipate. At the close of the second mand for other varietal types and regu- reoffer, any remaining tonnage may be lations applicable thereto. offered to handlers who purchased all (f) Modification. In the event the of their allocations from previous of- Committee subsequently deems it ad- fers on a first-come first-served basis visable to modify its marketing policy and such offer shall be open to handlers on any crop, because of national emer- for one business day. Any handler who gency, crop failure, or other major had no shipments or acquisitions of change in economic conditions, it shall raisins during the prior crop year will hold a meeting for that purpose, and be allocated raisins under these offers file a report thereof with the Secretary on the basis of his acquisition (up to within 5 days (exclusive of Saturdays, the time the original offer is made) of Sundays, and holidays) after the hold- raisins in the current crop year. If field ing of such meeting, which report shall prices are not established, the offer show such modification and the basis shall be made not more than fifteen therefor. days following such establishment. The (g) Reserve tonnage to sell as free ton- price of reserve tonnage raisins offered nage. On or before November 15 of the to handlers to sell as free tonnage, pur- crop year, the Committee shall make suant to this paragraph, shall be the two simultaneous offers of reserve ton- established field price for free tonnage nage to handlers to sell as free tonnage raisins of that varietal type, plus 3 per- for each varietal type for which pre- cent of the established field price, plus

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the estimated costs incurred by the percentages for any varietal type of Committee for equity holders. standard raisins acquired by handlers, (h) Publicity. The Committee shall during the crop year will tend to effec- promptly give reasonable publicity to tuate the declared policy of the Act, producers, dehydrators, handlers, and the Secretary shall designate such per- the cooperative bargaining associa- centages. In the event the Secretary tion(s) of each meeting to consider a finds that suspension or termination of marketing policy or any modification any percentages computed by the Com- thereof, and each such meeting shall be mittee or designated by the Secretary open to them. Similar publicity shall tend to effectuate the declared policy be given to producers, dehydrators, of the Act, the Secretary shall suspend handlers, and the cooperative bar- or terminate such percentages. gaining association(s) of each mar- [48 FR 32977, July 20, 1983] keting policy report or modification thereof, filed with the Secretary and of § 989.56 Raisin diversion program. the Secretary’s action thereon. Copies (a) Announcement of program. On or of all marketing policy reports shall be before November 30 of each crop year, maintained in the office of the Com- the committee shall hold a meeting to mittee, where they shall be made avail- review production data, supply data, able for examination by any producer, demand data, including anticipated de- dehydrator, handler, or cooperative mand to all potential market outlets, bargaining association representative. desirable carryout inventory, and other The Committee shall notify handlers, matters relating to the quantity of rai- dehydrators and the cooperative bar- sins of all varietal types. When the gaining association(s), and give reason- committee determines that raisins able publicity to producers of its com- exist in the reserve pool in excess of putation of the trade demand, prelimi- projected market needs for any vari- nary percentages, and interim percent- etal type, it may announce the amount ages and shall notify handlers, of such tonnage eligible for diversion dehydrators, and the cooperative bar- during the subsequent crop year. At gaining association(s) of the Sec- the same time, the committee shall de- retary’s action on percentages by reg- termine and announce to producers, istered or certified mail. handlers, and the cooperative bar- [48 FR 32976, July 20, 1983, as amended at 50 gaining association(s) the allowable FR 1831, Jan. 14, 1985; 54 FR 24670, June 9, harvest cost to be applicable to such 1989] diversion tonnage. A production cap of 2.75 tons of raisins per acre shall be es- EFFECTIVE DATE NOTES: 1. At 54 FR 24670, June 9, 1989, in § 989.54, in paragraph (a), the tablished for any production unit ap- sentences, ‘‘The desirable carryout shall be proved for participation in a diversion increased from 45,000 to 60,000 tons for Nat- program. The committee, with the ap- ural (sun-dried) Seedless raisins at a rate of proval of the Secretary, may rec- 5,000 tons per year for the three crop years ommend, at the same time that the di- following the effective date of this amended version tonnage for that season is an- subpart. The desirable carryout for Dipped nounced, a change in the production Seedless raisins shall be 1,500 tons, and for cap for that season’s diversion program Oleate and Related Seedless raisins 1,500 of less than 2.75 tons per acre for any tons.’’ were suspended indefinitely, effective July 10, 1989. production unit approved for the diver- 2. At 62 FR 50484, Sept. 26, 1997, in para- sion program. graph (g), the words ‘‘On or before November (b) Voluntary diversion. No producer 15 of the crop year’’ and ‘‘simultaneous’’ in shall be required to participate in any the first sentence were suspended indefi- raisin diversion program. nitely, effective Sept. 29, 1997. (c) Issuance of diversion certificates. After the committee announces a rai- § 989.55 Regulation by the Secretary. sin diversion program, any producer Whenever the Secretary finds, from may divert grapes of the producer’s the recommendation and supporting in- own production and receive from the formation supplied by the Committee committee a diversion certificate in or from other available information, accordance with the applicable rules that to designate final free and reserve and regulations. Such certificates may

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only be submitted by producers to han- reconditioning and may receive or ac- dlers in accordance with applicable quire off-grade raisins for use in eligi- rules and regulations. Diversion certifi- ble non-normal outlets: And provided cates issued by the committee shall further, That a handler may acquire apply to a specific production unit and natural condition raisins which exceed shall be equal to the creditable fruit the tolerance established for maturity weight, not to exceed the production under a weight dockage system estab- cap established pursuant to paragraph lished pursuant to rules and regula- (a) of this section, of such raisins pro- tions recommended by the committee duced on such unit during the prior and approved by the Secretary. Noth- crop year or the last prior crop year el- ing contained in this paragraph shall igible for such diversion: Provided, That apply to the acquisition or receipt of in the case of a production unit, or par- natural condition raisins of a partial production unit, removed from pro- ticular varietal type for which min- duction through vine removal or other imum grade and condition standards means established by the committee, are not applicable or then in effect pur- the committee may issue a diversion suant to this part. certificate in an amount greater than (b) Changes in minimum grade and con- the creditable fruit weight of the rai- dition standards for natural condition raisins produced therein or the production sins. The committee may recommend cap applicable. to the Secretary changes in the min- (d) Redemption of diversion certificates. imum grade and condition standards Handlers may redeem diversion certifi- for natural condition raisins of any va- cates for reserve pool raisins. To re- rietal type and may recommend to the deem a certificate, a handler must Secretary that minimum grade and present the diversion certificate to the condition standards for any varietal Committee and pay the Committee an type be added to or deleted. The com- amount equal to the harvest cost it has mittee shall submit with its rec- established, plus an amount equal to ommendation all data and information the payment for receiving, storing, fu- upon which it acted in making its rec- migating, handling, and inspecting reserve tonnage raisins specified in ommendation, and such other informa- § 989.401 for the entire tonnage rep- tion as the Secretary may request. The resented on the certificate. Upon re- Secretary shall approve any such ceipt of the diversion certificate, the change if he finds, upon the basis of Committee shall note on the certifi- data submitted to him by the com- cate that it is cancelled. mittee or from other pertinent infor- (e) Implementation of the program. The mation available to him, that to do so Committee shall establish, with the ap- would tend to effectuate the declared proval of the Secretary, such rules and policy of the act. regulations as may be necessary for the (c) Publicity and notice. The com- implementation and operation of a rai- mittee shall give prompt and reason- sin diversion program. able publicity to producer, dehydrators, and handlers of each rec- [50 FR 1831, Jan. 14, 1985, as amended at 50 ommendation submitted by it to the FR 40477, Oct. 4, 1985; 54 FR 34137, Aug. 18, 1989] Secretary and of each regulation issued by the Secretary. Notice of such regu- GRADE AND CONDITION STANDARDS lation shall be given to all handlers by registered or certified mail. § 989.58 Natural condition raisins. (d) Inspection and certification. (1) (a) Regulation. No handler shall ac- Each handler shall cause an inspection quire or receive natural condition rai- and certification to be made of all nat- sins which fail to meet such minimum ural condition raisins acquired or re- grade and condition standards as the ceived by him, except with respect to: committee may establish, with the ap- (i) An interplant or interhandler trans- proval of the Secretary, in applicable fer of offgrade raisins as described in rules and regulations: Provided, That a paragraph (e)(2) of this section, unless handler may receive raisins for inspec- such inspection and certification are tion, may receive off-grade raisins for required by rules and procedures made

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effective pursuant to this amended sub- retary, authorize handlers to receive or part; (ii) an interplant or interhandler acquire natural condition raisins which transfer of free tonnage raisins as de- have been produced by any dehydrator scribed in § 989.59(e); (iii) raisins re- by dehydrating grapes by artificial ceived from a dehydrator which have means and have been inspected and cer- been previously inspected pursuant to tified on his premises. In the event paragraph (d)(2) of this section; (iv) any there shall have been compliance with raisins for which minimum grade and committee requirements, any handler condition standards are not then in ef- who receives or acquires such inspected fect; (v) raisins received from a cooper- and certificated raisins shall be deemed ative bargaining association which to have satisfied the requirements con- have been inspected and are in compli- tained in paragraph (d)(1) of this sec- ance with requirements established tion with respect to inspection and cer- pursuant to paragraph (d)(3) of this sec- tification of natural condition raisins tion; and (vi) any raisins, if permitted received or acquired by him. in accordance with such rules and pro- (3) The committee may, in accord- cedures as the committee may estab- ance with rules and the procedures es- lish with the approval of the Secretary, tablished with the approval of the Sec- acquired or received for disposition in retary, authorize handlers to receive or eligible nonnormal outlets. The han- acquire without further inspection and dler shall be reimbursed by the com- certification, natural condition raisins, mittee for inspection costs incurred by standard or offgrade, which have been him and applicable to pool tonnage inspected, certified and held, in compli- held for the account of the committee. ance with committee requirements, at Except as otherwise provided in this a receiving station of a cooperative section, prior to blending raisins, ac- bargaining association. quiring raisins, storing raisins, reconditioning raisins, or acquiring raisins (e) Off-grade raisins. (1) Any natural which have been reconditioned, each condition raisins tendered to a handler handler shall obtain an inspection cer- which fail to meet the applicable min- tification showing whether or not the imum grade and condition standards raisins meet the applicable grade and may: (i) Be received or acquired by the condition standards: Provided, That the handler for disposition, without further initial inspection for infestation shall inspection, in eligible non-normal out- not be required if the raisins are fumi- lets; (ii) be returned unstemmed to the gated in accordance with such rules person tendering the raisins; or (iii) be and procedures as the committee shall received by the handler for recondi- establish with the approval of the Sec- tioning. Off-grade raisins received by a retary. The handler shall submit or handler under any one of the three de- cause to be submitted to the com- scribed categories may be changed to mittee a copy of such certification, to- any other of the categories under such gether with such other documents or rules and procedures as the committee, records as the committee may require. with the approval of the Secretary, Such certification shall be issued by shall establish. No handler shall ship or inspectors of the Processed Products otherwise dispose of off-grade raisins Standardization and Inspection Branch which he does not return to the of the U.S. Department of Agriculture, tenderer, transfer to another handler unless the committee determines, and as provided in paragraph (e)(2) of this the Secretary concurs in such deter- section, or recondition so that they at mination, that inspection by another least meet the minimum standards pre- agency would improve the administra- scribed in or pursuant to this amended tion of this amended subpart. The com- subpart, except into eligible non-nor- mittee may require that raisins held on mal outlets. memorandum receipt be reinspected (2) Off-grade raisins may be trans- and certified as a condition for their ferred from the plant of the handler acquisition by a handler. where received to another plant of his (2) The committee may, in accord- or to that of another handler within ance with rules and procedures estab- the State of California under such rules lished with the approval of the Sec- and procedures as the committee, with

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the approval of the Secretary, shall es- they at least meet the effective and ap- tablish to safeguard the objectives of plicable minimum grade and condition this part. standards for natural condition raisins; (3) Each handler shall, while holding or (2) ship or otherwise make final dis- any off-grade raisins, store them sepa- position of packed raisins unless they rate and apart from other raisins and at least meet such minimum grade the off-grade raisins shall be stored in standards established by the com- accordance with disposition and recon- mittee, with the approval of the Sec- ditioning categories. The committee retary, in applicable rules and regula- with the approval of the Secretary may tions or as later changed or prescribed prescribe rules and procedures for the pursuant to the provisions of para- storage of the raisins. graph (b) of this section: Provided, That (4) If the handler is to acquire the nothing contained in this paragraph raisins after they are reconditioned, shall prohibit the shipment or final dis- his obligation with respect to such rai- position of any raisins of a particular sins shall be based on the weight of the varietal type for which minimum raisins (if stemmed, adjusted to nat- standards are not applicable or then in ural condition weight) after they have effect pursuant to this part. And pro- been reconditioned. If, after such re- vided further, That a handler may grind conditioning, such raisins meet the raisins, which do not meet the min- minimum standards but are no longer imum grade standards for packed rai- natural condition raisins, any handler sins because of mechanical damage or who acquires such raisins shall meet sugaring, into a raisin paste. his reserve tonnage obligations from (b) The committee may recommend natural condition standard raisins ac- changes in the minimum grade stand- quired by him. ards for packed raisins of any varietal (5) The committee shall establish, type and may recommend to the Sec- with the approval of the Secretary, retary that minimum grade standards such additional rules and procedures as for any varietal type be added or de- may be necessary to insure adequate leted. The committee shall submit control of off-grade raisins, including, with its recommendation all data and but not limited to, the reconditioning of off-grade raisins, the disposition and information upon which it acted in use of unsuccessfully reconditioned rai- making its recommendation, and such sins, and the disposition and use of re- other information as the Secretary sidual matter from reconditioning op- may request. The Secretary shall ap- erations. prove any such change if he finds, upon (f) Blending. No handler shall blend the basis of data submitted to him by raisins except: (1) Incidental to recon- the committee or from other pertinent ditioning raisins as permitted under information available to him, that to rules and procedures established by the do so would tend to effectuate the de- committee, with the approval of the clared policy of the act. Secretary; (2) blending standard raisins (c) Publicity and notice. The com- with standard raisins; or (3) blending mittee shall give prompt and reason- raisins which meet the minimum grade able notice to producers, dehydrators, standards for packed raisins with other handlers, and the cooperative bar- raisins which meet such standards. gaining association(s) of each recommendation submitted by it to the [25 FR 12813, Dec. 14, 1960, as amended at 29 Secretary and of each regulation issued FR 9483, July 11, 1964; 32 FR 12161, Aug. 24, 1967; 32 FR 18086, Dec. 19, 1967; 42 FR 37201, by the Secretary. Notice of such regu- July 20, 1977] lation shall be given to all handlers of record by registered or certified mail. § 989.59 Regulation of the handling of (d) Inspection and certification. Unless raisins subsequent to their acquisi- otherwise provided in this section, each tion by handlers. handler shall, at his own expense, be- (a) Regulation. Unless otherwise pro- fore shipping or otherwise making final vided in this part, no handler shall: (1) disposition of raisins, cause and inspec- Ship or otherwise make final disposition to be made of such raisins to de- tion of natural condition raisins unless termine whether they meet the then

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applicable minimum grade and condi- or acquisitions: Provided further, That tion standards for natural condition whenever the Secretary concludes, on raisins or the then applicable min- the basis of a recommendation of the imum grade standards for packed rai- committee, that to specify one or more sins. Such handler shall obtain a cer- nonnormal outlets as ineligible for any tificate that such raisins meet the class of such receipts, acquisitions, or aforementioned applicable minimum accumulations will tend to effectuate standards and shall submit or cause to the declared policy of the act, he shall be submitted to the committee a copy specify such ineligible outlets and proof such certificate together with such hibit the shipment thereto or final dis- other documents or records as the composition therein of such class by han- mittee may require. The certificate dlers as well as the receipt and use shall be issued by the Processed Prod- thereof by processors: And provided fur- ucts Standardization and Inspection ther, That no processor who is a dis- Branch of the United States Depart- tiller shall be precluded from receiving ment of Agriculture, unless the com- or using for distillation (1) the stand- mittee determines, and the Secretary ard raisins which subsequently fail to concurs in such determination, that in- meet the said applicable standards, (2) spection by another agency will im- the raisin residual material accumu- prove the administration of this lated from processing standard raisins, amended subpart. Any certificate or (3) the raisin residual material ref- issued pursuant to this paragraph shall erable to the standard raisin equiva- be valid only for such period of time as lent recovered in reconditioning; and the committee may specify, with the any handler may ship such raisins and approval of the Secretary, in appro- raisin residual material to such proc- priate rules and regulations. essor. The Committee shall establish, (e) Inter-plant and inter-handler trans- with the approval of the Secretary, fers. Any handler may transfer from his such rules and procedures as may be plant to his own or another handler’s necessary to insure adequate control plant within the State of California over the off-grade raisins, other failing any free tonnage raisins without hav- raisins, and raisin residual material ing had such raisins inspected as pro- subject to this paragraph. Such rules vided in paragraph (d) of this section. may include a requirement that the The transferring handler shall trans- disposition and use of all or any class mit promptly to the committee a re- of off-grade raisins, other failing rai- port of such transfer, except that sins, or raisin residual material be con- transfers between plants owned or op- fined to the area. The provisions of this erated by the same handler need not be paragraph are not intended to excuse reported. Before shipping or otherwise any failure to comply with all applica- making final disposition of such rai- ble food and sanitary rules and regula- sins, the receiving handler shall com- tions of city, county, State, Federal, or ply with the requirements of this sec- other agencies having jurisdiction. tion. (g) Exemption of experimental and spe- (f) Disposition of offgrade raisins, other cialty packs. The committee may estab- failing raisins, and raisin residual mate- lish, with the approval of the Sec- rial in eligible nonnormal outlets. Any retary, rules and procedures providing offgrade raisins, except those returned for the exemption of raisins in experi- unstemmed to the tenderer or success- mental and specialty packs from one or fully reconditioned, and any raisin re- more of the requirements of the min- sidual material which may be received imum grade standards of this section, or acquired by a handler or accumu- together with the inspection and cer- lated by a handler from reconditioning tification requirements if applicable. raisins or from processing standard rai- [25 FR 12813, Dec. 14, 1960, as amended at 32 sins and other failing raisins, shall be FR 12161, Aug. 24, 1967; 37 FR 19622, Sept. 21, disposed of or marketed by the handler, 1972; 42 FR 37202, July 20, 1977] without further inspection, in eligible nonnormal outlets: Provided, That no § 989.60 Exemption. packer shall be precluded from recov- (a) Notwithstanding any other provi- ering raisins from such accumulations sions of this amended subpart, the

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committee may establish, with the ap- TRADE PRACTICES proval of the Secretary, such rules and procedures as may be necessary to per- § 989.62 Authorization for prohibition mit the acquisition and disposition of of trade practices. any off-grade or reserve pool raisins, Whenever the Secretary finds, upon free from any or all regulations, for recommendation of the committee or uses in non-normal outlets. other information, that continuance of (b) The committee may establish, certain practices in trade channels with the approval of the Secretary, would tend to interfere with the such rules and procedures as may be achieving of the objectives of this part, necessary to exempt from any or all he may prohibit handlers from using regulations raisins produced in south- such practices, for any crop year or ern California (i.e., the counties of Riv- portion thereof, in selling raisins in erside, Imperial, San Bernardino, Ven- containers exceeding four pounds net tura, Orange, Los Angeles, and San weight. The prohibited practices may Diego) and disposed of for distillation, include: livestock feed, or by export in natural (a) Any provision within or added to condition to Mexico. a sales contract, or action or agree- (c) The committee may designate ment outside such contract, whereby such raisins as it deems appropriate for the handler is obligated to reflect de- production, processing, and marketing clines in market prices of raisins by research and development. The period charging the buyer a subsequent mar- of such designation shall be for not ket price in lieu of the sales price spec- more than five years unless extended ified in the contract. by the committee. The volume which (b) Any agreement in an undertaking may be acquired by all handlers shall to hold raisins in reserve for possible not exceed 500 natural condition tons future delivery to a buyer, or action or annually for each designated project, agreement outside such undertaking, unless increased by the Secretary upon whereby the handler is obligated to not a recommendation of the committee. reflect increases in market prices by Such designated raisins may be ac- charging the buyer a price specified in quired and disposed of free from those the agreement. regulations specified by the com- Prior to any such practices being pro- mittee. In any crop year, when the hibited in any crop year, the com- total industry acquisitions of the des- mittee shall recommend, for the ap- ignated raisins exceed 500 natural con- proval of the Secretary, such rules and dition tons or a larger quantity ap- procedures and such record keeping re- proved by the Secretary upon a rec- quirements as are necessary to admin- ommendation of the committee, the ister these prohibitions and obtain exemption shall not apply. compliance therewith.

[29 FR 9484, July 11, 1964, as amended at 32 VOLUME REGULATION FR 18086, Dec. 19, 1967; 37 FR 19623, Sept. 21, 1972; 42 FR 37202, July 20, 1977] § 989.65 Free and reserve tonnage. § 989.61 Above parity situations. The standard raisins acquired by handlers which are free tonnage, and The provisions of this part relating any reserve tonnage purchased for free to minimum grade and condition use, may be disposed of by him in any standards and inspection requirements, marketing channel, subject to the ap- within the meaning of section 2(3) of plicable provisions of this part. A han- the act, and any other provisions per- dler’s free tonnage of a varietal type of taining to the administration and en- raisin shall be either the free percent- forcement of the order, shall continue age of the standard raisins of the vari- in effect irrespective of whether the es- etal type acquired by him or all of the timated season average price to pro- standard raisins of the varietal type ducers for raisins is in excess of the acquired by him if no free percentage is parity level specified in section 2(1) of established by the Committee or des- the act. ignated by the Secretary for that vari- [42 FR 37202, July 20, 1977] etal type. A handler’s reserve tonnage

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of a varietal type shall be the reserve handler to the committee, or to any percentage of the standard raisins of person designated by it, in the form of that varietal type acquired by him. natural condition raisins shall in the [48 FR 32977, July 20, 1983] aggregate be not more than 2 percent less than the average maturity level of § 989.66 Reserve tonnage generally. all raisins such handler acquired during the applicable crop year. The com- (a) The standard raisins acquired by mittee may require that such delivery a handler which are designated as re- consist of natural condition raisins, or serve tonnage and reserve tonnage transferred to a handler by the com- it may arrange for such delivery to mittee shall be held by him for the ac- consist of packed raisins. count of the committee and subject to (c) Each handler shall, at all times, the applicable restrictions of this part. hold in his possession or under his con- (b)(1) Each handler shall hold in stor- trol reserve tonnage referable to his ac- age all reserve tonnage acquired by quisitions of standard raisins and re- him and all reserve tonnage transferred serve tonnage transferred to him by to him by the committee until he has the committee, less any quantity of been relieved of such responsibility by such reserve tonnage released to him the committee either by delivery to by a change of percentages, delivered the committee or otherwise. Such han- by him pursuant to instructions of the dler shall store such reserve tonnage committee or sold to him by the com- raisins in natural condition without mittee. addition of moisture and in such man- (d) Reserve tonnage raisins delivered ner as will maintain the raisins in the by any handler to the committee, or to same condition as when he acquired any person designated by it, whether in them, except for normal and natural the form of natural condition raisins or deterioration and shrinkage, and ex- packed raisins shall meet the applica- cept for loss through fire, acts of God ble minimum grade or grade and condi- or other conditions beyond the han- tion standards, except for normal and dler’s control. natural deterioration. The committee (2) Reserve tonnage acquired by a shall have the authority to require, in handler or transferred to a handler by its discretion and at its expense, such the committee shall be stored separate reinspection and certification of re- and apart from other raisins to such serve pool tonnage raisins as it may extent and identified in such manner as deem necessary. the committee shall specify in its rules (e) In the event the committee offers and procedures with the approval of to handlers reserve tonnage raisins for the Secretary. contract packing or for sale in export, (3) Each handler may, under the di- as provided in § 989.67, each handler rection and supervision of the com- shall be given the opportunity to pack mittee, substitute for any reserve ton- or purchase his share of each offer. nage raisins a like quantity of standard (f) Handlers shall be compensated for raisins of the same varietal type and of receiving, storing, fumigating, han- the same or more recent year’s produc- dling, and inspection of that tonnage of tion. Each such handler shall give the reserve raisins determined by the re- committee reasonable advance notice serve percentage of a crop year and of his intention to substitute, the exact held by them for the account of the location of the raisins for which substi- committee, in accordance with a sched- tution is to be made, and arrange with ule of payments established by the the committee a mutually satisfactory committee and approved by the Sec- time for the substitution. retary. A box rental shall be paid by (4) The committee may, after giving the committee to producers or handlers reasonable notice, require a handler to for boxes used in storing reserve ton- deliver to it, or to anyone designated nage raisins beyond the crop year of by it, at such handler’s warehouse or at acquisition in accordance with a rental such other place as the raisins may be schedule established by the committee stored, part or all of the reserve ton- and approved by the Secretary. The nage raisins held by such handler. Re- handler compensation shall be reserve tonnage raisins delivered by any viewed annually and shall be paid, as

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to the amount determined to be earned ducers, or their successor in interest and unpaid, as soon as practicable after thereto, on the basis of the volume of the end of the second quarter of the their respective contributions to the crop year and quarterly thereafter. reserve tonnage of such varietal type. Any handler may request the com- Distribution of the proceeds in connec- mittee, by registered or certified mail, tion with the reserve tonnage contrib- at any time after June 1 of a crop year uted by a nonprofit cooperative mar- to remove or relocate reserve tonnage keting association which has authority raisins of the current crop year which to market the raisins of its members remain in his possession. At any time and to allocate the proceeds therefrom during a crop year, a handler may re- to such members shall be made to such quest removal or relocation of reserve association. Advance or progress pay- tonnage of a prior crop year. In each ments may be made by the committee, instance, he may request that the com- in conformity with the provisions of mittee provide the necessary con- this paragraph, as sufficient funds be- tainers for any such removal or reloca- come available. tion. When so requested as to current [32 FR 12161, Aug. 24, 1967, as amended at 37 crop year raisins, the committee shall FR 19623, Sept. 21, 1972; 41 FR 32417, Aug. 3, make the removal or relocation, the 1976; 42 FR 37202, July 20, 1977; 48 FR 32977, availability of containers, storage July 20, 1983; 54 FR 34138, Aug. 18, 1989] space and time of request permitting, by September 15 of the subsequent crop § 989.67 Disposal of reserve raisins. year, and as to raisins of the prior crop (a) At the time the committee meets year, within 30 days, supplying the nec- to consider free and reserve percent- essary containers if so requested. If the ages for a crop year, the committee committee removes or relocates re- shall consider the marketing of reserve serve raisins of the current crop year tonnage raisins for the subsequent 12- pursuant to a handler’s request, and month period. The committee shall dis- such raisins are released to him by pose of all reserve tonnage in such September 15 of the subsequent crop manner as to achieve, as nearly as may year, the handler shall reimburse the be practicable, maximum disposal of committee for any costs incurred by it such raisins by the time reserve ton- in such removal or relocation. If any nage raisins from the subsequent crop handler requests removal or relocation year are available. Any reserve ton- of reserve raisins, the committee shall nage raisins held unsold by the com- immediately give notice thereof to the mittee on May 1 of the subsequent crop Secretary. year shall be physically disposed of (g) The committee shall have the au- promptly in any available outlet not thority, in its discretion, to obtain competitive with normal market chan- loans, nonrecourse or otherwise, on nels for free tonnage raisins or sales of any part of the reserve tonnage not new crop reserve tonnage raisins in ex- subject to release as desirable free ton- port: Provided, That, whenever the Sec- nage and to pledge or hypothecate the retary finds, based upon a rec- raisins on which such loans are ob- ommendation of the committee, or on tained as security therefor: Provided, the basis of information otherwise That in every such case, there shall be available to him that because of na- included in the loan agreement a provi- tional emergency, crop failure, an in- sion to the effect that, in case the lend- sufficient supply of reserve tonnage er obtains possession or control of such raisins for export, or other change of raisins, he will dispose of them in such economic or marketing conditions, re- a manner as will not tend to defeat the tention of reserve tonnage raisins car- objectives of this amended subpart. ried over is warranted, the foregoing The net proceeds of any such loan shall requirements as to disposal shall not be distributed by the committee pursu- apply and such raisins may be disposed ant to paragraph (h) of this section. of in any outlet recommended by the (h) The net proceeds from the disposi- committee and approved by the Sec- tion of reserve tonnage raisins of any retary. varietal type shall be distributed by (b) Reserve tonnage raisins shall be the committee to the respective pro- disposed of by the committee:

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(1) By sale to handlers for sale in serve tonnage to the handler’s plant of specified outlets or for resale to ex- its choice. In each offer or reoffer of re- porters for sale in export outlets; serve tonnage raisins for export, the (2) By direct sale to any agency of committee may include a quantity of the U.S. Government for noncompeti- raisins not to exceed 2 percent of the tive use; total tonnage offered in such offer or (3) By direct sale to foreign govern- reoffer, which it may sell to handlers ment agencies or foreign importers in whose regular allocation provides in- any country not listed pursuant to sufficient tonnage to fill a container- paragraph (c) of this section or where ized freight shipping container: Pro- the procurement of raisins is so regu- vided, That such sale may be made only lated as to preclude purchases from do- when the remaining portion of a han- mestic handlers; dler’s regular allocation will fill at (4) By gift; and least 50 percent of such container and (5) By any other means consistent shall be made to a handler only one with the provisions of this section, and time in each offer or reoffer of reserve in outlets noncompetitive with those tonnage raisins. No offer or reoffer for free tonnage raisins. shall be made until 5 days (exclusive of (c) The committee shall sell reserve Saturdays, Sundays, and holidays) raisins to handlers for export sale to have elapsed from the time it files with countries on a list established by the the Secretary complete information as Secretary, on the basis of the rec- to varietal type, quantity, and price in- ommendation of the committee or volved in such offer or reoffer, and the from other available information. The Secretary may disapprove the offer or list of countries shall be reviewed by reoffer or any term thereof: Provided, the committee annually when it re- That at any time prior to the expira- views matters relating to the free ton- tion of the 5-day period, the offer or nage, and shall recommend any reoffer may be made to handlers upon changes in the list to the Secretary for the committee receiving from the Sec- approval. No country may be removed retary notice that he does not dis- from the list for the purpose of permit- approve the making of the offer or ting direct sale by the committee un- reoffer. Subject to the same conditions less a finding is made by the com- as are set forth in the preceding sen- mittee and approved by the Secretary, tence with respect to the making of that such removal and subsequent di- such offer or reoffer, the committee rect sale by the committee shall not may withdraw an offer or reoffer to sell lead to disruption of sale of reserve reserve tonnage raisins to handlers or tonnage raisins by handlers in other may extend the offer or reoffer period countries on the list, and that although but not when such extension would de- handlers have been able to offer reserve prive one or more handlers of an oppor- tonnage raisins at competitive prices tunity to purchase raisins. to the country to be so removed, there (2) Except for the final offer of the re- remains an unfilled demand in such serve tonnage from a crop year, an country which has not been supplied by offer of reserve tonnage raisins for ex- handlers and which could be supplied port shall provide for a specific ton- by the committee at the same prices by nage. Each handler’s share of the re- means of direct sale. serve tonnage offered prior to Novem- (d)(1) Reserve tonnage raisins shall ber 1 of any crop year shall be deter- be sold to handlers at prices and in a mined as the same proportion of the manner intended to maximum producer quantity offered that the free tonnage returns and achieve maximum disposi- raisins acquired by him during the pre- tion of such raisins by the time reserve ceding crop year is of the free tonnage tonnage raisins from the subsequent raisins acquired by all handlers during crop year are available. The committee the preceding crop year who remain may pay the cost of transporting re- handlers. If reserve tonnage raisins serve tonnage from one handler to an- have been removed by the committee other and in the event a handler has from a handler’s premises pursuant to more than one plant, the committee § 989.66(f), such handler’s allocation of may pay the cost of transporting re- reserve pool offers subsequent to such

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removal and prior to November 1 of the and approval of handlers’ applications following crop year shall be reduced by for purchase may be made in the same the percentage such removed reserve order in which the applications are re- tonnage is of the total reserve tonnage ceived by the committee. acquired by such handler in the crop (5) Whenever a handler’s share or al- year. Subsequent to October 31, each location pursuant to this paragraph is handler’s share shall be determined as less than or exceeds his holdings of re- the same proportion of the quantity of- serve tonnage by a minor quantity, the fered that the free tonnage raisins ac- committee may adjust the handler’s quired by the handler during the then share or allocation so as to avoid the current crop year is of the total free cost of the physical transfer. The max- tonnage raisins acquired by all han- imum quantity by which a handler’s dlers during the then current crop share or allocation may be so allocated year. With respect to any offer other shall be prescribed in rules and proce- than the initial offer, each handler’s dures which the committee shall estab- share of the total quantity offered as of lish with the approval of the Secretary. that date (the then current offer plus (e) The committee may sell reserve all prior offers of that crop year) shall tonnage raisins as provided in para- first be determined by the appropriate graph (b)(3) of this section only when formula. His share of the current offer such country is not included in the list shall then be determined by sub- of specified countries established pur- tracting from his share of the total suant to paragraph (c) of this section quantity offered, the total of his share and may sell reserve tonnage raisins to of prior offers from the beginning of foreign government agencies of foreign the crop year. If any handler did not importers in any country removed acquire raisins during the preceding from such list. No agreement to sell re- crop year, the basis for his share of any serve tonnage raisins shall be entered quantity of reserve tonnage raisins of- into by the committee until 5 days (ex- fered prior to November 1 shall be his clusive of Saturdays, Sundays, and acquisitions of free tonnage raisins holidays) have elapsed from the time it during the then current crop year. The files with the Secretary complete in- current free tonnage acquisitions of all formation as to varietal type, quan- such new handler shall, for the pur- tity, price and foreign country involved poses of determining the shares of all in any such proposed sale, and the Sec- handlers prior to November 1, be added retary may disapprove such sale or any to the total acquisitions of free ton- term thereof: Provided, That, at any nage raisins during the preceding crop time prior to the expiration of the 5- year of all handlers in business at the day period, the sale may be made upon time the offer is made. the committee receiving from the Sec- (3) With respect to any offer of re- retary notice that he does not dis- serve tonnage for sale to handlers for approve the making of the sale. resale in export, the committee may (f) Whenever the committee con- provide that any such tonnage cludes that the orderly disposition of unpurchased at the end of the share reserve tonnage would be promoted by reservation period will be reoffered to the committee replacing any portion or handlers without regard to shares and all of handlers’ export shipments of that approval for handlers’ applica- free tonnage raisins, to other than free tions for purchase may be made in the tonnage outlets, made prior to the same order in which the applications committee’s first offer to sell reserve are received by the committee. Such tonnage, it may do so and may specify reoffer may be made by the committee such requirements and conditions as at the time it makes a regular offer of are necessary to carry out the replace- reserve tonnage, at any time during ment consistent with the objectives of the period a regular offer is in effect, or this amended subpart. The committee within a reasonable time after a reg- may establish a price for such replace- ular offer has expired. ment tonnage which is higher, the (4) The final offer of the reserve ton- same as, or lower than that for reserve nage from a crop year may be offered tonnage in the first offer of the crop to handlers without regard to shares year. Any such replacement offer by

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the committee shall be governed by a hearing before an appeals sub- those provisions of paragraph (d)(1) of committee established by the com- this section which prescribe prior ac- mittee. If the handler disagrees with tion by the Secretary on committee of- the subcommittee’s decisions, the han- fers to sell tonnage to handlers. dler may request the committee to re- (g)(1) The committee may, subject to view the subcommittee’s decision. The review by the Secretary, refuse to sell committee may, subject to the ap- reserve tonnage raisins for export: proval of the Secretary, establish addi- (i) To any handler who is in default tional procedures concerning appeals. on any previous purchase of reserve (h) Each packer’s share of an offer of tonnage raisins from the committee; reserve tonnage raisins for contract (ii) To any handler currently not in packing shall be determined as the compliance with the provisions of a same proportion that the reserve ton- sales agreement covering reserve tonnage raisins acquired by him is of the nage raisins, executed by such handler reserve tonnage raisins acquired by all with the committee; or packers. In the event that any packer (iii) To any handler who signifies an fails to contract for packing any or all intention to sell reserve tonnage to or of his share of any offer, the remaining through any person who has previously portion thereof shall be reoffered by failed to complete a sale of reserve ton- the committee to all packers who con- nage raisins to a foreign buyer and tracted for packing all of their respec- such raisins remain to be exported and tive shares, in proportion to their re- remain unsold to any foreign buyer in spective acquisitions: Provided, That, if an eligible export market. such amount which packers fail to con- (2) Handlers who are in default of tract for packing does not exceed 250 timely payment under any purchase tons, or if it is necessary to deviate agreement are subject to an interest from the foregoing in order to meet and late payment charge(s) rec- terms and conditions of shipment, the ommended by the committee and ap- committee may, in its discretion, allo- proved by the Secretary on the delin- cate such reserve tonnage raisins quent amount that is owed the com- among packers as it deems appropriate, mittee. The interest charge shall be but the shares of packers in subsequent the current prime rate plus 2 percent offers or reoffers shall be adjusted ac- established by the bank in which the cordingly. committee has its administrative as- (i) In the event the committee deter- sessment funds deposited, on the day mines that the applicable procedures as the amount owed becomes delinquent; specified in paragraphs (d) and (h) of and further, that such rate of interest this section will not provide an alloca- be added to the bill monthly until the tion for handlers which is suitable for a handler’s delinquent amount owed plus particular situation, the committee, applicable interest has been paid: Pro- with the approval of the Secretary, vided, That the committee, with the may establish such modifications of approval of the Secretary, may rec- procedures, consistent with § 989.66(e), ommend changes in the rate of interest as will facilitate the disposition of re- to another rate of interest. When the serve tonnage through the handlers. committee determines to change the (j) The committee shall not sell re- rate of interest or a late payment serve tonnage raisins of any varietal charge is needed, and such change is type to handlers to provide them with approved by the Secretary, the com- raisins to sell as free tonnage, other mittee shall announce the change in than as provided in § 989.54, unless it the rate of interest or the rate of late files with the Secretary complete in- payment charge through a mailing by formation and receives from the Sec- the committee to handlers. retary notice that he does not dis- (3) Appeals. If a determination is approve of such sale and that because made by the committee that a handler of: National emergency, crop failure; has not complied with the provisions of change of economic or marketing con- this section and any actions allowed ditions; free tonnage shipments during under this section are taken against the then current crop year exceeding the handler, such handler may request shipments of a comparable period of

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the prior crop year by more than 5 per- graph and in an amount equal to such cent: Provided, That, such sale of re- tonnage so lost. serve tonnage shall be limited to the [32 FR 12162, Aug. 24, 1967, as amended at 37 quantity exceeding 105 percent of ship- FR 19623, Sept. 21, 1972; 41 FR 32417, Aug. 3, ments for the first 10 months of the 1976; 42 FR 37202, July 20, 1977; 48 FR 32978, prior crop year; and/or an inadequate July 20, 1983; 51 FR 3764, Jan. 30, 1986; 54 FR carryover, the free tonnage outlets 34138, Aug. 18, 1989]

cannot be reasonably well supplied by EFFECTIVE DATE NOTE: At 62 FR 50484, the tonnage released to the industry as Sept. 26, 1997, in § 989.67, at paragraph (j), the a whole by the committee’s marketing words ‘‘by more than 5 percent’’ and ‘‘105 per- policy for that varietal type. Any cent of’’ in the first sentence were suspended quantities of reserve raisins offered to indefinitely, effective Sept. 29, 1997. handlers for free use, except as provided in § 989.54(g), may be offered to § 989.70 Storage of raisins held on memorandum receipt and of pack- them on the basis of handler shipments er-owned tonnage. or acquisitions in the same manner as in paragraph (d)(1) of this section. If of- All raisins stored by a handler for an- fered on the basis of acquisitions, other person on memorandum or ware- shares shall be determined pursuant to house receipt, or raisins produced and paragraph (d)(2) of this section. If of- stored by a handler, shall be stored sep- fered on the basis of shipments, the arate and apart from other raisins and same formula shall be used, except that shall be clearly marked or tagged as shipments shall be used as the basis in- raisins stored on memorandum or stead of acquisitions in computing han- warehouse receipt or as raisins pro- dlers’ shares. However, such raisins duced by the handler but not acquired shall not be sold at a price below that by him in his capacity as a handler. which the committee concludes re- § 989.71 Disposition of unsold reserve flects the average price received by tonnage in above parity situations. producers for free tonnage of the same varietal type purchased by handlers In the event that the Secretary during the current crop year up to the should find, during a crop year when time of any offer for sale of reserve reserve tonnage percentages have been tonnage by the committee, to which designated and are in effect pursuant shall be added the costs to the equity to this part, that the estimated season holders incurred by the committee on average price for raisins for that crop account of receiving, inspecting, stor- year will be in excess of the price level ing, fumigating, insuring, and holding contemplated by the provisions of sec- of said raisins, and including costs of tion 2(1) of the act, he shall issue an taxes and interest: Provided, That, order providing for the orderly disposi- where the outlook for the next crop tion of the unsold reserve tonnage then on hand, in such outlets, at such times, year or other factors have caused a and in accordance with such terms and downward trend in the prices received conditions, as he may determine to be by producers for free tonnage raisins or appropriate in the circumstances. In in the prices received by handlers for determining the liquidation procedures free tonnage packed raisins, reserve and terms, the Secretary shall give tonnage may be sold to handlers at the consideration to the data and rec- currently prevailing or the approxi- ommendations, if any, which may be mate computed field price for free ton- submitted by the committee. nage raisins, as determined by the committee. The committee may sell [32 FR 12164, Aug. 24, 1967] reserve tonnage raisins of any varietal type to any handler to provide him § 989.72 Exemption of educational in- with raisins to sell as free tonnage if stitutions. such handler has lost all or part of his The committee may exempt, wholly free tonnage because of fire or other or in part, from the volume regulation disaster beyond his control subject to provisions of this part, that volume of the applicable provisions of this para- raisins received or acquired by public

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or private educational agencies or in- paid advertising as recommended by stitutions incidental to or in connec- the Committee and approved by the tion with teaching, experimental, or Secretary. research activities. (d) Other reports. Upon the request of the committee, with the approval of REPORTS AND RECORDS the Secretary, each handler shall furnish to the committee such other infor- § 989.73 Reports. mation as may be necessary to enable (a) Inventory reports. Each handler it to exercise its powers and perform shall, upon request of the committee, its duties under this amended part. file promptly with the committee a certified report, showing such informa- [25 FR 12813, Dec. 14, 1960, as amended at 32 tion as the committee shall specify FR 12164, Aug. 24, 1967; 32 FR 18086, Dec. 19, 1967; 48 FR 32978, July 20, 1983] with respect to any raisins which were held by him on a date designated by § 989.75 Confidential information. the committee, which information as specified may include, but not be lim- All reports and records furnished or ited to: submitted by a handler to the com- (1) The quantity of any raisins so mittee shall be received by, and at all held, segregated as to varietal type, times kept under the custody or con- natural condition, packed, standard trol of, one or more employees of the quality or off-grade quality; and committee, who shall disclose to no (2) The locations of the raisins. person, except the Secretary upon re- (b) Acquisition reports. Each handler quest therefor, data or information ob- shall submit to the committee in ac- tained or extracted therefrom which cordance with such rules and proce- would constitute a trade secret or the dures as are prescribed by the com- disclosure of which might affect the mittee, with the approval of the Sec- trade position, financial condition, or retary, certified reports, for such peri- business operations of the particular ods as the committee may require, handler from whom received: Provided, with respect to his acquisitions of each That the committee may require such varietal type of raisins during the par- an employee to disclose to it, or to any ticular period covered by such report, person designated by it or by the Sec- which report shall include, but not be retary, information and data of a gen- limited to: (1) The total quantity of eral nature, compilations of data af- standard raisins acquired; (2) the quan- fecting handlers as a group, and any tity of reserve tonnage referable to his data affecting one or more handlers, so acquisitions of standard raisins; (3) the long as the identity of the individual locations of such reserve tonnages; (4) handlers involved is not disclosed. the total quantity of off-grade raisins acquired pursuant to § 989.58(e)(1)(i), § 989.76 Records. and (5) cumulative totals of such acqui- Each handler shall maintain such sitions from the beginning of the then records of all raisins received, and of current crop year to and including the all raisins acquired, by him as pre- end of the period for which the report scribed by the committee. Such records is made. Upon written application shall include, but not be limited to, the made to the committee, a handler may quantity of raisins of each varietal be relieved of submitting such reports type acquired from each person and the after completing his packing oper- name and address of each such person, ations for the season. Upon request of total acquisitions, total sales, and the committee, each handler shall fur- total other disposition of each varietal nish to the committee, in such manner type which he handles, and each han- and at such times as it may require, dler shall maintain such records for at the name and address of each person least two years after the termination from whom he acquired raisins and the of the crop year in which the trans- quantity of each varietal type of rai- actions occurred. The Committee, with sins acquired from each such person. the approval of the Secretary, may pre- (c) Each handler shall file such re- scribe rules and regulations to include ports of creditable promotion including under this section handler records that

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detail promotion and advertising ac- be fixed pursuant to § 989.80, together tivities which the Committee may need with a report thereon. Such filing shall to perform its functions under § 989.53. be not later than October 5 of the crop year, but this date may be extended by [25 FR 12813, Dec. 14, 1960, as amended at 48 FR 32978, July 20, 1983] the committee not more than 5 days if warranted by a late crop. Also it shall § 989.77 Verification of reports and file at the same time a proposed budget records. of the expenses likely to be incurred For the purpose of checking and during the crop year in connection verifying reports filed by handlers and with reserve raisins held for the ac- records prescribed in or pursuant to count of the committee, exclusive of this amended subpart, the committee, the receiving, storing, fumigating, and through its duly authorized representa- handling expenses which are covered by tives, shall have access to any han- a schedule of payments to handlers ef- dler’s premises during regular business fective pursuant to § 989.66(f) or any hours and shall be permitted at any rules and procedures established by the such times to inspect such premises committee, and exclusive of any ex- and any raisins held by such handler, penses it may incur in connection with and any and all records of the handler the disposition of such raisins and with respect to the holding or disposi- which are unknown at the time. The tion of raisins by him and promotion said report shall also cover this pro- and advertising activities conducted by posed budget. handlers under § 989.53. Each handler [32 FR 12165, Aug. 24, 1967, as amended at 41 shall furnish all labor and equipment FR 32417, Aug. 3, 1976; 42 FR 37202, July 20, necessary to make such inspections. 1977] Each handler shall store raisins in a manner which will facilitate inspec- § 989.80 Assessments. tion, and shall maintain storage (a) Each handler shall, with respect records which will permit accurate to free tonnage acquired by him, and identification of raisins held by him or any reserve tonnage released or sold to theretofore disposed of. Insofar as is him for use in free tonnage outlets, pay practicable and consistent with the to the committee, upon demand, his carrying out of the provisions of this pro rata share of the expenses (exclu- amended subpart, all data and informa- sive of expenses for receiving, fumigat- tion obtained or received through ing, handling, holding or disposing of checking and verification of reports reserve pool tonnage) which the Sec- and records shall be treated as con- retary finds will be incurred, as afore- fidential information. said, by the committee during each [25 FR 12813, Dec. 14, 1960, as amended at 48 crop year less any amounts credited FR 32978, July 20, 1983] pursuant to § 989.53. Such handler’s pro rata share of such expenses shall be EXPENSES AND ASSESSMENTS equal to the ratio between the total free tonnage acquired by such handler § 989.79 Expenses. plus any reserve tonnage released or The committee is authorized to incur sold to him for use as free tonnage, such expenses (other than those speci- during the applicable crop year and the fied in § 989.82) as the Secretary finds total free tonnage acquired by all han- are reasonable and likely to be in- dlers plus all reserve tonnage released curred by it during each crop year, for or sold to all handlers for use as free the maintenance and functioning of the tonnage, during the same crop year: committee and for such purposes as he Provided, That (1) in computing the may, pursuant to this subpart, deter- total free tonnage acquired by a par- mine to be appropriate. The funds to ticular handler, there shall be excluded cover such expenses shall be obtained all standard raisins (recovered by the levying assessments as provided in reconditioning of offgrade raisins) ac- § 989.80. The committee shall file with quired by the handler and which com- the Secretary for each crop year a pro- prise the assessable portion of another posed budget of these expenses and a handler pursuant to paragraph (b) of proposal as to the assessment rate to this section, and (2) the computation of

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the total free tonnage acquired by all (d) Each handler shall, with respect handlers shall not be similarly reduced. to administrative assessments not paid (b) Each handler who reconditions within 30 calendar days of the date of offgrade raisins but does not acquire the Committee’s invoice, pay to the the standard raisins recovered there- Committee interest on the unpaid as- from shall, with respect to his assess- sessment at the rate of the prime rate able portion of all such standard rai- established by the bank in which the sins, pay to the committee, upon de- Committee has its administrative as- mand, his pro rata share of the ex- sessment funds deposited, on the day penses which the Secretary finds will that the administrative assessment be- be incurred by the committee each comes delinquent plus 2 percent; and crop year. Such handler’s pro rata further, that such rate of interest be share of such expenses shall be equal to added to the bill monthly until the de- the ratio between the handler’s assess- linquent handler’s assessment plus ap- able portion (which shall be a quantity plicable interest has been paid: Pro- equal to the free tonnage portions of vided, That the Committee may, with such handler’s standard raisins which the approval of the Secretary, modify are acquired by some other handler or the interest rate applicable to delin- handlers) during the applicable crop quent handler’s assessment through year and the total free tonnage ac- the establishment of applicable rules quired by all handlers, plus all reserve and regulations. tonnage released or sold to all handlers [29 FR 9484, July 11, 1964, as amended at 32 for use as free tonnage, during the FR 12165, Aug. 24, 1967; 42 FR 37202, July 20, same crop year. 1977; 48 FR 32978, July 20, 1983] (c) During any crop year or any portion of a crop year for which volume § 989.81 Accounting. percentages are not effective for a vari- (a) If, at the end of the crop year, the etal type, all standard raisins of that assessments collected for such crop varietal type acquired by handlers dur- year exceed the expenses incurred with ing such period shall be free tonnage respect to such crop year, each han- for purposes of levying assessments dler’s share of such excess shall be pursuant to this section. The Secretary credited to him against, and may be shall fix the rate of assessment to be used for, the operations of the fol- paid by all handlers on the basis of a lowing crop year, unless such handler specified rate per ton. At any time dur- demands payment thereof, in which ing or after a crop year, the Secretary case his share shall be paid to him. may increase the rate of assessment to (b) The committee may, with the ap- obtain sufficient funds to cover any proval of the Secretary, maintain in its later finding by the Secretary relative own name or in the name of its mem- to the expenses of the committee. Each bers, a suit against any handler for the handler shall pay such additional as- collection of such handler’s pro rata sessment to the committee upon de- share of the expenses. mand. In order to provide funds to carry out the functions of the com- § 989.82 Expenses of reserve raisin op- mittee, the committee may accept ad- erations. vance payments from any handler to be The committee is authorized to incur credited toward such assessments as such expenses as are reasonable and are may be levied pursuant to this section necessary in discharging its obliga- against such handler during the crop tions, pursuant to this part, with re- year. The payment of assessments for spect to the receiving, fumigating, han- the maintenance and functioning of the dling, holding, or disposing of any committee, and for such purposes as quantity of reserve pool raisins held for the Secretary may pursuant to this the account of the committee. The subpart determine to be appropriate, committee is authorized to pay any may be required under this part taxes assessed against raisins held by throughout the period it is in effect, ir- or for the account of the committee on respective of whether particular provi- March 1, or such assessment date as sions thereof are suspended or become later changed and then in effect, in the inoperative. reserve pool established pursuant to

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this subpart: Provided, That any equity thereof to any other person, cir- holder may pay his taxes upon giving cumstance, or thing shall not be af- notice to the committee on or before fected thereby. May 1 of each year of his intention to do so. All pool expenses shall be de- § 989.87 Derogation. ducted from the proceeds obtained by Nothing contained in this amended the committee from the sale or other subpart is, or shall be construed to be, disposal of such reserve raisins held for in derogation or in modification of the the account of the committee. rights of the Secretary or of the United [32 FR 12165, Aug. 24, 1967, as amended at 37 States to exercise any powers granted FR 19624, Sept. 21, 1972; 42 FR 37202, July 20, by the act or otherwise, or, in accord- 1977] ance with such powers, to act in the premises whenever such action is § 989.83 Funds. deemed advisable. All funds received by the committee pursuant to the provisions of this part, § 989.88 Duration of immunities. shall be used solely for the purposes The benefits, privileges, and immuni- authorized, and shall be accounted for ties conferred upon any person by vir- in the manner provided, in this part. tue of this amended subpart shall cease The Secretary may, at any time, re- upon the termination of this amended quire the committee and its members subpart, except with respect to acts and alternate members to account for done under and during the existence of all receipts and disbursements. this subpart.

MISCELLANEOUS PROVISIONS § 989.89 Agents. § 989.84 Disposition limitation. The Secretary may, by a designation in writing, name any person, including No handler shall dispose of free or re- any officer or employee of the United serve tonnage raisins, offgrade raisins, States Government, or name any bu- or other failing raisins, except in ac- reau or division in the United States cordance with the provisions of this Department of Agriculture, to act as subpart or pursuant to regulations his agent or representative in connec- issued by the committee. tion with any of the provisions of this [32 FR 12165, Aug. 24, 1967, as amended at 42 amended subpart. FR 37202, July 20, 1977] § 989.90 Effective time. § 989.85 Personal liability. The provisions of this amended sub- No member or alternate member of part, as well as any amendments to the committee or any employee or this amended subpart shall become ef- agent thereof shall be held personally fective at such time as the Secretary responsible, either individually or may declare, and shall continue in jointly with others, in any way whatso- force until terminated, or during sus- ever, to any handler or any person, for pension, in one of the ways specified in errors in judgment, mistakes, or other § 989.91. acts either of commission or omission, as such member, alternate member, § 989.91 Suspension or termination. employee, or agent, except for acts of (a) The Secretary may, at any time, dishonesty. terminate the provisions of this [41 FR 32417, Aug. 3, 1976, as amended at 48 amended subpart by giving at least one FR 32978, July 20, 1983] day’s notice by means of a press release or in any other manner which he may § 989.86 Separability. determine. If any provision of this amended sub- (b) The Secretary shall terminate or part is declared invalid, or the applica- suspend the operation of any or all of bility thereof to any person, cir- the provisions of this amended subpart, cumstance, or thing is held invalid, the whenever he finds that such provisions validity of the remainder of this do not tend to effectuate the declared amended subpart or the applicability policy of the act.

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(c) The Secretary shall terminate the shall be subject to the same obligations provisions of this amended subpart at imposed upon the members of the said the end of any crop year whenever he committee and upon said joint trust- finds that such termination is favored ees. by a majority of the producers who, during a representative period deter- § 989.93 Effect of termination or mined by the Secretary, have been en- amendment. gaged in the production for market of Unless otherwise expressly provided grapes used in the production of raisins by the Secretary, the termination of in the State of California: Provided, this amended subpart or any regulation That such majority have, during such representative period, produced for issued pursuant to this amended sub- market more than 50 percent of the part, or the issuance of any amend- volume of such grapes produced for ment to either thereof, shall not (a) af- market within said State; but such ter- fect or waive any right, duty, obliga- mination shall be effective only if an- tion, or liability which shall have aris- nounced before July 31 of the then cur- en or which may thereafter arise in rent crop year. connection with any provision of this (d) The provisions of this amended amended subpart or any regulation subpart shall, in any event, terminate issued under this amended subpart, (b) whenever the provisions of the act au- release or extinguish any violation of thorizing them cease to be in effect. this amended subpart, or of any regula- [25 FR 12813, Dec. 14, 1960, as amended at 41 tion issued under this amended sub- FR 32417, Aug. 3, 1976] part, or (c) affect or impair any rights or remedies of the Secretary or of any § 989.92 Proceedings after termination. other person, with respect to any such (a) Upon the termination of the pro- violation. visions of this amended subpart, the members of the committee then func- § 989.94 Amendments. tioning shall continue as joint trustees Amendments to this amended sub- for the purpose of liquidating the af- part may be proposed from time to fairs of the committee, of all funds and time, by any person or by the com- property then in the possession or mittee. under the control of the committee, including claims for any funds unpaid or § 989.95 Right of Secretary. property not delivered at the time of such termination. Action by said trust- The members of the committee (in- eeship shall require the concurrence of cluding alternates and successors) and a majority of the said trustees. any agent or employee appointed or (b) Said trustees shall continue in employed by the committee, shall be such capacity until discharged by the subject to removal or suspension by Secretary; shall, from time to time, ac- the Secretary, in his discretion, at any count for all receipts and disburse- time. Every decision, determination, or ments and deliver all property on hand, other act of the committee shall be together with all books and records of subject to the continuing right of the the committee and the joint trustees, Secretary to disapprove of the same at to such person as the Secretary may any time. Upon such disapproval, the direct; and shall, upon the request of disapproved action of the committee the Secretary, execute such assign- shall be deemed null and void. ments or other instruments necessary or appropriate to vest in such person [41 FR 32417, Aug. 3, 1976, as amended at 48 full title and right to all of the funds, FR 32978, July 20, 1983] property, and claims vested in the committee or the joint trustees pursuant Subpart—Administrative Rules and to this subpart. Regulations (c) Any person to whom funds, property or claims have been transferred or delivered by the committee or its SOURCE: 27 FR 3112, Mar. 31, 1962, unless members, pursuant to this section, otherwise noted.

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DEFINITIONS ards, then, whether such quantity shall be one or more lots shall be determined § 989.102 Inspection service. in the same manner as for the failing Inspection service means the Proc- remainder referred to in paragraph essed Products Branch, Fruit and Vege- (a)(4) of this section. table Division, Agricultural Marketing (6) Special condition. Notwithstanding Service of the United States Depart- other provisions of this section, any ment of Agriculture. quantity of raisins failing to meet such [49 FR 18730, May 2, 1984] standards and which are not to be reconditioned may be a single lot. § 989.104 Lot. (b) Packed raisins. For the purpose of (a) Natural condition raisins—(1) Basic outgoing inspection of packed raisins, definition. For the purpose of incoming lot means: (1) For in-line inspection and outgoing inspection of natural con- (i.e., where samples are drawn from a dition raisins, lot means, except as oth- flow of raisins prior to packaging), the erwise provided in this paragraph, the aggregate quantity of raisins of the quantity of such raisins of the same va- same varietal type, subtype, or size (or rietal type or of differing varietal in their mixed form), processed in any types when commingled within their continuous production of one calendar containers (including sweat and pick- day and packaged in one size and style ing boxes and bins), which does not ex- of package but excluding those rejected ceed a car, truck, or truck-trailer load, by inspection; and (2) for floor inspec- and which is submitted for inspection tion (i.e., where samples are drawn at one time and in the same place. from containers of raisins), the aggre- (2) Separation of large units. If a quan- gate quantity of such raisins in like tity of raisins in excess of a car, truck, containers but not necessarily proc- or truck-trailer load is submitted for essed in one continuous production or inspection, the total quantity may, at during one calendar day, identifiable the discretion of the inspector, be sepa- and offered for inspection as a lot. rated into such readily identifiable portions, either prior to or in the § 989.105 Inspection point. course of inspection, as can be conven- Inspection point means any plant or iently and properly inspected, and each receiving station of a handler, or any such portion shall constitute a lot. other place where raisins are received (3) Resubmission after reconditioning. Raisins which are submitted for inspec- by a handler, and which is so des- tion after reconditioning (such as sort- ignated by the Committee. The inspec- ing or drying) and whose original lot tion point(s) of the handler shall in- identity is no longer applicable, shall clude any area(s) in which he receives be a new lot. grapes or raisins for dehydration unless (4) Meeting and failing portions. Where he keeps his raisin dehydration busi- a portion of a quantity of raisins sub- ness separate, physically and by mitted for inspection meets the min- records, from his business of handling imum grade and condition standards raisins. and has been separated from the re- [31 FR 16305, Dec. 21, 1966] mainder of the raisins failing to meet such standards: § 989.106 Ship. (i) The meeting portion shall be one lot; and Ship means the physical movement of (ii) The remainder shall be one or raisins other than to storage for the more lots as necessary to cause each handler’s account within the general lot to contain either (a) a single defect locality of the packing plant. in excess of tolerance or (b) two or more of the same defects in excess of § 989.107 Inspection certificate. tolerance occurring together within Inspection certificate means any writ- each of the individual containers. ten certification, finding, or attesta- (5) Entire quantity failing. Where the tion as to the quality or condition of entire quantity of raisins submitted for any lot or lots issued by an authorized inspection fails to meet such stand- member of the inspection service.

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§ 989.110 Varietal types. section which have been artificially dehydrated and sulfured. Pursuant to § 989.10, specific definitions for each varietal type of raisins [49 FR 18730, May 2, 1984, as amended at 53 contained in that section are as fol- FR 34714, Sept. 8, 1988; 55 FR 32598, Aug. 10, 1990; 67 FR 36792, May 28, 2002; 68 FR 42947, lows: July 21, 2003] (a) Natural (sun-dried) Seedless includes all sun-dried seedless raisins § 989.111 Independent producer and possessing similar identifiable charac- small cooperative producer. teristics as raisins produced from (a) Independent producer means any Thompson Seedless grapes or similar producer who is not a member of a co- grape varieties, whether dried on trays operative bargaining association or a or on the vine, with or without the ap- cooperative marketing association, nor plication of a drying agent that is a has sold for cash to a cooperative mar- food-grade additive such as, soda, oil, keting association. Ethyl Oleate, or Methyl Oleate prior (b) Small cooperative producer means to, during, or after the drying process. any producer who is a member of a co- (b) Dipped Seedless includes all rai- operative marketing association which sins produced by artificial dehydration acquired less than 10 percent of total raisin acquisitions during the crop year of seedless grapes that possess the preceding the year in which nomina- characteristics similar to Thompson tions are held. Seedless grapes which, in order to expedite drying, have been dipped in or [49 FR 18730, May 2, 1984] sprayed with water only after such grapes have been removed from the § 989.115 Independent handler, major cooperative marketing association vine. handler, and small cooperative mar- (c) Golden Seedless includes all seed- keting association handler. less raisins whose color generally var- (a) Independent handler means any ies from golden yellow to dark amber. handler who is not a cooperative mar- (d) Muscats (including other raisins keting association of producers. with seeds) include all raisins which (b) Major cooperative marketing asso- usually contain seeds and possess char- ciation handler means any handler who acteristics similar to Muscat raisins. is a cooperative marketing association (e) Sultana includes all raisins which of producers which acquired not less usually contain an undeveloped (ves- than 10 percent of the total raisin ac- tigial) seed and possess characteristics quisitions during the crop year pre- similar to Sultana raisins. ceding nominations. (f) Zante Currant includes all raisins (c) Small cooperative marketing associa- that possess characteristics similar to tion handler means any handler who is those produced from Black Corinth or a cooperative marketing association of White Corinth grapes. producers which acquired less than 10 (g) Monukka includes all raisins pro- percent of the total raisin acquisitions duced from Monukka grapes. during the crop year preceding nominations. (h) Other Seedless includes all raisins produced from Ruby Seedless, Kings [49 FR 18730, May 2, 1984] Ruby Seedless, Flame Seedless and other seedless grapes not included in RAISIN ADMINISTRATIVE COMMITTEE any of the varietal categories for Seed- § 989.122 Districts for independent and less raisins defined in paragraphs (a), small cooperative producer rep- (b), (c), (d) or (h) above. resentation on the Committee. (i) Other Seedless-Sulfured includes For the purposes of § 989.26(c) and all raisins produced from Ruby Seed- commencing with the term of office be- less, Kings Ruby Seedless, Flame Seed- ginning May 1, 1984, independent and less and other seedless grapes not in- small cooperative producer districts cluded in any of the varietal categories are as follows: for Seedless raisins defined in para- (a) District No. 1. All of the counties graphs (a), (b), (c), (d), (h), or (i) of this north of Fresno County.

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(b) District No. 2. All of the counties § 989.29(b)(2) shall be eligible to cast one south of Fresno County. vote for a nominee for each producer (c) District No. 3 All of Fresno County. member position and one vote for a [49 FR 18730, May 2, 1984] nominee for each producer alternate member position on the committee § 989.126 Representation of the Com- which is to be filled for his district. mittee. Such person must be the one who or (a) To provide independent and small which: (a) Owns and farms land result- cooperative producers equitable rep- ing in his or its ownership of such resentation throughout the production grapes produced thereon; (b) rents and area commencing with the term of of- farms land, resulting in his or its own- fice beginning May 1, 1984, representa- ership of all or a portion of such grapes tion shall be apportioned among the produced thereon; or (c) owns land three districts specified in § 989.122. Dis- which he or it does not farm and, as tricts 1 and 2 shall each have one pro- rental for such land, obtains the owner- ducer member, and District 3 shall ship of a portion of such grapes or the have the remaining producer members raisins. In this connection, a partner- to which independent and small cooper- ship shall be deemed to include two or ative producers are entitled pursuant more persons (including a husband and to § 989.26(c). wife) with respect to land the title to (b) Pursuant to section 989.26(d) and which, or leasehold interest in which, commencing with the term of office be- is vested in them as tenants in com- ginning May 1, 1994, apportionment of mon, joint tenants, or under commu- the independent and small cooperative nity property laws, as community marketing association handlers shall property. In a landlord-tenant relation- be: ship, wherein each of the parties is a (1) Two members selected from and producer, each such producer shall be representing the four handler(s) other entitled to one vote for a nominee for than major cooperative marketing as- each producer member position and one sociation handler(s) who acquired the vote for each producer alternate mem- largest percentage of the total raisin ber position. Hence, where two persons acquisitions during the preceding crop operate land as landlord and tenant on year; a share-crop basis, each person is enti- (2) Three members selected from and tled to one vote for each such position representing the six handlers other to be filled. Where land is leased on a than major cooperative marketing as- cash rental basis, only the person who sociation handler(s) who acquired the is the tenant or cash renter (producer) next largest percentage of the total raisin acquisitions during the pre- is entitled to vote. A partnership or ceding crop year; and corporation, when eligible, is entitled (3) The remaining member(s) selected to cast only one vote for a nominee for from and representing all other han- each producer position to be filled in dlers, including small cooperative mar- its district. keting association handler(s) and all [38 FR 10076, Apr. 24, 1973, as amended at 42 processors. FR 52376, Sept. 30, 1977] [49 FR 18730, May 2, 1984, as amended at 59 FR 27226, May 26, 1994] § 989.139 Compensation for attendance of alternates at Committee meet- § 989.129 Voting at nomination meetings. ings. Whenever a member of the Raisin Ad- Any person (defined in § 989.3 as an ministrative Committee has reason to individual, partnership, corporation, believe that he will be unable to attend association, or any other business unit) a Committee meeting and has so noti- who is engaged, in a proprietary capac- fied his alternate or the Committee ity, in the production of grapes which manager, such notification or a request are sun-dried or dehydrated by artifi- from the manager shall be held to be a cial means to produce raisins and who request for the alternate to attend and qualifies under the provisions of he shall be reimbursed for reasonable

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expenses subject to the limitations § 989.156 Raisin diversion program. contained in § 989.39. (a)(1) Quantity to be diverted. On or be- [42 FR 52376, Sept. 30, 1977, as amended at 49 fore November 30 of each crop year, the FR 18731, May 2, 1984] Committee, with the approval of the Secretary, shall announce the quantity MARKETING POLICY of raisins eligible for a raisin diversion program: Provided, That, for the 2003 § 989.154 Marketing policy computa- diversion program, this date may be tions. extended by the Committee to a later (a) Desirable carryout levels. The desir- date within the 2002–03 crop year. On or able carryout level to be used in com- before January 15 of each crop year, puting and announcing a crop year’s the Committee, with the approval the marketing policy for Natural (sun- Secretary, may announce an increase dried) Seedless raisins shall be equal to in the tonnage eligible for a raisin di- the total shipments of free tonnage version program: Provided, That, for the 2002 Natural (sun-dried) Seedless during August and September for each raisin diversion program, the Com- of the past 5 crop years, converted to a mittee may announce an increase in natural condition basis, dropping the the quantity of tonnage eligible for the high and low figures, and dividing the program later than January 15: And remaining sum by three, or 60,000 nat- provided further, That, for the 2003 and ural condition tons, whichever is high- subsequent raisin diversion programs, er. The desirable carryout level to be the Committee, with the approval of used in computing and announcing a the Secretary, may announce an in- crop year’s marketing policy for all crease in the tonnage eligible for a rai- other varietal types of raisins specified sin diversion program on or before May in § 989.110 shall be equal to the total 1 of each crop year. The quantity eligi- shipments of free tonnage during Au- ble for diversion may be announced for gust, September, and one-half of Octo- any of the following varietal types of ber for each of the past 5 crop years, raisins: Natural (sun-dried) Seedless, for each such varietal type, converted Muscat (including other raisins with to a natural condition basis, dropping seeds), Sultana, Zante Currant, the high and low figures, and dividing Monukka, and Other Seedless raisins. the remaining sum by three. At the same time, the Committee, with (b) Estimated trade demand. Pursuant the approval of the Secretary, shall de- to § 989.54 (e)(4), estimated trade determine and announce to producers, mand is a figure different than the handlers, and the cooperative bar- trade demand computed according to gaining association(s) the allowable the formula in § 989.54(a). The Com- harvest cost to be applicable to such mittee shall use an estimated trade de- diversion tonnage. The factors to be re- mand to compute preliminary and in- viewed by the Committee in deter- terim free and reserve percentages, or mining allowable harvest costs shall determine such final percentages for include but not be limited to: Costs for recommendation to the Secretary for picking, turning, rolling, boxing, paper 2007–08 crop Natural (sun-dried) Seed- trays, vineyard terracing, hauling to less (NS) raisins if the crop estimate is the handler, and crop insurance. equal to, less than, or no more than 10 (2) Additional provisions. For any crop percent greater than the computed year’s diversion program, the Com- mittee, with the approval of the Sec- trade demand: Provided, That the final retary, may: reserve percentage computed using (i) Limit the entire program to pro- such estimated trade demand shall be duction units on which producers agree no more than 10 percent, and no re- to remove vines; serve shall be established if the final (ii) Limit a portion of the program to 2007–08 NS raisin crop estimate is less production units on which producers than 215,000 natural condition tons. agree to remove vines; [64 FR 43902, Aug. 12, 1999, as amended at 65 (iii) Limit the production cap to a FR 44408, July 18, 2000; 67 FR 52393, Aug. 12, percentage (less than or equal to 100 2002; 72 FR 54347, Sept. 25, 2007] percent) of the yield per acre of the

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specific production unit for production property tax bill; or any other docu- units on which producers agree to di- ment containing an Assessors Parcel vert production by methods other than Number: Provided, That, for the 2003 di- vine removal; version program, this date may be ex- (iv) Limit participation in a vine re- tended by the Committee to a later moval program to producers who agree date within the 2002–03 crop year. Such not to replant raisin-variety vines for a application shall include at least the period not to exceed 5 years and who following information: agree to compensate the Committee for (1) The name, address, and telephone appropriate damages if raisin-variety number of the producer; vines are replanted. Damages collected (2) The location and size of the pro- by the Committee pursuant to this sub- duction unit to be diverted; paragraph shall be deposited in the re- (3) The raisin production by varietal serve pool fund of the reserve pool ap- type on such production unit during plicable to the particular diversion the prior crop year or the last crop program and be distributed to the eq- year eligible for such diversion; uity holders in that pool: Provided, (4) The handler to whom such raisins That, if such reserve pool has been were delivered; closed and equity distributed, damages collected shall be deposited in the next (5) A statement identifying whether open reserve pool of the crop year clos- the applicant will remove the vines in est to the applicable diversion pool. If the production unit under the program; a determination is made by the Com- (6) A statement that all persons with mittee that a producer violated the an equity interest in the grapes in the agreement not to replant and is subject production unit to be diverted, in the to damages, the producer may appeal vines, or the land on which the grapes the Committee’s decision in accord- were produced consent to the filing of ance with paragraph (m) of this sec- the application. tion; (7) A statement that the producer (v) Specify how tonnage available to agrees to comply with the regulations producers who agree to divert produc- established for a raisin diversion pro- tion by means other than through vine gram. removal will be allotted, either pro- The producer applicant shall sign the rata to remaining applicants, or by lot- application certifying that the infor- tery to remaining applicants for com- mation contained therein is true and plete production units if a minimal correct. amount of tonnage remains; and/or (c) Handling of applications. After the (vi) Limit a program that is applica- Committee receives the producer appli- ble to partial production units by cations, it shall review them to deter- specifying the portion of the produc- mine whether all the required information units that can be diverted, or like tion has been provided and appears re- provisions to maintain the integrity of liable. Any incomplete application the program. shall be returned to the producer appli- Additional provisions provided pursu- cant for correction together with a ant to this paragraph shall be an- statement of the error or omission in nounced at the time the tonnage avail- the application. The applicant shall able for that season’s diversion pro- have a reasonable opportunity to cor- gram is announced. rect such application. However, such (b) Application for diversion certifi- correction must be received by the cates. Any producer desiring to partici- Committee on or before January 12: pate in a raisin diversion program shall Provided, That, for the 2003 diversion file with the Committee, by certified program, this date may be extended by mail, prior to December 20 of the crop the Committee to a later date within year, an application on Form RAC– the 2002–03 crop year. 1000, ‘‘Application for a Raisin Diver- (d) Priority of applications and alloca- sion Program’’ together with a copy of tion of tonnage. (1) Those producer ap- any two of the following four docu- plications indicating that the vines on ments: Plot Map from the County Hall the producing units will be removed of Records; irrigation tax bill; county shall receive first priority over other

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applications when reserve tonnage (g) Verification. Any applicant whose under the program is to be allocated. application has been approved, author- (2) Pursuant to paragraphs (a)(2)(i) izes Committee representatives and and (a)(2)(ii) of this section, if the en- agents to have access to the production tire program, or a portion of the pro- unit in the diversion program during gram, is limited to production units on reasonable business hours during the which producers agree to remove vines, crop year to confirm compliance with and the production volume in such vine the program. Notice will be provided to removal applications exceeds the the applicant of such visits. amount of diversion tonnage available (h) Compliance—(1) Methods of diver- for vine removal, a lottery will be held sion. An approved applicant shall be re- to allocate such vine removal tonnage quired to remove the vines, spur-prune among the respective applicants. the vines, remove the bunches or take (3) Remaining tonnage available other means to preclude grapes from under a diversion program, after that being produced and harvested on the allocated to producer applications indi- production unit: Provided, That vine re- cating that the vines of the producing moval may be the only means of diver- units will be removed, shall be allo- sion in some seasons as determined and cated by the Committee either: announced by the Committee. Bunches (i) Pro-rata to remaining applicants; which occur on vines in an approved or production unit shall be removed and (ii) To remaining applicants by a lot- destroyed by the applicant before ma- tery for complete production units, if a turity. If the Committee representa- minimal amount of tonnage remains. tives or agents determine that there is In conducting any lottery under this an average of more than four bunches section, the Committee may group proper vine remaining on an approved producer applications on a handler-by- duction unit, the producer shall be no- handler basis, and separate lotteries tified immediately by certified mail, in will be held for each group. The diver- writing, and given 2 weeks to remove sion tonnage of raisins available for such bunches. Grafting vines of one va- each such group in each lottery may rietal type to another varietal type not exceed the percentage of total han- does not constitute removal of vines dler acquisitions acquired by the under the program. group’s handler during the previous (2) Period of diversion. An approved crop year. If diversion tonnage exists applicant must remove the grapes, or after such group lotteries, such re- vines, indicated on the application maining diversion tonnage may be al- within the production unit, or portion located by one lottery of all remaining thereof, designated within the applica- producer applications. tion not later than June 1 of the crop (e) Approval of applications. The Com- year in which a diversion program is mittee shall notify the applicant for di- implemented. Producers who remove version, in writing, as to whether or not the application has been approved. the vines on a production unit after If the application is not approved, the August 15 may qualify for a diversion notification shall state the reason(s) program for that crop year if a diver- for disapproving the application. sion program is announced and if diver- (f) Disclosure of information. The ap- sion on that unit and vine removal plicant, whose application has been ap- after August 15 can be documented and proved, agrees that by participating in verified. the raisin diversion program, the infor- (3) Failure to divert. Any raisin pro- mation in the application may be dis- ducer who does not take the necessary closed to the Committee, its represent- measures to remove the grapes on an atives, or agents. The Committee, its approved production unit, or portion representatives, or agents may not use thereof, by June 1, or any raisin pro- this information for any personal use ducer who has indicated the removal of and shall comply with all applicable vines or the intent to remove the vines provisions pertaining to the unauthor- and who does not remove such vines on ized disclosure of such information. an approved production unit by June 1,

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shall not be issued a diversion certifi- raisins from the Committee. To redeem cate, may be subject to liquidated dam- a certificate, a handler must present ages and interest charges as provided the diversion certificate to the Com- in paragraph (q) of this section, may be mittee and pay the Committee an subject to an injunctive action under amount equal to the established har- the Act, and may be denied the oppor- vest costs plus an amount equal to the tunity to participate in the next diver- payment for receiving, storing, fumi- sion program, when implemented: Pro- gating, handling, and inspecting raisins vided: That any producer who has more as specified in § 989.401 for the entire than one production unit and fails to tonnage shown on the certificate. Han- divert on an approved production unit dlers who acquire diversion certificates or portion thereof may be denied the from producers shall report acquisi- opportunity to participate on all of tions of such certificates and submit that producer’s production units, in them for redemption in a manner and the next diversion program. For spur- for the reporting periods provided in pruned vines, this date may be ex- § 989.173(b) for the acquisition of raisins tended 2 weeks from the date of the in- acquired from producers. The Com- spection of a producer’s vineyard if mittee shall issue a reserve release en- more than 4 bunches on spur-pruned titling the handler to an amount of re- vines are present at the time of inspec- serve pool raisins equal to the entire tion. amount of tonnage shown on the cer- (i) Issuance of certificates. When pre- tificate. Upon receipt of the diversion liminary percentages are announced, certificate, the Committee shall note the Committee shall issue diversion on the certificate that it is cancelled. certificates to those approved appli- Diversion certificates will only be valid cants who have removed grapes in ac- and honored if presented to the Com- cordance with this section. Such cer- mittee for redemption on or before De- tificates shall represent an amount of cember 15 of the crop year for which reserve tonnage raisins equal to the they were issued: Provided, That, for amount of raisins diverted from the the 2002 diversion program for Natural production unit(s), or portion(s) there- (sun-dried) Seedless raisins, this date of, specified in the producer application, or additional quantity granted by may be extended by the Committee to the Committee when vines are diverted a later date within the 2002–03 crop through vine removal or any other year. means established by the Committee, (l) Lost, damaged, or destroyed certifi- with the approval of the Secretary. If, cates. The Committee should be noti- prior to issuance of a certificate, the fied of any lost, damaged, or destroyed Committee is notified by an approved certificates as quickly as possible by a applicant that such applicant’s interest handler or producer so that appropriate in the production unit(s), or portion(s) measures such as issuing new certifi- thereof, involved in the program has cates may be taken. been transferred to another person, the (m) Appeals. If a determination is Committee may substitute the trans- made by the Committee that a pro- feree for the applicant provided the ducer has not complied with these reg- transferee agrees to comply with the ulations and is not entitled to a diver- provisions of this section. sion certificate, that a producer is sub- (j) Submission of diversion certificates ject to liquidated damages and interest from producer to handlers. Diversion cer- or that a producer is denied the oppor- tificates may be submitted by pro- tunity to participate in the next RDP, ducers only to handlers. The handler such producer may request a hearing shall pay the producer for the free ton- before an appeals subcommittee estab- nage applicable to the diversion certifi- lished by the Committee. If a producer cate minus the established harvest cost disagrees with the subcommittee’s de- for the entire tonnage shown on the cision, the producer may request the certificate. Committee to review the subcommit- (k) Redemption of certificates. Any tee’s decision. If the producer disagrees handler holding certificates may re- with the Committee’s decision upon redeem such certificates for reserve pool view, the producer may, through the

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Committee, request the Secretary’s re- under the raisin diversion program in view of the decision. the same manner as raisins acquired (n) Voiding certificates. If, subsequent from producers. Such provisions shall to a diversion certificate being issued include, but not be limited to, report- to a producer but before it has been ing, satisfying reserve pool obligations, submitted to a handler, the Committee payment of assessments, storing re- determines that the producer did not serve tonnage, and the remedies in the comply with these regulations, it shall event of failure to deliver reserve ton- void the certificate. nage raisins. (o) Production units. (1) For the pur- (q) Liquidated damages and interest pose of the raisin diversion program, a charges. By applying to participate in a production unit is a clearly defined ge- raisin diversion program, an applicant ographic area with permanent bound- agrees that the failure of the approved aries (either natural or man-made). A applicant to timely remove the vines producer must be able to document to or grapes will cause serious and sub- the Committee the previous year’s pro- stantial damage to the program and duction data for that specific area by the raisin industry and that, in consid- means of sales receipts or other deliv- eration of the approval of the applica- eries or transfer documents which indi- tion, such applicant will pay liquidated cate the creditable fruit weight deliv- damages and interest to the Com- ered to handlers from that specific mittee, in the event of such failure to area. If the information submitted by timely remove vines or grapes. Since it producers on the application con- would be difficult, if not impossible, to cerning a unit’s production is signifi- determine the amount of such liq- cantly greater than past production on uidated damages, the following the unit, production on neighboring amount, which is a fair measure of units, or the industry norm, or the pro- damages and not a penalty, shall apply: duction is unable to be verified based (1) The amount of the liquidated on submitted documentation, the Com- damages shall be computed by multi- mittee may request additional docu- plying the tonnage on the approved di- mentation such as tray count, payroll version application (Form RAC–1000) records, prior years’ production, and insurance records to substantiate the by the harvest cost determined and an- tonnage of raisins produced on all pro- nounced by the Committee. duction units that such applicant con- (2) Each approved applicant shall, trols or owns. Producers would not be with respect to liquidated damages not precluded from submitting other infor- paid by July 1, pay to the Committee mation substantiating production if interest on such unpaid liquidated those producers desired. A new produc- damages at the rate of the prime rate tion unit will not be eligible for the of the bank in which the Committee raisin diversion program until at least has its reserve pool funds deposited, on 1 year’s production has been grown and the day the liquidated damages become is documented. An existing production delinquent, plus 2 percent, and further unit, transferred to a new or expanding such rate of interest shall be added to producer, is eligible for the raisin di- the unpaid amount, monthly, until the version program as soon as the pre- liquidated damages plus applicable in- vious year’s production can be properly terest are paid: Provided, That for the documented. program specified in paragraph (u) of (2) For purposes of the raisin diver- this section, the applicable date con- sion program, a partial production unit cerning liquidated damages not paid, must have two permanent, contiguous shall be September 1 instead of July 1 boundaries (either natural or man- as referenced in this paragraph. made). (3) Liquidated damages and interest (p) Handling of reserve pool tonnage re- collected by the Committee pursuant leased when diversion certificates are re- to this subparagraph shall be deposited deemed. Handlers shall comply with the in the reserve pool fund of the reserve applicable provisions of the order and pool applicable to the particular diver- administrative rules and regulations sion program and be distributed to the for the reserve pool tonnage released equity holders in that pool.

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(r) Notification. If any changes are (ii) Producers who agree to remove made in the terms and conditions of the vines pursuant to this paragraph the diversion program after a pro- shall notify the Committee in advance ducer’s application has been approved, of the date when such vines will be re- the Committee will notify the producer moved in order to allow a representa- of such changes and the producer will tive of the Committee to observe and be given 10 calendar days to agree to verify such vine removal. the revised terms, or to withdraw from (t) Pursuant to § 989.56(a), the produc- the program. Failure of the producer to tion cap for the 2003 raisin diversion notify the Committee in writing of its program for the Natural (sun-dried) intention to withdraw from the pro- Seedless varietal type is 2.0 tons of rai- gram within 10 calendar days from the sins per acre. date of the Committee’s notice will (u) Additional opportunity for pro- constitute agreement to the revised ducers to participate in the 2002 raisin di- terms and conditions. version program. An additional oppor- (s) Additional opportunity for vine re- tunity for vine removal of 2002 crop moval. The Committee may announce a Natural (sun-dried) Seedless raisins date later than that provided in provided for 25,000 additional tons of § 989.156(b), by which producers, who raisins in accordance with the fol- agree to remove the vines on a produc- lowing provisions. tion unit may file an application to (1) The additional opportunity ap- participate in a raisin diversion pro- plies to production units on which program. ducers agree to remove vines. The addi- (1) For the 2002 Natural (sun-dried) tional opportunity program applies to Seedless raisin diversion program, ad- ‘‘new participants’’ (producers who are ditional opportunity for vine removal not approved participants in the initial shall be provided in accordance with 2002 diversion program), and to early paragraph (u) of this section. ‘‘ season spur pruners (approved partici- (2) For raisin diversion programs ap- ’’ pants in the initial 2002 diversion pro- plicable to the 2003 and subsequent crop years, the following provisions gram who curtailed production by spur apply. pruning their vines). Grafting vines of (i) The announced date shall be not one varietal type to another varietal later than May 1. The diversion certifi- type does not constitute removal under cates will be issued only for the pro- the program. duction units from which vines are re- (2) Priority will be given to ‘‘new par- moved. The total tonnage available to ticipants.’’ If the production volume in such applicants shall not exceed the such applications exceeds 25,000 tons, a tonnage determined by deducting the lottery will be held to allocate such di- tonnage approved for applications re- version tonnage among applicants, pur- ceived on or before December 20 from suant to applicable procedures speci- the total tonnage announced as eligible fied in § 989.156(d). by the Committee for diversion: Pro- (3) Eligible producers who wish to vided, That, for the 2003 diversion pro- participate in this program must file gram, this date may be extended by the an application with the Committee by Committee to a later date within the July 8, 2002, with appropriate docu- 2002–03 crop year. Applications shall be mentation as specified in § 989.156(b). considered and approved on a first- The Committee shall notify the appli- come, first-served, basis and shall not cant, in writing, as to whether or not be given preference over the tonnage the application has been approved. approved for applications received on Vines must be removed or chain sawed or before December 20: Provided, That, at the base of the vine by July 31, 2002. for the 2003 diversion program, this Committee staff will verify that the date may be extended by the Com- vines have been removed or adequately mittee to a later date within the 2002– chain sawed. Committee staff will re- 03 crop year. The vines shall be re- inspect vines that have been chain moved from the production units for sawed to ensure that the remainder of which such applications are approved the vine is removed. Procedures speci- not later than June 1. fied §§ 989.156(e), (f), (g), and (i) through

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(r) are applicable to the additional op- inspector of the inspection service or portunity program for vine removal of authorized Committee personnel. 2002 crop Natural (sun-dried) Seedless (e) Each handler shall store raisins raisins. produced from grapes grown outside the State of California separate and [50 FR 3880, Jan. 29, 1985] apart from all other raisins held by EDITORIAL NOTE: For FEDERAL REGISTER ci- such handler to the satisfaction of the tations affecting § 989.156, see the List of CFR Committee. Storage of such raisins Sections Affected, which appears in the shall be deemed ‘‘separate and apart’’ if Finding Aids section of the printed volume the containers are marked as raisins and at www.fdsys.gov. produced from grapes grown outside the State of California and placed so as QUALITY CONTROL to be readily and clearly identified. (f) Any raisins received by a handler § 989.157 Raisins produced from produced from grapes grown outside grapes grown outside of California. the State of California shall be proc- (a) Any raisins produced from grapes essed and/or disposed of under the sur- grown outside the State of California veillance of the inspection service. The that are received by a handler shall be handler shall notify the inspection observed and marked for identification service in writing at least one business by an inspector. As provided in day in advance of the time such proc- § 989.173(b)(7), the inspection service essing and/or disposition will occur, un- may request information needed to less a shorter period is acceptable to properly mark such raisins for identi- the inspection service. fication; it shall be the handler’s re- (g) The handler receiving raisins pro- sponsibility to arrange for such identi- duced from grapes grown outside of fication and furnish required docu- California shall pay fees assessed by mentation promptly. the inspection service to identify and (b) In the absence of an inspector to maintain surveillance of such raisins. observe and mark such raisins for iden- [55 FR 28019, July 9, 1990] tification, the handler shall not permit the unloading to occur unless the han- § 989.158 Natural condition raisins. dler has a written statement from the (a) Incoming inspection. (1)(i) The inspection service that an inspector Committee shall, upon request of a cannot be furnished within a reason- handler who complies with the require- able time: Provided, That raisins so un- ments of this part with respect to in- loaded shall be observed and marked spection points, designate as his in- properly upon an inspector being avail- spection point any place (including his able. plant or receiving station) where the (c) The handler shall notify the in- handler receives raisins. spection service in writing at least one (ii) Each handler shall, at his ex- business day in advance of the time pense, provide at each of his inspection such handler plans to begin receiving points reasonably safe and adequate fa- raisins produced from grapes grown cilities for receiving raisins, drawing outside the State of California, unless samples, and efficient inspection of a shorter period is acceptable to the in- natural condition raisins. At the time spection service. of inspection of any lot, the handler (d) Raisins produced from grapes shall, at his expense, provide the in- grown outside of the State of Cali- spector with any assistance necessary fornia and received by a handler shall in the inspection of the raisins, includ- be marked for identification by the in- ing the movement of individual con- spector affixing to one container on tainers. Each handler, other than a each pallet or to each bin in each lot a processor, shall maintain with the prenumbered RAC control card (to be Committee a current written descrip- furnished by the Committee) which tion, defining the boundaries and other shall remain affixed until the raisins pertinent details, of each of his inspec- are processed and disposed of or dis- tion points. In the event the Com- posed of as natural condition raisins. mittee determines that any inspection The cards shall be removed only by an point, or any modification thereof,

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does not comply with the definition or mediately upon physical receipt and the requirements of this part, it shall tentative acceptance thereof, issue a notify the handler of the changes nec- prenumbered (numbered serially in ad- essary for compliance. The handler vance) door receipt or weight certifi- shall make such changes promptly. In cate showing the name and address of the event any of his inspection points the tenderer, the weight of the lot, the is the same as that of another handler number and type of containers in the or person receiving raisins or grapes in lot, and any other information nec- any form, the handler shall maintain essary to identify the lot. For the pur- his raisins separate and apart from any poses of identifying incoming lots of other raisins. raisins, other than dehydrated raisins (iii) The weight of each lot of raisins covered by paragraph (e) of this sec- tendered for receiving, storage, recon- tion, a handler, if it is impracticable ditioning, acquisition, or disposition for him to issue immediately a door re- shall be substantiated by an official ceipt or weight certificate, may issue ‘‘State Certificate of Weights and Meas- for temporary use only a prenumbered ures’’ issued by a public weighmaster, ‘‘Request for USDA Inspection’’ on a whether located at the inspection point form furnished by the Committee. Any or otherwise, or such other document such raisins so received by a handler approved by the Committee which ac- shall, prior to their acceptance, be in- curately reflects the weight of each lot spected at an inspection point during tendered. The net weight of such rai- the unloading process, and if certified sins for the purposes of this part, shall as standard raisins shall be, unless re- be determined by deducting the sand turned to the tenderer, either promptly tare and box tare from the gross weight acquired by the handler or received for of the raisins. The sand tare shall be storage on memorandum receipt: Pro- the weight of the sand and other for- vided, That in the absence of an inspec- eign material removed from the raisins tor to perform inspection during un- by passing the raisins over a screen (of loading, the handler shall not permit a type commonly used by the industry unloading to occur unless such absence for such purpose) having 36 square is during normal business hours and openings to the square inch, with each the handler has a written statement opening being one-eighth of an inch from the inspection service to the ef- square. fect that inspection cannot be fur- (2) No handler, other than a proc- nished within a reasonable time: And essor, shall receive at points other provided further, That the raisins so un- than at an inspection point, natural loaded shall be inspected promptly condition raisins from a tenderer, ei- upon an inspector being available. It ther for acquisition, storage, recondi- shall be the handler’s responsibility in tioning, inspection, or for disposition any case to arrange for the inspection, in eligible nonnormal outlets: Provided, other than with respect to dehydrated That this requirement shall not pre- raisins covered by paragraph (e) of this clude a handler from dehydrating, free section, and furnish weight certificates from the provisions of this part, at sep- promptly. Any raisins received by a arate dehydrating facilities recognized handler as off-grade for disposition in in § 989.105 and located in California, eligible non-normal outlets or for re- raisins not delivered to an inspection conditioning may be accepted point. Any handler who accepts raisins uninspected: Provided, That an applica- at an inspection point for drying or tion for receiving such uninspected rai- other reconditioning shall be deemed sins shall be submitted by the handler, to have received the raisins for recon- on a form furnished by the Committee, ditioning and shall be subject to the to the Inspection Service prior to, or provisions of this part with respect to upon physical receipt of, such off-grade such raisins. raisins. Such form shall provide for at (3) For each lot of natural condition least the name and address of the raisins received by a handler for acqui- tenderer (equity holder), date, number, sition, reconditioning, storage, inspec- and type of containers, net weight of tion, or for disposition in eligible non- the raisins, and the particular defect(s) normal outlets, the handler shall, im- the handler indicates would cause the

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raisins to be off-grade. Handlers shall (7) The inspection certificate for a complete and sign the form. The appli- mixed lot of natural condition raisins cation for such uninspected raisins (raisins of different varietal types com- shall not be acceptable unless signed mingled within their containers) shall by the tenderer. The uninspected rai- show the percentage which the raisins sins shall be subject to surveillance by of each varietal type is of the total rai- the Inspection Service. Each lot of raisins contained in the lot. sins accepted by a handler for recondi- (8) With respect to any lot of natural tioning shall be reconditioned sepa- condition raisins being received and in- rately from any other lot. spected at a handler’s inspection point (4) If any lot of natural condition rai- pursuant to paragraph (a)(3) of this sec- sins tendered to a handler is separated tion, the handler shall notify the in- into two or more lots because a portion spection service if he elects to have the of the original lot failed to meet min- raisins inspected for infestation. If the imum grade and condition standards, handler elects not to have the raisins or because the entire lot failed due to inspected for infestation, he shall: (i) more than one defect, the handler shall Fumigate promptly all raisins he re- issue a prenumbered weight certificate ceives; (ii) notify the inspection service for each such new lot not returned to in advance of the time he plans to fu- the tenderer, showing the name and ad- migate such raisins; (iii) permit the in- dress of the tenderer, the weight of the spection service to monitor the fumi- lot, and the number and type of con- gation; and (iv) permit the inspection service to make periodic incubation tainers in the lot. The weight of any checks of his packed raisins. The in- meeting lot shall be determined by spection service shall certify the rai- weighing it, or by weighing the failing sins received as standard raisins if they portion of the incoming lot and deduct- meet all other grade and condition ing the weight thereof from the weight standards. If the handler elects to have of the incoming lot. The weight of each the raisins inspected for infestation, failing lot shall be determined by the inspector shall afford such handler weighing it, or by deriving such weight the opportunity to fumigate such rai- by applying the original average con- sins during the inspection and certifi- tainer weight to the number of con- cation process. Such raisins shall re- tainers. main under the supervision of the in- (5) Any financially interested party spector during the fumigation. The in- may, upon the payment of any fees as- spection certificate shall not be issued sessed by the inspection service, obtain until the fumigation is completed: Pro- an appeal inspection. An appeal inspec- vided, That the inspection certificate tion shall be applicable only to raisins shall be issued, whether or not the fu- which have not been removed from migation is completed, not later than their containers, with pallet control five business days after the date the in- cards still affixed, are readily identifi- spection and certification process is able, and have not been removed from suspended by the inspector to permit the original inspection point: Provided, fumigation. That when the condition of a lot of (9) With respect to any lot (as defined such raisins may have changed subse- in § 989.104(a)(1)) of natural condition quent to the original inspection, an ad- raisins being received and inspected at ditional inspection, rather than an ap- a handler’s inspection point pursuant peal inspection, may be obtained. to paragraph (a)(3) of this section and (6) Raisins produced by a handler notwithstanding separation of the shall be subject to the requirements of meeting portion of the original lot paragraph (a) (3) and (4) of this section from the failing portions thereof for upon delivery to an inspection point. the purposes on § 989.104 and paragraph Raisins produced by a handler by dehy- (a)(4) of this section, any tenderer may, dration within an inspection point when permitted by the handler and shall be subject to the requirements of when notified by the inspector of de- paragraph (a) (3) and (4) of this section fects during the inspection and certifi- immediately upon completion of said cation process, and in accordance with dehydration. the provisions of this subparagraph,

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perform any one or more of the fol- under such conditions as it may deem lowing on an individual box basis: (i) necessary in the circumstances. The Mix raisins within boxes containing handler shall report to the Committee raisins that are wet, or of high mois- the information as required and speci- ture content in some areas of the box; fied in § 989.173(b)(5). Any such lot of (ii) dump raisins from wet boxes into off-grade raisins shall be identified im- dry boxes; (iii) remove wet raisins; or mediately following inspection by fix- (iv) remove foreign material such as ing to a container on each pallet a sandburs, puncture vine seed, Euca- prenumbered RAC control card (to be lyptus pods or leaves, rocks, and furnished by the Committee), and kept sticks. This authorization to the separate and apart from any other rai- tenderer shall not extend to raisins in sins in the handler’s possession. In the containers larger than sweat boxes; event the handler does not normally and the number of boxes in the original use pallets in his operation the RAC lot on which the aforesaid actions may control card shall be affixed to one or be performed during such process shall more of the containers in each lot. The not exceed ten, or five percent of the RAC control cards shall remain fixed total number of containers in the lot, to the containers until the raisins are whichever is less. Where the percentage (i) disposed of by the handler in eligible computation results in a fraction of a nonnormal outlets, (ii) returned box and is less than ten boxes, it shall unstemmed to the tenderer, or (iii) sub- be rounded upward to the next number. mitted for reconditioning. The cards The entire lot of raisins shall remain shall be removed only by an inspector under surveillance of the inspector dur- of the inspection service or authorized ing such process. The actions of the Committee personnel, except control tenderer shall be done without delay, cards designating lots held only for fu- take place at the unloading dock in the migation may be removed by the han- inspection point, or in the immediate dler after the completion of fumigation area thereof, and be under observation to the satisfaction of the inspection of the inspector. service. Each lot of off-grade raisins (b) Submission of inspection certificates not returned to the tenderer shall be to the Committee. A copy of each inspec- stored by the handler separate and tion certificate which a handler is re- apart by varietal types from all other quired to submit to the Committee raisins and by disposition and condi- pursuant to § 989.58(d) shall be sub- tioning categories which preserve the mitted not later than Wednesday of the lot identity and, if for reconditioning, week following the week for which the defect identity. Off-grade raisins such certificate was issued. This may shall be stored in such a manner as to be accomplished by authorizing the in- be accessible to the Committee. spection service to submit a copy of (2) Change in off-grade categories. each such inspection certificate di- After raisins have been classified as to rectly to the Committee. A copy of the categories in § 989.58(e)(1), any lot such authorization shall be furnished of natural condition off-grade raisins to the Committee. held by a handler under paragraph (i) (c) Off-grade raisins—(1) Holding and or (iii) of § 989.58(e)(1), may be changed identification. The inspection certifi- to the other category, or to paragraph cates covering any lot of off-grade rai- (ii). Prior to making such change, the sins shall state whether or not such handler shall notify the inspection off-grade raisins are storable. Any rai- service at least one business day in ad- sins which do not meet the applicable vance of the time such handler plans to grade and condition standards shall be begin such change. Such notification classified in one of the three categories shall be provided verbally or by other specified in § 989.58(e)(1) within 5 busi- means of communication, including e- ness days (excluding Saturdays, Sun- mail. Any off-grade lot under para- days, and holidays) after inspection or graph (ii) of § 989.58(e)(1) which has not 3 such business days after issuance of been removed from the handler prem- the inspection certificate, whichever is ises and is identifiable with the origi- later: Provided, That these time limits nal inspection, may be tendered to the may be extended by the Committee handler for the purposes of paragraph

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(i) or (iii) of § 989.58(e)(1) and, if accept- less a shorter period is acceptable to ed, the handler shall so report to the the inspection service. Such notifica- Committee. It shall be the responsi- tion shall be provided verbally or by bility of the handler to establish and other means of communication, includ- maintain the identity of the raisins in ing e-mail. Natural condition raisins the changed categories in accordance which have been reconditioned shall with the applicable provisions of para- continue to be considered natural con- graph (c)(1) of this section. Where the dition raisins for purposes of reinspec- tenderer has a financial interest in the tion (inspection pursuant to § 989.58(d)) raisins the handler shall, before mak- or setaside by a handler to satisfy the ing any change in category, submit to handler’s reserve pool obligation, after the Committee evidence of the such reconditioning has been com- tenderer’s permission to make any pleted, if no water or moisture has such change, except for changes from been added; otherwise, such raisins paragraph (i) or paragraph (iii) to para- shall be considered as packed raisins. graph (ii) of § 989.58(e)(1). The weight of the raisins reconditioned (3) Interplant and interpacker transfer successfully shall be determined by re- of off-grade raisins. Any packer may, weighing, except where a lot, before re- pursuant to § 989.58(e)(2) and under the conditioning, failed due to excess mois- surveillance of the inspection service, ture only. The weight of such raisins transfer to or from another packer’s resulting from reconditioning a lot plant in California, any off-grade rai- failing account excess moisture may be sins for reconditioning. Such transfer determined by deducting 1.2 percent of may be for the packer’s convenience or the weight for each percent of moisture that of a financially interested person. in excess of the allowable tolerance. Where a tenderer or other person has a When necessary due to the presence of financial interest in the raisins, the handler shall first obtain the tenderer’s sand, as determined by the inspection or other interested person’s written service, the requirement for deducting agreement to the transfer.The handler sand tare and the manner of its deter- shall notify the inspection service in mination, as prescribed in paragraph advance of the time such handler plans (a)(1) of this section, shall apply in to transfer each lot. Such notification computing the net weight of any such shall be provided verbally or by other successfully reconditioned natural con- means of communication, including e- dition raisins. If, after reconditioning, mail. The notification shall be at least such raisins meet the minimum grade 1 business day in advance of the trans- standards, but no longer are natural fer unless a shorter period is acceptable condition raisins as defined in § 989.8, to the inspection service. In the same any handler who acquires such raisins manner except for the tenderer’s or shall meet his reserve obligation from other person’s written agreement, any natural condition standard raisins of packer may transfer off-grade raisins the same varietal type acquired by from one of his plants or inspection him. The weight of the reconditioned points to another of his plants in Cali- raisins acquired as packed raisins shall fornia. In both cases such raisins may be adjusted to natural condition weight be removed directly to the premises of by the use of factors applicable to the the receiving packer or another plant various degrees of processing accom- of the packer under the surveillance of plished. The applicable factor shall be the inspection service. Upon comple- that selected by the inspector of the re- tion of the transfer all applicable pro- conditioned raisins from among factors visions of this part shall apply with reestablished by the Committee with the spect to such raisins and the packer re- approval of the Secretary. ceiving them. (ii) In reconditioning off-grade rai- (4) Reconditioning off-grade raisins—re- sins, a handler shall use methods de- conditioning requirements. (i) The han- signed to remove the defects whereby dler shall notify the inspection service the lot fails to qualify as standard rai- at least one business day in advance of sins. Lots with identical defects may the time such handler plans to begin be reconditioned simultaneously (com- reconditioning each lot of raisins, un- mingled basis) but lots with differing

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defects shall be reconditioned as sepa- and transfer shall be made under the rate lots. surveillance of the inspection service. (5) General. Reconditioning of off- The packer shall notify the inspection grade raisins by a handler shall be done service as required in paragraph (c)(3) in accordance with such procedure as of this section. Such raisins may be re- will enable the inspector to observe the ceived by the other packer without in- off-grade raisins at any time and to spection. On and after such receipt of make a proper inspection. A packer the raisins for further reconditioning, may recover raisins from residual rai- all applicable provisions of this part sin material obtained from his recondi- shall apply with respect to such raisins tioning operations in conformity with and the packer so receiving them. the applicable provisions of (7) Return of off-grade raisins to § 989.159(g)(1). tenderer. Any off-grade raisins which (6) Off-grade raisins which are not re- are to be returned unstemmed to the conditioned successfully. (i) Except as tenderer pursuant to § 989.58(e)(1)(ii), provided in paragraph (c)(6)(ii) of this shall be physically returned within five section, no handler shall return to the business days after the issuance of the tenderer any off-grade raisins received inspection certificate: Provided, That for reconditioning which, after his re- such time limit may be extended by conditioning of them is complete, have the Committee as it may deem justi- been stemmed and which then fail to fied by extenuating circumstances. The meet the applicable minimum grade handler shall file with the Committee a standards. Any raisins which fail to report of the returned raisins as re- meet the applicable minimum grade quired in § 989.173(b)(4). and condition standards or minimum (i) Unstemmed and stemmed raisins. grade standards after reconditioning For the purpose of determining wheth- and all residual material from recondi- er or not off-grade raisins may be re- tioning, held by the handler, shall be turned to the person tendering such identified promptly by affixing to one raisins, unstemmed raisins shall be or more containers in each lot, or to a ‘‘ ’’ defined as lots of raisins that contain container in each pallet if pallets are 150 or more capstems per pound. used, a prenumbered RAC control card as prescribed in paragraph (c)(1) of this ‘‘Stemmed’’ raisins means lots of raisins section: Provided, That such failing rai- that contain less than 150 capstems per sins and residual material which are pound. placed directly into trucks or trailers (d) Reinspection of raisins held more for immediate disposition need not be than one hundred and twenty days on identified by affixing thereto a RAC memorandum receipt. No handler shall control card. The handler shall hold acquire raisins held on memorandum the failing raisins and the residual ma- receipt for a period longer than one terial separate and apart from all other hundred and twenty (120) days unless raisins. The control cards shall be re- such raisins have been reinspected and moved from the containers only by an certified immediately prior to acquisi- inspector of the inspection service or tion as meeting the minimum require- authorized Committee personnel. The ments for standard raisins: Provided, handler shall physically dispose of the That the Committee at any other time residual material, and any failing rai- may require such reinspection and cer- sins which he does not return tification of raisins held on memo- unstemmed to the tenderer, only in eli- randum receipt as a prerequisite to ac- gible nonnormal outlets as provided in quisition if it has reason to believe § 989.159(g)(2). that the raisins do not then meet such (ii) Any packer may arrange for or requirements. permit the tenderer to remove the (e) Inspection of raisins on dehydrator’s stemmed raisins (described in para- premises—(1) Application and agreement. graph (c)(6)(i) of this section), but not (i) Any dehydrator may submit to the the residual, directly to the premises, Committee for approval, and the Com- within California, of another packer for mittee may approve, in accordance further reconditioning of the raisins at with the provisions of this paragraph the latter’s premises. Such removal an application and agreement, on a

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form furnished by the Committee, pro- Committee will notify packers of each viding for dehydrator on-premise in- suspension or termination of a pre- spection of natural condition raisins viously approved application and produced by the dehydrator by sub- agreement. jecting grapes to artificial heat. Rai- (2) Delivery of inspected dehydrated raisins so produced are referred to in sins. Any dehydrated raisins which (i) paragraph (a)(3) of this section and in are inspected on an authorized this paragraph as ‘‘dehydrated raisins.’’ dehydrator’s premises where produced; (ii) The provisions of such applica- (ii) are moved promptly and directly to tion and agreement shall include at a packer’s inspection point from the least the following: premises of the authorized dehydrator; (a) The dehydrator shall request the (iii) are accompanied by an applicable inspection service to inspect all dehy- memorandum report of inspection to be drated raisins which the dehydrator furnished to the packer; and (iv) are produces and to issue a related memo- otherwise in compliance with the pro- randum report of inspection at the visions of such approved application time of loading any quantity of such and agreement and this paragraph may raisins for delivery to a packer’s in- be received by the packer without the spection point; inspection at time of receipt required (b) The dehydrator will arrange with by § 989.58(d). With respect to such de- the inspection service for the necessary hydrated raisins, the packer shall com- inspection service to be performed by ply with all applicable requirements the service, and the dehydrator will and procedures of this part, including, submit to the Committee a statement but not limited to, inspection after any from the inspection service that the de- necessary reconditioning and the in- hydrator has adequate facilities for the spection prescribed in § 989.59. inspection and that such arrangements (3) Packer’s obligations. Immediately have been made; upon a packer’s receiving any such al- (c) All necessary reconditioning of ready inspected dehydrated raisins ac- dehydrated raisins, identification and companied by the applicable memo- segregation of raisins, and movement randum report of inspection, the pack- of inspected dehydrated raisins on or er shall give to the inspector at the from the dehydrator’s premises shall be packer’s inspection point where the de- done in such manner and under such hydrated raisins were received, the conditions as the inspection service original and one copy of such memo- may require; randum report so that the inspector (d) The dehydrator shall, at the time may enter the net weight and scale of the packer’s receipt of such raisins, ticket number on such memorandum furnish to the packer to whose inspec- report of inspection and copy thereof. tion point the inspected raisins are de- Whenever a packer receives off-grade livered the original and one copy of the raisins from an authorized dehydrator memorandum report of inspection cov- he shall so advise the inspector at the ering such raisins; packer’s inspection point at the time of (e) The dehydrator shall maintain such receipt; and such raisins shall not such records and furnish such reports be unloaded except in the presence of and permit access to such records and the inspector or in accordance with the dehydrator’s premises as required such prior arrangements as may have in the application and agreement or as been made between the packer and the the Committee may subsequently reinspection service. quest; and (f) Inspection of raisins at cooperative (f) The application and agreement bargaining association’s receiving sta- may be suspended or terminated as tion—(1) Application and agreement. (i) provided therein. In accordance with the provisions of (iii) The Committee will notify raisin this paragraph, any cooperative bar- packers of each dehydrator whose ap- gaining association may submit to the plication and agreement has been ap- Committee for approval, and the Com- proved by the Committee (such dehy- mittee may approve, an application drator is referred to in this subpart as and agreement, on a form furnished by ‘‘authorized dehydrator’’); similarly, the the Committee, providing that where 652

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the association receives from indi- used, a Committee control card show- vidual producers lots of natural condi- ing thereon such information as the tion raisins at any of its receiving Committee requires to maintain the points and the raisins are inspected producer identity of each lot and pre- and stored consistent with such appli- vent commingling with any other lot. cation and agreement, such lots shall The association shall not move all or be eligible for delivery to handlers, any portion of a lot of raisins on the pursuant to paragraph (f)(3) of this sec- premises of the association’s receiving tion, without reinspection. Any raisins station(s) or load any such raisins for which upon inspection by the inspec- shipment, except in the presence of an tion service do not meet the applicable inspector of the inspection service. grade and condition standards shall be (vi) That the association shall store identified immediately following in- any standard raisins and any off-grade spection and kept separate and apart raisins which are held by it after re- from any other raisins in the associa- ceipt and inspection on the premises of tion’s possession. its receiving station(s) under condi- (2) Terms and conditions. The provi- tions which protect the raisins from sions of such application and agree- rain, infestation and contamination, ment shall include at least the fol- and which can be expected to maintain lowing terms and conditions: their respective conditions except for (i) That the association shall, prior normal and natural deterioration and to delivery of any raisins to handlers, shrinkage. Any raisins which after re- arrange for inspection services at the ceipt and inspection are not accepted association’s receiving station(s), and and held by the association shall be re- cause to be submitted to the Com- turned to the producer within 5 busi- mittee a statement by the inspection ness days after the issuance of the in- service of such arrangement and of the spection certificate. association’s having adequate labora- (vii) That the association shall fur- tory and other facilities for such serv- nish the inspection service with a com- ices available at the association’s re- pleted Committee form requesting ceiving station(s). issuance, at the time of loading any lot (ii) That the association shall main- of inspected raisins for delivery to any tain such facilities satisfactory to the handler’s inspection point, of a memo- inspection service. randum report of inspection covering (iii) That the association shall re- such lot. quest inspection of each lot of raisins immediately upon physical arrival (viii) That the association shall de- thereof at the association’s receiving liver to the handler at the time of re- station(s), and shall provide the inspec- ceipt of any such lot of eligible raisins tor with any assistance necessary in at the handler’s inspection point the the inspection of such raisins, includ- original and one copy of the inspection ing the movement of individual con- service’s related memorandum report tainers. of inspection; and such original and (iv) That the association shall fumi- copy shall accompany the shipment of gate all raisins received at the associa- such lot from the premises of the asso- tion’s receiving station(s) as necessary ciation’s receiving station(s) to the to assure that the raisins are free from handler’s inspection point. active infestation and maintain them (ix) That the association shall main- as such while on such premises, and tain complete records of the receipt, that fumigation shall be performed to holding and disposition of each lot of the satisfaction of the inspection serv- raisins and retain such records for at ice. least 2 years after the crop year in (v) That the association shall, with which such transactions occurred. respect to all raisins entering its prem- (x) That the association shall file ises which are not returned to the pro- promptly with the Committee certified ducer as provided in paragraph (f)(2)(vi) reports showing such information as of this section, promptly affix to one or the Committee may request relative to more containers in each lot, or to a the association’s receipts, holdings, container in each pallet if pallets are and dispositions of raisins.

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(xi) That the association shall permit upon a handler receiving any such rai- the Committee, the inspection service, sins accompanied by the applicable and the Secretary of Agriculture, memorandum report of inspection, the through their duly authorized rep- handler shall give to the inspector at resentatives, to have access to the the handler’s inspection point where premises of the association’s receiving such raisins are received, the original station(s) to inspect such premises and and one copy of the memorandum re- any raisins thereon and any and all port so that the inspector may enter records with respect to the associa- the net weight and scale ticket number tion’s receipts, holdings and disposi- on such memorandum report of inspections of raisins. tion and copy thereof. (xii) That upon approval of the appli- [27 FR 3112, Mar. 31, 1962, as amended at 27 cation and agreement the Committee FR 10249, Oct. 19, 1962; 27 FR 10409, Oct. 25, will notify handlers of such approval 1962; 28 FR 13544, Dec. 14, 1963; 31 FR 16305, and that eligible lots of inspected rai- Dec. 21, 1966; 32 FR 15915, Nov. 21, 1967; 32 FR sins will not require incoming inspec- 17467, Dec. 6 1967; 35 FR 16037, Oct. 13, 1970; 38 tion at handler inspection points; will FR 20237, July 30, 1973; 42 FR 52377, Sept. 30, notify the interested handlers of any 1977; 49 FR 18731, May 2, 1984; 49 FR 33994, Aug. 28, 1984; 55 FR 2226, Jan. 23, 1990; 55 FR suspension or revocation, for good 36608, Sept. 6, 1990; 73 FR 42259, July 21, 2008] cause, of the eligibility of a particular lot of raisins; and will notify handlers § 989.159 Regulation of the handling of of any suspension or termination of the raisins subsequent to their acquisi- application and agreement. tion. (xiii) That the Committee will re- (a) Inspection facilities. At each of the quest the inspection service to estab- premises where packed raisins are to be lish a fee to the association for the inspected each handler shall, at his ex- services to be rendered at the same pense provide reasonably safe and ade- rate as is charged handlers. quate space and other facilities nec- (xiv) That the application and agree- essary for the proper and efficient in- ment may be suspended or terminated spection of such raisins. as provided therein. (b) Identification of inspected raisins. (3) Waiver of requirement for incoming (1) Each handler shall mark each ship- inspection at handler inspection point. ping container with legible code or Any lot of raisins which (i) is inspected other identification, satisfactory to the on the premises of the association’s re- Committee and the inspection service ceiving station(s) pursuant to an ap- which shall indicate (i) with respect to proved application and agreement, (ii) packed raisins, the date that the rai- is in compliance with the provisions of sins in such shipping containers were such application and agreement and packed, and (ii) with respect to ship- this paragraph, (iii) is moved under the ments of natural condition raisins, the surveillance of the inspection service date on which such raisins were in- to a handler’s inspection point from spected. the association’s receiving station(s) (2) Each handler shall furnish after issuance of the related memo- promptly to the Committee, through randum report of inspection, and (iv) is the inspection service, a certified re- accompanied by such memorandum report on a form furnished by the Com- port to be furnished to the handler may mittee showing the handler’s count and be received by the handler without the weight of the raisins of each pack and inspection as required by § 989.58(d) at varietal type packed each day. time of receipt. (c) Outgoing inspection. (1) Outgoing (4) Handler’s obligations. With respect inspection and certification of raisins to such raisins received by the handler, as required by § 989.59(d) shall be made the handler shall comply with all ap- as set forth in this paragraph. plicable requirements and procedures (2) Such inspection of natural condi- of this part, including, but not limited tion raisins (which is subject to excep- to, the inspection prescribed in § 989.59 tions and exemptions provided in this and that required, as prescribed in part) shall be made of each individual § 989.58(d), prior to the handler acquir- lot and in each case not more than five ing reconditioned raisins. Immediately days before the date of shipment or

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other final disposition of the lot. The tively. Any lot of mixed types or sub- certificate that the raisins meet the types of packed raisins for which min- applicable minimum grade and condi- imum grade standards are prescribed tion standards for natural condition for each type or sub-type pursuant to raisins, which the handler is required § 989.59 (a) and (b) but which in their to obtain and submit to the Committee commingled form cannot be inspected pursuant to § 989.59(d), shall be on Form against the standards for the respec- FV 146 labeled ‘‘Certificate of Quality tive varietal types or sub-types and and Condition (Processed Foods).’’ If hence are excluded from the category shipment involves exportation to a for- of ‘‘Mixed types’’ as defined in the then eign country, the handler shall sur- effective United States Standards for render to the United States Customs Grades of Processed Raisins, or any Service at the port of exit two copies of raisins which as a mixed lot contain such inspection certificate. Such an in- moisture in excess of 18 percent, shall spection and certification (on Form FV not be certified as meeting the min- 146) may, if requested by the handler, imum grade standard for packed rai- be made at the time of his receipt or sins. acquisition of the raisins. In such an (d) Submission of inspection certificates event, no additional inspection shall be to the Committee. A copy of each inspec- required if the lot remains intact and tion certificate which a handler is re- identifiable, and shipment or other quired to submit to the Committee final disposition takes place within pursuant to § 989.59(d) shall be sub- five days after the date of the inspec- mitted not later than Wednesday of the tion. week following the week in which the (3) Such inspection of packed raisins certificate was issued. This may be ac- shall be made prior to shipment or complished by authorizing the inspec- other final disposition, and unless tion service in writing to submit a made during the final processing or copy of each such inspection certificate packing operations so as to facilitate directly to the Committee. A copy of proper sampling, the inspector shall such authorization shall be furnished perform the inspection on the basis of to the Committee. representative samples drawn from (e) Term of inspection certificate. Any shipping containers of the packed rai- handler who: sins. (1) Fails to ship or make other final (4) Except as otherwise provided in disposition for human consumption of this part, where there is presented for any lot of packed raisins within 90 cal- inspection a lot of packed raisins con- endar days, or of any lot of natural sisting of raisins of different varietal condition raisins within 5 calendar types or sub-types commingled within days, after the date of the last inspec- their containers, each such type and tion of the lot; or sub-type shall be inspected separately, (2) Has any shipment or portion of a except that inspection for moisture shipment returned to his inspection shall be performed on the lot as a point or storage premises within the whole. The inspection certificate shall area, show the respective percentages which the raisins of the various types and shall, before any such shipment or final sub-types are of the lot and whether disposition, or before blending with each meets the applicable minimum other raisins, have such raisins in- grade standards. In the event the rai- spected for condition and shall furnish sins of any such varietal type or sub- promptly to the Committee (which type contained in the lot fail to meet may be through the inspection service the applicable requirements, other as provided in § 989.158(b)) a copy of the than for moisture, none of the lot shall inspection certificate showing that the be certified as meeting minimum grade raisins meet the respective require- standards unless it is found to be prac- ments of this part for shipment, final ticable to separate the raisins into two disposition or blending. new lots, one which meets and the (f) Exemption of experimental and spe- other which fails to meet all of the ap- cialty packs—(1) Shipment under exemp- plicable minimum standards, respec- tion. Upon obtaining approval of the

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Committee as provided in this para- may recover raisins from: (i) Residual graph, any handler may ship or dispose raisins from his processing of standard of raisins in experimental or specialty raisins; (ii) any raisins acquired as packs without regard to one or more of standard raisins which fail to meet the the requirements of the minimum applicable outgoing grade and condi- grade standards for packed raisins and tion standards; (iii) any raisins reinspection and certification require- jected on a condition inspection; and ments, prescribed pursuant to § 989.59. (iv) residual raisins from recondi- For the purpose of this exemption, ex- tioning of off-grade raisins: Provided, perimental and specialty packs means That such recovery under paragraph raisins processed using methods, mate- (g)(1) (ii) and (iii) of this section must rials, or techniques that are not nor- occur without blending, if the failure mally employed in packing raisins. to meet the minimum grade standards (2) Application for exemption. Each ap- for packed raisins is due to a defect or plication for exemption shall be filed defects affecting the wholesomeness of with the Committee in triplicate. The the raisins: And provided further, That application shall at least contain infor- such recovery under paragraph mation as to: (g)(1)(iv) of this section must occur (i) The name and address of the han- without blending, except as permitted dler; in § 989.158(c)(4)(ii), and the weight of (ii) The estimated quantity of each standard raisins in residual from off- varietal type of raisins for which the grade raisins shall be credited equi- exemption is requested; tably to the same lot or lots from (iii) The specific requirements in the which the residual was obtained. The minimum grade standards from which provisions of this paragraph are not in- exemption is requested; tended to excuse any failure to comply (iv) The special processing involved; with all applicable food and sanitary (v) The net weight of each type of rules and regulations of city, county, container; state, federal, or other agencies having (vi) Whether disposition will be made jurisdiction. direct to consumers, wholesalers, re- (2) Disposition. (i) Except as author- tailers, persons, or organizations, and ized in this part, no handler shall ship any special uses to be made of such rai- or otherwise dispose of any off-grade sins; and raisins, other failing raisins, or raisin (vii) The general quality, style, and residual material. Any handler may condition of the raisins for which the ship, transfer, or otherwise dispose of exemption is requested. off-grade raisins, other failing raisins, (3) Committee action on application. and raisin residual material to or at The Committee in its discretion shall points within the continental United approve each application for exemption States (other than Alaska) for use in of raisins, if it concludes that such ex- eligible nonnormal outlets only after emption shall not jeopardize the objec- filing with the Committee a written tives of the marketing order program. application to make such shipment, The Committee shall notify the han- transfer, or other disposition and re- dler promptly in writing of its approval ceiving its written approval thereof. or disapproval of his application and, if However, the requirements of prior fil- the application is approved, the max- ing and approval of any such applica- imum quantity for which approval is tion shall not apply to: granted. If the application is dis- (a) The transfer of any such raisins approved, the Committee shall inform or residual material by a handler from the handler of the reasons therefor. one of his plants to another of his (4) Reports. The handler shall report plants in the State of California, ex- shipments or other dispositions under cept any transfer of raisins which are an approved exemption as required pur- for reconditioning shall be in accord- suant to § 989.173(e). ance with § 989.158(c)(3); (g) Off-grade raisins, other failing rai- (b) Any interpacker transfer or re- sins, and raisin residual material—(1) Re- moval of off-grade raisins made in ac- covery of raisins. For the purposes of cordance with § 989.158(c)(3) and of un- §§ 989.59(f) and 989.158(c)(4), a packer successfully reconditioned off-grade

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raisins which have been stemmed continental United States or to Alas- (other failing raisins) made in accord- ka; ance with § 989.158(c)(6)(ii); (2) To dispose of the raisins or raisin (c) Any return by a handler of residual material only for uses in eligi- unstemmed off-grade raisins to the ble non-normal outlet(s); and tenderer in accordance with (3) To maintain complete, accurate, § 989.158(c)(7); and current records regarding his deal- (d) Any shipment or transfer of off- ings in raisins, retain the records for at grade raisins, other failing raisins, or least 2 years, and permit representa- raisin residual material by any handler tives of the Committee and of the Sec- to a processor within the State of Cali- retary of Agriculture to examine all of fornia for use, within the State, in eli- his books and records relating to rai- gible nonnormal outlets; sins and residual material. (e) Any shipment or transfer of off- (iii) Each such application shall also grade raisins, other failing raisins, or include a provision for liquidated dam- raisin residual material by a handler to ages wherein the handler, in consider- any person with an effective agreement ation of the Committee approving his with the Committee, in which he application, agrees that in the event agrees (1) to use such raisins and raisin any raisins or raisin residual material residual material only in eligible non- covered by the approved application normal outlets, (2) if not so used, to should be shipped to points outside of pay to the Committee liquidated dam- the continental United States or to ages in the amount and under the con- Alaska, or disposed of in other than eli- ditions specified in paragraph (g)(2)(iii) gible non-normal outlets, by any per- of this section, and (3) to maintain complete, accurate, and current son, it will cause serious and substan- records regarding his dealings in rai- tial damage to the Committee, to pro- sins and raisin residual material, re- ducers, and to handlers of raisins and tain the records for at least 2 years, will be difficult, if not impossible, to and permit representatives of the Com- prove the extent of such damage. mittee and Secretary of Agriculture to Therefore, the handler shall pay to the examine all of his books and records re- Committee a sum equal to the estab- lating to raisins and residual material; lished field price as liquidated damages and for each ton so shipped or disposed of, (f) Any direct use by the handler of such sum being a fair measure of dam- such raisins or material in eligible ages and not a penalty. nonnormal outlets within the State of (iv) The Committee shall notify the California. applicant in writing of its approval ac- (ii) Each such application shall, in tion. In acting on an application, the addition to the agreement specified in Committee may disapprove the appli- paragraph (g)(2)(iii) of this section, in- cation when: (a) The application is include as a minimum: (a) The names and complete, or any required information addresses of the handler, the buyer, the has not been submitted; (b) the Com- consignee, and the user; (b) the quan- mittee has cause to believe that the tity of off-grade and other failing rai- raisins or raisin residual material cov- sins and the quantity of raisins resid- ered by the application will not be ual material to be shipped or otherwise shipped or disposed of in accordance disposed of; (c) a description of such with the application; or (c) the handler, off-grade raisins and other failing rai- or any of the parties involved in the sins and raisin residual material, as to proposed shipment or disposition, had type or origin; (d) the present location shipped or made disposition or use of of such raisins and raisin residual ma- raisins or raisin residual material cov- terial; (e) the particular use to be made ered by a previously approved applica- of the raisins; and (f) a copy of the tion inconsistent with that applica- sales contract, which may be on a form tion. When the use or the name and ad- furnished by the Committee, wherein dress of the user or consignee are not the buyer agrees: known to the handler, the Committee (1) Not to ship such raisins or raisin shall not approve the application until residual material to points outside the it has been informed as to such use and

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user and consignee of the raisins or re- VOLUME REGULATION sidual material. (v) The Committee may, for cause, § 989.166 Reserve tonnage generally. revoke any previously approved appli- (a) Set-aside obligations—(1) Natural cation of a handler if the handler, (sun-dried) Seedless. Handlers who ac- buyer, consignee or user covered by the quire any lot of natural condition Nat- application has shipped or made dis- ural (sun-dried) Seedless raisins which position inconsistent with any ap- have been dipped in or sprayed with proved application. The Committee water, with or without chemicals, prior shall notify the handler in writing of to or during the drying process, for such revocation. purposes other than to expedite drying, (vi) The handler shall furnish the or that have been produced from seed- Committee with a copy of the shipping document or other documentary evi- less varieties of grapes other than dence of the disposition as may be sat- Thompson Seedless (i.e., Fiesta, Emer- isfactory to the Committee and at such ald Seedless, Perlette, Delight, and times as the Committee may direct. other similar grape varieties), or that (h) Appeal inspection. An appeal in- have been treated with Oleate or simi- spection on an original inspection may lar drying agents, or such other Nat- be obtained from the inspection service ural (sun-dried) Seedless raisins that upon the request of any financially in- have been produced using other cul- terested party and upon the payment tural practices as recommended by the of any fees assessed by the inspection Committee with the approval of the service for such appeal inspection. Secretary, may set aside such raisins to satisfy their reserve pool obligation: [27 FR 3112, Mar. 31, 1962, as amended at 30 Provided, That such raisins shall be FR 6906, May 21, 1965; 31 FR 16306, Dec. 21, identified by the Inspection Service 1966; 36 FR 13980, July 29, 1971; 38 FR 13012, May 18, 1973; 38 FR 20237, July 30, 1973; 42 FR affixing to one container on each pallet 52377, Sept. 30, 1977; 49 FR 18731, May 2, 1984] or to each bin in each lot, a prenumbered RAC control card (to be § 989.160 Exemptions. furnished by the Committee) which (a) Any processor may receive or ac- shall remain affixed until raisins are quire any raisins for use in eligible processed or disposed of as natural con- nonnormal outlets, and dispose of them dition raisins: and Provided further, for such use, without having them in- That such raisins shall not be delivered spected and certified. Processors re- to the Committee or transferred to an- ceiving or acquiring raisins under such other handler without approval of the exemption, or otherwise receiving or Committee or the receiving handler. acquiring raisins which do not meet (2) Mixed varietal types. A handler who the applicable minimum grade and con- acquired any lot of natural condition dition standards, shall not ship or oth- raisins of mixed varietal types (com- erwise dispose of any such raisins ex- mingled within their containers) shall cept in conformity with the provisions meet the reserve tonnage setaside obli- of § 989.159(g)(2). Processors shall report gation for each varietal type contained receipts and acquisitions and make in the mixed lot by setting aside rai- such other reports as are or may be re- sins of each such varietal type which quired pursuant to §§ 989.73 and 989.173. have not been mixed or commingled (b) Disposition of raisins produced in with raisins of any other varietal type. Southern California. Raisins produced The obligation as to each varietal type from grapes dried on the vine in the shall be computed according to the re- counties of Riverside, Imperial, San serve percentage established by the Bernardino, Ventura, Orange, Los An- Secretary, and the percentage of the geles, and San Diego, which are dis- varietal type contained in the mixed posed of for use in distillation or live- lot as shown by the incoming inspec- stock feed, shall be exempt from the tion certificate applicable thereto. provisions of this part. (b) Storage of reserve tonnage raisins— [30 FR 6906, May 21, 1965, as amended at 38 (1) Time limits for setting aside pool ton- FR 13013, May 18, 1973; 59 FR 44031, Aug. 26, nage. Handlers shall be allowed 3 cal- 1994] endar days (exclusive of Saturdays,

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Sundays, and holidays), after the pre- for free tonnage raisins of the same va- liminary or interim percentages have rietal type or types, plus any charges been computed and announced by the already paid or credited to the handler Committee, and after the publication and cost incurred by the Committee on in the FEDERAL REGISTER of the appli- account of the handler’s failure to de- cable final reserve percentages estab- liver. The weighted average price shall lished for the crop year, or after any be determined from those sales made reserve tonnage raisins are acquired during the particular crop year up to subsequent to the percentages being the time such cash payment is re- announced or established, to segregate quested by the Committee, or up to the and properly stack each varietal type end of the particular crop year, which- of reserve tonnage raisins. ever date may be earlier. The amount (2) Conditions. Each handler shall which a handler shall compensate the store reserve tonnage raisins in storage Committee for any reserve raisins and under conditions which protect which have deteriorated so as to be off- them from rain and which reasonably grade in quality during storage for rea- can be expected to maintain the raisins sons within his control, shall be the free of any biological or other infesta- latest weighted average price received tion or contamination. Each handler by the Committee for the applicable shall, pursuant to § 989.66(b)(2), store varietal type of reserve pool raisins, each varietal type of reserve tonnage less the amount actually received by raisins held by him for the account of the Committee in the disposition of the the Committee, separate and apart deteriorated raisins delivered by the from all other raisins. Storage of such handler (or the salvage value of such raisins shall be deemed ‘‘separate and raisins as determined by the Com- apart’’ if the containers are so marked mittee). Any amounts paid to the Com- and placed as to be capable of ready mittee in satisfaction of such defi- and clear identification as to the cat- ciencies shall accrue to the earnings of egory in which are held. Reserve ton- the applicable reserve pool. The rem- nage raisins shall be stored in sweat edies provided in this paragraph shall boxes, picking boxes, or other portable be in addition to, and not exclusive of, containers not exceeding one ton ca- any or all of the remedies or penalties pacity: prescribed in the act for failure on the (3) Substitution of free tonnage. A han- part of the handler to comply with the dler may, pursuant to § 989.66(b)(3), applicable provisions of the act or of after giving the Committee reasonable this part. advance notice in writing and under its (d) Disposition of reserve tonnage rai- direction and supervision, substitute sins which become off-grade for causes be- standard raisins for reserve tonnage yond the handler’s control. Any reserve raisins. tonnage raisins held by or for the ac- (c) Remedy in the event of failure to de- count of the Committee which become liver reserve tonnage raisins. A handler off-grade for reasons beyond the han- who fails to deliver to the Committee, dler’s control shall, at the Committee’s upon request, any reserve tonnage rai- discretion, be reconditioned or disposed sins in the quantity and quality for of by the Committee, or under the which he has become obligated (after Committee’s control, in eligible non- any shrinkage allowances which may normal outlets. Any monetary loss sus- then be in effect are applied and allow- tained in the reconditioning or disposi- ances for any deterioration due to con- tion of such raisins, not covered by in- ditions beyond his control are made) surance carried by the Committee, shall compensate the Committee for shall be charged to the applicable re- the amount of the loss resulting from serve pool. his failure to so deliver. The amount of (e) Offers of reserve tonnage raisins to compensation for any shortage of ton- handlers for sale in export. Whenever the nage shall be determined by multi- Committee offers reserve tonnage rai- plying the quantity of reserve raisins sins to handlers for sale in export, it not delivered by the latest weighted shall specify in addition to the normal average price per ton received by pro- contract terms and conditions, the ducers during the particular crop year total quantity, the price and period

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within which each handler will be per- (b) Determination of price of reserve mitted to purchase his share of the tonnage sold for free tonnage use. When- offer. Whenever a handler’s share of an ever, pursuant to § 989.67(j), the Com- offer is less than, or exceeds, his hold- mittee concludes, with respect to any ing of reserve tonnage raisins by not varietal type of raisins, that a down- more than 10 tons, the Committee may ward trend in the price received by pro- adjust his share so as to avoid the cost ducers for free tonnage, or in the prices involved in the physical transfer of rai- received by handlers for free tonnage sins. If, prior to the expiration of the packed raisins, makes it impracticable offer period, a handler desires to obtain to sell reserve tonnage at the average reserve tonnage in an amount greater price received by producers for free than that represented by his share of tonnage plus pooling costs, the Com- the offer, he may negotiate with an- mittee, subject to the requirements of other handler for any unpurchased por- § 99.67(j), may sell reserve tonnage rai- tion of the other handler’s share of an sins at the currently prevailing field outstanding offer. No such transaction price for free tonnage raisins of the shall be deemed to reduce the transfer- same varietal type, unless such price is ring handler’s share or to increase the deemed to be unrepresentative of the transferee handler’s share so as to af- current f.o.b. price of free tonnage fect either handler’s share privileges in packed raisins. In such an event, or if subsequent offers. Transfers to imple- there is no current field price, the ment such transactions between han- Committee shall make any offer of re- dlers shall be permitted by the Com- serve tonnage at approximately the mittee only upon receipt of written au- computed field price obtained by de- thorization, on a form furnished by the Committee, by the transferring han- ducting from the current f.o.b. price for dler. All limitations applicable to the free tonnage packed raisins of the vari- transferred tonnage shall continue to etal type to be offered, the approxi- apply. Such reserve tonnage raisins mate recent packing and handling mar- will be released by the Committee to gin between such packed price and the the transferee handler upon submission field price for free tonnage raisins. This of his completed application and full paragraph (b) shall not be in effect payment for such raisins, and such from July 30, 1984, through July 31, transferee handler shall be responsible 1986. to the Committee for all documenta- (c) Terms of reserve tonnage offers. tion required in connection with the Whenever the Committee offers reserve transaction. All such transfers shall be tonnage raisins to handlers for use in made at the expense of the handlers free tonnage outlets, the Committee concerned. shall, among other terms and conditions of the offer, specify (1) the period [32 FR 15916, Nov. 21, 1967, as amended at 38 in which each handler shall be given FR 14960, June 7, 1973; 42 FR 52377, Sept. 30, 1977; 49 FR 18731, May 2, 1984; 54 FR 29327, the opportunity to purchase his share July 12, 1989; 56 FR 38072, Aug. 12, 1991; 68 FR of the offer, and (2) the period in which 42947, July 21, 2003] each eligible handler shall be given an opportunity to purchase his respective § 989.167 Disposal of reserve raisins. share of any reoffer. In the event re- (a) Offer of reserve tonnage raisins for serve pool raisins are transferred by use in noncompetitive outlets. Whenever the Committee, the purchasing handler the Committee proposes to offer to sell shall promptly empty the raisins from standard reserve tonnage raisins in the containers used in the transfer so noncompetitive outlets pursuant to that the Committee may return the § 989.67 (a) and (b), it shall promptly file containers and pallets used in the with the Secretary complete informa- transfer to the handler from whom the tion with respect thereto and the basis raisins were transferred within 10 busi- therefor. The Secretary shall have the ness days from the date of transfer. right to disapprove, within seven cal- Any handler who refuses to permit the endar days, the making of such an offer containers in which reserve pool rai- or sale or any term or conditions there- sins are stored to leave his premises, of. shall, at his expense, place such raisins

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in containers supplied by the Com- less raisins. With each report, other mittee. than that specified in paragraph (b)(4) of this section, the handler shall sub- [32 FR 15916, Nov. 21, 1967; 33 FR 2380 Jan. 31, 1968, as amended at 49 FR 30296, July 30, 1984] mit a copy of the door receipt, weight certificate or such other document ap- REPORTS AND RECORDS proved by the Committee that accurately reflects the weight of each lot § 989.173 Reports. tendered, for each lot of raisins re- (a) Inventory reports. Each handler ceived or acquired by him during the shall submit to the Committee as of reporting period and for each lot of rai- the close of business on July 31 of each sins stored on memorandum or ware- crop year, and not later than the fol- house receipt which was returned to lowing August 6, an inventory report the tenderer during such period, which which shall show, with respect to each shall show the information to be con- varietal type of raisins held by such tained on such receipts or weight cer- handler: Provided, That, for the Other tificates as specified in § 989.158(a)(3). Seedless varietal type, handlers shall At the time he submits the reports report the information required in this specified in paragraphs (b) (2) and (3) of paragraph separately for the different this section to the Committee, each types of Other Seedless raisins: handler shall submit a copy of each (1) The quantity of free tonnage rai- such report to the Inspection Service. sins, segregated as to locations where (2) Acquisition of standard raisins. they are stored and whether they are Each handler shall report: natural condition or packed; (i) The total net weight of the stand- (2) The quantity of reserve tonnage ard raisins acquired during the report- raisins for the account of the Com- ing period, segregated when appro- mittee; and priate, as to free tonnage and reserve (3) The quantity of off-grade raisins tonnage; segregated as to those for recondi- (ii) The location of the reserve ton- tioning and those for disposition as nage raisins; and such. Upon request by the Committee, (iii) The cumulative totals of such each handler shall file at other times, acquisitions (as so segregated) from the and as of other dates, any of the said beginning of the then current crop information which may reasonably be year. necessary for the determination or re- (3) Standard raisins received for memo- vision of marketing policy and which randum storage. Each handler shall, the Committee shall specify in its re- with respect to all standard raisins quest. held for memorandum receipt, storage, (b) Reports of raisins received or ac- bailment, or warehousing (raisins required—(1) General. (i) Except as other- ceived other than by acquisition or wise provided in paragraph (i) of this interhandler transfer), report: section, each handler shall submit to (i) The net weight of such standard the Committee (on forms furnished by raisins held at the start of the report- it) for each week (Sunday through Sat- ing period; urday or such other 7-day period for (ii) The net weight of such standard which the handler has submitted a pro- raisins received during the reporting posal to and received approval from the period; Committee) and not later than the fol- (iii) The net weight of such standard lowing Wednesday, the reports speci- raisins acquired during such period and fied in paragraphs (b)(2), (3), (4), and (5) included with the acquisitions required of this section. to be reported pursuant to paragraph (ii) For each report required to be (b)(2) of this section; submitted pursuant to this paragraph, (iv) The net weight of such raisins re- the required information shall be turned during such period to the per- shown separately for each varietal sons from whom they were received; type: Provided, That, for the Other and Seedless varietal type, the required in- (v) The net weight(s) and location(s) formation shall be shown separately of such raisins held at the end of such for the different types of Other Seed- period.

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(4) Off-grade raisins returned to (ii) The net weight of such raisins tenderers. Each handler shall report and raisin residual material. with respect to each lot of off-grade (7) Receipt of raisins produced from raisins which the handler returned dur- grapes grown outside the State of Cali- ing the reporting period to the tenderer fornia. Each handler who receives rai- pursuant to paragraph (1) of § 989.58(e): sins produced from grapes grown out- (i) The inspection certificate number; side the State of California shall sub- (ii) The net weight; mit to the Committee, on an appro- (iii) The name of the tenderer; and priate form provided by the Committee (iv) The date the lot was returned to so that it is received by the Committee the tenderer. not later than the eighth day of each (5) Off-grade raisins received for recon- month, a report of the receipt of such ditioning or disposition in eligible nonfood raisins. This report shall include: The channels. Each handler who is not a varietal type of raisins received; the processor shall, with respect to all off- net weight (pounds) of raisins received grade raisins received by the handler for the current month as well as a cu- and retained by him for reconditioning mulative quantity from August 1; and or for disposition or use in eligible non- the state or country where the raisins normal outlets, report for each cat- were produced. With each report, the egory received or reconditioned during handler shall submit a copy of the door the reporting period: receipt, weight certificate, or such (i) The name of each tenderer; other document as required by the (ii) The net weight of such raisins; Committee that includes, but is not (iii) The locations where received; limited to, the name of the tenderer (iv) The inspection certificate num- (equity holder) from whom such raisins ber covering each receipt; were received, the varietal type(s) of (v) The name and address of each per- raisins, the net fruit weight, the num- son to whom residual or off-grade lots ber and type of containers in the lot, were delivered for disposition, and the the date of delivery, and the address in- respective net weight delivered; and cluding State or country where such (vi) The total net weight (according raisins were produced. to location) of each category of off- (c) Reports of disposition—(1) Free ton- grade raisins held by him at the end of nage raisins. Each month each handler the reporting period. who is not a processor shall furnish to Each nonacquiring handler shall report the Committee, on an appropriate form also the weight of standard raisins re- provided by the Committee and so that covered from reconditioning, their in- it is received by the Committee not spection certificate number(s) and the later than the seventh day of the handler or other person to whom the month, a report showing the aggregate standard raisins were delivered. quantity of each varietal type of free (6) Monthly report of raisins received or tonnage packed raisins and standard acquired by processors. Each processor natural condition raisins which were who receives or acquires off-grade rai- shipped or otherwise disposed of by sins, or who avail himself of the exemp- such handler during the preceding tions from the grade and inspection re- month (exclusive of transfers within quirements provided in §§ 989.58, the State of California between plants 989.59(f), and 989.160 and receives or ac- of any such handler and from such han- quires raisins or raisin residual mate- dler to other handlers): Provided, That, rial, shall submit to the Committee on for the Other Seedless varietal type, or before the 7th day of each month a handlers shall report such information report of such raisins, raisin residual for the different types of Other Seed- material, and off-grade raisins received less raisins. Such required information or acquired during the preceding shall be segregated as to: month. Each report shall show for each (i) Domestic outlets (exclusive of varietal type: Federal Government purchases) ac- (i) The name and address of each han- cording to the quantity shipped in con- dler, producer, or other person from sumer cartons, the quantity shipped in whom such raisins or raisin residual bags having a net weight content of material was received or acquired; and four pounds or less, and the quantity

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shipped in bulk packs (including, but (iii) The destination (domestic, ex- not limited to those in bags having a port, and other disposition such as dis- net weight content of more than four tilleries, livestock feeders, or con- pounds); centrate) of such shipments; and (ii) Federal Government purchases; (iv) The area of origin (state or coun- (iii) The varietal type of raisin, with try) of the raisins shipped. organically produced raisins as speci- (4) Disposition reports by processors. fied in paragraph (g) of this section Each processor shall submit to the separated out, net weight, and condi- Committee, upon its request, such of tion of the raisins transferred: Pro- the following information and for such vided, That, for the Other Seedless va- period as the Committee shall specify; rietal type, handlers shall report such (i) The quantity of raisins and raisin information for the different types of material sold or otherwise disposed of Other Seedless raisins; and by processing operations, segregated as (iv) Export outlets, by countries of to the processing outlets and the kinds destination; and of raisins or raisin material which the (v) Each of any other outlets in Committee shall specify; and which the handler has made disposition (ii) The quantity of raisins or raisin of such raisins other than by any trans- material sold or otherwise disposed of fer which is excluded by the preceding by the processor, segregated as to spec- sentence. ified outlets and kinds of raisins or rai- (2) Disposition by handlers (other than sin material. processors) of off-grade raisins, other fail- (d) Reports of interhandler transfers— ing raisins, and raisin residual material. (1) Free-tonnage. Any handler who Each handler who is not a processor transfers free-tonnage raisins to an- shall submit to the Committee on or other handler within the State of Cali- before the seventh day of each month a fornia shall submit to the Committee report of all shipments and other dis- not later than five calendar days fol- positions made during the preceding lowing such transfer a report showing: month of off-grade raisins, other fail- (i) The date of transfer; ing raisins, and raisin residual mate- (ii) The name(s) and address(es) of rial. Such report shall be submitted on the handler or handlers and the loca- a form furnished by the Committee and tions of the plants; shall include the following informa- (iii) The varietal type of raisin, with tion: organically produced raisins as speci- (i) Date of each shipment and other fied in paragraph (g) of this section disposition; separated out, net weight, and condi- (ii) Name and address of each buyer tion of the raisins transferred: Pro- and receiver; and vided, That, for the Other Seedless va- (iii) Description and net weight of rietal type, handlers shall report such the raisins and raisin residual material information for the different types of in each shipment or other disposition. Other Seedless raisins; (3) Disposition by handlers of raisins (iv) If packed, the inspection certifi- produced from grapes grown outside the cate number in the event such raisins State of California. Each handler who have been inspected prior to such receives raisins produced from grapes transfer and a certificate issued. Two grown outside the State of California copies of such report shall be forwarded shall submit to the Committee, on or to the receiving handler at the time before the eighth day of each month, a the report is submitted to the Com- report, on the appropriate form pro- mittee, on one of which the receiving vided by the Committee, of all ship- handler shall certify to the receipt of ments of such raisins made during the such raisins and submit it to the Com- preceding month. This report shall in- mittee within five calendar days after clude: the raisins or the copies of such report (i) The varietal type(s) of raisins have been received by him, whichever shipped; is later; and (ii) The net weight (pounds) of raisins (v) If packed, the transferring han- shipped; dler shall certify that such handler is

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transferring only acquired, free-ton- (5) The average weighted f.o.b. sales nage raisins that meet all applicable prices received from sales, during a pe- marketing order requirements, includ- riod specified by the Committee, of rai- ing reporting, incoming inspection, as- sins in 30 pound fibre cases in domestic sessments, and volume regulation. markets and the quantity of raisins for (2) [Reserved] which such average prices were com- (e) Report of shipments of experimental puted. Each such report shall be sub- or specialty packs under exemption. Each mitted not later than the end of the handler who obtains an exemption pur- fifth calendar day following either the suant to § 989.59(g) for the shipment of date of the request by the Committee experimental or specialty packs of rai- or the ending date of the period to be sins shall submit to the Committee on covered by the report, whichever is a copy of the approved application for later. exemption a report showing the quan- (g) Organically produced raisins. For tity of raisins shipped or disposed of purposes of this section, organically under such exemption. The handler produced raisins means raisins that shall submit the report promptly after have been certified by an organic cer- the end of the crop year or after com- tification organization currently reg- pletion by him of all shipments of such istered with the California Department exempted raisins, whichever is earlier. of Food and Agriculture or such certifying organization accredited under the (f) Reports pertaining to the release of National Organic Program. Handlers of reserve tonnage and marketing policy in- such raisins shall submit the following formation. Upon request of the Com- reports to the Committee by varietal mittee, each handler shall submit to type: Provided: That, for the Other the Committee on forms furnished by Seedless varietal type, handlers shall it a report containing such of the fol- report such information for the dif- lowing information for each specified ferent types of Other Seedless raisins. varietal type of raisins as the Com- (1) Inventory report of organically-pro- mittee may request: duced raisins. Each handler shall sub- (1) The quantity of free tonnage rai- mit to the Committee by the close of sins held by him in and outside Cali- business on July 31 of each crop year, fornia as of the date specified in the and not later than the following Au- Committee’s request, segregated by the gust 6, on an appropriate form provided portion sold and the portion not sold; by the Committee, a report showing, (2) The total quantity of raisins ex- with respect to the organically-pro- pected to be acquired by him subse- duced raisins held by such handler: quent to the date specified by the Com- (i) The quantity of free tonnage rai- mittee, pursuant to purchase contracts sins, segregated as to locations where with producers and dehydrators, which they are stored and whether they are are in effect as of the date specified by natural condition or packed; the Committee; (ii) The quantity of reserve tonnage (3) The weighted average price paid raisins held for the account of the by him to producers and dehydrators Committee; for free tonnage raisins, natural condi- (iii) The quantity of off-grade raisins tion basis, during the period specified segregated as to those for recondi- by the Committee and the quantity of tioning and those for disposition as raisins for which such average was such. computed; (2) Acquisition report of organically- (4) The quantity of free tonnage rai- produced standard raisins. Each handler sins sold or sold and shipped (as to shall submit to the Committee for each which category the Committee shall week (Sunday through Saturday or specify) by him during a period speci- such other 7-day period for which the fied by the Committee, segregated to handler has submitted a proposal to show the quantities sold or sold and and received approval from the Com- shipped in: mittee) and not later than the fol- (i) Domestic markets; and lowing Wednesday, on an appropriate (ii) Foreign markets, detailed by form provided by the Committee, a re- country; and port showing the following:

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(i) The total net weight of the stand- tified to the United States Department ard raisins acquired during the report- of Agriculture and to the Raisin Ad- ing period, segregated when appro- ministrative Committee as to the priate, as to free tonnage and reserve truthfulness, accuracy and complete- tonnage; ness of the information shown thereon. (ii) The location of the reserve ton- (i) Reporting by non-profit cooperative nage; and associations. Non-profit cooperative as- (iii) The cumulative totals of such sociations need not submit door tags, acquisitions (as so segregated) from the door receipts, weight certificates or beginning of the current crop year. other similar documents with its re- (iv) Upon request of the Committee, port as to raisins received or acquired each handler shall provide copies of the from its members. organic certificate(s) applicable to the (j) Exemption from filing report. A han- quantity of raisins reported as ac- dler may be relieved by the Committee quired. of submitting any of the reports re- (3) Disposition report of organically- quired pursuant to paragraph (b) of produced raisins. No later than the sev- this section which he shall specify in a enth day of each month, handlers who written application therefor to the are not processors shall submit to the Committee stating that no trans- Committee, on an appropriate form actions subject to such reports are con- provided by the Committee, a report templated for the balance of the crop showing the aggregate quantity of free year: Provided, That any such exemp- tonnage packed raisins and standard tion shall remain in effect only so long natural condition raisins which were as said handler has no such trans- shipped or otherwise disposed of by actions subject to such reports. such handler during the preceding [27 FR 3112, Mar. 31, 1962] month (exclusive of transfer within the EDITORIAL NOTE: For FEDERAL REGISTER ci- State of California between the plants tations affecting § 989.173, see the List of CFR of any such handler and from such han- Sections Affected, which appears in the dler to other handlers). Such informa- Finding Aids section of the printed volume tion shall include: and at www.fdsys.gov. (i) Domestic outlets (exclusive of Federal government purchases) accord- § 989.176 Records. ing to the quantity shipped in con- Each handler shall maintain com- sumer cartons, the quantity of bags plete, accurate, and current records of having a net weight content of 4 all of his business affairs concerning pounds or less, and the quantity which he is required to submit reports shipped in bulk packs (including, but with the Committee, and shall main- not limited to those in bags having a tain such records for at least two years net weight content of more than 4 after the termination of the crop year pounds); in which the transactions occurred. (ii) Federal government purchases; (iii) Export outlets according to Subpart—Supplementary quantity shipped in consumer cartons, Regulations the quantity shipped in bags having a net weight of 4 pounds or less, and the § 989.210 Handling of varietal types of quantity shipped in bulk packs (includ- raisins acquired pursuant to a ing, but not limited to those in bags weight dockage system. having a net weight content of more (a) General. A handler may acquire as than 4 pounds); standard raisins lots of Natural (sun- (iv) Export outlets, by countries of dried) Seedless, Golden Seedless, destination; and Dipped Seedless, Monukka, Other Seed- (v) Each of any other outlets in less, Sultana, Zante Currant, Muscat which the handler disposed of such rai- (including other raisins with seeds), sins other than by any transfer which and Other Seedless-Sulfured raisins is excluded by the preceding sentence. under the weight dockage provisions (h) Certification of report. All reports described in §§ 989.212 and 989.213. The submitted to the Committee pursuant creditable weight of each lot of raisins to this part shall be dated, and cer- acquired in this manner shall be that

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obtained by multiplying the net weight (g) Application of dockage factors. A of the raisins in the lot by the applica- lot of raisins acquired which may be ble factor(s) from the appropriate subject to both a substandard and ma- dockage table(s) included in those sec- turity dockage factor shall have only tions. the highest of the two dockage factors (b) Free and reserve tonnage percent- applied to determine the creditable ages. Whenever free and reserve per- weight. centages are designated for raisins of [53 FR 49296, Dec. 7, 1988, as amended at 67 the varietal types specified in para- FR 36792, May 28, 2002; 68 FR 42947, July 21, graph (a) of this section for a crop 2003] year, such percentages shall be applicable to the creditable weight of any lot § 989.212 Substandard dockage. of such raisins acquired by a handler (a) General. Subject to prior agree- pursuant to a weight dockage system. ment between handler and tenderer, (c) Reserve tonnage. A handler may Natural (sun-dried) Seedless, Golden hold as reserve tonnage raisins, any Seedless, Dipped Seedless, Monukka, lot, or portion thereof, of raisins of the Other Seedless, and Other Seedless- varietal types specified in paragraph Sulfured raisins containing from 5.1 (a) of this section acquired pursuant to through 17.0 percent, by weight, of sub- a weight dockage system: Provided, standard raisins may be acquired by a That only the creditable weight of such handler under a weight dockage sys- lot, or portion thereof, may be applied tem. A handler may also, subject to by the Committee against the han- prior agreement, acquire as standard dler’s reserve tonnage obligation. raisins any lot of Muscat (including (d) Assessments. Assessments on any other raisins with seeds), Sultana, and lot of raisins of the varietal types spec- Zante Currant raisins containing from ified in paragraph (a) of this section ac- 12.1 through 20.0 percent, by weight, of quired by a handler pursuant to a substandard raisins under a weight weight dockage system shall be appli- dockage system. The creditable weight cable to the free tonnage portion of the of each lot of raisins acquired under creditable weight of such lot. the substandard dockage system shall (e) Payments for services on reserve ton- be obtained by multiplying the net nage. Payment to a handler for services weight of the lot of raisins by the ap- performed by such handler with respect plicable dockage factor from the appro- to reserve tonnage raisins of the vari- priate dockage table prescribed in etal types specified in paragraph (a) of paragraph (b) or (c) of this section. this section acquired by a handler pur- (b) Substandard dockage table applica- suant to a weight dockage system shall ble to Natural (sun-dried) Seedless, Gold- be made on the basis of the creditable en Seedless, Dipped Seedless, Monukka, weight of such lot and at the applicable Other Seedless, and Other Seedless- rate specified for such services in Sulfured raisins. § 989.401 of Subpart—Schedule of Pay- ments. Percent substandard Dockage (f) Identification. Any lot of raisins of factor the varietal types specified in para- 5.0 or less ...... (1) graph (a) of this section acquired pur- 5.1 ...... 999 suant to a weight dockage system shall 5.2 ...... 998 be so identified by the inspection serv- 5.3 ...... 997 5.4 ...... 996 ice affixing to one container on each 5.5 ...... 995 pallet, or to each bin, in such lot, a 1 prenumbered RAC control card (to be No dockage. furnished by the Committee) which NOTE TO PARAGRAPH (b): Percentages in ex- shall remain affixed to the container or cess of the last percentage shown in the bin until the raisins are processed or table shall be expressed in the same incre- disposed of as natural condition rai- ment as the foregoing, and the dockage factor for each such increment shall be .001 less sins. The control card shall only be re- than the dockage factor for the preceding in- moved by, or under the supervision of crement. Deliveries in excess of 17.0 percent an inspector of, the inspection service, would be offgrade; therefore, the dockage or authorized Committee personnel. factor does not apply.

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(c) Substandard dockage table applica- Percent well-matured or reasonably well-matured: Dockage ble to Muscat (including other raisins factor with seeds), Sultana and Zante Currant 49.5 ...... 9975 raisins. 1 No dockage.

Dockage OTE Percent substandard factor N : Percentages less than the last percentage shown in the table, down to 45.0 per- 12.0 or less ...... (1) cent, shall be expressed in the same incre- 12.1 ...... 999 ments as the foregoing, and the dockage for 12.2 ...... 998 12.3 ...... 997 each such increment shall be .0005 less than 12.4 ...... 996 the dockage factor for the preceding incre- 12.5 ...... 995 ment. 1 No dockage. (c) Maturity dockage table applicable NOTE TO PARAGRAPH (c): Percentages in ex- to lots of Natural (sun-dried) Seedless, cess of the last percentage shown in the Golden Seedless, Dipped Seedless, table shall be expressed in the same incre- Monukka, Other Seedless, and Other ments as the foregoing, and the dockage factor for each increment shall be .001 less than Seedless-Sulfured raisins which con- the dockage factor for the preceding incre- tain 40.0 percent through 44.9 percent ment. Deliveries in excess of 20.0 percent well-matured or reasonably well-ma- would be offgrade; therefore, the dockage tured raisins: factor does not apply. Dockage [57 FR 28597, June 26, 1992, as amended at 63 Percent well-matured or reasonably well-matured: factor FR 56785, Oct. 23, 1998; 67 FR 36792, May 28, 2002; 68 FR 42947, July 21, 2003] 44.9 ...... 0.974 44.8 ...... 973 § 989.213 Maturity dockage. 44.7 ...... 972 (a) General. Subject to prior agree- 44.6 ...... 971 ment between handler and tenderer, 44.5 ...... 970 44.4 ...... 969 Natural (sun-dried) Seedless, Golden Seedless, Dipped Seedless, Monukka, NOTE: Percentages less than the last per- Other Seedless, and Other Seedless- centage shown in the table, down to 40.0 per- Sulfured raisins containing from 35.0 cent, shall be expressed in the same incre- percent through 49.9 percent, by ments as the foregoing, and the dockage fac- weight, of well-matured or reasonably tor for each such increment shall be .001 less well-matured raisins may be acquired than the dockage factor for the preceding in- by a handler under a weight dockage crement. system. The creditable weight of each (d) Maturity dockage table applicable lot of raisins acquired under the matu- to lots of Natural (sun-dried) Seedless, rity dockage system shall be obtained Golden Seedless, Dipped Seedless, by multiplying the net weight of the Monukka, Other Seedless, and Other lot of raisins by the applicable dockage Seedless-Sulfured raisins which con- factor from the dockage table prescribed in paragraphs (b), (c), and (d) of tain 35.0 percent through 39.9 percent this section. well-matured or reasonably well-ma- (b) Maturity dockage table applicable tured raisins: to lots of Natural (sun-dried) Seedless, Dockage Golden Seedless, Dipped Seedless, Percent well-matured or reasonably well-matured: factor Monukka, Other Seedless, and Other Seedless-Sulfured raisins which con- 39.9 ...... 0.9235 39.8 ...... 9220 tain 45.0 percent through 49.9 percent 39.7 ...... 9205 well-matured or reasonably well-ma- 39.6 ...... 9190 tured raisins: 39.5 ...... 9175 39.4 ...... 9160 Dockage Percent well-matured or reasonably well-matured: factor NOTE TO PARAGRAPH (d): Percentages less 50.0 or more ...... (1) than the last percentage shown in the table 49.9 ...... 0.9995 shall be expressed in the same increments as 49.8 ...... 9990 the foregoing, and the dockage factor for 49.7 ...... 9985 49.6 ...... 9980 each such increment shall be .0015 less than

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the dockage factor for the preceding incre- EDITORIAL NOTE: After January 1, 1979, ment. ‘‘Budget of Expenses and Rate of Assessment’’ [25 FR 12813, Dec. 14, 1960; 27 FR 2506, Mar. 16, regulations (e.g., sections .300 through .399) 1962, as amended at 52 FR 32776, Aug. 31, 1987; and ‘‘Marketing percentage’’ regulations (e.g., 53 FR 34715, Sept. 8, 1988; 53 FR 49296, Dec. 7, sections .222 through .299) which are in effect 1988; 54 FR 43041, Oct. 20, 1989; 63 FR 56785, for a year or less, will not be carried in the Oct. 23, 1998; 67 FR 36792, May 28, 2002; 68 FR Code of Federal Regulations. For FEDERAL 42947, July 21, 2003] REGISTER citations affecting these regulations, see the List of CFR Sections Affected, § 989.221 Sale and export of reserve which appears in the Finding Aids section of raisins by handlers. the printed volume and at www.fdsys.gov. (a) Eligible countries. Pursuant to § 989.67(c), the Committee may sell re- § 989.257 Final free and reserve per- serve raisins to handlers for export to centages. all markets in the world except those (a) The final percentages for the re- listed in paragraph (b) of this section. spective varietal type(s) of raisins ac- (b) Non-eligible countries. The Com- quired by handlers during the crop year mittee may not sell reserve raisins to beginning August 1, which shall be free handlers for export to Cuba, Puerto tonnage and reserve tonnage, respec- Rico, the U.S. Virgin Islands, Canada, tively, are designated as follows: Mexico, and all islands adjacent to Canada and Mexico. [58 FR 48275, Sept. 15, 1993]

Free Reserve Crop year Varietal type percentage percentage

2003–04 ...... Natural (sun-dried) Seedless ...... 70 30 2005–06 ...... Natural (sun-dried) Seedless ...... 82 .50 17.50 2006–07 ...... Natural (sun-dried) Seedless ...... 90 10 2007–08 ...... Natural (sun-dried) Seedless ...... 85 15 2008–09 ...... Natural (sun-dried) Seedless ...... 87 13 2009–10 ...... Natural (sun-dried) Seedless ...... 85 15

(b) The volume regulation percent- compensated at a rate of $46 per ton ages apply to acquisitions of the vari- (natural condition weight at the time etal type of raisins for the applicable of acquisition) for receiving, storing, crop year until the reserve raisins for fumigating, and handling the reserve that crop are disposed of under the tonnage raisins, as determined by the marketing order. final reserve tonnage percentage, ac- [75 FR 20901, Apr. 22, 2010] quired during a particular crop year and held by the handler for the account Subpart—Assessment Rates of the Committee during all or any part of the same crop year. § 989.347 Assessment rate. (2) Inspection. Each handler shall be On and after August 1, 2005, an as- reimbursed by the Committee for in- sessment rate of $7.50 per ton is estab- spection costs applicable to the reserve lished for assessable raisins produced tonnage raisins, as determined by the from grapes grown in California. final reserve tonnage percentage, received and held by him for the account [71 FR 8926, Feb. 22, 2006] of the Committee. Such payment shall be made at the currently applicable Subpart—Schedule of Payments rate per ton paid by such handler to § 989.401 Payments for services per- the Inspection Service and on the formed with respect to reserve ton- quantity reported by the handler. The nage raisins. Committee shall pay the cost of any in- (a) Payment for crop year of acquisi- spection required by it of such reserve tion—(1) Receiving, storing, fumigating, tonnage raisins while they are being and handling. Each handler shall be held for its account: Provided, That the

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cost of inspection of any raisins sub- for such raisins held between August 1 stituted, pursuant to § 989.66(b)(3), by a and September 12, 2003. The rate of handler for such reserve tonnage rai- compensation shall be: For boxes, two sins, or which he received by transfer and one-half cents per day, not to ex- from another handler by purchasing, as ceed a total payment of $1 per box per permitted pursuant to § 989.166, a por- year, per average net weight of raisins tion or all of such other handler’s share in a sweatbox, with equivalent rates of an offer, shall be borne by the han- for raisins in boxes other than sweat- dler and shall not be reimbursed to him boxes; and for bins 20 cents per day per by the Committee. bin, not to exceed a total of $10 per bin (b) Additional payment for reserve ton- per year. For purposes of this para- nage raisins held beyond the crop year of graph, box means any container with a acquisition. Additional payment for re- capacity of less than 1,000 pounds, and serve tonnage raisins held beyond the bin means any container with a capac- crop year of acquisition shall be made ity of 1,000 pounds or more. The aver- in accordance with this paragraph. age net weight of raisins in each type Each handler holding such raisins for of box shall be the industry average as the account of the Committee on Au- computed by the Committee for the gust 1 shall be compensated for storing, box in which the raisins are so held. No handling, and fumigating such raisins further compensation shall be paid un- at the rate of $2.30 per ton per month, less the raisins are so held in the boxes or any part thereof, between August 1 on the succeeding August 1. and October 31, and at the rate of $1.18 (d) Payment for other services—(1) Gen- per ton per month, or any part thereof, eral. In addition to the payments pro- between November 1 and July 31: Pro- vided in paragraphs (a), (b), and (c) of vided, That handlers holding 2002–03 this section, handlers shall be com- Natural (sun-dried) Seedless reserve pensated for other services performed raisins on August 1, 2003, that are in- with respect to reserve tonnage raisins tended for use as cattle feed shall be as set forth in this paragraph. compensated for storing, handling, and (2) Transportation. The Committee fumigating such raisins at the rate of may arrange with any handler for $2.30 per ton per month, or any part transporting reserve tonnage raisins. thereof, between September 13 and Oc- Payment for such transportation shall tober 31, 2003, and at the rate of $1.18 be based on then prevailing haulage per ton per month, or any part thereof, rates within the production area for between November 1, 2003, and July 31, the type of transportation required. 2004. Such services shall be completed (3) Packing. A handler who accepts an so that the Committee is assured that offer by the Committee to pack reserve the raisins are maintained in good con- tonnage raisins for its account shall be dition. compensated for such packing in an (c) Payment of rental on boxes and bins amount determined by or acceptable to containing raisins held beyond the crop the Committee. In considering the year of acquisition. Payment of rental amount of compensation to be paid, the on boxes and bins containing reserve Committee shall take into account, tonnage raisins held beyond the crop among other factors, the particular va- year of acquisition shall be made in ac- rietal type of raisins to be packed, the cordance with this paragraph. Each particular pack or package required, handler, producer, dehydrator, and and the quantity and quality of the rai- other person who furnishes boxes or sins to be packed. bins in which such raisins are held for (4) Redelivery. In the event the Com- the account of the Committee on Au- mittee removes reserve tonnage raisins gust 1, shall be compensated for the use of a previous crop year from a handler of such boxes and bins: Provided, That upon the request provided for in persons holding 2002–03 Natural (sun- § 989.66(f) and such handler subse- dried) Seedless reserve raisins on Sep- quently desires redelivery to him of re- tember 13, 2003, that are intended for serve tonnage raisins for contract use as cattle feed shall be compensated packing, or other purpose, he shall re- for the use of such boxes and bins, and imburse the Committee in advance of that no compensation shall be accrued such redelivery for the net costs to it

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of the removal, storage, and redelivery sins in any lot consist of two or more of such raisins: Provided, That the varietal types commingled within their Committee may waive payment by the containers, the lot shall be considered handler of part or all of such costs if it as a mixed lot and as standard raisins determines that such waiver is reason- if they meet for each defect the most ably necessary to the prompt and fa- restrictive requirements for the vari- vorable disposition of the raisins in- etal types of raisins comprising the lot. volved. In the event layered Muscats (includ- [32 FR 15917, Nov. 21, 1967, as amended at 49 ing other raisins with seeds) or Cluster FR 18731, May 2, 1984; 53 FR 49297, Dec. 7, Seedless raisins are commingled within 1988; 54 FR 35636, Aug. 29, 1989; 65 FR 30527, their containers with loose Muscats May 12, 2000; 68 FR 44859, July 31, 2003] (including other raisins with seeds) or loose Cluster Seedless raisins respec- Subpart—Conversion Factors tively, the entire lot shall be considered as loose Muscats (including other § 989.601 Conversion factors for raisin raisins with seeds) or Natural (sun- weight. dried) Seedless raisins. The raisins The following factors for the named shall be considered as standard raisins varietal types of raisins shall be used if the lot as a whole meets the min- to convert the net weight of recondi- imum standards for loose Muscats (in- tioned raisins acquired by handlers as cluding other raisins with seeds) or packed raisins to natural condition Natural (sun-dried) Seedless raisins: weight. The net weight of the raisins Provided, That with respect to the re- after the completion of processing quirements peculiar to a varietal type shall be divided by the applicable fac- such as possessing characteristic color, tor to obtain the natural condition flavor, or odor, the raisins shall be con- weight: Provided, That the adjusted sidered as meeting such requirements weight does not exceed the original if they have been properly prepared as weight of the raisins prior to recondi- raisins. In each category, only those tioning; and Provided further, That, if raisins which have been properly dried the adjusted weight exceeds the origi- and cured in original natural condi- nal weight, the original weight will be tion, are free from active infestation, used. and are in such condition that they are Conver- capable of being received, stored, and Varietal type sion fac- packed without undue deterioration or tor spoilage, shall be considered as stor- Natural (sun-dried) Seedless ...... 0.92 able raisins. Golden Seedless, Dipped Seedless, Other Seed- (a) Natural (sun-dried) Seedless, less, and Other Seedless-Sulfured ...... 0.95 Muscats (including raisins with seeds): Monukka and Other Seedless raisins. Seeded ...... 0.80 Natural condition Natural (sun-dried) Unseeded ...... 0.92 Sultana ...... 0.92 Seedless, Monukka and Other Seedless Zante Currant ...... 0.91 raisins shall have been prepared from sound, wholesome, matured grapes [54 FR 41587, Oct. 11, 1989, as amended at 67 properly dried and cured, and shall FR 36792, May 28, 2002; 68 FR 42947, July 21, meet the following additional require- 2003] ments: (1) Shall be fairly free from damage by sugaring, mechanical in- Subpart—Quality Control jury, sunburn, or other similar injury; (2) shall have a normal characteristic § 989.701 Minimum grade and condi- color, flavor, and odor of properly pre- tion standards for natural condition pared raisins; (3) shall contain not raisins. more than 5 percent, by weight, of sub- Effective pursuant to § 989.58, raisins standard raisins (raisins that show de- meeting the varietal standards herein- velopment less than that characteristic after set forth shall be considered as of raisins prepared from fairly well-ma- standard raisins and those failing to tured grapes), and shall also contain at meet such standards shall be consid- least 50 percent well-matured or rea- ered as off-grade raisins. Where the rai- sonably well-matured raisins; (4) shall

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not exceed 16 percent moisture as de- essed raisins established by the Com- termined by the dried fruit moisture mittee. tester method, except that there shall (c) Golden Seedless. Natural condition be no maximum moisture content for Golden Seedless raisins shall have been Cluster Seedless raisins; and (5) shall prepared from sound, wholesome, ma- be of such quality and condition as can tured grapes properly dried and cured, be expected to withstand storage as and shall meet the following additional provided in the order and that when requirements: (1) Shall be fairly free processed in accordance with good from damage by sugaring, mechanical commercial practice will meet the injury, sunburn, or other similar in- minimum standards for processed rai- jury; (2) shall have a normal char- sins established by the Committee, and acteristic flavor and odor of properly that with respect to Cluster Seedless prepared raisins; (3) shall contain not raisins, in addition to the above re- more than 5 percent, by weight, of sub- quirements the raisins shall be fairly standard raisins (raisins that show de- free from shattered (or loose end) ber- velopment less than that characteristic ries, and be uniformly cured; shall con- of raisins prepared from fairly well-ma- tain 30 percent or more ‘‘2 Crown’’ or tured grapes), and for the 1985–86 and larger size berries; and shall be of such subsequent crop years also contain at quality and condition that when proc- least 50 percent well-matured or rea- essed in accordance with good commer- sonably well-matured raisins; (4) shall cial practice will, except for moisture not exceed 14 percent moisture as de- content, meet the minimum standards termined by the dried fruit moisture for processed raisins established by the tester method, (5) shall be of such qual- Committee. ity and condition as can be expected to (b) Dipped Seedless, Oleate and Related withstand storage as provided in the Seedless, and Other Seedless-Sulfured rai- order and that when processed in ac- sins. Natural condition Dipped Seed- cordance with good commercial prac- less, and Other Seedless-Sulfured rai- tice will meet the minimum standards sins shall have been prepared from for processed raisins established by the sound, wholesome, matured grapes Committee; and (6) shall possess a properly dried and cured, and shall color varying from yellowish green to meet the following additional require- dark amber or dark greenish amber ments: with not more than 15 percent, by weight, of all the raisins being defi- (1) Shall be fairly free from damage nitely dark berries. Definitely dark ber- by sugaring, mechanical injury, sun- ries means raisins which are definitely burn, or other similar injury; darker than dark amber and char- (2) Shall have a normal characteristic of ‘‘naturally’’ raisined acteristic flavor and odor of properly grapes. prepared raisins; (d) Muscats (including other raisins (3) Shall contain not more than 5 per- with seeds). Natural condition Muscat cent, by weight, of substandard raisins raisins (including other raisins with (raisins that show development less seeds) shall have been prepared from than that characteristic of raisins pre- sound, wholesome, matured grapes pared from fairly well-matured grapes), properly dried and cured, and shall and for the 1985–86 and subsequent crop meet the following additional require- years also contain at least 50 percent ments: well-matured or reasonably well-ma- (1) Shall be fairly free from damage tured raisins; by sugar, mechanical injury, sunburn (4) Shall not exceed 14 percent mois- or other similar injury; ture as determined by the dried fruit (2) Shall have a normal char- moisture tester method, acteristic color, flavor, and odor of (5) Shall be of such quality and condi- properly prepared raisins and shall con- tion as can be expected to withstand tain not more than 12 percent, by storage as provided in the order and weight, of substandard raisins (raisins that when processed in accordance that show development less than that with good commercial practice will characteristic of raisins prepared from meet the minimum standards for proc- fairly well-matured grapes);

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(3) Shall not exceed 16 percent mois- essed raisins established by the Com- ture as determined by the dried fruit mittee. moisture tester method, except that (f) Zante Currant Raisins. Natural water dipped, vine sprayed or similarly condition Zante Currant raisins shall treated Muscats (including other rai- have been prepared from sound, whole- sins with seeds) shall not exceed 14 per- some, matured grapes properly dried cent moisture, and that there shall be and cured, and shall meet the following no maximum moisture content for lay- additional requirements; (1) Shall be ered Muscats (including other raisins fairly free from damage by sugaring, with seeds); mechanical injury, sunburn, or other (4) The raisins shall be of such qual- similar injury; (2) shall have a normal ity and condition as can be expected to characteristic color, flavor, and odor of withstand storage as provided in the properly prepared raisins and shall con- marketing agreement and order, and tain not more than 12 percent, by that when processed in accordance weight, of substandard raisins (raisins with good commercial practice will that show development less than that meet the minimum standards for proc- characteristic of raisins prepared from essed raisins established by the Com- fairly well-matured grapes); (3) shall mittee, and that with respect to lay- not exceed 16 percent moisture as de- ered Muscats (including other raisins termined by the dried fruit moisture with seeds), in addition to the above re- tester method; and (4) the raisins shall quirements the raisins shall be fairly be of such quality and condition as can free from shattered (or loose end) ber- be expected to withstand storage as ries; uniformly cured; 30 percent or provided in the marketing agreement more ‘‘3 Crown’’ or larger size; of such and order, and that when processed in quality and condition that when proc- accordance with good commercial prac- essed in accordance with good commer- tice will meet the minimum standards cial practice will, except for moisture content, meet the minimum standards for processed raisins established by the for processed raisins established by the Committee. Committee. [42 FR 52378, Sept. 30, 1977, as amended at 46 (e) Sultana Raisins. Natural condition FR 39121, July 31, 1981; 48 FR 49215, Oct. 25, Sultana raisins shall have been pre- 1983; 49 FR 1669, Jan. 13, 1984; 49 FR 33994, pared from sound, wholesome, matured Aug. 28, 1984; 50 FR 35771, Sept. 4, 1985; 53 FR grapes properly dried and cured, and 34715, Sept. 8, 1988; 67 FR 36793, May 28, 2002; shall meet the following additional re- 68 FR 42947, July 21, 2003] quirements: § 989.702 Minimum grade standards (1) Shall be fairly free from damage for packed raisins. by sugaring, mechanical injury, sunburn, or other similar injury; Effective pursuant to § 989.59, the (2) Shall have a normal char- minimum grade standards for packed acteristic color, flavor, and odor of raisins shall be as follows: properly prepared raisins and shall con- (a) Natural (sun-dried) Seedless, Dipped tain not more than 12 percent, by Seedless, and Other Seedless-Sulfured rai- weight, of substandard raisins (raisins sins. Packed Natural (sun-dried) Seed- that show development less than that less, Dipped Seedless, and Other Seed- characteristic of raisins prepared from less-Sulfured raisins shall meet the re- fairly well-matured grapes); quirements of U.S. Grade C as defined (3) Shall not exceed 16 percent mois- in the effective United States Stand- ture as determined by the dried fruit ards for Grades of Processed Raisins moisture tester method; and (§§ 52.1841 through 52.1858 of this title): (4) The raisins shall be of such qual- Provided, That at least 70.0 percent, by ity and condition as can be expected to weight, of the raisins shall be well-ma- withstand storage as provided in the tured or reasonably well-matured. With marketing agreement and order, and respect to select-sized and mixed-sized that when processed in accordance raisin lots, the raisins shall at least with good commercial practice will meet the U.S. Grade B tolerances for meet the minimum standards for proc- pieces of stem, and underdeveloped and

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substandard raisins, and small (midg- or larger and meet the additional re- et)-sized raisins shall meet the U.S. quirements as outlined in the table in Grade C tolerances for those factors. paragraph (2)(iv) of this paragraph. (b) Golden Seedless Raisins. Packed (ii) Marketing Order Grade B is the Golden Seedless raisins shall at least quality of the Cluster Seedless raisins meet the requirements prescribed in that have similar varietal characteris- paragraph (a) of this section, and the tics; have a reasonably good typical color requirements for ‘‘colored’’ as de- color; have a good characteristic fla- fined in said standards. vor; are uniformly cured and show (c) Monukka and Other Seedless Rai- characteristics of raisins prepared from sins. Packed Monukka and Other Seed- reasonably well-matured grapes; con- less raisins shall at least meet the retain not more than 23 percent, by quirements prescribed in paragraph (a) weight, of moisture; that not less than of this section, except that the toler- 30 percent, by weight, of raisins, exclu- ance for moisture shall be 19 percent sive of stems and branches, are ‘‘2 rather than 18 percent. Crown’’ size or larger and meet the ad- (d) Muscat (including other raisins with ditional requirements as outlined in seeds) Raisins. Packed Muscat (includ- the table in paragraph (2)(iv) of this ing other raisins with seeds) raisins paragraph. shall at least meet the requirements of (iii) Substandard is the quality of U.S. Grade C of the said standards. Cluster Seedless raisins that fail to Layer Muscat (including other raisins meet the requirements of Marketing with seeds) raisins shall at least meet Order Grade B. U.S. Grade B as defined for ‘‘Layer or (iv) Allowances for defects in Cluster Cluster Raisins With Seeds’’ in said Seedless raisins: standards, except for the provisions Marketing order Marketing order therein relating to moisture content. Defects grade A grade B (e) Sultana Raisins. Packed Sultana raisins shall at least meet the require- Maximum (percent by weight) ments of U.S. Grade C as defined in Sugared ...... 5 10 said standards. Discolored, dam- 5 7 (f) Zante Currant Raisins. Packed aged, or moldy. Provided these lim- Zante Currant raisins shall at least its are not ex- meet the requirements of U.S. Grade B ceed: as defined in said standards. Damaged ...... 3 4 Moldy ...... 2 3 (g) Cluster Seedless Raisins—(1) De- Substandard Devel- 2 5 scription. Raisins referred to as Cluster opment and Un- Seedless raisins means the raisins have developed. not been detached from the main Shattered (or loose) Practically free Reasonably free. individual berries bunch. Cluster Seedless raisins shall at and small clus- least meet the requirements of Mar- ters of 2 or 3 ber- keting Order Grade B prescribed in this ries each. paragraph. The processed raisins are Appearance or edibility of product prepared from clean, sound, dried grapes; are stored or cleaned, or both, Slightly discolored May not be af- May not be more or damaged by fected than slightly af- and are washed with water to assure a fermentation or fected. wholesome product. any other defect (2) Grades. (i) Marketing Order Grade not described A is a quality of Cluster Seedless rai- above. sins that have similar varietal charac- Grit, sand, or silt None of any consequence may be teristics; have a good typical color; present that affects the appearance or have a good characteristic flavor; are edibility of the product. uniformly cured and show development characteristics of raisins prepared from Marketing order Marketing order Defects grade A grade B well-matured grapes; contain not more than 23 percent, by weight, of mois- Maximum (percent by weight) ture; that not less than 30 percent, by Sugared ...... 5 10 weight, of the raisins, exclusive of Discolored, damaged, or 5 7 stems and branches, are ‘‘2 Crown’’ size moldy. 673

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government, agency, or instrumen- Defects Marketing order Marketing order grade A grade B tality acting on behalf of competing Provided these limits foreign producers or sellers to (a) raise, are not exceed: fix, stabilize, or set a floor for raisin, Damaged ...... 3 4 sultana, or currant prices, or (b) limit Moldy ...... 2 3 Substandard Develop- 2 5 the quantity or quality of raisins, sul- ment and Undevel- tanas, or currants imported into or ex- oped. ported from the United States. Partici- Shattered (or loose) in- Practically free Reasonably dividual berries and free. pation in any such unauthorized agree- small clusters of 2 or ment or joint undertaking could result 3 berries each. in prosecution under the antitrust laws by the United States Department of Appearance or edibility of product Justice and/or suit by injured private Slightly discolored or May not be af- May not be persons seeking treble damages, and damaged by fer- fected. more than could also result in expulsion of mem- mentation or any slightly af- other defect not de- fected. bers from the Committee or termi- scribed above. nation of employment with the Com- mittee. Grit, sand, or silt ...... None of any consequence may be present that affects the appear- [46 FR 39984, Aug. 6, 1981] ance or edibility of the product.

(h) A handler may grind raisins PART 993—DRIED PRUNES which do not meet the minimum grade PRODUCED IN CALIFORNIA standards prescribed in paragraphs (a) through (g) of this section because of Subpart—Order Regulating Handling mechanical damage or sugaring, into a DEFINITIONS raisin paste. Sec. [49 FR 33994, Aug. 28, 1984, as amended at 50 993.1 Secretary. FR 35772, Sept. 4, 1985; 53 FR 34715, Sept. 8, 993.2 Act. 1988; 67 FR 36793, May 28, 2002; 68 FR 42947, 993.3 Person. July 21, 2003] 993.4 Area. 993.5 Prunes. Subpart—Antitrust Immunity and 993.6 Non-French prunes. Liability 993.7 French prunes. 993.8 Natural condition prunes. § 989.801 Restrictions applicable to 993.9 Processed prunes. committee personnel. 993.10 Standard prunes. 993.11 Standard processed prunes. Members and employees of the Raisin 993.12 Substandard prunes. Administrative Committee are immune 993.13 Handle. from prosecution under the United 993.14 Handler. States antitrust laws only insofar as 993.15 Dehydrator. their conduct in administering the Rai- 993.16 Producer. sin Marketing Order is authorized by 993.17 Ton. the Agricultural Marketing Agreement 993.18 Grade. 993.19a Size. Act of 1937, 7 U.S.C. 601 et seq., or the 993.19b Undersized prunes. provisions of the order. Under the anti- 993.20 Crop year. trust laws. Committee members and 993.21 Domestic. employees may not engage in any un- 993.21a Proper storage. authorized agreement or concerted ac- 993.21b Trade demand. tion that unreasonably restrains 993.21c Salable prunes. United States domestic or foreign com- 993.21d Reserve prunes. merce. For example, Committee mem- 993.22 Consumer package. bers and employees have no authority 993.23 Part and subpart. to participate, either directly or indi- PRUNE MARKETING COMMITTEE rectly, whether on an informal or for- 993.24 Establishment and membership. mal, written or oral basis, in any bilat- 993.25 Term of office. eral or international undertaking or 993.26 Selection. agreement with any competing foreign 993.27 Eligibility. producer or seller or with any foreign 993.28 Nominees.

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993.29 Alternates. Subpart—Administrative Rules and 993.30 Failure to nominate. Regulations 993.31 Acceptance. 993.32 Vacancies. DEFINITIONS 993.33 Voting procedure. 993.34 Expenses. 993.101 Order. 993.35 Powers. 993.102 Committee. 993.36 Duties. 993.103 Terms in the order. 993.37 Research and development. 993.104 Lot. 993.105 Size count. MARKETING POLICY 993.106 In-line inspection. 993.41 Marketing policy. 993.107 Floor inspection. 993.108 Non-human consumption outlet. PROHIBITION ON HANDLING 993.109 Modified definition of non-French 993.48 Regulation. prunes.

GRADE AND SIZE REGULATIONS PRUNE ADMINISTRATIVE COMMITTEE 993.49 Incoming regulation. 993.128 Nominations for membership. 993.50 Outgoing regulation. 993.51 Inspection and certification. GRADE AND SIZE REGULATIONS 993.52 Modification. 993.149 Receiving of prunes by handlers. 993.53 Above parity situations. 993.150 Disposition of prunes by handlers. ESERVE ONTROL R C RESERVE CONTROL 993.54 Establishment of salable and reserve 993.156 Application of reserve percentage. percentages. 993.157 Holding and delivery of reserve 993.55 Application of salable and reserve prunes. percentages after end of crop year. 993.158 Deferment of reserve withholding. 993.56 Reserve obligation. 993.159 Schedule of payments and condi- 993.57 Holding requirement and delivery. 993.58 Deferment of time for withholding. tions. 993.59 Payment to handlers for services. VOLUNTARY DIVERSION PRODUCER DIVERSION 993.162 Voluntary prune plum diversion. 993.62 Diversion privileges. DISPOSITION OF RESERVE PRUNES DISPOSITION OF RESERVE PRUNES 993.165 Disposition of reserve prunes. 993.65 Disposition of reserve prunes. REPORTS AND BOOKS AND OTHER RECORDS REPORTS AND BOOKS AND OTHER RECORDS 993.172 Reports of holdings, receipts, uses, 993.71 Confidential information. and shipments. 993.72 Reports of acquisitions, sales, uses, 993.173 Reports of accounting. and shipments. 993.174 Records. 993.73 Other reports. 993.74 Records. Subpart—Assessment Rates 993.75 Verification of reports. 993.347 Assessment rate. EXPENSES AND ASSESSMENTS 993.80 Expenses. Subpart—Undersized Prune Regulation 993.81 Assessments. 993.400 Modifications. 993.82 Funds. 993.408 Undersized prune regulation for the MISCELLANEOUS PROVISIONS 2001–02 crop year. 993.409 Undersized prune regulation for the 993.83 Rights of the Secretary. 2002–03 crop year. 993.84 Personal liability. 993.85 Separability. Subpart—Pack Specification as to Size 993.86 Derogation. 993.87 Duration of immunities. DEFINITIONS 993.88 Agents. 993.89 Effective time. 993.501 Consumer package of prunes. 993.90 Termination or suspension. 993.502 Size count. 993.91 Procedure upon termination. 993.503 Size category. 993.92 Effect of termination or amendment. 993.504 In-line inspection. 993.93 Amendments. 993.505 Floor inspection. 993.97 Exhibit A; minimum standards. 993.506 Lot.

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SPECIFICATIONS AS TO SIZE been dried or dehydrated to a point 993.515 Size categories. where they are capable of being stored 993.516 Tolerances and limitations. prior to packaging, without material deterioration or spoilage unless refrig- LABELING eration or other artificial means of 993.517 Identification. preservation are used, and so long as

COMPLIANCE they are treated by a process which is in conformity with, or generally simi- 993.518 Compliance. lar to, the processes for treatment of Subpart—Grade Regulations plums of that type which have been developed or recommended by the Food 993.601 More restrictive grade regulations. Technology Division, College of Agri- 993.602 Maximum tolerances. culture, University of California, for AUTHORITY: 7 U.S.C. 601–674. the specialty pack known as ‘‘high moisture content prunes,’’ but this ex- Subpart—Order Regulating ception shall not apply if and when Handling such plums are dried to the point where they are capable of being stored SOURCE: 26 FR 476, Jan. 19, 1961, unless oth- without material deterioration or erwise noted. spoilage, refrigeration or other artificial means of preservation. DEFINITIONS § 993.6 Non-French prunes. § 993.1 Secretary. Secretary means the Secretary of Ag- Non-French prunes means prunes riculture of the United States, or any commonly known as Imperial, Sugar, other officer or employee of the United Robe de Sargent, Burton, Standard, States Department of Agriculture who Jefferson, Fellenberg, Italian, Presi- is or who may hereafter be, authorized dent, Giant, and Hungarian (Gross), to exercise the powers and to perform produced from such varieties of plums. the duties of the Secretary under the This definition may be modified by the Act. committee with the approval of the Secretary. § 993.2 Act. Act means Public Act No. 10, 73d Con- § 993.7 French prunes. gress, as amended and reenacted and French prunes means: (a) Prunes pro- amended by the Agricultural Mar- duced from plums of the following vari- keting Agreement Act of 1937, as eties of plums: French (Prune d’Agen, amended (7 U.S.C. 601 et seq.). Petite Prune d’Agen), Coates (Cox, § 993.3 Person. Double X, Saratoga); and (b) any other prunes which possess taste, flesh tex- Person means an individual, partner- ture, and other characteristics similar ship, corporation, association, or any to those of the prunes named in this other business unit. section. § 993.4 Area. § 993.8 Natural condition prunes. Area means the State of California. Natural condition prunes means § 993.5 Prunes. prunes which have not been processed. Prunes means and includes all sun- dried or artificially dehydrated plums, § 993.9 Processed prunes. of any type or variety, produced from Processed prunes means prunes which plums grown in the area, except: (a) have been cleaned, or treated with Sulfur-bleached prunes which are pro- water or steam, by a handler. duced from yellow varieties of plums and are commonly known as silver prunes; and (b) plums which have not

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§ 993.10 Standard prunes. growing plums for drying or dehydrating into prunes. Standard prunes means any lot of natural condition prunes meeting the ap- § 993.17 Ton. plicable grade and size standards prescribed pursuant to § 993.49 other than Ton means a short ton of 2,000 pursuant to § 993.49(c). pounds. [26 FR 476, Jan. 19, 1961, as amended at 37 FR § 993.18 Grade. 861, Jan. 20, 1972] Grade means the classification of prunes for quality and condition ac- § 993.11 Standard processed prunes. cording to the grading specifications Standard processed prunes means any established pursuant to the provisions lot of processed prunes meeting the ap- of this subpart. plicable grade and size standards prescribed pursuant to § 993.50. § 993.19a Size. Size means either (a) the number of § 993.12 Substandard prunes. prunes contained in a pound and may Substandard prunes means any lot of be referred to in terms of size ranges, processed or natural condition prunes or (b) the diameter of a round opening, failing to meet the applicable grade expressed in multiples of one thirty- and size standards prescribed pursuant second of an inch, through which to §§ 993.49 and 993.50 other than pursu- prunes pass freely. ant to § 993.49(c). [37 FR 861, Jan. 20, 1972] [26 FR 476, Jan. 19, 1961, as amended at 37 FR 861, Jan. 20, 1972] § 993.19b Undersized prunes. Undersized prunes means prunes § 993.13 Handle. which pass freely through a round Handle means to receive, package, opening of a specified diameter. sell, consign, transport, or ship (except as a carrier of prunes owned by another [37 FR 861, Jan. 20, 1972] person), or in any other way to place § 993.20 Crop year. prunes in the current of the commerce within the area or from such area to Crop year means the 12-month period any point outside thereof: Provided, beginning August 1 of any year and That this term shall not include: (a) ending July 31 of the following year. Sales or deliveries of prunes by a pro- § 993.21 Domestic. ducer or dehydrator to a producer, dehydrator, or handler within the area; Domestic means the United States, (b) the receiving of prunes by a pro- Canal Zone, Puerto Rico, Virgin Is- ducer or dehydrator from a producer or lands, and Canada. dehydrator; and (c) receipts, sales, or shipments of prunes already handled by § 993.21a Proper storage. another person other than pursuant to Proper storage means storage of such § 993.50(f). character as will maintain prunes in the same condition as when received by § 993.14 Handler. a handler, except for normal and nat- Handler means any person who han- ural deterioration and shrinkage. dles prunes. [30 FR 9798, Aug. 6, 1965]

§ 993.15 Dehydrator. § 993.21b Trade demand. Dehydrator means any person who (a) Domestic trade demand. The quan- produces prunes by drying or dehy- tity of prunes which the commercial drating plums by means of sun-drying trade will acquire from all handlers or artificial heat. during a crop year for distribution in domestic markets for human consump- § 993.16 Producer. tion as prunes and prune products. Producer means any person who is en- (b) Foreign trade demand. The quan- gaged, in a proprietary capacity, in tity of prunes which the commercial

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trade will acquire from all handlers PRUNE MARKETING COMMITTEE during a crop year for distribution in other than domestic markets for § 993.24 Establishment and member- human consumption as prunes and ship. prune products. A Prune Marketing Committee (herein referred to as the Committee ), con- [30 FR 9798, Aug. 6, 1965] ‘‘ ’’ sisting of 22 members with an alternate § 993.21c Salable prunes. member for each such member, is hereby established to administer the terms Salable prunes means those prunes and provisions of this part, of whom which are free to be handled pursuant with their respective alternates, 14 to any salable percentage established shall represent producers, 7 shall rep- by the Secretary pursuant to § 993.54, resent handlers, and 1 shall represent or, if no reserve percentage is in effect the public. Committee membership for a crop year, all prunes, excluding shall be allocated in accordance with the quantity of undersized prunes de- the following grouping with the alter- termined pursuant to § 993.49(c), re- nate positions identically allocated: ceived by handlers from producers and (a) Three handler members to rep- dehydrators during that year. resent handlers who are cooperative [46 FR 61637, Dec. 18, 1981] marketing associations of producers (referred to in this part as ‘‘cooperative § 993.21d Reserve prunes. handlers’’); Reserve prunes means those prunes (b) Three handler members to rep- which must be withheld in satisfaction resent handlers other than cooperative of a reserve obligation arising from ap- handlers (referred to in this part as plication of a reserve percentage estab- ‘‘independent handlers’’); lished by the Secretary pursuant to (c) One handler member to represent § 993.54. handlers who are cooperative handlers or independent handlers, whichever of [30 FR 9798, Aug. 6, 1965] such handlers handled as first handlers EFFECTIVE DATE NOTE: At 70 FR 30613, May more than 50 percent of the prunes 27, 2005, § 993.21d was suspended indefinitely. handled by all handlers during the crop year preceding the year in which nomi- § 993.22 Consumer package. nations are made; Consumer package means: (a) Any (d) Fourteen producer members to be container of prunes holding less than 10 selected from and to represent pro- pounds of standard processed prunes or ducers who are members of cooperative standard prunes; or (b) any container marketing associations (referred to in holding less than 10 pounds of prunes this part as ‘‘cooperative producers’’) and other dried fruit if more than 60 and producers other than ‘‘cooperative percent of the net weight of mixed producers’’ (referred to in this part as dried fruit in the lot consists of stand- ‘‘independent producers’’); the number ard processed prunes or standard of the producer members for the coop- prunes. erative producer group or the independent producer group, as the case § 993.23 Part and subpart. may be, shall be in the same propor- Part means the order regulating the tion, as near as practicable, to the handling of dried prunes produced in total of 14, as the tonnage of prunes California, and all rules, regulations, handled by the respective group of co- and supplementary orders issued there- operative handlers or independent han- under. This order regulating the handlers as first handlers during the crop dling of dried prunes produced in Cali- year preceding the year in which nomi- fornia shall be a subpart of such part. nations are made is to the total tonnage of prunes handled by all handlers as first handlers.

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(e) The public member and alternate bers or seven, whichever is the lesser. shall have no financial interest in the Candidates for nomination by inde- prune industry. pendent producers from the various districts shall be obtained at meetings [26 FR 476, Jan. 19, 1961, as amended at 46 FR 61636, Dec. 18, 1981] convened by the committee. Following such meetings, the committee shall § 993.25 Term of office. prepare a separate ballot for each of The term of office of members, and the districts, or a joint ballot for two their respective alternates, shall be or more districts, containing (1) the two years, ending on May 31 of even names of the candidates for each dis- numbered years, and any later date trict involved and (2) provision for which may be necessary for the selec- write-in candidates. The ballot shall be tion and qualification of their respec- mailed to each independent producer of tive successors. record in each district. The voting procedure (including the casting of the § 993.26 Selection. ballot by mail addressed to the committee), and tabulation of votes shall Selection of members of the com- be in accordance with rules and regula- mittee, and their respective alternates, tions prescribed by the committee, shall be made in the appropriate num- with the approval of the Secretary. ber specified in § 993.24, by the Sec- Each voter shall be entitled to cast retary from nominees nominated pur- only one vote for a member nominee suant to this part or, in the discretion and only one vote for an alternate of the Secretary, from other eligible member nominee in a district in which persons. he is a producer, and no voter shall § 993.27 Eligibility. vote for candidates in more than one district. In case he is a producer in Producer members of the Committee more than one district, he shall elect shall be at the time of their selection, in which of such districts he will vote and during their term of office, pro- and notify the committee as to his ducers in the group, for which selected choice. Whenever the number of pro- and if to represent a district also producer members to represent inde- ducers in the district for which se- pendent producers during the ensuing lected, and, except for producer mem- term of office is to exceed seven, one bers representing cooperative pro- nominee shall be nominated by inde- ducers, shall not be engaged in the han- pendent producers in each of the seven dling of prunes either in a proprietary districts and an additional nominee for capacity or as a director, officer, or each member in excess of the seven employee. Handler members of the members shall be nominated, without Committee shall be handlers in the reference to districts, by such seven group they represent or directors, offi- nominees. The committee shall rec- cers, or employees of such handlers. ommend the establishment of districts, These eligibility requirements shall or any changes therein, to the Sec- not apply to the public member and al- retary prior to January 31 of each year ternate member. in which nominations are made. [46 FR 61636, Dec. 30, 1981] (b) Before April 16 of each even-numbered year nominations of producer § 993.28 Nominees. members to represent cooperative pro- (a) For the purpose of obtaining ducers and handler members to rep- nominations for producer members to resent cooperative handlers shall be represent independent producers, the submitted to the Secretary by coopera- Committee shall, with the approval of tive marketing associations engaged in the Secretary, divide the area into dis- the handling of prunes. The number of tricts giving, insofar as practicable, cooperative producer members and equal representation to numbers of handler members to be nominated by independent producers and production each cooperative marketing associa- of prune tonnage by such producers. tion shall bear, as near as practicable, The number of districts shall be equal the same percentage as each coopera- to the number of such producer mem- tive marketing association’s tonnage

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of prunes handled as first handler other than by cooperative marketing thereof is to the total tonnage handled associations engaged in the handling of by all cooperative marketing associa- prunes, shall be obtained and shall sub- tions during the preceding crop year. mit such nominations to the Secretary (c) In any year in which nominations before April 16 of the year in which are made following a crop year during nominations are made. In the event the which the tonnage of prunes handled committee determines that any nomi- by independent handlers as first han- nating procedure specified in this sec- dlers exceeded the tonnage of prunes tion does not result in equitable rep- handled by cooperative handlers as resentation, it may establish, with the first handlers, nominees for member prior approval of the Secretary, such positions to represent independent han- modifications as will tend to assure dlers shall be nominated as follows: such representation. (1) Each of the two independent han- (e) The producer and handler mem- dlers who handled during such pre- bers of the Committee selected for a ceding crop year, the two largest per- new term of office shall nominate a centages of the prune tonnage handled public member and alternate member by all independent handlers shall nomi- at the first meeting following their se- nate from their respective organiza- lection. tions, one nominee for a handler member and one for an alternate member; [31 FR 9713, July 19, 1966, as amended at 46 (2) Three independent handlers who FR 61636, Dec. 18, 1981] handled during such preceding crop § 993.29 Alternates. year the next three largest percentages of the prune tonnage handled by all An alternate for a member of the independent handlers shall nominate committee shall act in the place and from among their organizations, one stead of such member (a) during his ab- nominee for a handler member and one sence, and (b) in the event of his re- for an alternate member; moval, resignation, disqualification, or (3) All other independent handlers death, until a successor for such mem- who handled the remaining percentage ber’s unexpired term has been selected of such prune tonnage shall nominate and has qualified. Except as otherwise from their organizations, one nominee specifically provided in this subpart for a handler member and one for an al- the provisions of this part applicable to ternate member. members also apply to alternate members. In any year in which nominations are made following a crop year during § 993.30 Failure to nominate. which the tonnage of prunes handled by cooperative handlers as first han- If a nomination for any position on dlers exceeded the tonnage of prunes the committee is not received by the handled by independent handlers as Secretary by May 1, the Secretary may first handlers, nominees for two mem- select an eligible individual without re- ber and alternate positions to rep- gard to nominations. resent the independent handlers re- § 993.31 Acceptance. ferred to in paragraph (c)(1) of this section shall be nominated in accordance Each person selected as a member or with said paragraph (c)(1), and one alternate member of the committee nominee for the member and one for shall, prior to serving on the com- the alternate position to represent all mittee, qualify by filing with the Sec- other independent handlers shall be retary a written acceptance within 15 nominated by the handlers referred to days after receiving notice of his selec- in paragraph (c) (2) and (3) of this section. tion and the votes of such handlers shall be weighted by the tonnage of § 993.32 Vacancies. prunes handled during the preceding In the event of any committee va- crop year by the respective handlers. cancy occasioned by the removal, res- (d) The committee shall establish ignation, disqualification, or death of with the approval of the Secretary, the any member, or in the event of the fail- procedures by which such nominations, ure of any person selected as a member

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or alternate member to qualify, a suc- suant to § 993.62,’’ were suspended indefi- cessor for the unexpired term shall be nitely. nominated within 60 calendar days thereof. Such nominations shall be § 993.34 Expenses. made in the manner provided for in The members of the committee, and this subpart, insofar as applicable, ex- alternates when acting as members, or cept that nominations of nominees for when alternates’ expenses are author- a producer member position to rep- ized by the committee, shall serve resent independent producers may, at without compensation but shall be al- the discretion of the committee, be lowed their expenses. made to the committee by the incum- bent producer members of the com- [30 FR 9798, Aug. 6, 1965] mittee who represent independent pro- § 993.35 Powers. ducers. The committee shall have the fol- § 993.33 Voting procedure. lowing powers: Decisions of the Committee shall be (a) To administer the terms and pro- by majority vote of the members visions of this subpart; present and voting and a quorum must (b) To make rules and regulations to be present: Provided, That decisions on effectuate the terms and provisions of marketing policy, grade or size regula- this subpart; tions, pack specifications, salable and (c) To receive, investigate, and report reserve percentages, and on any mat- to the Secretary complaints of viola- ters pertaining to the control or dis- tions of this subpart; and position of reserve prunes or to prune (d) To recommend to the Secretary plum diversion pursuant to § 993.62, in- amendments to this subpart. cluding any delegation of authority for action on such matters and any rec- § 993.36 Duties. ommendation of rules and procedures The committee shall have, among with respect to such matters, including others, the following duties: any such decision arrived at by mail or (a) To act as intermediary between telegram, shall require at least 14 af- the Secretary and any producer, dehy- firmative votes. A quorum shall consist drator, or handler; of at least 13 members of whom at least (b) To keep minutes, books, and 8 must be producer members and at other records which shall clearly re- least 4 must be handler members. Ex- flect all of its acts and transactions, cept in case of emergency, a mimimum and such minutes, books, and other of 5 days notice must be given with re- records shall be subject to examination spect to any meeting of the Com- by the Secretary at any time; mittee. In case of an emergency, to be (c) To make, subject to the prior ap- determined within the discretion of the proval of the Secretary, scientific and chairman of the Committee, as much other studies, and assemble data on the notice of a meeting as is practicable in producing, handling, shipping, and the circumstances shall be given. The marketing conditions relative to Committee may vote by mail or tele- prunes, which are necessary in connec- gram upon due notice to all members, tion with the performance of its offi- but any proposition to be so voted upon cial duties; first shall be explained accurately, (d) To select, from among its mem- fully, and identically by mail or tele- bers, a chairman and other appropriate gram to all members. When any propo- officers, and to adopt such rules and sition is submitted to be voted on by regulations for the conduct of the busi- such method, one dissenting vote shall ness of the committee as it may deem prevent its adoption. advisable; [46 FR 61637, Dec. 18, 1981] (e) To appoint or employ such other persons as it may deem necessary, and EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, in § 993.33, the words ‘‘salable and re- to determine the salaries and define serve percentages, and on any matters per- the duties of such persons; taining to the control or disposition of re- (f) To submit to the Secretary not serve prunes or to prune plum diversion pur- later than the fourth Tuesday of July

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of each year, a budget of its antici- subpart as may be consistent with the pated expenditures and the rec- provisions contained in this subpart ommended rate of assessment for the and as may be necessary to accomplish ensuing crop year, and the supporting the purposes of the act and the effi- data therefor; cient administration of this subpart. (g) To submit to the Secretary such [30 FR 9798, Aug. 6, 1965, as amended at 37 FR available information with respect to 861, Jan. 20, 1972] prunes as the committee may deem appropriate, or as the Secretary may re- EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, in § 993.33, paragraph (i) was sus- quest; pended indefinitely. (h) To prepare and submit to the Sec- retary quarterly statements of the fi- § 993.37 Research and development. nancial operations of the committee, The committee, with the approval of exclusive of reserve prune operations, the Secretary, may establish or provide and to make such statements, together for the establishment of marketing re- with the minutes of the meetings of search and development projects de- said committee, available for inspec- signed to assist, improve, or promote tion at the offices of the committee by the marketing, distribution, and con- producers, dehydrators, and handlers; sumption of prunes. The expense of (i) To prepare and submit to the Sec- such projects shall be paid from funds retary annually, as soon as practicable collected pursuant to § 993.81. after the end of each crop year and at such other times as the committee MARKETING POLICY may deem appropriate or the Secretary may request, a statement of the com- § 993.41 Marketing policy. mittee’s financial operations with re- (a) On or before the first Tuesday of spect to reserve prunes for such crop each July, the committee shall prepare year and to make such statement and submit to the Secretary a report available at the offices of the com- setting forth its recommended mar- mittee for inspection by producers, keting policy for the ensuing crop year. dehydrators, and handlers; If it becomes advisable to modify such (j) To cause the books of the com- policy, because of changed demand, mittee to be audited by a certified pub- supply, or other conditions, the com- lic accountant at least once each crop mittee shall formulate a new policy year, and at such other times as the and shall submit a report thereon to committee may deem necessary or as the Secretary. Notice of the commit- the Secretary may request, and two tee’s marketing policy, and of any copies of each such audit report shall modifications thereof, shall be given be submitted to the Secretary and a promptly by reasonable publicity to copy which does not contain confiden- producers, dehydrators, and handlers. tial data shall be available for inspec- (b) In formulating its marketing pol- tion at the offices of the committee, by icy for the ensuing crop year, the com- producers, dehydrators, and handlers; mittee shall consider and shall include (k) To give the Secretary the same in its report to the Secretary, the fol- notice of meetings of the committee as lowing estimates (natural condition is given to the members of the com- basis) and recommendations: mittee; (1) The carryover of salable prunes as (l) To give producers, dehydrators, of August 1; and handlers reasonable advance notice (2) The carryover of reserve prunes as of meetings of the committee, and to of August 1; maintain all such meetings open to (3) The grade and size composition of such persons; the salable and reserve carryovers; (m) To investigate compliance with (4) The quantity of prunes to be pro- the provisions of this subpart and with duced without regard to possible diver- any rules and regulations established sions of prune plums by producers; pursuant to such provisions; and (5) The probable quality and prune (n) To establish, with the approval of sizes in the crop; the Secretary, such rules and proce- (6) The domestic trade demand by dures relative to administration of this uses of prunes;

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(7) The foreign trade demand by vided, That no handler shall receive countries or groups of countries; any prunes (including substandard (8) The desirable carryout of salable prunes and undersized prunes) from prunes at the end of the ensuing crop producers or dehydrators unless such year; prunes have been properly dried and (9) The quantity of undersized prunes cured in original natural condition, in the crop, itemized as to French without the addition of water, and are prunes and non-French prunes; free from active insect infestation, so (10) The quantity of prunes to be that they are capable of being received, withheld as reserve prunes so as to pro- stored, and packed without material tect against errors of estimation and deterioration or spoilage. Any ‘‘high permit orderly marketing of the sup- moisture content prunes,’’ as described ply; in the exception in § 993.5(b), in the pos- (11) The recommended salable and reserve percentages; session of a handler, shall be held sepa- (12) The quantity of prune plums, rate and apart from any prunes held by dried weight basis, deemed desirable to him. If such ‘‘high moisture content be diverted pursuant to § 993.62; prunes’’ are dried or dehydrated to a (13) Any recommended change in reg- point where they are capable of being ulations pursuant to §§ 933.49 to 993.53, stored, without material deterioration inclusive; or spoilage, unrefrigerated or not oth- (14) The probable assessable tonnage erwise artificially preserved, they shall for the purposes of § 993.81; and be deemed, at that time, to have been (15) The current prices for prunes, the received by such handler as prunes, and trend and level of consumer income, shall be subject to all of the conditions whether producer prices are likely to and restrictions of this subpart. exceed parity, and such other factors (b) The Secretary, on the basis of a as may have a bearing on the mar- recommendation of the committee or keting of prunes or the administration other information, may establish size of this part. regulations or more restrictive grade [30 FR 9798, Aug. 6, 1965, as amended at 37 FR regulations with resepct to prunes that 862, Jan. 20, 1972] may be received by a handler from pro- EFFECTIVE DATE NOTE: At 70 FR 30613, May ducers and dehydrators whenever he 27, 2005, § 993.41 was suspended indefinitely. finds that such action would tend to effectuate the declared policy of the act. PROHIBITION ON HANDLING (c) In no crop year shall a handler receive from producers or dehydrators § 993.48 Regulation. prunes, other than as undersized No handler shall handle prunes ex- prunes, which pass freely through a cept in accordance with the provisions round opening with a diameter as fol- of this part. lows: For French prunes 23/32 of an [30 FR 9799, Aug. 6, 1965] inch, and for non-French prunes 28/32 of an inch: Provided, That the Secretary EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.48 was suspended indefinitely. upon a recommendation of the Com- mittee, may establish larger openings GRADE AND SIZE REGULATIONS whenever it is determined that supply conditions for a crop year warrant such § 993.49 Incoming regulation. regulation. The quantity of undersized (a) No handler shall receive prunes prunes in any lot received by a handler from producers or dehydrators, other from a producer or dehydrator shall be than substandard prunes and under- determined by the inspection service sized prunes, unless such prunes meet and entered on the applicable inspec- the minimum standards for natural tion certificate. condition prunes set forth in § 993.97 (Exhibit A), or as such standards may [26 FR 476, Jan. 19, 1961, as amended at 37 FR be modified, or the more restrictive 862, Jan. 20, 1972; 46 FR 61637, Dec. 18, 1981] grade regulation established pursuant EFFECTIVE DATE NOTE: At 70 FR 30613, May to this section, and then in effect: Pro- 27, 2005, § 993.49 was suspended indefinitely.

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§ 993.50 Outgoing regulation. consumption. A tolerance as to the per- (a) Except as otherwise specifically mitted deviation of sizes about the av- provided, no handler shall ship or oth- erage count shall be prescribed by the erwise make final disposition of prunes Secretary, upon recommendation of which fail to meet the applicable min- the Committee. imum standards set forth in § 993.97 (d) French prunes: No handler shall (Exhibit A), or as such standards may ship or otherwise make final disposi- be modified, for standard prunes or tion of any lot of French prunes for standard processed prunes. human consumption as prunes, or any (b) The Secretary, on the basis of a lot of mixed dried fruit containing recommendation of the committee or French prunes for human consumption other information, may establish size as mixed dried fruit, unless the average regulations, pack specifications, or count of French prunes contained in more restrictive grade regulations with any such lot is 100 or less per pound. respect to prunes that may be shipped However, under safeguards to be estab- or otherwise disposed of by a handler if lished by the Committee, any lot con- such action would tend to effectuate taining French prunes with an average the declared policy of the act. If a more size count of more than 100 prunes per restrictive grade regulation is estab- pound may be shipped to or disposed of lished in connection with § 993.97 (Ex- in prune product outlets in which they hibit A) it shall insofar as practicable lose their form and character as prunes apply comparably to both natural con- by conversion prior to consumption. In dition prunes and processed prunes. determining whether any such lot con- When pack specifications are in effect, forms to this minimum size require- no handler shall ship prunes in con- ment, the following tolerance shall sumer packages, unless such prunes are apply: In a sample of 100 ounces, the identified by an appropriate label, seal, count per pound of 10 ounces of the stamp, or tag affixed to such container smallest prunes shall not vary from the by the handler showing the size of count per pound of 10 ounces of the prunes in the lot from which the con- largest prunes by more than 45 points. tainer was packed. In order to effec- The Secretary may, upon the basis of tuate such orderly marketing of prunes the recommendation and information as will be in the public interest, wheth- submitted by the Committee and other er prices are above or below parity, no available information, modify this tol- handler shall use descriptive terms in a erance for uniformity of size. manner inconsistent with that set (e) No handler shall ship or otherwise forth in this subpart or in any pack make final disposition of any lot of specifications or other regulation substandard prunes except for use as issued by the Secretary pursuant to prune products in which the prunes this subpart. lose their form and character as prunes (c) Non-French prunes: No handler by conversion prior to consumption, or shall ship or otherwise make final dis- for use in non-human consumption out- position of any lot of standard prunes lets: Provided, That any such prunes or standard processed prunes of the which are shipped or otherwise dis- non-French varieties or any lot which posed of for human consumption shall includes non-French prunes in excess of meet the minimum standards pre- a tolerance to be prescribed by the Sec- scribed in II C (1), (2), and (3) of § 993.97 retary on recommendation of the Com- or as such standards as may pursuant mittee, unless the average count of to § 993.52 be modified. The committee such non-French prunes contained in shall issue any such rules and regula- any such lot is 40 or less per pound. tions as may be necessary to insure However, under safeguards to be estab- such uses. lished by the Committee, any lot con- (f) Notwithstanding the restrictions taining non-French prunes with an av- contained in this section, any handler erage size count of more than 40 prunes may transfer prunes from one plant per pound may be shipped to or dis- owned by him to another plant owned posed of in prune product outlets in by him within the area without having which they lose their form and char- an inspection made as provided for in acter as prunes by conversion prior to § 993.51. Any handler may ship prunes

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from his plant to another handler’s tions, including labeling, effective pur- plant within the area without having suant to this part. Such handler shall an inspection made as provided for in obtain a certificate that such prunes § 993.51, but a report of such inter-han- meet the aforementioned applicable re- dler transfer shall be made promptly quirements and shall submit such cer- by the transferring handler to the com- tificate, or cause it to be submitted, to mittee. The receiving handler shall, be- the committee. Acceptable certificates fore shipping or otherwise making final shall be those issued by inspectors of disposition of such prunes, comply with the Dried Fruit Association of Cali- the requirements of this section and of fornia. The Secretary may designate § 993.51. another inspection service in the event (g) No handler shall ship or otherwise the services of the Association prove dispose of, for human consumption, the unsatisfactory. quantity of prunes determined by the EFFECTIVE DATE NOTE: At 70 FR 30613, May inspection service pursuant to 27, 2005, § 993.51 was suspended indefinitely. § 993.49(c) to be undersized prunes. How- ever, such handler may, at the direc- § 993.52 Modification. tion and under the supervision of the Minimum standards, pack specifica- Committee, dispose of such quantity of tions or size regulations, including the prunes in nonhuman consumption out- openings prescribed in § 993.49(c), may lets. Prunes so disposed of shall be of be modified by the Secretary, on the the same variety as, and reasonably basis of a recommendation of the com- comparable in size, to such undersized mittee or other information, whenever prunes. The handler shall cause the in- he finds that such modification would spection service to make a determina- tend to effectuate the declared policy tion whether the prunes disposed of by of the act. the handler in nonhuman consumption outlets meet such requirements. In [26 FR 476, Jan. 19, 1961, as amended at 37 FR making the determination with respect 862, Jan. 20, 1972] to comparability in size, the inspection EFFECTIVE DATE NOTE: At 70 FR 30613, May service shall apply a tolerance permit- 27, 2005, § 993.52 was suspended indefinitely. ting a deviation from the size of the applicable opening established pursuant § 993.53 Above parity situations. to § 993.49(c). Any such tolerance, to- The minimum standards, the min- gether with any rules and regulations imum sizes, including the minimum to insure proper disposition of the undersized regulation in § 933.49(c), and prunes and that such prunes are rea- the provisions of this part relating to sonably comparable to the undersized administration shall continue in effect prunes so received, shall be established irrespective of whether the estimated by the Committee with the approval of season average price for prunes is in the Secretary. The quantity of prunes excess of the parity level specified in determined pursuant to § 993.49(c) shall section 2(1) of the act. not be deemed to be within the handler’s quota for salable prunes fixed by [46 FR 61637, Dec. 18, 1981] the Secretary within the meaning of EFFECTIVE DATE NOTE: At 70 FR 30613, May section 8a(5) of the Act. 27, 2005, § 993.53 was suspended indefinitely.

[26 FR 476, Jan. 19, 1961, as amended at 37 FR RESERVE CONTROL 862, Jan. 20, 1972]

EFFECTIVE DATE NOTE: At 70 FR 30613, May SOURCE: 30 FR 9799, Aug. 8, 1965, unless oth- 27, 2005, § 993.50 was suspended indefinitely. erwise noted.

§ 993.51 Inspection and certification. § 993.54 Establishment of salable and Each handler shall at his own ex- reserve percentages. pense, before or upon the receiving, and Whenever the Secretary finds, from before the shipping or disposing of the recommendations and supporting prunes, cause an inspection to be made information supplied by the com- of such prunes to determine whether mittee, or from any other available in- they meet the applicable grade and size formation, that to establish the per- requirements or the pack specifica- centages of prunes for any crop year

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which shall be salable prunes and re- dler receives during the crop year from serve prunes, respectively, or to modify producers and dehydrators plus that di- the previously established percentages, verted tonnage (dried weight natural would tend to effectuate the declared condition prune basis) on diversion cer- policy of the act, he shall establish or tificates credited to or held by him modify such percentages. The salable which were issued pursuant to § 993.62. and reserve percentages when applied However, if the committee determines to the natural condition weight of the requirement as to setaside reflect- prunes, excluding the quantity of un- ing average marketable content of re- dersized prunes determined pursuant to ceipts is not essential to achieve pro- § 993.49(c), received during the crop year gram objectives for the crop of a par- by a handler from producers and ticular season, it may be eliminated for dehydrators, plus that diverted ton- that season by the committee, with the nage (dried weight natural condition approval of the Secretary. As a pre- prune basis) on diversion certificates requisite for making this determina- issued pursuant to § 993.62 and credited tion, the committee must find that the to or held by him, shall determine the resultant setaside procedures assure weight of each handler’s receipts which that the trade demand for manufac- are salable prunes and reserve prunes. turing prunes, as well as prunes for The total of the salable and reserve consumption as prunes, will be met. percentages shall equal 100 percent. A The salable prunes permitted to be dis- cooperative marketing association posed of by any handler in accordance may concentrate the prunes of its pro- with the provisions of this part shall be ducer members before applying the sal- deemed to be that handler’s quota fixed able and reserve percentages. by the Secretary within the meaning of [30 FR 9799, Aug. 6, 1965, as amended at 37 FR section 8a(5) of the act. 862, Jan. 20, 1972] [30 FR 9799, Aug. 8, 1965, as amended at 37 FR EFFECTIVE DATE NOTE: At 70 FR 30613, May 862, Jan. 20, 1972] 27, 2005, § 993.54 was suspended indefinitely. EFFECTIVE DATE NOTE: At 70 FR 30613, May § 993.55 Application of salable and re- 27, 2005, § 993.56 was suspended indefinitely. serve percentages after end of crop year. § 993.57 Holding requirement and de- The salable and reserve percentages livery. established for any crop year shall re- Each handler shall at all times, hold, main in effect after that crop year in his possession or under his control, until salable and reserve percentages in proper storage for the account of the are established for another crop year. committee, free and clear of all liens, After such percentages are established, the quantity of prunes necessary to all reserve obligations shall be ad- meet his reserve obligation, less any justed to the newly established per- quantity: (a) For which he has a tem- centages. porary deferment pursuant to [46 FR 61637, Dec. 18, 1981] § 993.58(a); (b) of prune plums (dried EFFECTIVE DATE NOTE: At 70 FR 30613, May weight natural condition basis) di- 27, 2005, § 993.55 was suspended indefinitely. verted pursuant to § 993.62 as shown on diversion certificates held by him, or § 993.56 Reserve obligation. credited by the committee against his Whenever salable and reserve per- reserve obligation; (c) disposed of by centages are in effect for any crop him under a sales contract of the com- year, the reserve obligation of a han- mittee; (d) delivered by him to the dler shall approximate the average committee, or to a person designated marketable content of the handler’s re- by it, pursuant to its instructions; and ceipts and shall be a weight of natural (e) for which he is otherwise relieved condition prunes equal to the reserve by the committee of such responsi- percentage applied to the natural con- bility to so hold prunes. No handler dition weight of prunes, excluding the may transfer a reserve obligation but quantity of undersized prunes deter- any handler may, upon notification to mined pursuant to § 993.49(c), such han- the committee arrange to hold reserve

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prunes on the premises of another han- prune outlets. Purchases shall be at dler or in approved commercial stor- prices determined to be appropriate by age, under conditions of proper storage. the committee and if more prunes are The committee may, after giving rea- offered than required by the com- sonable notice, require a handler to de- mittee, it shall make the purchases liver to it, or to a person designated by from various handlers as nearly as it, f.o.b. handler’s warehouse or point practicable in proportion to the quan- of storage, reserve prunes held by him. tity of their respective offerings at the The committee may require that such same price. The committee shall dis- delivery consist of natural condition pose of the prunes acquired as soon as prunes or it may arrange for such de- practicable in the most favorable re- livery to consist of processed prunes. serve prune outlets and shall deposit the proceeds from such sales, less com- EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.57 was suspended indefinitely. mittee expenses in connection with such transaction, with reserve pool § 993.58 Deferment of time for with- funds for distribution to equity hold- holding. ers. (a) Compliance by any handler with (3) If for any reason the committee is the requirement of § 993.57 for with- unable to purchase a quantity of holding reserve prunes may be tempo- prunes as large as the quantity of re- rarily deferred to any date desired by serve prunes in default by the handler, the handler, but not later than Novem- any remaining balance of funds re- ber 15 of the crop year, upon the execu- ceived because of the default less ex- tion and delivery by such handler to penses of the committee, shall be de- the committee of a written under- posited with reserve pool funds for dis- taking that on or prior to the desired tribution to equity holders. date he will have fully satisfied his (c) A handler who has defaulted on holding requirement. Such undertaking his bond shall be credited on his re- shall be secured by a bond or bonds to serve obligation with, and his holding be filed with and acceptable to the requirement reduced by, that quantity committee in the amount or amounts of prunes represented by the sums col- specified, conditioned upon full compli- lected but not more than the extent of ance with such undertaking. his default. (b)(1) Each bond shall be provided by EFFECTIVE DATE NOTE: At 70 FR 30613, May and at the handler’s expense, with a 27, 2005, § 993.58 was suspended indefinitely. surety or sureties acceptable to the committee, and shall be in an amount § 993.59 Payment to handlers for serv- computed by multiplying the pounds of ices. natural condition prunes for which The committee shall pay handlers for deferment is desired by the bonding necessary services rendered by them in rate. Such bonding rate shall be estab- connection with reserve prunes includ- lished by the committee at a level suf- ing, but not limited to, inspection, re- ficient to achieve the objectives of this ceiving, storing, grading, and fumiga- part. tion, in accordance with a schedule of (2) In case a handler defaults in meet- payments and conditions established ing his deferred withholding require- by the Secretary after recommendation ment, any funds collected by the com- by the committee. mittee from the bonding company EFFECTIVE DATE NOTE: At 70 FR 30613, May through such default shall be used by 27, 2005, § 993.59 was suspended indefinitely. the committee to purchase from handlers a quantity of natural condition PRODUCER DIVERSION prunes, up to but not exceeding the quantity on which default occurred. § 993.62 Diversion privileges. Purchases shall be made from prunes (a) Prune plums. The words prune with respect to which the reserve obli- plums as used in this section mean gation has been met, and shall be of plums of a variety used in the produc- grades, varieties, or sizes and in such tion of prunes. containers as the committee specifies (b) Voluntary principle. No producer in consideration of available reserve shall be required to divert all or any

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portion of the prune plums produced by tablished to cover costs pertaining to him. the diversion. (c) Authorization. If, on the basis of a [30 FR 9800, Aug. 6, 1965] committee recommendation for diversion operations, the availability of gov- EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.62 was suspended indefinitely. erning rules and procedures established by the Secretary after recommendation DISPOSITION OF RESERVE PRUNES of the committee, and other information, the Secretary concurs that diver- § 993.65 Disposition of reserve prunes. sion operations should be permitted, he (a) Committee’s right of disposition. The shall authorize such operations. committee shall have the power and (d) Diversion certificates. After diver- authority to sell or dispose of any and sion operations are authorized, and all reserve prunes (1) to meet demand subject to the applicable rules and pro- either (i) as domestic trade demand, or cedures, any producer may divert (ii) as foreign trade demand, or (2) for prune plums of his own production for use in any outlet, defined in rules and eligible purposes and receive from the procedures, established by the Sec- committee a diversion certificate retary after recommendation of the therefor: Provided, That diversion cer- committee, noncompetitive with nor- tificates for prune plums diverted by mal outlets for salable prunes. producer members of a cooperative (b) Methods of disposition. The com- marketing association shall be issued mittee may, for any of the purposes of by the committee to the association if § 993.65(a), offer to sell and sell reserve it so requests. To the extent permitted prunes to handlers for disposition or by the rules and procedures, the certifi- sale by them in specified outlets. Sale cate may be submitted to any handler of reserve prunes by the committee to in lieu of reserve prunes and to the any handler for resale in such outlets same extent the certificate shall enti- or for resale to other persons for sale in tle the handler to satisfy his reserve such outlets shall be governed by the obligation. Only to the extent per- provisions of a sales agreement, exe- mitted by the rules and procedures, di- cuted by the handler with the com- version certificates may be transfer- mittee. The committee may refuse to able among producers and handlers. sell reserve prunes to any handler if the handler violates the terms and con- (e) Eligible diversions. Within such re- ditions of the agreement or other pro- strictions as may be prescribed in rules visions of this part. The committee and procedures, diversion may be au- may sell reserve prunes into any outlet thorized for such dispositions as are in which direct selling is determined to not competitive with the normal mar- be more appropriate. keting of prunes and prune products. (c) Offers to sell reserve prunes. No Such eligible diversions may include: offer to sell reserve prunes either to (1) Disposal of prune plums for handlers or to other persons shall be nonhuman use; (2) leaving prune plums made by the committee until 5 days unharvested; and (3) such other meth- (exclusive of Saturdays, Sundays, and ods of diversion as may be authorized. holidays) have elapsed from the time it No diversion certificate shall be issued files with the Secretary complete in- by the committee for prune plums formation as to the terms and condi- which would not, under normal pro- tions of the proposed offer including ducer practices, be dried and delivered the basis for determining the handlers’ to a handler. shares: Provided, That at any time (f) Nonparticipation in pool proceeds. prior to the expiration of the 5-day pe- Any prune plums diverted pursuant to riod the offer may be made upon the this section shall not be included in committee receiving from the Sec- any reserve pool. retary notice that he does not dis- (g) Payment of costs. Prior to the approve it. issuance of a diversion certificate to a (d) Transfer of shares. No handler may producer or a cooperative marketing transfer a reserve obligation. However, association, the producer or associa- any handler who is authorized by the tion shall pay to the committee fees es- committee to dispose of reserve prunes

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may arrange with another handler to shipments of prunes, as may be re- dispose of his share of reserve prunes quested by the committee. through such other handler. In that event, credit for the reserve disposition EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.72 was suspended indefinitely. shall go to the handler whose reserve prunes are used. § 993.73 Other reports. (e) Distribution of proceeds. Expenses incurred by the committee for the re- Upon the request of the committee, ceiving, handling, holding, or disposing each handler shall furnish such other of any quantity of reserve prunes shall reports and information as are needed be charged against the proceeds of to enable the committee to perform its sales of such prunes. Net proceeds from functions under this subpart. the disposition of reserve prunes shall EFFECTIVE DATE NOTE: At 70 FR 30613, May be distributed by the committee either 27, 2005, § 993.73 was suspended indefinitely. directly, or through handlers as agents of the committee, under safeguards to § 993.74 Records. be established by the committee, to persons in proportion to their contribu- Each handler shall maintain such tions thereto, or to their successors in records of prunes received, held and interest, with appropriate grade and disposed of by him, as are prescribed by size differentials as established by the the committee and needed by it to per- committee. Progress payments may be form its functions under this subpart. made by the committee as sufficient Such records shall be retained for at funds accumulate. Distribution of the least two years beyond the crop year of proceeds in connection with the reserve their applicability. prunes contributed by a cooperative EFFECTIVE DATE NOTE: At 70 FR 30613, May marketing association shall be made to 27, 2005, § 993.74 was suspended indefinitely. such association, if it so requests. § 993.75 Verification of reports. [30 FR 9800, Aug. 6, 1965] For the purpose of checking and EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.65 was suspended indefinitely. verifying reports filed by handlers or the operation of handlers under the REPORTS AND BOOKS AND OTHER provisions of this subpart, the Sec- RECORDS retary, and the Committee through its duly authorized agents, shall have ac- § 993.71 Confidential information. cess to any premises where prunes may All reports and records furnished or be held by any handler and at any time submitted by handlers to the com- during reasonable business hours, shall mittee which include data or informa- be permitted to inspect any prunes so tion constituting a trade secret or dis- held by such handler and any and all closing of the trade position, financial records of such handler with respect to condition, or business operations of the the holding or disposition of all prunes particular handler from whom received which may be held or which may have shall be received by, and at all times been disposed of by him. kept in the custody and under the control of one or more employees of the [37 FR 862, Jan. 20, 1972] committee, who shall disclose such in- EFFECTIVE DATE NOTE: At 70 FR 30613, May formation to no person except the Sec- 27, 2005, § 993.75 was suspended indefinitely. retary. Notwithstanding the above provisions of this section, information EXPENSES AND ASSESSMENTS may be disclosed to the committee when reasonably necessary to enable § 993.80 Expenses. the committee to carry out its func- The committee is authorized to incur tions under this subpart. such expenses as the Secretary finds are reasonable and likely to be in- § 993.72 Reports of acquisitions, sales, curred by it during each crop year for uses, and shipments. the maintenance and functioning of the Each handler shall file such reports committee and for such other purposes of his acquisitions, sales, uses, and as the Secretary may, pursuant to the

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provisions of this subpart, determine to and alternate members to account for be appropriate. all receipts and disbursements.

§ 993.81 Assessments. MISCELLANEOUS PROVISIONS (a) Each handler shall pay to the § 993.83 Rights of the Secretary. committee, upon demand, with respect to all salable prunes handled by him as The members of the committee (in- the first handler thereof, his pro rata cluding successors or alternates) and share of all expenses which the Sec- any agent or employee appointed or retary finds are reasonable and likely employed by the committee, shall be to be incurred by the committee during subject to the removal or suspension each crop year. Each handler’s pro rata by the Secretary, in his discretion, at share shall be the rate of assessment any time. Each and every decision, de- per ton fixed by the Secretary. At any termination, or other acts of the com- time during or after a crop year the mittee shall be subject to the con- Secretary may increase the rate of as- tinuing right of the Secretary to dis- sessment to cover unanticipated ex- approve of the same at any time, and penses of the committee or a deficit in upon such disapproval, shall be deemed assessable tonnage. null and void. (b) In order to provide funds to carry out the functions of the committee, the § 993.84 Personal liability. committee may accept advance pay- No member or alternate member of ments from any handler to be credited the committee, or any employee, rep- toward such assessments as may be resentative, or agent thereof shall be levied pursuant to this section against held personally responsible, either in- the respective handler. dividually of jointly with others, in (c) Any money collected as assess- any way whatsoever, to any person, for ments during any crop year and not ex- errors in judgment, mistakes, or other pended in connection with the commit- acts, either of commission or omission, tee’s operations may be used by the as such member, alternate member, committee for a period of five months employee, representative, or agent, ex- subsequent to such crop year. At the cept for acts of dishonesty. end of such period the committee shall, from funds on hand, refund or credit to § 993.85 Separability. handler accounts the aforesaid excess. If any provision of this subpart is de- Each handler’s share of such excess clared invalid or the applicability funds shall be the amount of assess- thereof to any person, circumstance, or ments he has paid in excess of his pro thing is held invalid, the validity of the rata share of the actual net expenses of remainder of this subpart or the appli- the committee for the preceding crop cability thereof to any other person, year. Any money collected from assess- circumstance, or thing shall not be af- ments hereunder and remaining unex- fected thereby. pended in the possession of the committee at the termination of this part, § 993.86 Derogation. shall be distributed in such manner as Nothing contained in this subpart is, the Secretary may direct: Provided, or shall be construed to be, in deroga- That to the extent practical, such tion or in modification of the rights of funds shall be returned pro rata to the the Secretary or of the United States persons from whom such funds were to exercise any powers granted by the collected. act or otherwise, or, in accordance [26 FR 476, Jan. 19, 1961, as amended at 30 FR with such powers, to act in the prem- 9800, Aug. 6, 1965] ises whenever such action is deemed advisable. § 993.82 Funds. All funds received by the committee § 993.87 Duration of immunities. pursuant to the provisions of this part The benefits, privileges, and immuni- shall be used solely for authorized pur- ties conferred upon any person by vir- poses. The Secretary may, at any time, tue of this subpart shall cease upon the require the committee or its members termination of this subpart, except

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with respect to acts done under and shall not be required to hold such a ref- during the existence of this subpart. erendum upon the basis of such a request more than once every two years. § 993.88 Agents. (c) Termination of act. The provisions (a) Authorization by Secretary. The of this subpart shall terminate, in any Secretary may, by a designation in event, upon the termination of the act. writing, name any person, including any officer or employee of the United § 993.91 Procedure upon termination. States Government, or name any bu- Upon the termination of this subpart, reau or division in the United States the members of the committee then Department of Agriculture, to act as functioning shall continue as joint his agent or representative in connec- trustees, for the purpose of liquidating tion with any of the provisions of this the affairs of the committee. Action by subpart. such trustee shall require the concur- (b) Authorization by committee. The committee may authorize any person rence of a majority of the said trustees. or persons or agency to act as its agent Such trustees shall continue in such or representative in connection with capacity until discharged by the Sec- the provisions of this subpart. retary, and shall, from time to time, account for all receipts and disburse- § 993.89 Effective time. ments and deliver all property on hand, The provisions of this subpart, as together with all books and records of well as any amendments to this sub- the committee and the joint trustees, part, shall become effective at such to such person as the Secretary may time as the Secretary may declare, and direct; and shall, upon the request of shall continue in force until termi- the Secretary, execute such assign- nated, or during suspension, in one of ments or other instruments necessary the ways specified in § 993.90. or appropriate to vest in such person full title and right to all the funds, § 993.90 Termination or suspension. properties, and claims vested in the (a) Failure to effectuate policy of act. committee or the joint trustees, pursu- The Secretary may, at any time, ter- ant to this subpart. Any person to minate the provisions of this subpart, whom funds, property, or claims have by giving at least one day’s notice by been transferred or delivered by the means of a press release or in any other committee or the joint trustees, pursu- manner which he may determine. The ant to this section, shall be subject to Secretary shall terminate or suspend the same obligations imposed upon the the operation of any or all of the provi- members of the said committee and sions of this subpart, whenever he finds upon said joint trustees. that such provisions do not tend to effectuate the declared policy of the act. § 993.92 Effect of termination or (b) Referendum. The Secretary shall amendment. terminate the provisions of this sub- Unless otherwise expressly provided part on or before the fifteenth day of by the Secretary, the termination of July of any crop year, to be effective at this subpart or of any regulation issued the end of such crop year, whenever he pursuant to this subpart, or the is required to do so by the provisions of issuance of any amendment to either section 8c(16)(B) of the act. The Sec- thereof, shall not (a) affect or waive retary may, at any time he deems it any right, duty, obligation, or liability desirable, hold a referendum of pro- which shall have arisen or which may ducers to determine whether they favor thereafter arise in connection with any termination of this subpart. However, provision of this subpart or any regula- beginning with 1951, if the Secretary tion issued under this subpart, or (b) receives a recommendation, adopted by release or extinguish any violation of at least a majority vote of the producer this subpart or any regulation issued members of the committee, requesting under this subpart, or (c) affect or im- the holding of such a referendum, the pair any rights or remedies of the Sec- Secretary shall hold such a ref- retary, or of any other person, with re- erendum: Provided, That the Secretary spect to such violation.

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§ 993.93 Amendments. (8) Mold means a characteristic fungus growth and is self-explanatory. Amendments to this subpart may be (9) Imbedded dirt means the presence of dirt proposed from time to time, by any or other extraneous material so imbedded in, person or by the committee, and may or adhering to, the prune that it cannot be be made a part of this subpart by the removed in normal processing. procedures provided under the act. (10) Insect infestation means the presence of insects, insect fragments or insect remains. § 993.97 Exhibit A; minimum stand- C. Maximum tolerances. Tolerance allow- ards. ances shall be on a weight basis and shall not exceed the following: I. Minimum standards for natural condi- (1) The tolerance allowance for decay shall tion prunes: not exceed one percent (1%). A. Defects. Defects are: (1) Off-color; (2) in- (2) The combined tolerance allowance for ferior meat condition; (3) end cracks; (4) fer- mold, imbedded dirt, insect infestation, and mentation; (5) skin or flesh damage; (6) scab; decay shall not exceed five percent (5%). (7) burned; (8) mold; (9) imbedded dirt; (10) (3) The combined tolerance allowance for insect infestation; (11) decay. fermentation, skin or flesh damage, scab- B. Explanation of terms. (1) Off-color means burned, mold, imbedded dirt, insect infesta- a dull color or skin differing noticeably in tion, and decay shall not exceed eight per- appearance from that which is characteristic cent (8%). of mature, properly handled fruit of a given (4) The combined tolerance allowance for variety or type. end cracks, fermentation, skin or flesh dam- (2) Inferior meat condition means flesh age, scab, burned, mold, imbedded dirt, in- which is fibrous, woody or otherwise inferior sect infestation, and decay shall not exceed due to immaturity to the extent that the ten percent (10%), except that the first eight characteristic texture of the meat is sub- percent (8%) of end cracks shall be given stantially affected. one-half value and any additional percentage (3) End cracks means callous growth of end cracks shall be given full value. cracks, at the blossom end of prunes, aggre- (5) The combined tolerance allowance for gating more than three-eighths of one inch off-color, inferior meat condition, end (3⁄8″) but not more than one-half of one inch cracks, fermentation, skin or flesh damage, (1⁄2″) in length. scab-burned, mold, imbedded dirt, insect in- (4) Fermentation means damage to the flesh festation, and decay shall not exceed twenty by fermentation to the extent that the char- percent (20%), except that the first eight per- acteristic appearance or flavor is substan- cent (8%) of end cracks shall be given one- tially affected. half value and any additional percentage of (5) Skin or flesh damage means growth end cracks shall be given full value. cracks, splits, breaks in skin or flesh of the (6) Prunes showing obvious live insect in- following descriptions: festation shall be fumigated prior to accept- (a) Callous growth cracks, except end ance. cracks as defined in this section, aggregating D. Natural condition prunes must be prop- more than three-eighths of one inch (3⁄8″) in erly dried and cured in original natural con- length; dition, without the addition of water, and (b) Splits or skin breaks exposing flesh and free from active infestation, so that they are affecting materially the normal appearance capable of being received, stored and packed of the prunes; without deterioration or spoilage. (c) Any cracks, splits or breaks open to the II. Minimum standards for processed pit; prunes: (d) Healed or unhealed surface or flesh A. Defects. Defects are: (1) Off-color; (2) in- blemishes caused by insect injury and which ferior meat condition; (3) end cracks; (4) fer- materially affect appearance, edibility or mentation; (5) skin or flesh damage; (6) scab; keeping quality; (7) burned; (8) mold; (9) imbedded dirt; (10) (e) Skin damage caused by rain or overdip- insect infestation; (11) decay. ping to the extent that the prunes cannot be B. Explanation of terms. (1) Off-color means processed normally without material slough- a dull color or skin differing noticeably in ing of the skin. appearance from that which is characteristic (6) Scab means tough or thick scab exceed- of mature, properly handled fruit of a given ing in the aggregate the area of a circle variety or type. three-eighths of one inch (3⁄8″) in diameter or (2) Inferior meat condition means flesh by unsightly scab of another character ex- which is fibrous, woody or otherwise inferior ceeding in the aggregate the area of a circle due to immaturity to the extent that the three-fourths of one inch (3⁄4″) in diameter. characteristic texture of the meat is sub- (7) Burned means injury by sunburn or ex- stantially affected. cessive heat in dehydration to the extent (3) End cracks means callous growth, that the characteristic appearance, flavor or cracks, at the blossom end of prunes, aggre- edibility of the fruit is noticeably affected. gating more than three-eighths of one inch

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(3⁄8″) but not more than one-half of one inch cracks, fermentation, skin or flesh damage, (1⁄2″) in length. scab, burned, mold, imbedded dirt, insect in- (4) Fermentation means damage to the flesh festation, and decay shall not exceed twenty by fermentation to the extent that the char- percent (20%), except that the first eight per- acteristic appearance or flavor is substan- cent (8%) of end cracks shall be given one- tially affected. half value and any additional percentage of (5) Skin or flesh damage means growth end cracks shall be given full value. cracks, splits, breaks in skin or flesh of the following descriptions: EFFECTIVE DATE NOTE: At 70 FR 30613, May (a) Callous growth cracks, except end 27, 2005, § 993.97 was suspended indefinitely. cracks as defined in this section, aggregating more than three-eighths of one inch (3⁄8″) in Subpart—Administrative Rules and length; Regulations (b) Splits or skin breaks exposing flesh and materially affecting the normal appearance DEFINITIONS of French prunes; or markedly affecting the normal appearance of varieties other than the French variety; SOURCE: 26 FR 8278, Sept. 2, 1961, unless (c) Any cracks, splits or breaks open to the otherwise noted. pit; (d) Healed or unhealed surface or flesh § 993.101 Order. blemishes caused by insect injury and which Order means Marketing Agreement materially affect appearance, edibility or No. 110, as amended, and Order No. 993, keeping quality. as amended (§§ 993.1 through 993.97), (6) Scab means tough or thick scab exceeding in the aggregate the area of a circle regulating the handling of dried prunes three-eighths of one inch (3⁄8″) in diameter or produced in California, or as they may by unsightly scab of another character ex- be further amended hereafter. ceeding in the aggregate the area of a circle three-fourths of one inch (3⁄4″) in diameter. § 993.102 Committee. (7) Burned means injury by sunburn or ex- Committee means the Prune Mar- cessive heat in dehydration to the extent keting Committee established pursu- that the characteristic appearance, flavor or edibility of the fruit is noticeably affected. ant to § 993.24. (8) Mold means a characteristic fungus [26 FR 8278, Sept. 2, 1961, as amended at 48 growth and is self-explanatory. FR 57261, Dec. 29, 1983] (9) Imbedded dirt means the presence of dirt or other extraneous material so imbedded in, § 993.103 Terms in the order. or adhering to, the prune that it cannot be readily removed in washing the fruit. Terms defined in the order shall have (10) Insect infestation means the presence of the same meaning when used in this insects, insect fragments or insect remains. subpart. C. Maximum tolerances. Tolerance allowances shall be on a weight basis and shall not § 993.104 Lot. exceed the following: (a) Lot for the purposes of §§ 993.49 (1) There shall be no tolerance allowance for live insect infestation. and 993.149 means any quantity of (2) The tolerance allowance for decay shall prunes delivered by one producer or not exceed one percent (1%). one dehydrator to a handler on which (3) The combined tolerance allowance for inspection is requested: Provided, That mold, imbedded dirt, insect infestation, and a lot shall be limited to (1) the prunes decay shall not exceed five percent (5%). contained in not more than 30 ‘‘ton box’’ (4) The combined tolerance allowance for containers or (2), if in other containers, fermentation, skin or flesh damage, scab, burned, mold, imbedded dirt, insect infesta- not more than 60,000 pounds of prunes. tion, and decay shall not exceed eight per- If the prunes in any containers are cent (8)%. markedly inferior in quality and condi- (5) The combined tolerance allowance for tion to other prunes in the proffered end cracks, fermentation, skin or flesh dam- lot, the containers shall be segregated age, scab, burned, mold, imbedded dirt, in- into lots of reasonable uniform quality. sect infestation, and decay shall not exceed (b) Lot for the purposes of §§ 993.50 ten percent (10%), except that the first eight and 993.150 means: percent (8%) of end cracks shall be given one-half value and any additional percentage (1) With respect to in-line inspection of end cracks shall be given full value. either (i) the aggregate quantity of (6) The combined tolerance allowance for prunes of the same size, other than off-color, inferior meat condition, end those rejected by inspection, processed

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in any continuous production of one prunes or prune waste received for a calendar day and packed during such non-human use will be used only with- day in one size and style of container in such outlet. or (ii) the aggregate quantity of prunes of the same size, other than those re- [26 FR 8278, Sept. 2, 1961; 26 FR 8483, Sept. 9, jected by inspection, so processed and 1961] held in packing containers for later EFFECTIVE DATE NOTE: At 70 FR 30613, May packaging. 27, 2005, § 993.108 was suspended indefinitely. (2) With respect to floor inspection either (i) prunes not previously in- § 993.109 Modified definition of non- spected in-line, of the same size, in like French prunes. containers, bearing the same identi- The definition of non-French prunes fication (e.g., brand) if in consumer set forth in § 993.6 is modified to read as packages, and offered for inspection as follows: Non-French Prunes means a lot; or (ii) prunes previously in- prunes commonly known as Imperial, spected in-line but rejected as failing Sugar, Robe de Sargent, Burton, to meet requirements, of the same size, Standard, Jefferson, Fellenberg, in like containers, processed in any Italian, President, Giant, Hungarian continuous production of one calendar (Gross), and Moyer, produced from such day, and offered for inspection as a new varieties of plums. lot. [38 FR 22887, Aug. 27, 1973] EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.104 was suspended indefinitely. PRUNE ADMINISTRATIVE COMMITTEE

§ 993.105 Size count. § 993.128 Nominations for membership. Size count means the count or number (a) Districts. In accordance with the of prunes per pound. provisions of § 993.28, the districts re- [26 FR 8278, Sept. 2, 1961. Redesignated at 35 ferred to therein are described as fol- FR 11380, July 16, 1970, and further redesig- lows: nated at 37 FR 15980, Aug. 9, 1972] District No. 1. The counties of Colusa, Glenn, EFFECTIVE DATE NOTE: At 70 FR 30613, May Solano and Yolo. 27, 2005, § 993.105 was suspended indefinitely. District No. 2. That portion of Sutter County § 993.106 In-line inspection. north of a line extending along Franklin Road easterly to the Yuba County line and In-line inspection means inspection of westerly to the Colusa County line. prunes where samples are drawn from a District No. 3. That portion of Sutter County flow of prunes prior to packaging. south of a line extending along Franklin Road easterly to the Yuba County line and EFFECTIVE DATE NOTE: At 70 FR 30613, May westerly to the Colusa County line. 27, 2005, § 993.106 was suspended indefinitely. District No. 4. The counties of Alpine, § 993.107 Floor inspection. Amador, Del Norte, El Dorado, Humboldt, Lake, Lassen, Mendocino, Modoc, Napa, Floor inspection means inspection of Nevada, Placer, Plumas, Sacramento, prunes where samples are drawn from Shasta, Sierra, Siskiyou, Sonoma, Tehama packaged prunes or from unpackaged and Trinity. prunes that are held in packing con- District No. 5. All of Butte County. tainers. District No. 6. All of Yuba County. District No. 7. The counties of Fresno, Kern, EFFECTIVE DATE NOTE: At 70 FR 30613, May Kings, Madera Merced, San Benito, San 27, 2005, § 993.107 was suspended indefinitely. Joaquin, Santa Clara, Tulare and all other § 993.108 Non-human consumption out- counties not included in Districts 1, 2, 3, 4, let. 5 and 6. Non-human consumption outlet means (b) Voting procedures—(1) Independent any livestock feeder or manufacturer producers. Prior to March 8 of each of inedible syrup, industrial alcohol, election year, the Committee shall animal feed, or other product for non- cause a meeting to be held, in each of human use, who has established, to the the election districts established pur- satisfaction of the committee, that any suant to § 993.28(a) for the purpose of

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obtaining names of proposed can- dlers classified in the group specified in didates for nomination to the Sec- § 993.28(c)(2) and a separate meeting of retary for selection as members and al- all other independent handlers classi- ternate members for the respective dis- fied in the group specified in tricts. Each such candidate must be a § 993.28(c)(3). Each group at its meeting producer in the district for which he is shall, from among that group, elect one proposed. Prior to March 15 of that member nominee and one alternate election year, the Committee shall pre- member nominee by plurality vote. pare for each district and mail to each Each handler present at the meeting of independent producer of record in such his group shall be entitled to one vote district a ballot as prescribed in for a candidate for each position as- § 993.28(a). Each voter shall be entitled signed to that group. to cast only one vote for a member (iii) In any election year in which nominee and only one vote for an alter- only three member positions and three nate member nominee in a district in alternate member positions are as- which he is a producer, and no voter shall vote for candidates in more than signed to independent handlers for the one district. In case he is a producer in ensuing term of office, the Committee more than one district he shall elect in shall, prior to April 1 thereof, cause to which of such districts he will vote and be held a meeting of all independent notify the Committee as to his choice. handlers except those classified in the In order to be counted, such a mail bal- group specified in § 993.28(c)(1). At such lot must be executed and returned to meeting one member nominee and one the Committee postmarked not later alternate member nominee shall be than the following March 31. One nomi- elected in accordance with the applica- nee for member and one nominee for ble provisions of § 993.28(c). alternate member for each district [47 FR 7389, Feb. 19, 1982, as amended at 55 shall be submitted to the Secretary by FR 5571, Feb. 16, 1990; 59 FR 8518, Feb. 23, the Committee on the basis of those re- 1994; 64 FR 72912, Dec. 29, 1999] ceiving the plurality of the mail ballots cast for the respective positions in GRADE AND SIZE REGULATIONS the particular district. Returns shall be considered in light of the voting by § 993.149 Receiving of prunes by han- each district separately. dlers. (2) Independent handler nominees. (i) (a) Receiving stations—(1) General. Prior to March 15 of each election year, Prunes shall be received by a handler the Committee shall notify each inde- at any receiving station so designated pendent handler of record of the group by the Committee. Receiving station of independent handlers in which he shall mean any plant of a handler or a has been classified pursuant to the pro- dehydrator’s premises; this term shall visions of § 993.28(c) and of the number also mean any other place where of independent handler positions on the prunes are normally and usually re- Committee for the ensuing term of office pursuant to the provisions of ceived by a handler in any considerable § 993.24 (b) and (c). Prior to April 1 of volume as ranch deliveries, and at each election year, each of the two which there are adequate facilities to independent handlers classified in the enable the inspection service to deter- group specified in § 993.28(c)(1) shall no- mine whether the prunes meet the ap- tify the Committee in writing of his plicable grade, size, and condition re- nominee for member and nominee for quirements. alternate member as prescribed there- (2) Receiving at dehydrator. Any han- in. dler may arrange with the committee (ii) In any election year in which four and the inspection service for the in- member positions and four alternate coming inspection and certification to member positions are assigned to inde- be based on samples of prunes drawn as pendent handlers for the ensuing term prune plums and dehydrated in the of office, the Committee shall, prior to same manner as the prunes to which April 1 of such year, cause to be held a they are referable. Where such arrange- meeting of the three independent han- ment is acceptable to the Committee

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as permitting the inspection and cer- spection service; (iii) the variety of the tification of the prunes to be com- prunes, the county in which such parable to an inspection and certifi- prunes were produced, the number and cation when based on samples drawn as type of the containers thereof, the net prunes, such certification shall be ac- weight of the prunes as shown on the ceptable for the purposes of this sec- applicable door receipt or weight cer- tion if the inspector further certifies tificate, together with the number of that the dehydration process of the such receipt or certificate, and the con- prunes being certified resulted in tract or account number under which prunes eligible to be received under the the prunes were delivered; (iv) when- terms and conditions of this part. ever applicable, the percentage by (b) Inspection stations. Prunes shall be weight of undersized prunes in the lot; inspected only at inspection stations (v) with respect to the balance of the established by the inspection service lot, the inspector’s computation of the with the concurrence of the Com- percentage, by screen size of prunes mittee. Inspection station shall mean a and in the aggregate, of each group or centralized station and any receiving combination of groups of defects for station other than a handler’s plant or which a maximum tolerance is in ef- a dehydrator’s premises. fect; (vi) whether the prunes in the lot, (c) Incoming inspection—(1) General. exclusive of any undersigned prunes, Upon any producer or dehydrator deliv- are standard or substandard; (vii) the ering prunes to a handler, the handler inspector’s computation of the percent- shall issue to the inspection service an age of weight of each screen size and in identification tag showing the name the aggregate, of offgrade prunes (those and address of such producer or dehy- defective pursuant to § 993.97) necessary drator, the date of delivery, the county to be removed therefrom in order for of production, the number and type of containers, the approximate net weight the remainder in each screen size and of the prunes, the place where the in the aggregate to be standard prunes, prunes are to be inspected, and any and (viii) the average size count of other information necessary to identify prunes of each screen size and of the such prunes to the satisfaction of the aggregate: Provided, That whenever an inspector and the Committee. For each undersized prune regulation is in effect such delivery, the handler shall issue for the crop year, the average size to the producer or dehydrator a door count shall be of all prunes except un- receipt or weight certificate showing dersized prunes in the lot, by screen the name and address of the producer size and in the aggregate. The handlers or dehydrator, the weight of the deliv- shall require the inspection service to ery, and any other information nec- furnish promptly the producer or dehy- essary to identify the delivery. Such drator with one copy of the certificate information shall be available to the and the handler with two copies. inspector and the Committee. Each lot (d) Conditional provisions—(1) Wet or shall be sampled separately and as soon slack-dry prunes. Any prunes delivered as practicable following delivery. The to a handler by a producer or dehy- handler shall supply any necessary in- drator which an inspector determines formation together with any assistance have not been properly dried and cured needed by the inspector in drawing in original natural condition, or which samples including the dumping of con- show evidence of the addition thereto tainers. of water, may be held by the handler (2) Certification. Following inspection for the account of the producer or de- of a lot not returned to the producer or hydrator for conditioning by further dehydrator, the handler shall require drying or dehydration: Provided, That the inspection service to issue, in quin- such prunes shall be identified and tuplicate, a certificate containing at kept separate and apart from any other least the following information: (i) The prunes in the handler’s possession until place where samples were drawn and resubmitted for inspection and certifi- the date and place of inspection; (ii) cated as properly dried and cured, or the name and address of the producer returned to the producer or dehy- or dehydrator, the handler, and the in- drator. The certificate shall show, in

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addition to other inspection require- ly to the inspector two copies of the ments, that the conditioning was per- shipping or disposition order or other formed and indicate the net weight documents which shall show the date after conditioning. of each shipment or disposition, the ap- (2) Prunes with active insect infesta- plicable reference number thereof, and tion. Any prunes delivered to a handler an adequate description of the ship- which an inspector determines are not ment or disposition. One copy of each free from active insect infestation, document so furnished shall be re- may be returned to the producer or de- quired to be forwarded to the com- hydrator or may be held by the handler mittee. Upon request of the committee for the account of the producer or de- a handler shall, within ten days there- hydrator for conditioning by fumiga- after, file with the committee a signed tion: Provided, That such prunes shall report on Form PMC 3.1 ‘‘Report of be identified and kept separate and High Moisture Content Prunes’’ which apart from any other prunes in the shall contain the following informa- handler’s possession until resubmitted tion: (i) The date and the name and ad- for inspection and certificated to show, dress of the handler; (ii) the total ton- in addition to other inspection require- nage of high moisture content prunes ments, performance of fumigation and delivered to the handler during the freedom from active infestation. crop year to the date of the report; (iii) (3) High moisture content prunes. The the total tonnage of high moisture con- delivery of any high moisture content tent prunes shipped or otherwise dis- prunes to a handler by a producer or posed of by the handler during such pe- dehydrator shall be reported promptly riod; (iv) the total tonnage of high by the handler to the inspection serv- moisture content prunes delivered to ice. The inspection service shall be re- the handler during such period which quested to submit a report to the com- were dried or dehydrated and received mittee of each such delivery which as prunes by the handler; and (v) the shall contain the following informa- total tonnage of high moisture content tion: (i) The date and place of the de- prunes in the handler’s possession on livery; (ii) the name and address of the the date of the report. producer or dehydrator, the handler, (4) Return of prunes to producers and and the inspection service; and (iii) the dehydrators. Any lot of prunes delivered variety of the high moisture content to a handler by a producer or dehy- prunes, the county in which they were drator may be returned to the producer produced, and their net weight as or dehydrator prior to an inspection shown on the door receipt or weight thereof. Any lot of prunes so delivered certificate, together with the number whose identity has been maintained of such receipt or certificate. Any han- may be so returned following an in- dler who, subsequent to delivery to him spection thereof, except prunes which of high moisture content prunes, elects have been size graded or sorted by the to dry or dehydrate them or any por- handler, resulting in a segregation of tion thereof to a point where they are defects. Prunes which have been sorted capable of being received by such han- for the producer or dehydrator, the dler shall, prior to proceeding with identity of which have been maintained such drying or dehydration, notify an to the satisfaction of the inspector and inspector of the inspection service of the Committee, may be resubmitted his election, and the same procedure for inspection in not more than three shall apply as set forth in paragraph new lots, equal in weight to the origi- (d)(1) of this section. For each day on nal lot, and the applicable inspections which a handler processes and pack- shall supersede the original inspection. ages high moisture content prunes, he [26 FR 8278, Sept. 2, 1961, as amended at 33 shall furnish promptly to the inspector FR 11812, Aug. 21, 1968; 33 FR 12033, Aug. 24, a signed statement and one copy show- 1968; 33 FR 14172, Sept. 19, 1968; 35 FR 11380, ing the handler’s name and address and July 16, 1970; 37 FR 15980, Aug. 9, 1972; 39 FR the net weight of the total tonnage of 30343, Aug. 22, 1974; 43 FR 40199, Sept. 11, 1978; high moisture content prunes proc- 48 FR 57261, Dec. 29, 1983] essed and packaged by him on that EFFECTIVE DATE NOTE: At 70 FR 30613, May day. The handler shall furnish prompt- 27, 2005, § 993.149 was suspended indefinitely.

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§ 993.150 Disposition of prunes by han- ring handler having an inspection made dlers. as provided for in § 993.51: Provided, (a) Inspection stations. An inspection That before each such transfer the station shall be any plant of a handler, transferring handler shall: (1) Give and any other place where he handles written notice of the transfer to the in- prunes. spection service including the proposed (b) Outgoing inspection. Except as oth- date of the transfer, the names of the erwise specifically provided, no handler handlers and, by plant designation, the shall ship or otherwise make final dis- present location and the destination of position of natural condition prunes or the prunes, the number of containers, of processed prunes unless he has, prior variety, size designation, and total net to such shipment or final disposition, weight of the prunes, and the manifest had them inspected and obtained a cer- or billing number; and (2) receive from tificate showing that such prunes meet the inspection service a DFA Form P– the effective minimum standards. Such 5 ‘‘Shipping Inspection Report and Cer- inspection shall be made during that tificate’’ marked ‘‘Interhandler Transfer portion of the final preparation of the Report’’ on which the inspection service prunes for shipment or other final dis- recorded the information furnished by position as will permit proper sam- the transferring handler. The transfer- pling, whether in-line or floor inspec- ring handler shall sign the ‘‘Interhan- tion, and no handler shall perform such dler Transfer Report’’ including all cop- final preparation unless an inspector is ies thereof that were received from the present. The handler shall furnish inspection service, and forward the promptly to the inspector a copy of the signed original and one copy to the re- shipping or disposition order or other ceiving handler at the time of the documents, which shall show the date interhandler transfer. Upon receipt of of each shipment or disposition, the ap- the transferred prunes, the receiving plicable reference number thereof, and handler shall enter on both the original an adequate description of the ship- and the copy the date he received the ment or disposition. For the prunes in- prunes, sign the original, and imme- spected each day which meet the appli- diately forward it to the inspection cable minimum grade and size require- service. The transferring handler shall ments for standard prunes, or standard cause the inspection service to prompt- processed prunes, the handler shall ly report the transfer to the Com- cause the inspector to issue in trip- mittee. As provided in § 993.50(f), the re- licate a signed certificate containing ceiving handler shall, before shipping the following information: or otherwise making final disposition (1) The date and place of inspection; of such prunes, comply with the re- (2) The name and address of the han- quirements of §§ 993.50 and 993.51. dler and of the inspection service; (d) Tolerances for non-French prunes. (3) The number and size of packages Any lot of standard prunes or standard or the net weight of prunes; processed prunes containing more than (4) The number of the worksheet or 2 percent by weight of non-French worksheets on which the inspector’s prunes shall be disposed of only in computations and results of tests are prune product outlets as prescribed in recorded; and § 993.50(c) unless the non-French prunes (5) A statement that the prunes meet therein have an average count of 40 or the effective minimum standards for less per pound and unless in a 100-ounce standard prunes, or standard processed sample of the lot, the count per pound prunes, as the case may be. of 10 ounces of the smallest prunes in (c) Interhandler transfers. With the ex- the sample does not vary from the ception of those prunes held by a han- count per pound of 10 ounces of the dler pending their disposition pursuant largest prunes in the sample by more to § 993.49(c) and those prunes held by than 35 points. A lot shall be deemed to him for the account of the Committee exceed the 2 percent tolerance for non- pursuant to § 993.57, a handler may French prunes whenever an inspection transfer prunes to another handler shows such prunes exceed 2 percent in within the area. Any such interhandler any four consecutive sampling units of transfer may be without the transfer- two tons or less or, if less than four

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such units are sampled, in such lesser information. Each application for ship- number of units. ment shall be limited to the handler’s (e) Prunes which fail to meet minimum vendee and the consignee if different standards—(1) Committee’s approval of from the vendee, and to a specific user disposition—(i) General. Those defective and use, and may be open as to quan- prunes accumulated by a handler by re- tity: Provided, That, when the use or moving them from standard or sub- name and address of the user are not standard prunes, and those prunes re- known by the handler, the application ceived or held by a handler which fail shall include the quantity of prunes to to meet the applicable minimum stand- be shipped and be limited to that quan- ards and are held for disposition without removal of defective prunes in ex- tity. Each application for final disposi- cess of maximum tolerances, may only tion for a particular use by the handler be used, if within the tolerances pre- shall be limited to such handler and scribed in § 993.97 II. C. (1), (2), and (3), use. for prune products, or if any such toler- (iii) Approval of applications. The ances are exceeded and any live infes- Committee’s approval of a handler’s tation corrected by fumigation, for application shall be transmitted to the non-human consumption or be de- handler on Form PMC 2.3 ‘‘Permission stroyed. In order to insure that all such to Dispose of Substandard Prunes’’. In prunes are shipped or otherwise disapproving an application, the Com- posed of in accordance with § 993.50(e), mittee shall specify the crop year, or no handler shall during any crop year the period within or the portion of the ship or otherwise make final disposi- crop year, for which the approval is tion of any such prunes, other than granted: Provided, That, the Committee prune waste subject to daily non- may approve in July any such applica- human disposition for sanitation pur- tion that is submitted during that poses, unless prior thereto he had ob- month by the handler for shipment or tained during that crop year (except as otherwise provided in paragraph other final disposition of the prunes (e)(1)(iii) of this section) the Commit- covered thereby in the succeeding crop tee’s approval of his application to do year. When the use or the name and ad- so. dress of the user or consignee are not (ii) Application for approval. The han- known to the handler, the Committee dler’s application to ship or otherwise shall not approve the application until make final disposition of any such it has been informed as to such use and prunes shall be submitted on Form user and consignee of the prunes. PMC 2.2 ‘‘Application for Permission to (iv) Disapproval of applications; or rev- Dispose of Substandard Prunes’’. If the ocation of approved applications. In act- prunes are for shipment, the applica- ing on an application, the Committee tion shall set forth: (a) The name and may disapprove the application when: address of the handler’s vendee and the (a) The application does not conform name and address of the consignee with the requirements of paragraph whether the same as or different from (e)(1)(ii) of this section; (b) the Com- the vendee; (b) the particular use to be mittee has cause to believe that the made of the prunes; (c) if such use is to prunes covered by the application will be by a person other than the handler’s vendee or the consignee, the name and not be shipped or disposed of in accord- address of such user; and (d) the crop ance with the application; or (c) the year or the period within, or the por- handler, or any of the parties involved tion of, the crop year during which in the proposed shipment or disposi- shipments are to be made. When the tion, had shipped or made other dis- use or the name and address of the con- position of prunes covered by a pre- signee or user are not known by the viously approved application incon- handler, the handler shall arrange for sistent with that application. The the submission of such information to Committee may for cause revoke a the Committee. If use is to be by the handler, the application shall so indicate and shall set forth all applicable

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handler’s previously approved applica- prunes, for use in prune products, to be tion if he ships or makes other disposi- inspected (prior to disposition or ship- tion inconsistent with such applica- ment by a handler) by an inspector, tion. Whenever a user uses prunes in- and that such inspector issue, in trip- consistent with an approved applica- licate, a signed clearance certificate tion, the Committee may for cause re- (for the preparation of which the han- voke such application, and such other dler shall make available to the inspec- approved applications applicable to tor the necessary data) containing the such user as the Committee deems nec- following information: essary to assure that the prunes cov- (i) The date and place of inspection ered by such applications will not be and clearance; used in a manner inconsistent with (ii) The name and address of the in- those applications or the order. The spection service and of the handler; Committee shall notify the handler in (iii) The number and kind of pack- writing of each disapproval and each ages, the net weight, and the adequacy revocation. of the marking; (v) Evidence of non-human disposition. (iv) The lot number or shipping or Whenever defective or substandard disposition order number; prunes or prune waste are shipped to or (v) The committee’s approval num- otherwise disposed of in non-human ber; consumption outlets, or destroyed, the (vi) The destination; and handler shall furnish the Committee (vii) The actual percentage of off- with a copy of the shipping document grade prunes of each group, or com- or other documentary evidence of the bination of groups, of defects in excess disposition as may be satisfactory to of the then current tolerances for the Committee and at such times as standard prunes or standard processed the Committee may direct. prunes. (vi) Books and records. Each handler (f) Pitted prunes—(1) For human con- who ships or otherwise disposes of de- sumption as such. (i) No handler shall fective or substandard prunes or prune ship or otherwise make final disposi- waste shall make available for exam- tion of any lot of pitted prunes for ination by the Committee, at his busi- human consumption as pitted prunes ness office at any reasonable time dur- unless the lot, before pitting, met (A) ing business hours, copies of all appli- the applicable minimum standard set cable purchase orders, sales contracts, forth in § 993.97 (Exhibit A), or as such or disposition documents, together standards may be modified, for stand- with any further information which ard prunes or standard processed the Committee may deem necessary or prunes, and (B) the requirements speci- desirable to enable it to determine fied in § 993.50 (c) and (d). whether such prunes or prune waste (ii) No handler shall ship or other- have been or will likely be utilized as wise make final disposition of any lot authorized. of pitted prunes for human consump- (2) Out of the area shipments. When- tion as pitted prunes unless these ever substandard prunes for human prunes do not exceed an average of 0.5 consumption are packed in closed con- percent by count of prunes with whole tainers, and if for shipment outside the pits and/or pit fragments 2 mm or area they shall be so packed, each such longer; and four of ten subsamples ex- container shall be clearly marked ‘‘For amined have no more than 0.5 percent Manufacturing Purposes Only’’. When- by count of prunes with whole pits and/ ever substandard prunes restricted to or pit fragments 2 mm or longer. For non-human usage are shipped in closed the purposes of this paragraph (f)(1)(ii), containers, each such container shall pitted prunes means prunes with the be clearly marked ‘‘For Non-Human pit removed that are characterized by a Usage’’. In each instance, the letters uniform depression and minimal skin shall be of reasonable prominence and break where the pit has been removed. in a conspicuous place on the con- (iii) No handler shall ship or other- tainer. wise make final disposition of any lot (3) Inspection of substandard prunes. of macerated prunes for human con- Each handler shall cause substandard sumption as pitted prunes unless these

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prunes do not exceed an average of 2 tee’s approval of his application to do percent by count of prunes with whole so. The handler’s application to ship or pits and/or pit fragments 2 mm or otherwise make final disposition of any longer; and four of ten subsamples ex- such undersized prunes shall be sub- amined have no more than 2 percent by mitted on Form PMC 2.21 ‘‘Application count with whole pits and/or pit frag- for Permission to Dispose of Undersized ments 2 mm or longer. For the pur- Prunes’’ which shall set forth: (i) The poses of this paragraph (f)(1)(iii), mac- name and address of the handler’s erated prunes means prunes with the vendee and the name and address of the pit removed that are characterized by a consignee whether the same as or dif- flattened appearance with slightly ferent from the vendee; (ii) the par- more skin breaks where the pit has ticular use to be made of the prunes; been removed than with pitted prunes. (iii) if such use is to be by a person (2) For use in prune products. Any lot other than the handler’s vendee or the of substandard prunes, whether natural consignee, the name and address of condition or processed, if within the such user; and (iv) the crop year or the applicable tolerances prescribed in period within, or portion of, the crop § 993.97 II C (1), (2), and (3), may be pit- year during which shipment or other ted and shipped or disposed of for use disposition is to be made. When the use and used in prune products for human or the name and address of the con- consumption: Provided, That prior to signee or user are not known by the shipment or other final disposition by handler, the handler shall arrange for handler, such prunes have lost their the submission of such information to form and character as prunes to the the Committee. If use is to be by the satisfaction of the inspector and the handler, the application shall so indi- committee. An inspection certificate cate and shall set forth all applicable on such lot shall not be issued until the information. Each application for ship- inspector has determined that the ment shall be limited to the handler’s prunes therein have lost their form and vendee and the consignee, if different character as prunes. Disposition of pit- from the vendee, and to a specific user ted prunes by handlers for use in prune and use. Each application for final dis- products shall be in accordance with position for a particular use by the the applicable provisions of paragraph handler shall be limited to such han- (e) of this section. dler and use. The Committee’s approval (g) Disposition of undersized prunes— of a handler’s application shall be (1) Application for and approval of dis- transmitted to the handler on Form position. Undersized prunes accumu- PMC 2.31 ‘‘Permission to Dispose of Un- lated by a handler pursuant to section dersized Prunes.’’ In approving an appli- 993.49(c) shall be disposed of in non- cation, the Committee shall specify the human consumption outlets during the crop year or the period within, or the crop year in which the prunes estab- portion of, the crop year for which the lishing such obligations were received approval is granted. When the use or from producers or dehydrators, or such name and address of the user or con- later date that a handler may request signee are not known to the handler, in a notice, filed with the Committee the Committee shall not approve the at least 30 days prior to July 31 of the application until it has been informed year of accumulation: Provided, That, as to such use and user and consignee such handler has made a bona fide ef- of the prunes. The requirements of fort to dispose of its undersized prunes § 993.150(e)(1)(iv) (except item (a) there- as demonstrated by the shipment of at of), (v), and (vi) with regard to dis- least 65 percent of its undersized obli- approval of applications or revocation gation by May 31; such handler has a of approved applications, evidence of sufficient quantity of undersized nonhuman disposition, and the mainte- prunes held in storage to meet its re- nance of books and records, applicable maining obligation; and the extension to prunes which fail to meet minimum of time requested is not later than 60 standards, shall also apply to under- days beyond the end of the crop year. sized prunes. Prior to making any such disposition, (2) Documentation of disposition of un- the handler shall obtain the Commit- dersized prunes—(i) Documentation of

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shipment or other disposition. For each EFFECTIVE DATE NOTE: At 70 FR 30613, May quantity of undersized prunes so 27, 2005, § 993.156 was suspended indefinitely. shipped or otherwise disposed of, the handler shall promptly forward to the § 993.157 Holding and delivery of reserve prunes. Committee one copy of the applicable bill of lading, truck receipt, or related (a) Sales and deliveries. Committee documentation of disposition which sales and deliveries of reserve prunes shall show: (a) The name of the con- from the holdings of any handler shall signee; (b) the destination by name and not exceed the quantity of reserve address of the person designated to re- prunes required to be held by him. The ceive the prunes; (c) the date of ship- reserve prune holding requirement of ment or other disposition; (d) the net the handler shall be reduced by the weight of the prunes; and (e) identifica- tonnage so sold or delivered. tion of the prunes as undersized prunes. (b) Assistance to handlers. As assist- (3) Tolerances permitting a deviation in ance to handlers, the committee shall prune sizes from applicable undersized furnish each handler a monthly tabula- openings—(i) Undersized French prunes. tion, beginning as soon as possible Whenever an undersized regulation after the start of the crop year, show- specifies an opening for French prunes, ing his reserve obligation and holding any quantity of any size of French requirement based on records on file prunes disposed of by a handler in com- with the committee. pliance with § 993.50(g) shall satisfy a (c) Failure to hold and deliver reserve handler’s undersized disposition. prunes in accordance with reserve obliga- (ii) Undersized non-French prunes. tion. In the event a handler fails to Whenever an undersized regulation hold for the committee and deliver his specifies an opening for non-French total reserve prune obligation in any prunes, any quantity of any size of non- category and is unable to rectify such French prunes disposed of by a handler a deficiency with salable prunes, he in compliance with § 993.50(g) shall sat- shall compensate the committee in an isfy a handler’s undersized disposition. amount computed by multiplying the pounds of natural condition prunes so [26 FR 8280, Sept. 2, 1961, as amended at 27 FR 458, Jan. 17, 1962; 29 FR 2331, Feb. 11, 1964; deficient by the applicable values es- 33 FR 14172, Sept. 19, 1968; 35 FR 5108, Mar. 24, tablished by the committee: Provided, 1970; 35 FR 11381, July 16, 1970; 37 FR 15980, That the remedies prescribed herein Aug. 9, 1972; 40 FR 52838, Nov. 13, 1975; 48 FR shall be in addition to, and not exclu- 57261, Dec. 29, 1983; 57 FR 56243, Nov. 27, 1992; sive of, any of the remedies or pen- 58 FR 13698, Mar. 15, 1993; 59 FR 10228, Mar. 3, alties prescribed in the act with re- 1994] spect to noncompliance. The deter- EFFECTIVE DATE NOTE: At 70 FR 30613, May mination of any such deficiency shall 27, 2005, § 993.150 was suspended indefinitely. include application of any tolerance allowance for shrinkage in weight, in- RESERVE CONTROL crease in the number of prunes per pound, and normal and natural deterio- § 993.156 Application of reserve percentage. ration and spoilage which may then be in effect. The reserve obligation of each han- (d) Excess delivery of prunes to the com- dler shall be determined by applying mittee. In the event a handler delivers the reserve percentage to the weight of to the committee as reserve prunes a prunes in each lot, after deducting the quantity of prunes in excess of his weight of prunes in such lot shown as a holding requirement for reserve prunes, percentage on the applicable inspection the committee shall make such prac- certificate as necessary to be removed tical adjustments as are consistent therefrom pursuant to § 993.49(c), in with this part and this may include such manner as may be prescribed in compensating the handler for such ex- such reserve control regulation estab- cess (nonreserve prunes) by paying to lished for the crop year in which such him the proceeds received by the com- lot is received by a handler from a pro- mittee for such excess. ducer or dehydrator. (e) Holding reserve prunes on other [30 FR 13311, Oct. 20, 1965] than a handler’s premises. No handler

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shall hold reserve prunes on the prem- obligation of the handler if in a sample ises of another handler, or in approved of 100 ounces, the count per pound of 10 commercial storage other than on his ounces of the smallest prunes exceeds own premises, unless prior thereto he the count per pound of 10 ounces of the notifies the committee in a certified largest prunes by more than 45 prunes report on Form PMC 5.1 ‘‘Notice of Pro- per pound. posed Intent to Store Reserve Prunes’’ which shall contain at least the fol- [33 FR 19162, Dec. 24, 1968, as amended at 48 FR 57261, Dec. 29, 1983] lowing information: (1) The date and the name and address of the handler; EFFECTIVE DATE NOTE: At 70 FR 30613, May (2) the name and address of the person 27, 2005, § 993.157 was suspended indefinitely. on whose premises the reserve prunes will be stored for the handler; (3) the § 993.158 Deferment of reserve with- approximate quantity to be so stored holding. and the exact location and description Any handler who desires to defer of the storage facilities; and (4) the withholding pursuant to the provisions proposed date that such storage will of § 993.58 shall notify the committee on begin. The report shall be accompanied Form PMC 9.1, ‘‘Notification of Desire by a signed statement by the persons for Deferment of Reserve Withholding’’, on whose premises the reserve prunes containing at least the following infor- are to be stored agreeing to hold such mation: (a) The date and the name and prunes under conditions of proper stor- address of the handler; (b) the total sal- age and further agreeing to permit ac- able prunes acquired or under contract cess to such premises by the committee with producers and dehydrators; (c) the at any time during business hours for period for which deferment is re- the purpose of examining or taking de- quested; and (d) the tonnage of reserve livery of such prunes in accordance prunes, by categories, on which with the provisions of this part. No deferment is requested. The notifica- handler shall be permitted to hold re- tion shall be accompanied by the un- serve prunes on any premises outside dertaking and bond or bonds required the area. by § 993.58. No handler shall defer with- (f) Exchange of salable prunes for re- holding of reserve prunes until he has serve prunes. No handler shall exchange filed the required undertaking and salable prunes for reserve prunes unless bond or bonds with the committee and he has entered into a sales agreement has received its acceptance. authorized pursuant to § 993.65(b) whereby the value of any such ex- [30 FR 13311, Oct. 20, 1965, as mended at 48 FR change, and payment therefor to the 57261, Dec. 29, 1983] committee, shall be determined. EFFECTIVE DATE NOTE: At 70 FR 30613, May (g) Delivery by nonsignatory handlers. 27, 2005, § 993.158 was suspended indefinitely. Any handler not signing the sales agreement authorized pursuant to § 993.159 Payments for services per- § 993.65(b), shall deliver to the Com- formed with respect to reserve ton- mittee, upon demand, the total weight nage prunes. of his reserve obligation by such vari- (a) Payment for crop year of acquisi- ety, grade, and size categories, and at tion. Each handler shall, with respect the count per pound for each size cat- to reserve prunes held by the handler egory as is required by the reserve con- for the account of the Committee pur- trol regulation of the applicable crop suant to § 993.59, be paid at a rate com- year. Such deliveries of prunes may be puted by the Committee (natural con- either graded prunes or any lot of dition rate) for necessary services ren- ungraded prunes, or portion thereof, dered by the handler in connection identifiable to the satisfaction of the with such prunes so held during all or committee as being in the same form any part of the crop year in which the as when received: Provided, That the prunes were physically received from percent of standard prunes in each lot producers or dehydrators. Each handler shall be taken into account but with holding reserve prunes shall perform respect to any lot of graded prunes, no such services to assure that the prunes credit shall be given to the standard are maintained in good condition. No

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payment will be made for prunes re- each handlers’ cost data, and dividing leased by handler acceptance of diver- the composite figure by the number of sion certificates if the handler has not handlers participating in the survey. In stored the released prunes. The rate of the event that any handler’s cost data payment shall be established by the is too low or too high, the Committee Committee and must be approved by may choose to exclude the high and the Secretary. Following such ap- low data in computing an industry av- proval, it shall be publicized as re- erage. The industry average costs may quired in paragraph (e) of this section. be rounded to the nearest $0.25. The in- (1) On or before July 20 of each crop dustry average costs computed by the year when the Committee recommends Committee shall be publicized by the a reserve pool (except the Committee Committee pursuant to paragraph (e) may extend this date by not more than of this section. ten business days if warranted by a (b) Reimbursement for required insur- late crop), the Committee shall hold a ance costs. Each handler holding re- meeting to review the costs for nec- serve prunes for the account of the essary services rendered by handlers in Committee shall maintain proper in- connection with reserve prunes. surance thereon, including fire and ex- (2) Such amount shall, together with tended coverage, in valuations (accord- the additional payments, as provided in ing to grade and/or size) established by, this section, be in full payment for the or acceptable to, the Committee for costs incurred in connection with but the particular crop year. The Com- not be limited to the following serv- mittee shall reimburse the handler for ices: Inspection, receiving, storing, the actual costs of such insurance. grading, fumigation, and handling. The Prior to the receipt of reserve prunes costs include, but are not limited to: at the beginning of each crop year, the (i) Acquisition costs, which include handler shall certify to the Committee those for salaries, commission, or bro- and the Secretary of Agriculture, on kerage fees, transportation and han- Form PMC 4.5, that such handler has a dling between plants and receiving sta- fire and extended coverage policy fully tions, inspection, and other costs, in- insuring all reserve prunes received by cluding container expenses, incidental the handler during such crop year. to acquisition or storage; Such certification shall contain the (ii) Direct labor costs, which include following information: those for weighing, receiving and (1) The name and address of the han- stacking, grading, preliminary sorting dler; and storing (including that performed (2) The location(s) where reserve by the handler at the receiving sta- prunes will be held for the account of tion), and loading for shipment or the Committee and the premium rate other delivery to the Committee or its per $100 value per annum at each loca- designee; tion; (iii) Plant overhead costs, which in- (3) The value per ton at which the re- clude those for supervision, indirect serve prunes are insured; and labor, fuel, power and water, taxes and (4) The name and address of the in- insurance on facilities, depreciation surance underwriter. and rent, repairs and maintenance (c) Certain additional payments in con- (clean-up, etc.), factory supplies and nection with the holding of reserve prunes expense, and employee benefits (pay- for the account of the Committee. (1) roll taxes, compensation insurance, Whenever a handler is directed by the health insurance, pension plan con- Committee to move and dump contributions, vacation pay, holiday and tainers or reserve prunes held by the other paid days off, and other such handler for the account of the Com- costs). mittee for the purpose of causing an in- (3) The Committee shall survey all spection to be made of the prunes as handlers to obtain their costs for serv- provided in § 993.75, but without taking ices performed with respect to reserve delivery of the prunes at that time, the tonnage prunes. The Committee will handler shall be paid for such services compute the average industry cost for at a rate per ton (natural condition holding reserve pool prunes by adding weight) determined by the Committee

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and approved by the Secretary of Agri- (2) Whenever the Committee arranges culture. Such reimbursement rate shall with a handler for the reserve prunes be computed as described in paragraph delivered to it or its designee to be in (a)(3) of this section and publicized as processed and packaged condition, the required in paragraph (e) of this sec- Committee shall reimburse the handler tion. at the agreed rate, determined by the (2) Additional payment for reserve Committee to be reasonable, for the tonnage prunes held beyond the crop processing, container, and packaging year of acquisition shall be made in ac- costs. cordance with this paragraph. Each (e) The Committee shall give reason- handler holding reserve prunes shall able publicity to producer and handler complete such services so that the members and alternates who serve on Committee is assured that the prunes the Committee, commercial are maintained in good condition. dehydrators, handlers, and the coopera- (i) For storage and necessary fumiga- tive bargaining association(s) of each tion, each handler shall be com- meeting to consider handler payment pensated at a per ton rate announced rates or any modification thereof, and by the Committee in accordance with each such meeting shall be open to paragraph (a)(3) of this section: them. Similar publicity shall be given (A) For all or any part of the first 3 to producer and handler members and months of the succeeding crop year, alternates who serve on the Com- the rate per ton shall be 10 percent of mittee, commercial dehydrators, han- the yearly rate established for the crop dlers, and the cooperative bargaining year of acquisition; association(s) of each payment rate (B) For all or any part of the second modification submitted to USDA for 3 months of the succeeding crop year, review and approval. The Committee the rate per ton shall be 50 percent of shall notify producer and handler mem- the rate established for the first 3 bers and alternates who serve on the months of the succeeding crop year; Committee, commercial dehydrators, (C) For all or any part of the third 3 handlers, and cooperative bargaining months of the succeeding crop year, association(s) of USDA’s action on pay- the rate per ton shall be 25 percent of ment rates and conditions for payment the rate established for the first 3 by first class mail and/or by electronic months of the succeeding crop year; communications. (D) For all or any part of the fourth 3 months of the succeeding crop year, [68 FR 17543, Apr. 10, 2003] the rate per ton shall be 25 percent of EFFECTIVE DATE NOTE: At 70 FR 30613, May the rate established for the first 3 27, 2005, § 993.159 was suspended indefinitely. months of the succeeding crop year; (ii) For all or part of the succeeding VOLUNTARY DIVERSION crop year, the Committee shall determine the per ton rate for bin rental § 993.162 Voluntary prune plum diver- within the industry and announce bin sion. rental rate to the industry pursuant to (a) Quantity to be diverted. The Com- paragraph (e) of this section. mittee shall indicate the quantity of (iii) For insurance as prescribed in prune plums that producers may divert paragraph (b) of this section. pursuant to § 993.62 whenever it rec- (d) Certain additional payments in con- ommends to the Secretary that diver- nection with the delivery of reserve sion operations for a crop year be per- prunes to the Committee or its designee. mitted. Whenever diversion operation (1) Whenever a handler is directed by for a crop year have been authorized by the Committee to deliver to it or its the Secretary, the Committee shall no- designee reserve prunes in natural con- tify producers, commercial dition, the Committee shall furnish the dehydrators, and handlers, known to it handler with the containers in which of such authorization and diversion to deliver the prunes, or reimburse the program procedures. The Committee handler, at cost, for any containers shall compute the dried weight equiva- which the handler furnishes pursuant lent of prune plums so diverted on a to an agreement with the Committee. dryaway basis as follows:

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(1) For prune plums of the French va- duction region also will be announced riety, the Committee shall survey at to the industry. least eight commercial prune (2) For prune plums of the non- dehydrators that are geographically French variety, the dryaway ratio dispersed within the production area to shall be 1 pound for each 3.50 pounds of obtain their annual dryaway ratios for prune plums diverted. The prune-pro- each of the preceding five crop years, ducing region for prune plums of non- and compute a five-year average French varieties is the State of Cali- dryaway ratio for each dehydrator. The fornia. Committee shall then add together the (b) Eligible diversions. Eligible diver- participating commercial dehydrators’ sions shall preclude prune plums from five-year average dryaway ratios for becoming prunes and may include the each producing region within the pro- following methods: duction area, and divide the total by (1) Disposing of harvested prune the number of participating commer- plums under Committee supervision for cial dehydrators in that region to com- nonhuman use at a location and in a pute the dryaway ratio by producing manner satisfactory to the Committee; region. In the event any of the annual (2) Leaving unharvested the entire dryaway ratios for any of the crop production of prune plums from a solid years is abnormally high or low in any block of bearing trees designated by year, the Committee may replace the the producer applying for the diversion abnormal year’s data with that of an of removing prune plum trees prior to earlier year. The prune producing re- harvest; and/or gions for which dryaway ratios shall be (3) Such other diversions as may be computed for prune plums of the authorized by he Committee and ap- French variety are as follows: proved by the Secretary. (i) North Sacramento Valley, which (4) In accordance with § 993.62(c), eli- includes the counties of Butte, Glenn, gible diversion shall not apply to prune Shasta, and Tehama; plums, which would not, under normal (ii) South Sacramento, Napa, producer practices, be dried and deliv- Sonoma, and Santa Clara Valleys, ered to a handler. On or before July 20 which includes the counties of Amador, of each crop year when the Committee Colusa, Lake, Placer, Solano, Sutter, recommends a reserve pool and diver- Yolo, Yuba, Napa, Sonoma, San Benito, sion program (except the Committee and Santa Clara; and with the approval of the Secretary may (iii) San Joaquin Valley, which in- extend this date by not more than 10 cludes the counties of Fresno, Kern, business days if warranted by a late Kings, Madera, Merced, San Joaquin, crop), the Committee shall identify, Stanislaus, and Tulare. with the approval of the Secretary, the (A) New producing counties within the acceptable method(s) of voluntary area. If there were new producing coun- prune plum diversion through reason- ties within the State of California, the able publicity to producers, commer- Committee will, with the approval of cial dehydrators, handlers, and the co- the Secretary, assign the new prune operative bargaining association(s). producing county or counties, as the For the purposes of this section, coop- case may be, to one of the prune pro- erative bargaining association means a ducing regions based on geographic nonprofit cooperative association of proximity and/or production/dehydra- dried prune producers engaged within tion characteristics. The addition of a the production area in bargaining with county or counties, as the case may be, handlers as to price and otherwise ar- to one of the producing regions will be ranging for the sale of natural condi- announced to the industry. tion dried prunes of its members. (B) Removal of a county from a produc- (c) Applications for diversion—(1) By tion area. When prune acreage ceases to producers. Each producer desiring to di- exist in a county, the Committee will, vert prune plums of his own production with the approval of the Secretary, re- shall, prior to diversion, file with the move that county from the existing re- Committee a certified application on gion. Removal of a county from a pro- Form PMC 10.1 ‘‘Application for Prune 706

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Plum Diversion’’ containing at least notice to the industry, a final date for the following information: receipt of applications for diversion: (i) The name and address of the pro- Provided, That the Committee may ex- ducer; whether the producer is an tend such deadline if the total tonnage owner-operator, share-landlord, share- represented in all applications is sub- tenant, or cash tenant; and the name stantially less than the total tonnage and address of any other person or per- established by the Committee pursuant sons sharing a proprietary interest in to paragraph (a) of this section. such prune plums; (d) Approval of applications. No cer- (ii) The proposed method of diversion tificate of diversion shall be issued by and the location where the diversion is the Committee unless it has approved to take place; the application covering such diver- (iii) The quantity and variety of sion. prune plums proposed to be diverted; (1) The Committee’s approval of an and application shall be in writing, and in- (iv) The approximate period of diver- clude at least the following: sion. (i) The details as to the method of di- (v) A deposit fee shall accompany version to be followed; each producer’s application to cover (ii) The method of appraisal to be costs associated with processing the used by the Committee to determine application and administering the di- the quantity of prune plums diverted; version program. The Committee shall (iii) The lesser of either the quantity compute, with the approval of the Sec- specified in the application to be di- retary, and announce to the industry, verted, or modification of that quan- the deposit fee. The deposit fee an- tity as a result of any Committee ac- nounced shall be a set dollar amount or tion to prorate the total quantity to be a per ton cost based on the tonnage to diverted by all producers; and be diverted. The fee paid by the appli- (iv) Such other information as may cant shall be the greater of these be necessary to assist the applicant in amounts. meeting the requirements of this sec- (2) By dehydrator as agent. Any pro- tion, including the conditions for proof ducer, or group of producers, may au- of diversion. thorize a dehydrator to act as an agent (2) If the Committee determines that to divert harvested prune plums. Prior it cannot approve an application it to diversion such dehydrator shall sub- shall notify the applicant promptly. mit to the Committee an application The Committee shall state the rea- on Form PMC 10.1 ‘‘Application for son(s) for failing to approve the appli- Prune Plum Diversion’’ for each pro- cation, and request the applicant to ducer or group of producers under con- submit, if practicable, an amended ap- tract with the dehydrator. A deposit plication correcting the deficiencies in fee shall accompany each such applica- the original application. tion to cover the costs associated with (3) The Committee shall establish, processing the application and admin- and give prompt notice to the industry istration of the program. With respect of a final date by which a producer or to any group of four or more producers dehydrator may modify an approved under contract with a dehydrator, the application, including changing the deposit fee for the group shall be the method of diversion or the quantity of greater of either double the single de- prune plums to be diverted: Provided, posit fee, pursuant to paragraph (c)(1) That any such change shall include in- of this section, or the amount obtained formation on the location or quantity by multiplying the total tonnage of of such diversion and shall be accom- prune plums to be diverted by the panied by a payment of a second de- group of producers covered in the posit fee, calculated pursuant to para- dehydrator’s application times the per graph (c)(1) or (c)(2), as applicable, of ton deposit rate announced by the this section, plus a $2 per ton service Committee pursuant to (c)(1) of this charge for any increase in tonnage to section. be diverted. (3) Receipt of applications. The Com- (4) If an applicant cancels an ap- mittee shall establish, and give prompt proved diversion application prior to

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diversion, no part of the deposit fee transferable certificate of diversion, shall be refunded, except upon approval such credit shall result in an adjust- by the Committee following review of ment downward in the handler’s then all circumstances in the matter. applicable holding requirement in an (e) Report of diversion. (1) When diver- amount equal to that computed by ap- sion of prune plums has been complying the applicable salable percent- pleted, the diverter (whether producer age to the total quantity on such cer- or dehydrator as agent of a producer) tificate. Any adjustment in a handler’s shall submit the required proof of such holding requirement shall not affect diversion to the Committee. When the his obligation, if any, to continue to Committee concludes that diversion hold reserve prunes that are undersized has been completed pursuant to the re- prunes. The term undersized prunes quirements of this section, it shall fur- shall have the same meaning as pre- nish the producer whose prune plums scribed by the Secretary for the then were diverted with a listing of the total current crop year. If the Committee de- quantity of prune plums concluded to termines that effective administration be so diverted: Provided, That a proof diversion operations requires estab- ducer shall be given credit for any lishment of a final date for submission quantity of his prune plums diverted in of transferable certificates of diversion excess of the quantity approved by the by producers to handlers, or a final Committee pursuant to paragraph (d) date for return of such certificates by of this section but not in excess of 120 handlers to the Committee for cred- percent of such approved quantity and iting against their reserve obligations, then only to the extent that such cred- or both, it shall establish such dates. itable excess is already covered by his applicable deposit fee or such fee is in- (2) Issuance to producers. Except as creased by an additional deposit to provided in paragraph (f)(3) of this sec- cover such excess. tion, the Committee shall issue trans- (2) Upon completion of the computa- ferable certificates of diversion to each tion of dryaway pursuant to paragraph producer diverting prune plums and to (a) of this section applicable to the whom a report of diversion was issued. diverter’s diversion of prune plums, the Prior to issuance of any such transfer- Committee shall issue a report of di- able certificate of diversion, the pro- version to the producer whose prune ducer shall advise the Committee, in plums were diverted for the total quan- writing: (i) Of the name of the handler tity, dried weight equivalent, credited to whom the transferable certificate of for diversion setting forth the com- diversion is to be submitted and who is putations by which such total quantity holding reserve prunes referable to was derived. prunes received from such producer; (f) Transferable certificate of diver- and (ii) how much of the quantity sion—(1) General. As hereinafter set shown on his report of diversion he de- forth, transferable certificates of diver- sires to use in lieu of reserve prunes sion shall be issued by the Committee. but not in excess of the quantity of re- Any transferable certificate of diver- serve prunes referable to prunes re- sion issued to a handler that is a coop- ceived by the handler from such pro- erative marketing association, or sub- ducer. The Committee shall enter on mitted to a handler and accepted by the transferable certificate of diversion him, shall be returned to the Com- the name of the handler and the quan- mittee by the handler for credit tity covered by the certificate. The against the handler’s reserve obliga- transferable certificate of diversion tion of the crop year in accordance shall be endorsed by the producer and with § 993.57. Such credit shall be based the handler prior to its return to the on the amount shown on the certifi- Committee in order to be credited by cate, and shall be applied to reduce the the Committee against such handler’s handler’s holding requirement for such reserve obligation. If any portion of the crop year. With respect to such cred- quantity shown on the producer’s re- itable certificate of a handler with a port of diversion remains unused and holding requirement prior to issuance he desires to transfer a transferable or acceptance, as applicable, of the certificate of diversion covering all or

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any part of such unused portion to an- holding requirement on the basis of ap- other producer, he shall advise the plicable transferable certificates of di- Committee, in writing, of the name and version returned to the Committee. address of such producer, together with (g) Costs. Pursuant to § 993.62(g), the the applicable quantity desired to be costs pertaining to diversion are to be covered by the transfer, and, if known, defrayed by payment of fees by the pro- the name of the handler to whom such ducer or cooperative marketing asso- a transferable certificate is to be sub- ciation to whom a diversion certificate mitted. However, the quantity to be is issued. After authorized diversion covered by the transfer shall not ex- operations for a crop year are com- ceed the quantity of reserve prunes ref- pleted, the Committee shall ascertain erable to prunes received by the han- its costs of diversion operations during dler from the transferee-producer. The such crop year. If the total amount Committee shall enter on the transfer- represented by the deposit fees which able certificate of diversion the names accompanied the applications for diver- of the transferee-producer and the han- sion exceeds such costs, each producer, dler, and the quantity covered by the and each cooperative marketing asso- certificate. Prior to submission of any ciation, entitled thereto shall receive a such transferred diversion certificate proportionate refund of the net to a handler, the transferee-producer amount. Such refund shall be cal- shall advise the Committee, in writing, culated in the same proportion as the of the name and address of the handler quantity of prune plums diverted by to whom the transferable certificate is each such producer, and each such co- to be submitted and who is holding re- operative marketing association, is to serve prunes referable to prunes re- the total quantity of prune plums di- ceived from such producer. Such trans- verted: Provided, That the Committee ferred diversion certificate shall be en- may prescribe a minimum charge to dorsed by both producers and the han- cover costs of processing each applica- dler in order to be credited by the Com- tion for diversion submitted to it. mittee against such handler’s reserve [35 FR 12323, Aug. 1, 1970, as amended at 36 obligation. FR 15039, Aug. 12, 1971; 48 FR 57261, Dec. 29, (3) Issuance to a cooperative marketing 1983; 68 FR 17270, Apr. 9, 2003] association. In connection with prune EFFECTIVE DATE NOTE: At 70 FR 30613, May plums diverted by producers who are 27, 2005, § 993.162 was suspended indefinitely. members of a cooperative marketing association, the Committee shall, when DISPOSITION OF RESERVE PRUNES so requested by the association, issue the applicable transferable certificates § 993.165 Disposition of reserve of diversion to it. The quantity entered prunes. on the report of diversion of a coopera- (a) General. For purposes of tive producer shall be entered on or an- § 993.65(a)(2), normal outlets for salable nexed to the applicable transferable prunes (herein referred to as ‘‘normal certificate of diversion issued to the outlets’’) and outlets noncompetitive association. Such transferable certifi- with normal outlets for salable prunes cates of diversion shall be returned to (herein referred to as ‘‘noncompetitive the Committee by the association en- outlets’’) are defined in paragraphs (b) dorsed by an authorized officer of the and (c) of this section. association in order to be credited by (b) Normal outlets. Normal outlets the Committee against the associa- means all outlets not specifically set tion’s reserve obligation. forth in paragraph (c) of this section as (4) Applicability of certain payments. noncompetitive outlets. The provisions of §§ 993.59 and 993.159 (c) Noncompetitive outlets. Noncompeti- governing payments to a handler for tive outlets means (1) the U.S. Govern- necessary services rendered by the han- ment or any agency thereof and any dler in connection with reserve prunes State or local government, except shall not be applicable to prunes no when such outlets are normally serv- longer required to be held as reserve iced through regular commercial trade prunes due to a downward adjustment channels, (2) any foreign government by the Committee in the handler’s or any agency thereof, except any

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which normally is serviced through (c) [Reserved] regular commercial trade channels, (3) (d) Shipments by handlers. Each han- any foreign country with an average of dler shall file with the Committee for annual commercial imports of Cali- each quarter, not later than the 5th fornia prunes of less than 5 tons, based working day of the months of Novem- on imports during the most recent 5 ber, February, May and August, signed years, (4) diced prunes for use as an in- reports on Form PMC 12.1, ‘‘Reports of gredient in, or the manufacture of, food Shipments,’’ and Form 12.1A, ‘‘Cumu- products for human consumption, lative Prune Export Shipments’’ report- other than for use in the manufacture ing shipments of prunes during the of prune juice, prune concentrate, baby crop year through the last day of the food, puree, butter, jam, and low mois- immediately preceding quarter. Such ture nuggets, granules, and powder, (5) reports shall contain at least the fol- charities, (6) research or educational lowing information: activities, and (7) animal feed, distilla- (1) The date, the name, and address of tion, and other salvage use. the handler, and the period covered by [31 FR 5751, Apr. 14, 1966, as amended at 37 the report; FR 5600, Mar. 17, 1972] (2) The pounds of prunes shipped or otherwise disposed of, other than ship- EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.165 was suspended indefinitely. ments to or for the account of other handlers as follows: Domestic outlets REPORTS AND BOOKS AND OTHER segregated by uses (including Federal RECORDS Government agencies); export markets segregated by regions; both domestic § 993.172 Reports of holdings, receipts, and export totals segregated by type of uses, and shipments. pack (bulk and consumer pack); and (a) Holdings as of March 31. Each han- pitted prunes (pitted weight) seg- dler shall, on or before the 15th day of regated as to total to domestic outlets April, file with the committee a signed and total to export markets segregated report of holdings of prunes which have by regions; not been inspected or received by him (3) The total pounds shipped to or for as a handler as of March 31. The report the account of other handlers, includ- shall show for such prunes the name ing interhandler transfers; and and address of the producer or dehy- (4) The total pounds of prunes not drator, the date of each identification covered by, or excluded from, the defi- tag assigned to such prunes, the num- nition of the term ‘‘prunes’’ (§ 993.5) bers and dates of door receipts or shipped. weight certificates or any other identi- (e) Holding of reserve prunes. Upon re- fying documents assigned to such quest of the committee, a handler shall prunes, the net weight shown on each, file with the committee, within 10 cal- the total net weight of all prunes so endar days thereafter, a certified re- held, and the name and address of the port on Form PMC 4.1, ‘‘Reserve Prunes handler making the report. Held by Handler’’, containing the fol- (b) Receipts by handlers. Each handler lowing information as of the date spec- shall file with the committee, for each ified by the committee in its request: month, not later than the 5th working (1) The date and name and address of day of the next succeeding month, a the handler; (2) the effective date of signed report on Form PMC 11.1, ‘‘New the report; and (3) the tonnages of re- Crop Supply and Inbound Prune Re- serve prunes physically held by or for port’’, containing at least the following the handler, itemized by plants, to- information: (1) The date, the name gether with the location of the plants and address of the handler, and the pe- and itemized by the tonnages and aver- riod covered by the report; and (2) the age size count by category held at each total tonnage received during the such plant. month from each of (i) producers and [26 FR 8281, Sept. 2, 1961, as amended at 30 dehydrators, (ii) other handlers, includ- FR 13311, Oct. 20, 1965; 31 FR 14988, Nov. 29, ing interhandler transfers, and (iii) 1966; 33 FR 19162, Dec. 24, 1968; 48 FR 57261, sources other than producers, Dec. 29, 1983; 49 FR 1469, Jan. 12, 1984; 68 FR dehydrators and other handlers. 37393, June 24, 2003]

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EFFECTIVE DATE NOTE: At 70 FR 30613, May coming inspection certificates, re- 27, 2005, § 993.172 was suspended indefinitely. quired to be disposed of for nonhuman consumption in accordance with § 993.173 Reports of accounting. § 993.150(g); and (a) Independent handler’s reports of ac- (3) The total net weight of prunes re- counting. Within 10 days (exclusive of ceived, itemized by crop years of pro- Saturdays, Sundays, and legal holi- duction, and itemized as to salable and days) after a handler, other than a nonreserve prunes by category as devel- profit cooperative agricultural mar- oped from inspection certificates. keting association, makes an account- (c) Carryover and marketing policy in- ing or settlement with a producer or formation. Upon request of the com- dehydrator for prunes delivered to him, mittee, a handler shall within 10 days he shall submit to the committee a (exclusive of Saturdays, Sundays, and copy of the accounting or settlement legal holidays) thereafter, file with the record, which shall contain the fol- committee a signed report on Form lowing information: PMC 14.1 ‘‘Report of Carryover and (1) The names and addresses of the Marketing Policy Information,’’ con- producer or dehydrator, any other pertaining such of the following items of son having a financial interest in the information as may be requested by prunes, and the handler; the committee: (1) The tonnage of (2) The date of the accounting or set- prunes held by the handler by size and tlement; grade, as of the date specified in the (3) The contract or account number; committee’s request and the tonnage of (4) An itemized statement listing reserve prunes by size in each category; each lot of prunes in the delivery, and (2) the handler’s estimate of the showing the date received, receiving tonnage of prunes held by producers point, weight certificate, or door receipt number, inspection certificate and dehydrators from whom the han- number, variety, crop year of produc- dler received prunes during the current tion, and the net weight, if any, of or preceding crop year, of the tonnage prunes shown by the applicable incom- and quality and size of prunes expected ing inspection certificate to be dis- to be produced by such producers and posed of for nonhuman consumption in dehydrators during the current or fol- accordance with § 993.150(g); lowing crop year, of current prices (5) The total net weight of prunes to being received by producers, be set aside for nonhuman consump- dehydrators, and handlers, and of the tion, and the total net weight received; probable trade demand. and [30 FR 13311, Oct. 20, 1965, as amended at 35 (6) The total net weight of each lot, FR 11381, July 16, 1970; 37 FR 15981, Aug. 9, itemized as to salable and reserve 1972; 48 FR 57261, Dec. 29, 1983] prunes by category as developed from EFFECTIVE DATE NOTE: At 70 FR 30613, May inspection certificates. 27, 2005, § 993.173 was suspended indefinitely. (b) Cooperative marketing associations’ reports of accounting. Upon written no- § 993.174 Records. tice by the committee, non-profit cooperative agricultural marketing associa- Each handler shall maintain such tions which are handlers shall file with records as are necessary to furnish the the committee within 10 days (exclu- reports required to be submitted to the sive of Saturdays, Sundays, and legal Committee by him under this subpart holidays) thereafter a signed cumu- including, but not limited to, records lative report of the prunes received of all transactions on prunes received, from its members and any other pro- held and disposed of by him, and he ducers or dehydrators for whom it per- shall retain such records for at least forms handling services, which shall two years after the end of the crop year contain the following information: in which the applicable transaction oc- (1) The name and address of the asso- curred. ciation and the date of the report; [26 FR 8281, Sept. 2, 1961; 26 FR 8483, Sept. 9, (2) The aggregate net weight of 1961. Redesignated at 30 FR 13312, Oct. 20, prunes, as shown by the applicable in- 1965]

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EDITORIAL NOTES: 1. After January 1, 1979, Subpart—Pack Specification as to ‘‘Budget of Expenses and Rate of Assessment’’ regulations (e.g., sections .300 through .399) Size and ‘‘Marketing percentage’’ regulations (e.g., sections .200 through .299) which are in effect SOURCE: 26 FR 8281, Sept. 2, 1961, unless for a year or less, will not be carried in the otherwise noted. Code of Federal Regulations. For FEDERAL REGISTER citations affecting these regula- DEFINITIONS tions, see the List of CFR Sections Affected, which appears in the Finding Aids section of § 993.501 Consumer package of prunes. the printed volume and at www.fdsys.gov. Consumer package of prunes means 2. At 70 FR 30613, May 27, 2005, § 993.174 was consumer package as defined in § 993.22. suspended indefinitely. EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.501 was suspended indefinitely. Subpart—Assessment Rates § 993.502 Size count. § 993.347 Assessment rate. Size count means the count or number On and after August 1, 2010, an as- of prunes per pound. sessment rate of $0.27 per ton of salable dried prunes is established for Cali- § 993.503 Size category. fornia dried prunes. Size category means each of the size categories listed in § 993.515 and fixes [75 FR 67609, Nov. 3, 2010] the range or the limits of the various size counts. Subpart—Undersized Prune EFFECTIVE DATE NOTE: At 70 FR 30613, May Regulation 27, 2005, § 993.503 was suspended indefinitely.

§ 993.400 Modifications. § 993.504 In-line inspection. Pursuant to the authority in § 993.52, In-line inspection means inspection of the provisions in § 993.49(c) prescribing prunes where samples are drawn from a size openings for undersized prune reg- flow of prunes prior to packaging. ulations are hereby modified to permit larger size openings. For French EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.504 was suspended indefinitely. prunes, any undersized regulation may prescribe an opening of 23⁄32 of an inch § 993.505 Floor inspection. or 24⁄32 of an inch; for non-French Floor inspection means inspection of prunes, any undersized regulation may prunes where samples are drawn from 28 prescribe an opening of ⁄32 of an inch packaged prunes or from unpackaged 30 or ⁄32 of an inch. prunes that are held in packing con- [40 FR 42531, Sept. 15, 1975] tainers for later packaging.

EFFECTIVE DATE NOTE: At 70 FR 30613, May EFFECTIVE DATE NOTE: At 70 FR 30613, May 27, 2005, § 993.400 was suspended indefinitely. 27, 2005, § 993.505 was suspended indefinitely.

§ 993.409 Undersized prune regulation § 993.506 Lot. for the 2002–03 crop year. Lot for the purposes of this subpart Pursuant to §§ 993.49(c) and 993.52, an shall have the same meaning as defined undersized prune regulation for the in § 993.104(b) of the Subpart—Adminis- 2002–03 crop year is hereby established. trative Rules and Regulations. Undersized prunes are prunes which EFFECTIVE DATE NOTE: At 70 FR 30613, May pass through openings as follows: for 27, 2005, § 993.506 was suspended indefinitely. French prunes, 24⁄32 of an inch in diameter; for non-French prunes, 30⁄32 of an SPECIFICATIONS AS TO SIZE inch in diameter. § 993.515 Size categories. [67 FR 31722, May 10, 2002] For the purpose of this part, the pack EFFECTIVE DATE NOTE: At 70 FR 30613, May specifications prescribed for the pack- 27, 2005, § 993.409 was suspended indefinitely. ing of prunes in consumer packages

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shall, subject to the limitation pre- from the count per pound of 10 ounces scribed in § 993.516, be according to of the largest prunes in such sample by those commercially recognized size no more than 45 points. categories as are listed in paragraph (a) EFFECTIVE DATE NOTE: At 70 FR 30613, May of this section by numerical designa- 27, 2005, § 993.516 was suspended indefinitely. tion or in paragraph (b) of this section by nomenclature designation. LABELING (a) Numerical designations. Each of the following is a numerical size category § 993.517 Identification. described by the range of the size The size category of the prunes in counts of prunes per pounds included in any lot shall be clearly marked by the the respective size categories expressed handler on each consumer package of as follows or in an applicable equiva- such prunes, on the parts or panels of lent range expressed in the metric sys- the package or label which are nor- tem per 500 grams: 15/20, 15/22, 18/24, 20/ mally presented in retail display, in 30, 25/35, 30/40, 35/45, 40/50, 50/60, 60/70, 70/ terms of the applicable numerical or 80, 75/85, 80/90, and 90/100. nomenclature designation prescribed in (b) Nomenclature designations. Each of § 993.515, which designation shall not be the following is a nonmenclature size lacking in prominence and conspicu- category: ousness. Any handler may, at his op- (1) Extra large; tion, clearly mark on such consumer (2) Large; package additional information de- (3) Medium; and scribing in numerical terms the aver- (4) Small, breakfast, petite, or econ- age size count, or particular range of omy. size counts, of the prunes in such lot so (c) Nomenclature designations defined. long as such numerical terms fall with- As used in paragraph (b) of this sec- in the range of the size counts of the tion: applicable numerical or nomenclature (1) Extra large means any size count designation and do not tend to be de- which falls within the range of 25 to 40 ceptive as to the actual average size prunes, inclusive, per pound; count, or range of the size counts, of (2) Large means any size count which the prunes in such lot. Descriptive falls within the range of 40 to 60 terms other than synonyms of the pre- prunes, inclusive, per pound; scribed nomenclature designation or (3) Medium means any size count words of like connotation, describing which falls within the range of 60 to 85 the style of pack, variety of prune, or prunes, inclusive, per pound; and other item of commercial significance (4) Small, breakfast, petite, or economy may also be marked on the consumer means any size count which falls with- package. Prunes in any lot of which in the range of 85 to 100 prunes, inclu- the maximum size count is less than 25 sive, per pound. shall be clearly marked by the handler [26 FR 8281, Sept. 2, 1961, as amended at 49 in terms of the applicable numerical FR 35930, Sept. 13, 1984] designation prescribed in § 993.515(a); EFFECTIVE DATE NOTE: At 70 FR 30613, May and the handler may use nomenclature 27, 2005, § 993.515 was suspended indefinitely. terms descriptive of size other than the nomenclature designations prescribed § 993.516 Tolerances and limitations. in § 993.515(b). With respect to in-line inspections [26 FR 8281, Sept. 2, 1961, as amended at 46 and floor inspections, prunes in a par- FR 38070, July 24, 1981] ticular lot shall, subject to the other EFFECTIVE DATE NOTE: At 70 FR 30613, May applicable requirements of this section, 27, 2005, § 993.517 was suspended indefinitely. be considered as being according to a particular size category prescribed in COMPLIANCE § 993.515 if the average size count of the prunes in such lot falls within the § 993.518 Compliance. range of the size counts specified for Whenever the season average price to such size category, and the count per producers for prunes is below the par- pound of 10 ounces of the smallest ity level specified in section 2(1) of the prunes in a sample of 100 ounces varies act, no handler shall ship consumer

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packages of prunes unless such prunes the minimum standards set forth in are packed and labeled in accordance § 993.97 shall apply in their entirety. with the specifications prescribed in [27 FR 7540, Aug. 1, 1962, as amended at 59 FR this subpart; and whether prices are 38113, July 27, 1994] above or below parity, no handler shall EFFECTIVE DATE NOTE: At 70 FR 30613, May use the nomenclature designations in 27, 2005, § 993.601 was suspended indefinitely. § 993.515(b) to describe size categories other than those prescribed pursuant § 993.602 Maximum tolerances. to § 993.515(c). In lieu of the provision prescribed in EFFECTIVE DATE NOTE: At 70 FR 30613, May I C of § 993.97 that the tolerance allow- 27, 2005, § 993.518 was suspended indefinitely. ances prescribed therein shall be on a weight basis, the tolerance allowance Subpart—Grade Regulations percentage for each defect or group of defects in I C of § 993.97 shall be derived § 993.601 More restrictive grade regu- by dividing the number of prunes in the lation. applicable sample affected with the applicable defect(s) by the total number (a) Incoming and outgoing regulation. of prunes in such sample. Whenever the estimated season average price to producers for prunes does [39 FR 30344, Aug. 22, 1974] not exceed the parity level specified in EFFECTIVE DATE NOTE: At 70 FR 30613, May section 2(1) of the act, the minimum 27, 2005, § 993.602 was suspended indefinitely. standards which handlers’ receipts of natural condition prunes are required PART 996—MINIMUM QUALITY AND to meet pursuant to § 993.49(a) shall be HANDLING STANDARDS FOR DO- the standards specified in §§ 993.49(a) MESTIC AND IMPORTED PEANUTS and 993.97(I), and the minimum stand- MARKETED IN THE UNITED ards which handlers’ shipments or STATES other final dispositions of prunes are required to meet pursuant to § 993.50(a) DEFINITIONS shall be the applicable standards set forth in § 993.97 Exhibit A; minimum Sec. standards, except that the following re- 996.1 Act and scope. 996.2 Conditionally released. vised tolerance allowances shall apply 996.3 Crop year. in lieu of the tolerance allowances pre- 996.4 Handle. scribed in paragraphs I C(2), II C(3), I 996.5 Handler. C(5) and II C(6) of § 993.97 as follows: 996.6 Importation. (1) The combined tolerance allowance 996.7 Importer. for off-color, inferior meat condition, 996.8 Incoming inspection. 996.9 Inshell peanuts. end cracks, fermentation, skin or flesh 996.10 Inspection Service. damage, scab, burned, mold, imbedded 996.11 Negative aflatoxin content. dirt, insect infestation, and decay shall 996.12 Outgoing inspection. not exceed fifteen percent (15%), except 996.13 Peanuts. that the first eight percent (8%) of end 996.14 Person. cracks shall be given one-half value 996.15 Positive lot identification. and any additional percentage of end 996.16 Producer. 996.17 Quota year. cracks shall be given full value. 996.18 Secretary. (2) The combined tolerance allowance 996.19 Shelled peanuts. for mold, brown rot, imbedded dirt, in- 996.20 USDA. sect infestation, and decay shall not 996.21 USDA laboratory. exceed five percent (5%), and, within 996.22 USDA-approved laboratory. such tolerance, brown rot shall not ex- QUALITY AND HANDLING STANDARDS ceed three percent (3%). 996.30 Incoming quality standards. (b) Above parity situations. Whenever 996.31 Outgoing quality standards. the estimated season average price to 996.40 Handling standards. producers for prunes exceeds the parity 996.50 Reconditioning failing quality pea- level specified in section 2(1) of the act, nuts.

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996.60 Safeguard procedures for imported ther, That this term does not include peanuts. sales or deliveries of peanuts by such REPORTS AND RECORDS intermediary person(s) to a handler. 996.71 Reports and recordkeeping. § 996.5 Handler. 996.72 Confidential information. 996.73 Verification of reports. Handler means any person who han- 996.74 Compliance. dles peanuts, in a capacity other than 996.75 Effective time. that of a custom cleaner or dryer, an AUTHORITY: 7 U.S.C. 7958. assembler, a warehouseman or other intermediary between the producer and SOURCE: 67 FR 57140, Sept. 9, 2002, unless otherwise noted. the person handling peanuts.

DEFINITIONS § 996.6 Importation. Importation means the arrival of for- § 996.1 Act and scope. eign produced peanuts at a port-of- Act means Public Law 107–171, or the entry with the intent to enter the pea- Farm Security and Rural Investment nuts into channels of commerce of the Act of 2002, enacted May 13, 2002. None United States. of the definitions or provisions of this part shall apply to any other part or § 996.7 Importer. program (including, but not limited to, Importer means a person who engages any program providing for payments or in the importation of foreign produced loans to peanut producers or other per- peanuts into the United States. sons interested in peanuts or peanut quotas) unless explicitly adopted in [68 FR 1157, Jan. 9, 2003] such other part or program. § 996.8 Incoming inspection. § 996.2 Conditional release. Incoming inspection means the sam- Conditional release means release pling, inspection, and certification of from U.S. Customs Service custody to farmers stock peanuts to determine the importer for purposes of handling segregation and grade quality. and USDA required sampling, inspection and chemical analysis. § 996.9 Inshell peanuts. [68 FR 1157, Jan. 9, 2003] Inshell peanuts means peanuts, the kernels or edible portions of which are § 996.3 Crop year. contained in the shell. Crop year means the 12-month period § 996.10 Inspection Service. beginning with July 1 of any year and ending with June 30 of the following Inspection Service means the Federal year, or other period established by Inspection Service, Fruit and Vege- USDA. table Programs, Agricultural Mar- keting Service, USDA or the Federal- § 996.4 Handle. State Inspection Service. Handle means to engage in the re- § 996.11 Negative aflatoxin content. ceiving or acquiring, cleaning and shelling, cleaning inshell, or crushing Negative aflatoxin content means 15 of domestic or imported peanuts and in parts per billion (ppb) or less for pea- the shipment (except as a common or nuts that have been certified as meet- contract carrier of peanuts owned by ing edible quality grade standards. another) or sale of cleaned-inshell or shelled peanuts or other activity caus- § 996.12 Outgoing inspection. ing peanuts to enter into human con- Outgoing inspection means the sam- sumption channels of commerce: Pro- pling, inspection, and certification of vided, That this term does not include either: shelled peanuts which have been sales or deliveries of peanuts by a pro- cleaned, sorted, sized and otherwise ducer to a handler or to an inter- prepared for human consumption mar- mediary person engaged in delivering kets; or inshell peanuts which have peanuts to handler(s): And provided fur- been cleaned, sorted, and otherwise

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prepared for inshell human consump- § 996.17 Quota year. tion markets. Quota year means the 12-month pe- § 996.13 Peanuts. riod beginning January 1 and ending December 31 of the same year for pea- Peanuts means the seeds of the leg- nuts produced in Mexico and the 12- ume Arachis hypogaea and includes month period beginning April 1 and both inshell and shelled peanuts pro- ending March 31 of the following year duced in the United States or imported for Argentina and other countries, or from foreign countries, other than other such periods as may be pre- those in green form for consumption as scribed by the U.S. Customs Service. boiled peanuts. (a) Farmers Stock. ‘‘Farmers stock § 996.18 Secretary. peanuts’’ means picked and threshed Secretary means the Secretary of Ag- peanuts which have not been shelled, riculture of the United States or any crushed, cleaned or otherwise changed officer, employee, or agent of the (except for removal of foreign material, United States Department of Agri- loose shelled kernels, and excess mois- culture who is, or who may hereafter ture) from the form in which custom- be authorized to act in the Secretary’s arily marketed by producers. stead. (b) Segregation 1. ‘‘Segregation l peanuts’’ means farmers stock peanuts § 996.19 Shelled peanuts. with not more than 2.49 percent dam- Shelled peanuts means the kernels or aged kernels nor more than l.00 percent portions of kernels of peanuts after the concealed damage caused by rancidity, shells are removed. mold, or decay and which are free from visible Aspergillus flavus. § 996.20 USDA. (c) Segregation 2. Segregation 2 pea- ‘‘ USDA means the United States De- nuts means farmers stock peanuts ’’ partment of Agriculture, including any with more than 2.49 percent damaged officer, employee, service, program, or kernels or more than l.00 percent con- branch of the Department of Agri- cealed damage caused by rancidity, culture, or any other person acting as mold, or decay and which are free from the Secretary’s agent or representative visible Aspergillus flavus. in connection with any provisions of (d) Segregation 3. ‘‘Segregation 3 pea- this part. nuts’’ means farmers stock peanuts with visible Aspergillus flavus. § 996.21 USDA laboratory. § 996.14 Person. USDA laboratory means laboratories of the Science and Technology Pro- Person means an individual, partner- grams, Agricultural Marketing Serv- ship, corporation, association, any ice, USDA, which chemically analyze other business unit or legal entity. peanuts for aflatoxin content.

§ 996.15 Positive lot identification. § 996.22 USDA-approved laboratory. Positive lot identification is a means, USDA-approved laboratory means lab- approved by the Inspection Service, of oratories approved by the Science and relating the inspection certificate to Technology Programs, Agricultural the lot covered so that there is no Marketing Service, USDA, that chemi- doubt that the peanuts in the lot are cally analyze peanuts for aflatoxin con- the same peanuts described on the intent. spection certificate. QUALITY AND HANDLING STANDARDS § 996.16 Producer. Producer means any person in the § 996.30 Incoming quality standards. United States engaged in a proprietary (a) All farmers stock peanuts re- capacity in the production of peanuts ceived or acquired by a handler shall be for market. officially inspected by the Inspection

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Service, and certified as to segrega- any type of farmers stock cleaner tion, moisture content, and foreign ma- which removes sand and dirt. terial. (d) A handler may receive or acquire (b) Moisture. Domestic and imported any peanuts from other persons for edi- peanuts shall be dried to 18 percent or ble and non-edible use: Provided, That less prior to inspection and to 10.49 per- such peanuts intended for human con- cent or less prior to storing or milling: sumption are inspected and certified Provided, That Virginia-type peanuts pursuant to § 996.31 prior to such dis- used for seed shall be dried to 18 per- position. Non-edible uses may include, cent or less prior to inspection and to but are not limited to, seed, oilstock, animal feed, bird seed, or for export. 11.49 percent or less prior to storing or milling. [67 FR 57140, Sept. 9, 2002, as amended at 68 (c) Foreign material. No handler or im- FR 1157, Jan. 9, 2003; 70 FR 44046, Aug. 1, 2005] porter shall receive or acquire farmers § 996.31 Outgoing quality standards. stock peanuts for subsequent disposition to human consumption outlets (a) Shelled peanuts: No handler or im- containing more than 10.49 percent for- porter shall ship or otherwise dispose eign material, except that peanuts hav- of shelled peanuts for human consump- ing a higher foreign material content tion unless such peanuts are positive may be received or acquired if they are lot identified, chemically analyzed by a held separately until milled, or moved USDA laboratory or USDA-approved laboratory and certified negative as over a sand-screen before storage, or ‘‘ ’’ to aflatoxin, and certified by the In- shipped directly to a plant for prompt spection Service as meeting the fol- shelling. The term sand-screen means lowing quality standards:

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ONSUMPTION C Total fall through UMAN H inch round screen ...... inch round screen ...... inch round screen ...... inch round screen ...... inch round screen ...... 20 inch round screen ...... 20 inch round screen ...... 20 .20 9.00 .20 9.00 .20 9.00 inch round screen .20 ...... 9.00 inch round screen ...... 9.00 inch round screen ...... 9.00 9.00 .20 .20 .20 9.00 9.00 9.00 ’’ 64 64 64 64 64 64 64 64 64 64 ⁄ ⁄ ⁄ ⁄ ⁄ ⁄ ⁄ ⁄ ⁄ ⁄ 17 17 16 17 17 17 16 17 17 16 ’’ splits ‘‘ Sound whole kernels and/or sound split and broken splits ‘‘ EANUTS FOR —P Lots of fects (percent) damaged minor de- Unshelled kernels and peanuts and Excluding Lots of TANDARDS 1.50 2.50 6.00%; 1.50 2.50 S [Whole kernels and splits: Maximum limitations] kernels (percent) damaged Unshelled peanuts and UALITY Q INIMUM M Type and grade category splits). Runner ...... Virginia (except No. 2)6.00%; ...... Spanish and Valencia ...... No. 2 Virginia ...... Runner with splits (not more than 15% sound splits) 1.50 2.50 ...... Virginia with splits (not more than 15% sound splits) ...... 1.50 Spanish and Valencia with splits (not more than 15% sound 1.50 1.50 1.50 2.50 1.50 6.00%; 2.50 6.00%; Runner (not less than 90% splits) 3.00 ...... 6.00%; Virginia (not less than 90% splits) 2.50 ...... 6.00%; Spanish and Valencia (not less than 90% splits) 2.50 ...... 6.00%; 2.00 2.00 2.00 2.50 6.00%; 2.50 6.00%; 2.50 6.00%;

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(b) Cleaned-inshell peanuts: No han- shall be handled, stored, and shipped dler or importer shall ship or otherwise under positive lot identification proce- dispose of cleaned-inshell peanuts for dures, except those lots which are re- human consumption unless such pea- constituted and/or commingled at the nuts are Positive lot identified and are request of the buyer: Provided, That the determined by the Inspection Service reconstituted or commingled lots were to contain: previously positive lot identified and (1) Not more than l.00 percent kernels certified as meeting the outgoing with mold unless a sample of such pea- standards of § 996.31. nuts, drawn by an inspector of the In- (b) Sampling and testing shelled pea- spection Service, is analyzed chemi- nuts for outgoing Inspection: Prior to cally by a USDA laboratory or a shipment, the following sampling and USDA-approved laboratory and cer- inspection procedures shall be con- tified ‘‘negative’’ as to aflatoxin; ducted on each lot of shelled peanuts (2) Not more than 2.00 percent pea- intended for human consumption. The nuts with damaged kernels; lot size of shelled or cleaned-inshell (3) Not more than 10.00 percent mois- peanuts presented for outgoing inspec- ture; or tion in bags or bulk shall not exceed (4) Not more than 0.50 percent foreign 200,000 pounds. material. (1) Each handler or importer shall [67 FR 57140, Sept. 9, 2002; 67 FR 63503, Oct. 11, cause appropriate samples, based on a 2002, as amended at 68 FR 46924, Aug. 7, 2003; sampling plan approved by the Inspec- 68 FR 53490, Sept. 11, 2003] tion Service, of each lot of shelled peanuts intended for human consumption § 996.40 Handling standards. to be drawn by the Inspection Service. (a) Identification: Each lot of shelled The gross amount of peanuts drawn or cleaned inshell peanuts intended for shall be large enough to provide for a human consumption shall be identified grade analysis, for a grading check- by positive lot identification prior to sample, and for three 48-pound samples being shipped or otherwise disposed of. for aflatoxin chemical analysis. The Positive lot identification (PLI) meth- three 48-pound samples shall be des- ods are tailored to the size and ignated by the Inspection Service as containerization of the lot, by ware- ‘‘Sample 1,’’ ‘‘Sample 2,’’ and ‘‘Sample 3’’ house storage or space requirements, and each sample shall be placed in a or, by necessary further movement of suitable container and positive lot the lot prior to certification. Positive identified by means acceptable to the lot identification is established by the Inspection Service. Sample 1 may be Inspection Service and includes the fol- prepared for immediate testing or lowing methods of identification. For Sample 1, Sample 2, and Sample 3 may domestic lots and repackaged import be returned to the handler or importer lots, PLI includes PLI stickers, tags or for testing at a later date. Imported seals applied to each individual pack- peanuts shall be labeled ‘‘Sample age or container in such a manner that 1IMP,’’ ‘‘Sample 2IMP,’’ and ‘‘Sample is acceptable to the Inspection Service 3IMP’’ and handled accordingly. and maintains the identity of the lot. (2) Before shipment of a lot of shelled For imported lots, PLI tape may be peanuts to a buyer, the handler or im- used to wrap bags or boxes on pallets, porter shall cause Sample 1 to be PLI stickers may be used to cover the ground by the Inspection Service, a shrink-wrap overlap, doors may be USDA laboratory or a USDA-approved sealed to isolate the lot, bags or boxes laboratory, in a ‘‘subsampling mill.’’ may be stenciled with a lot number, or The resultant ground subsample from any other means that is acceptable to Sample 1 shall be of a size specified by the Inspection Service. The crop year the Inspection Service and shall be des- or quota year shown on the positive lot ignated as ‘‘Subsample 1–AB’’ and at the identification tags shall be the year in handler’s, importer’s or buyer’s option, which the peanuts in the lot were pro- a second subsample may also be ex- duced domestically or imported into tracted from Sample 1. It shall be des- the U.S., as appropriate. All lots of ignated as ‘‘Subsample 1–CD.’’ Sub- shelled and cleaned-inshell peanuts sample 1–CD may be sent as requested

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by the handler or buyer, for aflatoxin Programs, AMS, USDA, 1400 Independ- assay, to a USDA laboratory or USDA- ence Avenue SW., Room 2049–S, (STOP approved laboratory that can provide 0240), Washington, DC, 20250–0240; Tele- analyses results on such samples in 36 phone: (202) 720–5870; Fax: (202) 720–0393. hours. The cost of sampling and testing (6) Handlers and importers may make Subsample 1–CD shall be for the ac- arrangements for required chemical count of the applicant. Subsample 1– analysis for aflatoxin content at the AB shall be analyzed only in a USDA nearest USDA or USDA-approved lab- laboratory or USDA-approved labora- oratory. For further information con- tory. Both Subsamples 1–AB and 1–CD cerning chemical analysis and a list of shall be accompanied by a notice of laboratories authorized to conduct sampling or grade certificate, signed such analysis contact: Dr. Robert Ep- by the inspector, containing, at least, stein, Deputy Administrator, Science identifying information as to the han- and Technology Programs, AMS, dler or importer, the buyer, if known, USDA, 1400 Independence Avenue, SW. and the positive lot identification of STOP 0270, Washington, DC 20250–0270; the shelled peanuts. Telephone (202) 720–5231; Fax (202) 720– (3) The samples designated as Sample 6496. 2 and Sample 3 shall be held as (c) Appeal inspections. Any ‘‘holder of aflatoxin check-samples by the Inspec- the title’’ to any lot of peanuts may re- tion Service or the handler or importer quest an appeal inspection if it is be- and shall not be included in the ship- lieved that the original aflatoxin test ment to the buyer until the analyses results were in error. Appeal inspec- results from Sample 1 are known. tions would be conducted in accordance (4) Upon call from the laboratory, the with Federal or Federal-State inspec- handler or importer shall cause Sample tion procedures for milled peanuts. The 2 to be ground by the Inspection Serv- aflatoxin appeal sample would be ice, USDA or USDA-approved labora- drawn by Federal or Federal-State In- tory in a ‘‘subsampling mill.’’ The re- spection Service officials and the ap- sultant ground subsample from Sample peal analysis would be conducted by 2 shall be of a size specified by the In- USDA or USDA-approved laboratories. spection Service and it shall be des- Any financially interested person may ignated as ‘‘Subsample 2–AB.’’ Upon call request an appeal inspection if it is be- from the laboratory, the handler shall lieved that the original quality inspec- cause Sample 3 to be ground by the In- tion is in error. Quality appeals would spection Service, USDA or USDA-ap- be conducted by Federal or Federal- proved laboratory in a ‘‘subsampling State Inspection Service inspectors in mill.’’ The resultant ground subsample accordance with the Federal or Fed- from Sample 3 shall be of a size speci- eral-State inspection procedures for fied by Inspection Service and shall be milled peanuts. The person requesting designated as ‘‘Subsample 3–AB.’’ ‘‘Sub- the appeal inspection would pay the samples 2–AB and 3–AB’’ shall be ana- cost of such appeals. The appeal inspec- lyzed only in a USDA laboratory or a tion results shall be issued to the per- USDA-approved laboratory and each son requesting the appeal inspection shall be accompanied by a notice of and a copy shall be mailed to USDA or sampling. The results of each assay its agent. shall be reported by the laboratory to [67 FR 57140, Sept. 9, 2002, as amended at 68 the handler and to USDA. FR 1157, Jan. 9, 2003; 68 FR 46924, Aug. 7, 2003] (5) Handlers and importers may make arrangements for required inspection § 996.50 Reconditioning failing quality and certification by contacting the In- peanuts. spection Service office closest to where (a) Lots of peanuts which have not the peanuts will be made available for been certified as meeting the require- sampling. For questions regarding in- ments for disposition to human con- spection services, a list of Federal or sumption outlets may be disposed for Federal-State Inspection Service of- non-human consumption uses: Pro- fices, or for further assistance, han- vided, That each such lots are positive dlers and importers may contact: Fresh lot identified using red tags, or other Products Branch, Fruit and Vegetable methods acceptable to the Inspection

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Service, and certified as to aflatoxin kernels and minor defects standards content (actual numerical count). How- after blanching. ever, on the shipping papers covering (e) Roasting. Handlers or importers the disposition of each such lot, the may roast or cause to be roasted handler or importer shall cause the fol- shelled peanuts which meet the grade lowing statement to be shown: ‘‘The standards the table in § 996.31(a) but are peanuts covered by this bill of lading positive to aflatoxin. Lots of peanuts (or invoice, etc.) are not to be used for moved under this provision must be ac- human consumption.’’ companied by a valid grade certificate (b) Sheller oil stock residuals shall showing that the lot met grade require- be positive lot identified using red ments of § 996.31(a) prior to roasting tags, or other methods acceptable to and a valid aflatoxin certificate. If, the Inspection Service, and may be dis- after roasting, such peanut lot is cer- posed of domestically or to the export tified negative as to aflatoxin and the market in bulk or bags or other suit- positive lot identity has been main- able containers. Disposition to crush- tained during the roasting process, the ing may be to approved crushers. lot may be moved for human consump- (1) If such peanuts are not tested and tion. certified as to aflatoxin content, pursu- (f) Lots of shelled peanuts moved for ant to paragraph (a) of this section, the remilling, blanching or roasting shall handler or importer shall cause the fol- be positive lot identified and accom- lowing statement to be shown on the panied by valid grade inspection certificate, Except That, a handler’s shipping papers: ‘‘The peanuts covered by this bill of lading (or invoice, etc.) shelled peanuts may be moved without are limited to crushing only and may PLI and grade inspection to the handler’s blanching facility that blanches contain aflatoxin.’’ only the handler’s peanuts. The title of (2) If the peanuts are certified as 301 such peanuts shall be retained by the ppb or more aflatoxin content, disposi- handler or importer until the peanuts tion shall be limited to crushing or ex- have been certified by the Inspection port. Service as meeting the outgoing qual- (c) Remilling. Handlers and importers ity standards specified in the table in may remill, or cause to have remilled, § 996.31(a). Remilling, blanching, and lots of shelled or cleaned-inshell pea- roasting under the provisions of this nuts failing to meet the applicable out- paragraph shall be performed only by going quality standards in the table in those remillers and blanchers approved § 996.31(a). If, after remilling, such pea- by USDA. Such approved entities must nut lot meets the applicable quality agree to comply with the handling standards in § 996.31, the lot may be standards in this part and to report dis- moved for human consumption under positions of all failing peanuts and re- positive lot identification procedures sidual peanuts to USDA. and accompanied by applicable grade (g) Residual peanuts resulting from and aflatoxin certificates. remilling, blanching, or roasting of (d) Blanching. Handlers and importers peanuts shall be red tagged, or identi- may blanch, or cause to have blanched, fied by other means acceptable to the shelled peanuts failing to meet the out- Inspection Service, and returned di- going quality standards specified in the rectly to the handler for further dis- table in § 996.31(a). If after blanching, position or, in the alternative, such re- such peanut lot meets the quality sidual peanuts shall be positive lot standards in § 996.31(a), the lot may be identified by the Inspection Service moved for human consumption under and shall be disposed of to handlers positive lot identification procedures who are crushers, or to approved and accompanied by applicable grade crushers. Handlers who are crushers and aflatoxin certificates. Peanut lots and crushers approved by USDA must certified as meeting the fall through agree to comply with the terms and standard or the damaged kernels and conditions of this part. minor defects standard as specified in (h) Re-inspection. Whenever USDA has § 996.31(a), prior to blanching shall be reason to believe that domestic or im- exempt from fall through, damaged ported peanuts may have been damaged

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or deteriorated while in storage, USDA turn the entry document to the im- may reject the then effective inspec- porter. The importer shall cause a copy tion certificate and may require the of the relevant entry documentation to owner of the peanuts to have a re-in- accompany each peanut lot and be pre- spection to establish whether or not sented to the Inspection Service at the such peanuts may be disposed of for time of inspection. human consumption. (b) Importers shall report to AMS the (i) The cost of transportation, sam- entry number, container number, and pling, inspection, certification, chem- inspection certificate of those peanuts ical analysis, and identification, as which are sampled and inspected but well as remilling and blanching, and which are subsequently exported as ex- further inspection of remilled and cess of the peanut import quota. Pea- blanched lots, and disposition of failing nuts for which an import application is peanuts, shall be borne by the appli- filed with the Customs Service, and cant. Whenever peanuts are presented which are not sampled and inspected, for inspection, the handler or importer but which are subsequently exported as shall furnish any labor and pay any excess of quota, shall not be reported costs incurred in moving, opening con- to USDA. tainers, and shipping samples as may be necessary for proper sampling and (c) Early arrival and storage. Peanut inspection. The Inspection Service lots sampled and inspected upon ar- shall bill the applicant or other respon- rival in the United States, but placed sible entity separately for applicable in storage for more than one month fees covering sampling and inspection, prior to beginning of the quota year for delivering aflatoxin samples to labora- which the peanuts will be entered, tories, positive lot identification meas- must be reported to USDA at the time ures, and other certifications as may of inspection. The importer shall file be necessary to certify edible quality copies of the Customs Service docu- or non-edible disposition. The USDA mentation showing the volume of pea- and USDA-approved laboratories shall nuts placed in storage and location, in- bill the applicant or other responsible cluding any identifying number of the entity separately for applicable fees for storage warehouse. Such peanuts aflatoxin assays. should be stored in clean, dry ware- houses and under cold storage condi- [67 FR 57140, Sept. 9, 2002, as amended at 68 tions consistent with industry stand- FR 46924, Aug. 7, 2003] ards. USDA may require re-inspection § 996.60 Safeguard procedures for im- of the lot at the time the lot is de- ported peanuts. clared for entry with the Customs (a) Prior to, or upon, arrival of a for- Service. eign-produced peanut lot at a port-of- (d) Additional standards. (1) Nothing entry, the importer, or customs broker contained in this section shall preclude acting on behalf of the importer, shall any importer from milling or recondi- mail or send by facsimile transmission tioning, prior to importation, any ship- (fax) a copy of the Customs Service ment of peanuts for the purpose of entry documentation for the peanut lot making such lot eligible for importa- or lots to the Inspection Service office tion into the United States. However, that will perform sampling of the pea- all peanuts entered for human con- nut shipment. More than one lot may sumption use must be certified as be entered on one entry document. The meeting the quality standards specified documentation shall include: the Cus- in § 996.31(a) prior to such disposition. toms Service entry number; the con- Failure to fully comply with quality tainer number(s) or other identifica- and handling standards as required tion of the lot(s); the volume of the under this section, will result enforce- peanuts in each lot being entered, the ment action by USDA. inland shipment destination where the (2) Imported peanut lots sampled and lot will be made available for inspec- inspected at the port-of-entry, or at tion; and a contact name or telephone other locations, shall meet the quality number at the destination. The inspec- standards of this part in effect on the tion office shall sign, stamp, and re- date of inspection.

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(3) A foreign-produced peanut lot en- etable Programs, AMS, USDA, 4700 tered for consumption or for warehouse River Road, Suite 2A04, Unit 155, River- may be transferred or sold to another dale, Maryland 20737; Telephone (301) person: Provided, That the original im- 734–5243, Fax: (301) 734–5275, or other ad- porter shall be the importer of record dress as determined by USDA. unless the new owner applies for bond and files Customs Service documents § 996.72 Confidential information. pursuant to 19 CFR 141.113 and 141.20: All reports and records furnished or And provided further, That such peanuts submitted by handlers and importers must be certified and reported to to USDA which include data or infor- USDA pursuant to § 996.71 of this part. mation constituting a trade secret or (4) The provisions of this section do disclosing a trade position, financial not supersede any restrictions or prohibitions on peanuts under the Federal condition, or business operations of the Plant Quarantine Act of 1912, the Fed- particular handlers or their customers eral Food, Drug and Cosmetic Act, any shall be received by, and at all times other applicable laws, or regulations of kept in the custody and control of one other Federal agencies, including im- or more employees of USDA, and, export regulations and procedures of the cept as provided in § 996.74 or otherwise Customs Service. provided by law, such information shall not be disclosed to any person outside [67 FR 57140, Sept. 9, 2002, as amended at 68 USDA. FR 1158, Jan. 9, 2003] § 996.73 Verification of reports. REPORTS AND RECORDS For the purpose of checking and § 996.71 Reports and recordkeeping. verifying reports filed by handlers and (a) Each handler and importer shall importers and the operation of han- report acquisitions of all farmers stock dlers and importers under the provi- peanuts, by Segregation, on a form sions of this Part, the officers, employ- ‘‘Monthly Report of Acquisitions’’ and ees or duly authorized agents of USDA such other reports or information as shall have access to any premises may be necessary to enable USDA to where peanuts may be held and at any carry out the provisions of this part. time during reasonable business hours (b) Each handler and importer shall and shall be permitted to inspect any maintain records of all receipts and ac- peanuts so held by such handler or im- quisitions of farmers stock peanuts, porter and any and all records of such and all grade and aflatoxin certificates handler with respect to the acquisition, showing the results of milling, re- holding, or disposition of all peanuts milling, blanching and roasting of pea- which may be held or which may have nuts for human consumption and the been disposed by the handler. records of the disposition of peanuts not certified as meeting Outgoing qual- § 996.74 Compliance. ity standards, specified in § 996.31(a) of (a) A handler or importer shall be this part. Such records shall be maintained for at least 2 years after the subject to withdrawal of inspection crop year of their applicability. Such services, for a period of time to be de- recordkeeping shall be sufficient to termined by USDA, if the handler or document and substantiate the handler importer: or importer’s compliance with this (1) Acquires farmers stock peanuts part. without official incoming inspection, (c) USDA shall maintain copies of pursuant to § 996.30; grade and aflatoxin certificates on all (2) Fails to obtain outgoing inspec- peanut lots inspected and chemically tion on shelled or cleaned-inshell pea- tested. USDA and USDA-approved lab- nuts, pursuant to § 996.31, and ships oratories shall file copies of all such peanuts for human consumption aflatoxin certificates completed by use; such laboratories with the DC Mar- (3) Ships failing quality peanuts, pur- keting Field Office, Marketing Order suant to § 996.31, for human consump- Administration Branch, Fruit and Veg- tion use;

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(4) Commingles failing quality pea- § 999.1 Regulation governing the im- nuts with certified edible quality pea- portation of dates. nuts and ships the commingled lot for (a) Definitions. (1) Dates in retail pack- human consumption use; ages means whole or pitted dates, other (5) Fails to maintain positive lot than dates prepared or preserved, identification, pursuant to § 996.40(a), wrapped or packaged for sale at retail. on peanut lots certified for human con- (2) Dates for packaging means whole sumption use; or pitted dates in bulk containers (6) Fails to maintain and provide ac- which are to be repacked, in whole or cess to records, pursuant to § 996.71, on part, in the United States as dates in the reconditioning or disposition of retail packages. peanuts acquired by such handler or (3) Bulk container means any con- importer; or tainer of dates which, together with (7) Otherwise violates any provision the dates therein, weighs more than of section 1308 of the Act or any provi- ten pounds. sion of this part. (4) Dates for processing means any (b) Any peanut lot which fails to dates for use in a bakery, confec- meet the Outgoing quality standards tionery, or other product and includes specified in § 996.31, and is not recondi- dates coated with a substance materi- tioned to meet such standards, or is ally altering their color. not disposed to non-human consump- (5) Dates prepared or preserved means tion outlets as specified in § 996.50, dates processed into a confection or shall be reported by USDA to the Food other product, dates coated with a sub- and Drug Administration and listed on stance materially altering their color, an Agricultural Marketing Service Web or dates prepared for incorporation site. into a product by chopping, slicing, or other processing which materially al- § 996.75 Effective time. ters their form. (6) Person means any individual, part- The provisions of this part, as well as nership, corporation, association, or any amendments, shall apply to 2003–04 other business unit. and subsequent crop year peanuts, to (7) Fruit and Vegetable Division means 2002–03 and 2001–02 crop year peanuts the Fruit and Vegetable Division of the not yet inspected, or failing peanuts Consumer and Marketing Service, that have not met disposition stand- United States Department of Agri- ards, and shall continue in force and ef- culture, Washington, DC 20250. fect until modified, suspended, or ter- (8) USDA inspector means an inspec- minated. tor of the Processed Products Stand- [68 FR 46924, Aug. 7, 2003] ardization and Inspection Branch, Fruit and Vegetable Division or any PART 999—SPECIALTY CROPS; other duly authorized employee of the USDA. IMPORT REGULATIONS (9) Inspection certificate means a written statement or memorandum report Sec. issued by a USDA inspector setting 999.1 Regulation governing the importation forth in addition to appropriate de- of dates. scriptive information the quality and 999.100 Regulation governing imports of walnuts. condition of the product inspected, and 999.200 Regulation governing the importa- in the case of imported dates, a state- tion of prunes. ment of meeting or failing, as applica- 999.300 Regulation governing importation of ble, the U.S. import requirements raisins. under section 8e of the AMA Act of 999.400 Regulation governing the importa- 1937. tion of filberts. (10) Importation means release from 999.500 Safeguard procedures for walnuts custody of United States Bureau of and certain dates exempt from grade, Customs. size, quality, and maturity requirements. (b) Grade requirements. (1) Except as AUTHORITY: 7 U.S.C. 601–674; 7 U.S.C. 1445c– provided in paragraph (d) of this sec- 3, and 7 U.S.C. 7271. tion, the importation into the United

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States of any lot of dates for packaging a list of such lots and their identifying or dates in retail packages is prohib- marks. ited unless the dates are wholesome (2) Certification. Each lot of dates in- and unadulterated and meet the fol- spected in accordance with paragraph lowing grade requirements which are (c)(1) of this section shall be covered by determined to be comparable to those an inspection certificate. Each such imposed upon domestic dates handled certificate shall set forth, among other pursuant to Order No. 987, as amended things, the following: (part 987 of this chapter: The whole or (i) The date and place of inspection. pitted dates in the lot are of one vari- (ii) The name of the applicant. ety, and are of such quality and condi- (iii) The Customs entry number per- tion that upon inspection on the basis taining to the lot or shipment covered of a representative sample thereof, by the certificate; with hydration (of the sample) in ac- (iv) The variety, quantity, and iden- cordance with good commercial prac- tifying marks of the lot inspected. tice or without any hydration, the (v) The statement, if applicable: dates possess a reasonably good color, ‘‘Meets U.S. import requirements under are reasonably uniform in size, are rea- section 8e of the AMA Act of 1937’’. sonably free from defects, possess a (vi) If the lot fails to meet the import reasonably good character, and score requirements, a statement to that ef- not less than 80 points when scored in fect and the reasons therefor. gov- accordance with the scoring system ap- erning imports of walnuts. plicable to U.S. Grade B dates, as pre- (d)(1) Exemptions. Notwithstanding scribed in the U.S. Standards for any other provisions of this section, Grades of Dates (§§ 52.1001 through any lot of dates for importation which 52.1011 of this chapter): Provided, That in the aggregate does not exceed 70 not more than 25 percent, by weight, of pounds and any dates that are so dena- the dates may possess semidry or dry tured as to render them unfit for calyx ends except that not more than 5 human consumption may be imported percent, by weight, of the dates may exempt from the provisions of this sec- possess dry calyx ends: And provided tion. further, That in determining the grade (2) Exemptions. The grade, size, qual- for pitted dates, the pitted dates shall ity and maturity requirements of this not be scored as damaged because of section shall not apply to dates which the longitudinal slit caused by remov- are donated to needy persons, prisoners ing the pit or the mashing resulting or Native Americans on reservations, therefrom unless the flesh is seriously but such dates shall be subject to the torn or mangled. safeguard provisions contained in (2) Compliance with the grade re- § 999.500. quirements shall be determined on the (e) Importation. No person may im- basis of an inspection and certification port dates into the United States un- by a USDA inspector. less he or she first files with the Col- (c) Inspection and certification require- lector of Customs at the port at which ments—(1) Inspection. Inspection shall the Customs entry is filed, as a condi- be performed by USDA inspectors in tion of each such importation, either accordance with the Regulations Gov- an inspection certificate or an exe- erning the Inspection and Certification cuted Form FV–6—‘Importer’s Exempt of Processed Fruits and Vegetables and Commodity Form.’ Related Products (part 52 of this title). (1) Dates for packaging and dates in re- The cost of each such inspection and tail packages. No person may import related certification shall be borne by any lot of dates for packaging or dates the applicant. Applications for inspec- in retail packages unless the dates are tion shall be made at least 10 days in covered by an inspection certificate advance and be accompanied by, or containing the statement as to meet- there shall be submitted promptly ing the requirements set forth in para- thereafter, either an onboard bill of graph (c)(2)(v) of this section. lading designating the lots to be in- (2) Dates for processing and dates pre- spected by USDA inspectors and those pared or preserved—importation. Any to be entered as dates for processing, or person may import dates for processing

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and dates prepared or preserved exempt (2) any dates for packaging which from the grade, inspection, and certifi- through unintentional error were sub- cation requirements of this section if mitted for importation as dates for the importer first files as a condition processing, either category having been of such importation an executed Form covered by an executed Form FV–6, FV–6—‘Importer’s Exempt Commodity may if still held by the importer and if Form.’ The importer shall promptly certified by a USDA inspector as meet- transmit a copy of the executed Form ing the requirements of this section for FV–6 to the Fruit and Vegetable Divi- dates for packaging, be so reclassified sion. and used. The reclassification to dates (3) Dates for processing—Sale by im- for packaging shall not be applicable to porter. No importer or other person any dates that were falsely classified, may import, sell, or use any dates for other than through unintentional processing other than for use as set error, as dates for processing and sub- forth in paragraph (a)(4) of this section mitted as such for importation. or as otherwise permitted by this sec- (h) Reconditioning. Nothing contained tion. Each importer of dates for proc- in this section shall preclude the recon- essing shall obtain from each pur- ditioning of failing lots of dates, prior chaser, no later than the time of deliv- to importation, so that such dates may ery to such purchaser, and file with the be made eligible to meet the grade re- Fruit and Vegetable Division not later quirements prescribed in paragraph (b) than the fifth day of the month fol- of this section. lowing the month in which the dates (i) Books and records. Each person were delivered, an executed Form FV– subject to this section shall maintain 6. true and complete records of his trans- (4) Dates for processing—sale by other actions with respect to imported dates. than importer. Each wholesaler or other Such records and copies of executed reseller of dates for processing should, forms shall be retained for not less for his protection, obtain from each than two years subsequent to the cal- purchaser and hold in his files a Form endar year of acquisition. The Sec- FV–6 certification covering each sale retary, through his duly authorized or all sales of a calendar year. representatives, shall have access to (f) Filing and retention of certificates. any such person’s premises during reg- The executed Form FV–6—‘Importer’s ular business hours and shall be per- Exempt Commodity Form’ required to mitted at any such times to inspect be filed pursuant to this section shall such records and any dates held by be executed in not less than three cop- such person. ies, of which one shall be filed with the (j) Other restrictions. The provisions of Fruit and Vegetable Division not later this section do not supersede any re- than the fifth day of the month imme- strictions or prohibitions on the impor- diately following the month of delivery tation of dates under the Plant Quar- of the dates covered thereby, one shall antine Act of 1912, the Federal Food, be retained by the importer and one Drug, and Cosmetic Act, or any other shall be retained by the person accept- applicable laws or regulations or the ing delivery. need to comply with applicable food (g) Reclassification. Any dates sub- and sanitary regulations of city, coun- mitted for importation as dates for ty, State, or Federal agencies. packaging or dates in retail packages (k) Compliance. Any person who vio- that fail to meet the import require- lates any provision of this section shall ments of this section may, upon execu- be subject to a forfeiture in the amount tion of Form FV–6—‘Importer’s Ex- prescribed in section 8a(5) of the Agri- empt Commodity Form’ be resub- cultural Marketing Agreement Act of mitted for importation as dates for 1937, as amended (sections 1–19, 48 Stat. processing subject to the limitations of 31, as amended; 7 U.S.C. 601–674), or, paragraph (j) of this section. Subse- upon conviction, a penalty in the quent to importation, (1) any dates for amount prescribed in section 8c(14) of processing other than dates that were said act, or to both such forfeiture and resubmitted for importation in accord- penalty. False representations to an ance with the preceding sentence and agency of the United States on any

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matter within its jurisdiction, knowing ameter and no other size requirements it to be false, is a violation of 18 U.S.C. shall apply. 1001 which provides for a fine or impris- (c) Inspection and certification. (1) All onment or both. inspections and certifications required by paragraph (b) of this section shall be [28 FR 3469, Apr. 10, 1963, as amended at 31 FR 960, Jan. 25, 1966; 33 FR 15986, Oct. 31, 1968; made by USDA inspectors in accord- 36 FR 6736, Apr. 8, 1971; 58 FR 69190, Dec. 30, ance with the regulations governing 1993; 74 FR 2808, Jan. 16, 2009] the inspection and certification of fresh fruits, vegetables, and other prod- § 999.100 Regulation governing im- ucts (Part 51 of this title). The cost of ports of walnuts. inspection and certification shall be (a) Definitions. (1) Walnuts means all borne by the applicant. walnuts commonly known as English (2) Each inspection certificate shall or Persian walnuts (Juglans regia). set forth among other things the fol- (2) Inshell walnuts means walnuts, the lowing: kernels or edible portions of which are (i) The date and place of inspection; contained in the shell. (ii) The name of the applicant; (3) Shelled walnuts means the kernels (iii) The name of the importer; of walnuts after the shells are removed. (iv) The Customs entry number per- (4) Person means any individual, part- taining to the lot or shipment covered nership, corporation, association, or by the certificate; other business unit. (v) The quantity and identifying (5) USDA Inspector means any Federal marks of the container; and or Federal-State inspector of the Fresh (vi) The statement, if applicable, Products Standardization and Inspec- ‘‘Meets U.S. import requirements under tion Branch of the Fruit and Vegetable section 8e of the Agricultural Mar- Division, Consumer and Marketing keting Agreement Act of 1937’’. Service, United States Department of (3) Whenever walnuts are offered for Agriculture. inspection, the applicant shall furnish (6) Importation of walnuts means the any labor and pay any costs incurred in release of walnuts from the custody of moving and opening containers as may the United States Customs Service. be necessary for proper sampling and (b) Grade and size regulations. No per- inspection. The applicant shall also son may import walnuts (Juglans furnish the USDA inspector the entry regia) into the United States unless number and such other identifying in- such walnuts have been inspected and formation for each lot as he may recertified by a USDA inspector as meet- quest. ing the following requirements: (4) Inspection must be completed (1) Inshell walnuts. All inshell wal- prior to the importation of walnuts. To nuts shall be of a quality equal to or avoid delay the applicant should make better than the requirements of U.S. advance arrangements with the USDA No. 2 and ‘‘baby’’ size as prescribed in inspection office. the United States Standards for Wal- (d) Reconditioning prior to importation. nuts (Juglans regia) in the Shell Nothing contained in this section shall (§§ 51.2945 through 51.2966 of this title); be deemed to preclude reconditioning or walnuts prior to importation, in order (2) Shelled walnuts. All shelled wal- that such walnuts may be made eligi- nuts shall be of a quality equal to or ble to meet the grade and size regula- better than the requirements for U.S. tions prescribed in paragraph (b) of this Commercial Grade as prescribed in the section. United States Standards for Shelled (e)(1) Minimum quantity. Notwith- Walnuts (Juglans regia) (§§ 51.2275 standing any other provision of this through 51.2294 of this title excluding section, the importation of any lot of §§ 51.2278(b), 51.2284 and 51.2285) effective walnuts which does not exceed, in net January 25, 1959, except that the min- weight, 60 pounds of shelled walnuts or imum size shall be pieces not more 115 pounds of inshell walnuts shall be than five percent of which will pass exempt from the requirements of this through a round opening 6⁄64 inch in di- section.

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(2) Exemptions. The grade, size, qual- or generally similar to, the processes ity and maturity requirements of this for treatment of plums of that type section shall not apply to walnuts which have been developed or rec- which are: green walnuts (so immature ommended by the Food Technology Di- that they cannot be used for drying and vision, College of Agriculture, Univer- sale as dried walnuts); walnuts used in sity of California, for the specialty non-competitive outlets such as use by pack known as ‘‘high moisture content charitable institutions, relief agencies, prunes’’, but this exception shall not governmental agencies for school lunch apply if and when such plums are dried programs, and diversion to animal feed to the point where they are capable of or oil manufacture, but such walnuts being stored without material deterio- shall be subject to the safeguard provi- ration or spoilage, refrigeration or sions contained in § 999.500. other artificial means of preservation; (f) Other import requirements. The pro- and (iii) brine dried prunes that have visions of this section do not supersede been impregnated with brine or salt any restrictions or prohibitions on wal- during the dehydration process to the nuts under the Federal Plant Quar- antine Act of 1912, or any other appli- extent that they have lost their form cable laws or regulations of city, coun- and character as prunes, and cannot be ty, State, or Federal Agencies includ- reconstituted to permit economic use ing the Federal Food, Drug and Cos- of the individual fruits as prunes, and metic Act. are imported under International Har- (g) Compliance. Any person violating monized Tariff Schedule No. any of the provisions of this regulation 0813.20.1000. is subject to a forfeiture in the amount (2) Pitted prunes means prunes with prescribed in section 608a(5) of the Ag- the pit removed that are characterized ricultural Marketing Agreement Act of by a uniform depression and minimal 1937, as amended (7 U.S.C. 601–674), or, skin break where the pit has been re- upon conviction, a penalty in the moved. amount prescribed in section 608c(14) of (3) Macerated prunes means dried said act, or to both such forfeiture and prunes with the pit removed that are penalty. False representations in any characterized by a flattened appear- matter within the jurisdiction of any ance with slightly more skin break agency of the United States, knowing where the pit has been removed than it to be false, is a violation of 18 U.S.C. with pitted prunes. 1001 which provides for a fine or impris- (4) Standard prunes means any lot of onment or both. prunes meeting the grade and size re- [29 FR 230, Jan. 9, 1964, as amended at 40 FR quirements prescribed in paragraph 29263, July 11, 1975; 41 FR 2075, Jan. 14, 1976; (b)(1) of this section. 42 FR 35146, July 8, 1977; 58 FR 69190, Dec. 30, (5) Standard pitted prunes means any 1993; 74 FR 2809, Jan. 16, 2009] lot of pitted prunes meeting the grade § 999.200 Regulation governing the im- requirements prescribed in paragraphs portation of prunes. (b)(2) and (b)(3) of this section. (6) (a) Definitions. (1) Prunes means and Standard pitted macerated prunes includes all sun-dried or artificially de- means any lot of pitted macerated hydrated plums, of any type of variety, prunes meeting the grade requirements produced from plums, except: Sulfur- in paragraphs (b)(2) and (b)(4) of this bleached prunes which are produced section. from yellow varieties of plums and are (7) Manufacturing grade substandard commonly known as silver plums; (ii) prunes means any lot of prunes which plums which have not been dried or de- meets the grade requirements pre- hydrated to a point where they are ca- scribed in paragraph (b)(5) of this sec- pable of being stored prior to packing, tion but fails to meet the requirements without material deterioration or for standard prunes, standard pitted spoilage unless refrigeration or other prunes and standard pitted macerated artificial means of preservation are prunes. used, and so long as they are treated by (8) Size means the number of prunes a process which is in conformity with, contained in a pound.

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(9) Person means any individual, part- prunes with whole pits and/or pit frag- nership, corporation, association, or ments 2 mm or longer. other business unit. (4) No person may import any lot of (10) Fruit and Vegetable Division pitted macerated prunes for human means the Fruit and Vegetable Divi- consumption as pitted macerated sion of the Agricultural Marketing prunes unless the lot does not exceed Service, U.S. Department of Agri- an average of 2 percent by count of culture, Washington, DC 20250. prunes with whole pits and/or pit frag- (11) USDA inspector means an inspec- ments 2 mm or longer; and four of ten tor of the Processed Products Stand- subsamples examined have no more ardization and Inspection Branch, than 2 percent by count with whole pits Fruit and Vegetable Division, or any and/or pit fragments 2 mm or longer. other duly authorized employee of the (5) Any person may import any lot of USDA. prunes, except any lot containing un- (12) Importation means release from dersized prunes, pitted prunes or pitted custody of the U.S. Bureau of Customs. macerated prunes, into the United (13) Undersized prunes means those States for use in human consumption prunes that pass freely through a round outlets as prune products in which the opening 23/32 of an inch in diameter. prunes lose their form and character as (b) Grade and size requirements. (1) Ex- prunes by conversion prior to consump- cept as provided in paragraph (b)(5) or tion if the prunes are inspected and an paragraph (d) of this section, no person inspection certificate issued with re- may import any lot of prunes into the spect thereto, and each lot meets the United States unless the prunes are in- grade requirements set forth in para- spected and an inspection certificate graphs (1), (2), and (3) of exhibit A of issued with respect thereto, and the lot this section, and the importer first meets the applicable grade require- files as a condition of such importation ments specified in exhibit A of this sec- an executed Form FV–6—‘Importer’s tion and the average count (i.e., num- Exempt Commodity Form.’. ber) of the prunes in such lot is 100 or (c) Inspection and certification require- less per pound. In determining whether ments—(1) Inspection. Inspection shall any lot conforms to the size require- be performed by a USDA inspector in ment, the following tolerance shall accordance with the regulations gov- apply: In a sample of 100 ounces, the erning inspection and certification of count per pound of 10 ounces of small- processed fruits and vegetables, proc- est prunes may not vary from the essed products thereof, and certain count per pound of 10 ounces of the other processed food products (part 52 largest prunes by more than 45 points. of this title). The cost of each such in- (2) No person may import any lot of spection and related certification shall pitted prunes or pitted macerated be borne by the applicant. prunes for human consumption as pit- (2) Certification. Each lot of prunes in- ted or pitted macerated prunes unless spected in accordance with paragraph the lot meets the applicable minimum (c)(1) of this section shall be covered by grade requirements set forth in § 999.200 an inspection certificate. Each such (exhibit A), except that skin or flesh certificate shall set forth, among other damage shall not be scored as a defect things, the following: in determining whether the prunes (i) The date and place of inspection. meet the grade requirements. Pitted (ii) The name of the applicant. and pitted macerated prunes shall not (iii) The Customs entry number per- be subject to size and undersized re- taining to the lot or shipment covered quirements. by the certificate; (3) No person may import any lot of (iv) The quantity and identifying pitted prunes for human consumption marks of the lot inspected. as pitted prunes unless the lot does not (v) The statement, as applicable: exceed an average of 0.5 percent by ‘‘Meets U.S. import requirements for count of prunes with whole pits and/or standard prunes, standard pitted and pit fragments 2 mm or longer and four standard pitted macerated prunes of ten subsamples examined have no under section 8e of the AMA Act of more than 0.5 percent by count of 1937’’; ‘‘Meets U.S. import requirements 729

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for manufacturing grade substandard (f) Reconditioning. Nothing contained prunes under section 8e of the AMA in this section shall preclude the recon- Act of 1937’’; or ‘‘Fails to meet U.S. im- ditioning of failing lots of prunes, prior port requirements for prunes under sec- to importation, so that such prunes tion 8e of the AMA Act of 1937’’. may be made eligible to meet the re- (vi) If the lot fails to meet the import quirements prescribed pursuant to requirements, a statement of the rea- paragraphs (b)(1) through (5), as appli- son therefor. cable, of this section. (d) Exemptions. Notwithstanding any (g) Books and records. Each person other provisions of this section, the im- subject to this section shall maintain portation of any lot of prunes which in true and complete records of his trans- the aggregate does not exceed 150 actions with respect to imported pounds, net weight, and any prunes prunes. Such records and copies of exe- that are so denatured as to render cuted forms shall be retained for not them unfit for human consumption less than 2 years subsequent to the cal- shall be exempt from the requirements endar year of acquisition. The Sec- of this section. retary, through his duly authorized representatives, shall have access to (e) Additional requirements—(1) Gen- any such person’s premises during reg- eral. Prior to importation of any ular business hours and shall be per- prunes, the person importing such mitted at any such times to inspect prunes shall file an inspection certifi- such records and any prunes held by cate with the Collector of Customs at such person. the port at which the customs entry is (h) Other restrictions. The provisions filed. In addition, if such prunes are of this section do not supersede any re- manufacturing grade substandard strictions or prohibitions on the impor- prunes, such person shall also file with tation of prunes under the Plant Quar- the Collector of Customs an executed antine Act of 1912, the Federal Food, Form FV–6—‘Importer’s Exempt Com- Drug and Cosmetic Act, or any other modity Form.’ Promptly after such fil- applicable laws or regulations or the ing, such person shall transmit a copy need to comply with applicable food of this form to the Fruit and Vegetable and sanitary regulations of city, coun- Division. No person may import, sell, ty, State, or Federal agencies. or use any manufacturing grade sub- (i) Compliance. Any person who vio- standard prunes other than for use as lates any provision of this section shall set forth in paragraph (b)(5) of this sec- be subject to a forfeiture in the amount tion. Each person importing manufac- prescribed in section 8a(5) of the Agri- turing grade substandard prunes shall cultural Marketing Agreement Act of obtain from each purchaser, no later 1937, as amended (sections 1–19, 48 Stat. than the time of delivery to such pur- 31, as amended; 7 U.S.C. 601–674), or, chaser, and file with the Fruit and Veg- upon conviction, a penalty in the etable Division not later than the 5th amount prescribed in section 8c(14) of day of the month following the month said act, or to both such forfeiture and in which the prunes were delivered, an penalty. False representations to an executed Form FV–6—‘Importer’s Ex- agency of the United States on any empt Commodity Form.’ One copy of matter within its jurisdiction, knowing this executed form shall be retained by it to be false, is a violation of 18 U.S.C. the importer and one copy shall be re- 1001 which provides for a fine or impris- tained by the purchaser. onment or both. (2) Manufacturing Grade Substandard Prune—sale by other than importer. Each EXHIBIT A wholesaler or other reseller of manu- GRADE REQUIREMENTS facturing grade substandard prunes should, for his or her protection, obtain A. Defects. Defects are: (1) Off-color; from each purchaser and hold in his or (2) inferior meat condition; (3) end her files an executed Form FV–6—‘Im- cracks; (4) fermentation; (5) skin or porter’s Exempt Commodity Form’ flesh damage; (6) scab; (7) burned; (8) covering each sale during the calendar mold; (9) imbedded dirt; (10) insect in- year. festation; (11) decay.

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B. Explanation of terms. (1) Off-color C. Maximum tolerances. Tolerance al- means a dull color or skin differing no- lowances shall be on a weight basis and ticeably in appearance from that which shall not exceed the following: is characteristic of mature, properly (1) There shall be no tolerance allow- handled fruit of a given variety or ance for live insect infestation. type. (2) The tolerance allowances for (2) Inferior meat condition means flesh decay shall not exceed one percent which is fibrous, woody, or otherwise (1%). inferior due to immaturity to the ex- (3) The combined tolerance allowance tent that the characteristic texture of for mold, brown rot, imbedded dirt, in- the meat is substantially affected. sect infestation, and decay shall not (3) End cracks means callous growth exceed five percent (5%), and, within cracks, at the blossom end of prunes, such tolerance, brown rot shall not ex- aggregating more than three-eighths of ceed three percent (3%). 3 ″ one inch ( ⁄8 ) but not more than one- (4) The combined tolerance allowance 1 ″ half of one inch ( ⁄2 ) in length. for fermentation, skin or flesh damage, (4) Fermentation means damage to the scab, burned, mold, imbedded dirt, in- flesh by fermentation to the extent sect infestation, and decay shall not that the characteristic appearance or exceed eight percent (8%). flavor is substantially affected. (5) The combined tolerance allowance (5) Skin or flesh damage means growth for end cracks, fermentation, skin or cracks, splits, breaks in skin or flesh of flesh damage, scab, burned, mold, the following descriptions: imbedded dirt, insect infestation, and (a) Callous growth cracks, except end decay shall not exceed ten percent cracks as defined in this section, aggre- (10%), except that the first eight per- gating more than three-eighths of one cent (8%) of end cracks shall be given 3 ″ inch ( ⁄8 ) in length; one-half value and any additional per- (b) Splits or skin breaks exposing centage of end cracks shall be given flesh and materially affecting the nor- full value. mal appearance of the prunes; (6) The combined tolerance allowance (c) Any cracks, splits, or breaks open for off-color, inferior meat condition, to the pit; end cracks, fermentation, skin or flesh (d) Healed or unhealed surface or damage, scab, burned, mold, imbedded flesh blemishes caused by insect injury dirt, insect infestation, and decay shall and which materially affect appear- not exceed fifteen percent (15%), except ance, edibility or keeping quality. that the first eight percent (8%) of end (6) Scab means tough or thick scab cracks shall be given one-half value exceeding in the aggregate the area of and any additional percentage of end 3 ″ a circle three-eighths of one inch ( ⁄8 ) cracks shall be given full value. in diameter or by unsightly scab of another character exceeding in the aggre- [36 FR 18782, Sept. 22, 1971, as amended at 47 gate the area of a circle three-fourths FR 47230, Oct. 25, 1982; 57 FR 56245, Nov. 27, 1992; 59 FR 38113, July 27, 1994; 60 FR 57910, of one inch (3⁄4″) in diameter. Nov. 24, 1995; 74 FR 2809, Jan. 16, 2009] (7) Burned means injury by sunburn or excessive heat in dehydration to the EFFECTIVE DATE NOTE: At 74 FR 2809, Jan. extent that the characteristic appear- 16, 2009, § 999.200 was suspended indefinitely. ance, flavor or edibility of the fruit is noticeably affected. § 999.300 Regulation governing importation of raisins. (8) Mold means a characteristic fungus growth and is self-explanatory. (a) Definitions. For purposes of this (9) Imbedded dirt means the presence section: of dirt or other extraneous material so (1) Raisins means grapes from which a imbedded in, or adhering to, the prune part of the natural moisture has been that it cannot readily be removed in removed. washing the fruit. (2) Varietal type means the applicable (10) Insect infestation means the pres- one of the following: Thompson Seed- ence of insects, insect fragments or in- less raisins, Muscat raisins, Layer sect remains. Muscat raisins, Currant raisins,

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Monukka raisins, Other Seedless rai- at least meet the U.S. Grade B toler- sins, Golden Seedless raisins, and Other ances for pieces of stem and undevel- Seedless-Sulfured raisins. oped and substandard raisins, and (3) Thompson Seedless Raisins includes small (midget) sized raisins shall meet those raisins commonly referred to in the U.S. Grade C tolerances for those international trade as Sultana raisins factors; and means raisins made from Thomp- (2) With respect to Muscat raisins— son Seedless (Sultana) grapes and from the requirements of U.S. Grade C as de- grapes with characteristics similar to fined in said standards; Thompson Seedless (Sultanina) grapes. (3) With respect to Layer Muscat rai- (4) Person means any individual, part- sins—the requirements of U.S. Grade B nership, corporation, association, or as defined for ‘‘Layer or Cluster Raisins other business unit. with Seeds’’ in said standards, except (5) Fruit and Vegetable Quality Divi- for the provisions therein relating to sion means the Fruit and Vegetable moisture content; Quality Division of the Food Safety (4) With respect to Currant raisins— and Quality Service, U.S. Department the requirements of U.S. Grade B as de- of Agriculture, Washington, DC 20250. fined in said standards; (6) USDA inspector means an inspec- (5) With respect to Monukka and tor of the Processed Products Branch, Other Seedless raisins—the require- Fruit and Vegetable Quality Division, ments for Thompson Seedless Raisins or any other duly authorized employee prescribed in paragraph (b)(1) of this of the U.S. Department of Agriculture. section, except that the tolerance for (7) Importation of raisins means the re- moisture shall be 19 percent rather lease of raisins from custody of the than 18 percent; U.S. Customs Service. (6) With respect to Golden Seedless (8) Fruit and Vegetable Division means raisins—the requirements prescribed in the Fruit and Vegetable Division of the paragraph (b)(1) of this section for Agricultural Marketing Service, U.S. Thompson Seedless raisins and the Department of Agriculture, Wash- color requirements for ‘‘colored’’ as de- ington, DC 20250. fined in said standards. (b) Grade and size requirements. The (c) Inspection and certification require- importation of raisins into the United ments. (1) All inspections and certifi- States is prohibited unless the raisins cations required by paragraph (b) of are inspected and certified as provided this section shall be made by USDA in- in this section. Except as provided in spectors in accordance with the regula- paragraph (e)(2) of this section, no per- tions governing inspection and certifi- son may import raisins into the United cation of processed fruits and vegeta- States unless such raisins have been in- bles, processed products thereof, and spected and certified by a USDA in- certain other processed food products spector as to whether or not the raisins (part 52 of this title). The cost of each are of a varietal type, and if a varietal such inspection and certification shall type, as at least meeting the following be borne by the applicant. applicable grade and size requirements, (2) Each lot of raisins inspected in ac- which requirements are the same as cordance with paragraph (c)(1) of this those imposed upon domestic raisins section shall be covered by an inspec- handled pursuant to Order No. 989, as tion certificate. Each such certificate amended (part 989 of this chapter): shall set forth, among other things, the (1) With respect to Thompson Seed- following: less and Other Seedless-Sulfured rai- (i) The date and place of inspection; sins—the requirements of U.S. Grade C (ii) The name of the applicant; as defined in the effective United (iii) The name of the importer; States Standards of Grades of Proc- (iv) The Customs entry number per- essed Raisins (§§ 52.1841 through 52.1858 taining to the lot or shipment covered of this title): Provided, That, at least 70 by the certificate; percent, by weight, of the raisins shall (v) The quantity and identifying be well-matured or reasonably well- marks of the lot inspected; matured. With respect to select-sized (vi) The statement, as applicable, and mixed-sized lots, the raisins shall ‘‘Meets U.S. import requirements under 732

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section 8e of the AMA Act of 1937’’ or and size requirements of paragraph (b) ‘‘Fails to meet U.S. import require- of this section, for use in the produc- ments under section 8e of the AMA Act tion of alcohol, syrup for industrial of 1937’’; and use, or raisin paste shall obtain from (vii) If the lot fails to meet the im- each purchaser, not later than the time port requirements, a statement of the of delivery to such purchaser, and file reasons therefor. with the Fruit and Vegetable Division (3) Whenever raisins are offered for not later than the fifth day of the inspection, the applicant shall furnish month following the month in which any labor and pay any costs incurred in the raisins were delivered, an executed moving and opening containers as may Form FV–6. One copy of this executed be necessary for proper sampling and form shall be retained by the importer inspection. The applicant shall also and one copy shall be retained by the furnish the USDA inspector the entry purchaser. Each reseller of raisins im- number and such other identifying in- ported pursuant to this subparagraph formation for each lot as he may re- should, for his protection, obtain from quest. ‘‘To avoid delay in scheduling each purchaser and hold in his files an the inspection the applicant should executed Form FV–6, covering such make advance arrangements with the sales of such raisins during the cal- USDA inspection office.’’ endar year. One copy of this executed (d) Reconditioning. Nothing contained form shall be retained by the reseller in this section shall preclude the recon- and one copy shall be retained by the ditioning of failing lots of raisins prior purchaser. to importation of raisins in order that (f) Books and records. Each person such raisins may be made eligible to subject to this section shall maintain meet the applicable grade and size re- true and complete records of his trans- quirements in paragraph (b) of this sec- actions with respect to imported rai- tion. sins. Such records shall be retained for (e) Exemptions. (1) Notwithstanding not less than 2 years subsequent to the any other provision of this section, any calendar year of importation. The Sec- lot of raisins which in the aggregate retary, through his duly authorized does not exceed 100 pounds, net weight, representatives, shall have access to may be imported without regard to the any such person’s premises during reg- restrictions of this section. ular business hours and shall be per- (2) Any person may import any lot of mitted at any such time to inspect raisins which does not meet the appli- such records and any imported raisins cable grade and size requirements of held by such person. paragraph (b) of this section for use in (g) Other restriction. The provisions of the production of alcohol, syrup for in- this section do not supersede any re- dustrial use, or which does not meet strictions or prohibitions on the impor- such requirements with respect to me- tation of raisins under the Federal chanical damage or sugaring for use in Plant Quarantine Act of 1912, the Fed- the production of raisin paste. Prior to eral Food, Drug and Cosmetic Act, or such importation, such person shall file any other applicable laws or regula- with the Customs Service Regional tions, or the need to comply with appli- Commissioner or District Director, as cable food and sanitary regulations of applicable, at the port at which the city, county, State, or Federal agen- customs entry is filed an executedForm cies. FV–6—Importer’s Exempt Commodity (h) Compliance. Any person violating Form. Promptly after such filing, such any of the provisions of this regulation person shall transmit a copy of this is subject to a forfeiture in the amount form to the Fruit and Vegetable Divi- prescribed in section 8a(5) of the Agri- sion. No person may import, sell, or cultural Marketing Agreement Act of use any raisins which do not meet the 1937, as amended (sections 1–19, 48 Stat. applicable grade and size requirements 31, as amended; 7 U.S.C. 601–674), or, of paragraph (b) of this section other upon conviction, a penalty in the than for use as set forth in this para- amount prescribed in section 8c(14) of graph. Each person importing raisins, said act, or to both such forfeiture and which do not meet the applicable grade penalty. False representation to an

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agency of the United States in any than the requirements prescribed in ex- matter within its jurisdiction, knowing hibit A of this section. it to be false, is a violation of 18 U.S.C. (c) Inspection and certification require- 1001 which provides for a fine or impris- ments—(1) General. Compliance with the onment or both. grade and size requirements of paragraph (b) of this section shall be deter- [37 FR 5282, Mar. 14, 1972, as amended at 37 FR 13635, July 12, 1972; 37 FR 23820, Nov. 9, mined on the basis of an inspection and 1972; 41 FR 52646, Dec. 1, 1976; 43 FR 47972, certification by a USDA inspector. Oct. 18, 1978; 43 FR 57863, Dec. 11, 1978; 45 FR (2) Inspection. Inspection shall be per- 65513, Oct. 3, 1980; 47 FR 51731, Nov. 17, 1982; formed by USDA inspectors in accord- 50 FR 45808, Nov. 4, 1985; 53 FR 34715, Sept. 8, ance with the Regulations Governing 1988; 67 FR 57505, Sept. 11, 2002; 74 FR 2809, the Inspection and Certification of Jan. 16, 2009] Fresh Fruits and Vegetables and Re- lated Products (7 CFR part 51). The § 999.400 Regulation governing the im- cost of each such inspection and re- portation of filberts. lated certification shall be borne by (a) Definitions. (1) Filberts means fil- the applicant. Whenever filberts are of- berts or hazelnuts. fered for inspection, the applicant shall (2) Inshell filberts means filberts, the furnish any labor and pay any costs in- kernels or edible portions of which are curred in moving and opening con- contained in the shell. tainers as may be necessary for proper (3) Shelled filberts means the kernels sampling and inspection. The applicant of filberts after the shells are removed. shall also furnish the USDA inspector (4) Person means any individual, part- the entry number and such other iden- nership, corporation, association, or tifying information for each lot as he other business unit. may request. Inspection must be com- (5) USDA inspector means a Federal or pleted prior to the importation of fil- Federal-State inspector, Food Safety berts. The applicant should make ad- and Quality Service, United States De- vance arrangements with the USDA in- partment of Agriculture, or any other spection office to avoid delay in sched- duly authorized employee of the USDA. uling the inspection. (6) Importation means release from (3) Certification. Each lot of filberts custody of the United States Bureau of inspected in accordance with paragraph Customs. (c)(1) of this section shall be covered by (b) Grade and size requirements. Except an inspection certificate. Each such as provided in paragraph (d) of this sec- certificate shall set forth, among other tion, no person shall import into the things, the following: United States any lot of filberts unless (i) The date and place of inspection. the filberts meet the following require- (ii) The name of the applicant. ments, which are identical to those for (iii) The name of the importer. filberts grown in Oregon and Wash- (iv) The Customs entry number per- ington and handled pursuant to Order taining to the lot or shipment covered No. 982, as amended (7 CFR part 982): by the certificate; (1) Inshell filberts. All inshell filberts (v) The quantity, and identifying shall be of a quality equal to or better marks of the lot inspected. than the requirements of U.S. No. 1 (vi) The statement, if applicable: grade and medium size as defined in ‘‘Meets U.S. import requirements under the U.S. Standards for Filberts in the section 8e of the AMA Act of 1937’’. Shell (7 CFR part 51), except that the (vii) If the lot fails to meet the im- tolerance for insect injury shall be two port requirements, a statement to that percent. With this modification, the effect and the reasons therefor. U.S. No. 1 grade, medium size is iden- (d) Exemptions. Notwithstanding any tical to the Oregon No. 1 grade, me- other provisions of this section, the im- dium size (as defined in the Oregon portation of any lot of filberts which Grade Standards Filberts in Shell) and does not exceed 115 pounds in net prescribed for inshell filberts under weight shall be exempt from the re- Order No. 982, as amended. quirements of this section. (2) Shelled filberts. All shelled filberts (e) Reconditioning prior to importation. shall be of a quality equal to or better Nothing contained in this section shall

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be deemed to preclude reconditioning DEFINITIONS filberts prior to importation, in order that such filberts may be made eligible (1) Well dried means that the kernels to meet the applicable grade and size are firm and crisp, not containing more regulations prescribed in paragraph (b) than 6 percent moisture. of this section. (2) Clean means practically free from (f) Other restrictions. The provisions of plainly visible adhering dirt or other this section do not supersede the Fed- foreign material. eral Plant Quarantine Act of 1912, the (3) Foreign material means any sub- Federal Food, Drug, and Cosmetic Act, stance other than the filbert kernels, or any other applicable laws or regula- or portions of kernels. (Loose skins, tions or the need to comply with appli- pellicles or corky tissue which have be- cable food and sanitary regulations of come separated from the kernels shall city, county, State or Federal agencies. not be considered as foreign material, (g) Compliance. Any person who vio- provided that this material does not lates any provision of this section shall exceed .02 of one percent by weight.) be subject to a forfeiture in the amount (4) Serious damage means any specific prescribed in section 8a(5) of the Agri- defect described in this section, or any cultural Marketing Agreement Act of equally objectionable variation of any 1937, as amended (sections 1–19, 48 Stat. one of these defects, or any other de- 31, as amended; 7 U.S.C. 601–674), or, fects, or any combination of defects, upon conviction, a penalty in the which seriously detracts from the ap- amount prescribed in section 8c(14) of pearance or the edible or marketing said act, or to both such forfeiture and quality of the individual portion of the penalty. False representations to any kernel or of the lot as a whole. The fol- agency of the United States on any lowing defects shall be considered as matter within its jurisdiction, knowing serious damage. it to be false, is a violation of 18 U.S.C. (i) Serious shriveling means when the 1001 which provides for a fine or impris- kernel is seriously shrunken, wrinkled onment or both. and tough. (ii) Mold means that there is a visible EXHIBIT A growth of mold either on the outside or inside of the kernel. GRADE REQUIREMENTS FOR SHELLED (iii) Rancidity means that the kernel FILBERTS is noticeably rancid to the taste. An Filbert kernels or portions of filbert oily appearance of the flesh does not kernels shall meet the following re- necessarily indicate a rancid condition. quirements: (iv) Decay means that any portion of (1) Well dried and clean; the kernel is decomposed. (2) Free from foreign material, mold, (v) Insect injury means that the in- rancidity, decay or insect injury; and sect, frass or web is present, or the ker- (3) Free from serious damage caused nel or portion of kernel show definite by serious shriveling, or other means. evidence of insect feeding.

TOLERANCES [42 FR 64899, Dec. 29, 1977, as amended at 45 FR 63482, Sept. 25, 1980; 47 FR 12612, Mar. 24, In order to allow for variations inci- 1982; 48 FR 34015, July 27, 1983; 74 FR 2809, dent to proper grading and handling Jan. 16, 2009] the following tolerances, by weight, are permitted as specified: § 999.500 Safeguard procedures for (1) For Foreign Material: 0.02 of one walnuts and certain dates exempt percent, for foreign material. from grade, size, quality, and matu- (2) For Defects: Five percent for ker- rity requirements. nels or portions of kernels which are (a) Each person who imports: below the requirements of this grade, (1) Dates which are donated to needy including not more than the following: persons, prisoners or Native Americans Two percent for mold, rancidity, decay on reservations; or or insect injury: Provided, That not (2) Walnuts which are: green walnuts more than one percent shall be for (so immature that they cannot be used mold, rancidity, or insect injury. for drying and sale as dried walnuts);

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walnuts used in non-competitive out- numbered Importer’s Exempt Com- lets such as use by charitable institu- modity Form filed by the importer or tions, relief agencies, governmental customs broker and shall certify, by agencies for school lunch programs, completing and signing Section II of and diversion to animal feed or oil the form and mailing the form to the manufacture shall obtain an ‘‘Import- Marketing Order Administration er’s Exempt Commodity Form’’ (FV–6) Branch within two days of receipt of from the Marketing Order Administra- the exempt lot, that such lot has been tion Branch, Fruit and Vegetable Divi- received and will be utilized in the ex- sion, AMS, USDA, and shall show the empt outlet. completed ‘‘Importer’s Exempt Com- (c) It is the responsibility of the im- modity Form’’ to the U.S. Customs porter to notify the Marketing Order Service Regional Director or District Administration Branch of any lot of Director, as applicable, at the port at exempt commodity rejected by a re- which the customs entry is filed. One ceiver, shipped to an alternative ex- copy shall be mailed to the Marketing empt receiver, exported, or otherwise Order Administration Branch, Fruit disposed of. In such cases, a second and Vegetable Division, AMS, USDA, ‘‘Importer’s Exempt Commodity Form’’ with a postmark not later than two must be filed by the importer providing days after the date of importation and sufficient information to determine ul- a third copy shall accompany the lot to timate disposition of the exempt lot the exempt outlet specified on the and such disposition shall be so cer- form. Any lot offered for inspection tified by the final receiver. and, all or a portion thereof, imported (d) All FV–6 forms and other cor- as exempt under this provision shall be respondence regarding entry of 8e com- reported on an ‘‘Importer’s Exempt modities must be mailed to the Mar- Commodity Form’’ and such form, ac- keting Order Administration Branch, companied by a copy of the applicable USDA, AMS, P.O. Box 96456, room 2523– inspection certificate, shall be mailed S, Washington, D.C. 20090–6456, tele- to the Marketing Order Administration phone (202) 720–4607. FV–6 forms sub- Branch. mitted by fax must be followed by a (b) Each person who receives an ex- mailed, original copy of the FV–6. Fax empt commodity for the purposes spec- transmissions may be sent to the ified in paragraph (a) of this section MOAB at (202) 720–5698. shall also receive a copy of the same [61 FR 13060, Mar. 26, 1996]

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A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually. Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected

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Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) III Administrative Conference of the United States (Parts 300—399) IV Miscellaneous Agencies (Parts 400—500)

Title 2—Grants and Agreements

SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR GRANTS AND AGREEMENTS I Office of Management and Budget Governmentwide Guidance for Grants and Agreements (Parts 100—199) II Office of Management and Budget Circulars and Guidance (200— 299) SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND AGREEMENTS III Department of Health and Human Services (Parts 300— 399) IV Department of Agriculture (Parts 400—499) VI Department of State (Parts 600—699) VIII Department of Veterans Affairs (Parts 800—899) IX Department of Energy (Parts 900—999) XI Department of Defense (Parts 1100—1199) XII Department of Transportation (Parts 1200—1299) XIII Department of Commerce (Parts 1300—1399) XIV Department of the Interior (Parts 1400—1499) XV Environmental Protection Agency (Parts 1500—1599) XVIII National Aeronautics and Space Administration (Parts 1880— 1899) XX United States Nuclear Regulatory Commission (Parts 2000—2099) XXII Corporation for National and Community Service (Parts 2200— 2299) XXIII Social Security Administration (Parts 2300—2399) XXIV Housing and Urban Development (Parts 2400—2499) XXV National Science Foundation (Parts 2500—2599) XXVI National Archives and Records Administration (Parts 2600—2699) XXVII Small Business Administration (Parts 2700—2799) XXVIII Department of Justice (Parts 2800—2899) XXX Department of Homeland Security (Parts 3000—3099)

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XXXI Institute of Museum and Library Services (Parts 3100—3199) XXXII National Endowment for the Arts (Parts 3200—3299) XXXIII National Endowment for the Humanities (Parts 3300—3399) XXXV Export-Import Bank of the United States (Parts 3500—3599) XXXVII Peace Corps (Parts 3700—3799) LVIII Election Assistance Commission (Parts 5800—5899)

Title 3—The President

I Executive Office of the President (Parts 100—199)

Title 4—Accounts

I Government Accountability Office (Parts 1—99) II Recovery Accountability and Transparency Board (Parts 200— 299)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Parts 2100—2199) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Parts 3200—3299) XXIII Department of Energy (Parts 3300—3399) XXIV Federal Energy Regulatory Commission (Parts 3400—3499) XXV Department of the Interior (Parts 3500—3599) XXVI Department of Defense (Parts 3600— 3699) XXVIII Department of Justice (Parts 3800—3899) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199) XXXIII Overseas Private Investment Corporation (Parts 4300—4399) XXXIV Securities and Exchange Commission (Parts 4400—4499)

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XXXV Office of Personnel Management (Parts 4500—4599) XL Interstate Commerce Commission (Parts 5000—5099) XLI Commodity Futures Trading Commission (Parts 5100—5199) XLII Department of Labor (Parts 5200—5299) XLIII National Science Foundation (Parts 5300—5399) XLV Department of Health and Human Services (Parts 5500—5599) XLVI Postal Rate Commission (Parts 5600—5699) XLVII Federal Trade Commission (Parts 5700—5799) XLVIII Nuclear Regulatory Commission (Parts 5800—5899) XLIX Federal Labor Relations Authority (Parts 5900—5999) L Department of Transportation (Parts 6000—6099) LII Export-Import Bank of the United States (Parts 6200—6299) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Parts 6400—6499) LV National Endowment for the Arts (Parts 6500—6599) LVI National Endowment for the Humanities (Parts 6600—6699) LVII General Services Administration (Parts 6700—6799) LVIII Board of Governors of the Federal Reserve System (Parts 6800— 6899) LIX National Aeronautics and Space Administration (Parts 6900— 6999) LX United States Postal Service (Parts 7000—7099) LXI National Labor Relations Board (Parts 7100—7199) LXII Equal Employment Opportunity Commission (Parts 7200—7299) LXIII Inter-American Foundation (Parts 7300—7399) LXIV Merit Systems Protection Board (Parts 7400—7499) LXV Department of Housing and Urban Development (Parts 7500— 7599) LXVI National Archives and Records Administration (Parts 7600—7699) LXVII Institute of Museum and Library Services (Parts 7700—7799) LXVIII Commission on Civil Rights (Parts 7800—7899) LXIX Tennessee Valley Authority (Parts 7900—7999) LXXI Consumer Product Safety Commission (Parts 8100—8199) LXXII Special Inspector General for Iraq Reconstruction (Parts 8200— 8299) LXXIII Department of Agriculture (Parts 8300—8399) LXXIV Federal Mine Safety and Health Review Commission (Parts 8400—8499) LXXVI Federal Retirement Thrift Investment Board (Parts 8600—8699) LXXVII Office of Management and Budget (Parts 8700—8799) LXXX Federal Housing Finance Agency (Parts 8700—8799) LXXXII Special Inspector General for Iraq Reconstruction (Parts 9200— 9299) XCVII Department of Homeland Security Human Resources Manage- ment System (Department of Homeland Security—Office of Personnel Management) (Parts 9700—9799)

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XCIX Department of Defense Human Resources Management and Labor Relations Systems (Department of Defense—Office of Personnel Management) (Parts 9900—9999)

Title 6—Domestic Security

I Department of Homeland Security, Office of the Secretary (Parts 0—99)

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699) XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XX Local Television Loan Guarantee Board (Parts 2200—2299)

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XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy Policy and New Uses, Department of Agri- culture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV National Institute of Food and Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299) L Rural Business-Cooperative Service, Rurual Housing Service, and Rural Utilities Service, Department of Agriculture (Parts 5000—5099)

Title 8—Aliens and Nationality

I Department of Homeland Security (Immigration and Naturaliza- tion) (Parts 1—499) V Executive Office for Immigration Review, Department of Justice (Parts 1000—1399)

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199) II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

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I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XIII Nuclear Waste Technical Review Board (Parts 1303—1399) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Parts 1800—1899)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099) II Election Assistance Commission (Parts 9400—9499)

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XII Federal Housing Finance Agency (Parts 1200—1299) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)

Title 13—Business Credit and Assistance

I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399) IV Emergency Steel Guarantee Loan Board (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)

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I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—499) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Air Transportation System Stabilization (Parts 1300—1399)

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Industry and Security, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE- MENTS XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS AND INFORMATION XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399)

Title 16—Commercial Practices

I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)

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I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)

Title 18—Conservation of Power and Water Resources

I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)

Title 19—Customs Duties

I U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury (Parts 0—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV U.S. Immigration and Customs Enforcement, Department of Homeland Security (Parts 400—599)

Title 20—Employees’ Benefits

I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Office of Workers’ Compensation Programs, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 1000—1099)

Title 21—Food and Drugs

I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)

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I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V Broadcasting Board of Governors (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIII Millenium Challenge Corporation (Parts 1300—1399) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799)

Title 23—Highways

I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199) II Office of Assistant Secretary for Housing-Federal HousingCommissioner, Department of Housing and Urban De- velopment (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499)

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V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXIV Board of Directors of the HOPE for Homeowners Program (Parts 4000—4099) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

Title 25—Indians

I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900) VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Parts 1200—1299)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1— 899)

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I Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury (Parts 1—399) II Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart- ment of Justice (Parts 400—699)

Title 28—Judicial Administration

I Department of Justice (Parts 0—299) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) XI Department of Justice and Department of State (Parts 1100— 1199)

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699) XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Employee Benefits Security Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

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I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Bureau of Ocean Energy Management, Regulation, and Enforce- ment, Department of the Interior (Parts 200—299) IV Geological Survey, Department of the Interior (Parts 400—499) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999) XII Office of Natural Resources Revenue, Department of the Interior (Parts 1200—1299)

Title 31—Money and Finance: Treasury

SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS 0—50) SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999) X Financial Crimes Enforcement Network, Departmnent of the Treasury (Parts 1000—1099)

Title 32—National Defense

SUBTITLE A—DEPARTMENT OF DEFENSE I Office of the Secretary of Defense (Parts 1—399) V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE- FENSE XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVII Office of the Director of National Intelligence (Parts 1700—1799) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199)

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XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899)

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Homeland Security (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvmeent, Department of Education [Reserved] XI National Institute for Literacy (Parts 1100—1199) SUBTITLE C—REGULATIONS RELATING TO EDUCATION XII National Council on Disability (Parts 1200—1299)

Title 35 [Reserved]

Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VI [Reserved] VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999)

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X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Parts 1500—1599) XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)

Title 37—Patents, Trademarks, and Copyrights

I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II Copyright Office, Library of Congress (Parts 200—299) III Copyright Royalty Board, Library of Congress (Parts 301—399) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—499) V Under Secretary for Technology, Department of Commerce (Parts 500—599)

Title 38—Pensions, Bonuses, and Veterans’ Relief

I Department of Veterans Affairs (Parts 0—99) II Armed Forces Retirement Home

Title 39—Postal Service

I United States Postal Service (Parts 1—999) III Postal Regulatory Commission (Parts 3000—3099)

Title 40—Protection of Environment

I Environmental Protection Agency (Parts 1—1099) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600— 1699) VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799)

Title 41—Public Contracts and Property Management

SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS 50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99)

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60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 61–1—61–999) 62—100 [Reserved] SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS SYSTEM 101 Federal Property Management Regulations (Parts 101–1—101–99) 102 Federal Management Regulation (Parts 102–1—102–299) 103—104 [Reserved] 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) 129—200 [Reserved] SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM [RESERVED] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–1—303–99) 304 Payment of Travel Expenses from a Non-Federal Source (Parts 304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—499) V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)

Title 43—Public Lands: Interior

SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 200— 499) II Bureau of Land Management, Department of the Interior (Parts 1000—9999)

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III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10099)

Title 44—Emergency Management and Assistance

I Federal Emergency Management Agency, Department of Home- land Security (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)

Title 45—Public Welfare

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) [Reserved] X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399) XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)

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I Coast Guard, Department of Homeland Security (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Homeland Security (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399) IV National Telecommunications and Information Administration, Department of Commerce, and National Highway Traffic Safe- ty Administration, Department of Transportation (Parts 400— 499)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Defense Acquisition Regulations System, Department of Defense (Parts 200—299) 3 Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499) 15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management, Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499)

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25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 30 Department of Homeland Security, Homeland Security Acquisi- tion Regulation (HSAR) (Parts 3000—3099) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement [Reserved] 54 Defense Logistics Agency, Department of Defense (Parts 5400— 5499) 57 African Development Foundation (Parts 5700—5799) 61 Civilian Board of Contract Appeals, General Services Adminis- tration (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)

Title 49—Transportation

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION (PARTS 1—99) SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION I Pipeline and Hazardous Materials Safety Administration, De- partment of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Homeland Security (Parts 400—499) V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399) XI Research and Innovative Technology Administration, Depart- ment of Transportation [Reserved] XII Transportation Security Administration, Department of Home- land Security (Parts 1500—1699)

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I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199) II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)

CFR Index and Finding Aids

Subject/Agency Index List of Agency Prepared Indexes Parallel Tables of Statutory Authorities and Rules List of CFR Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies Appearing in the CFR

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CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Administrative Conference of the United States 1, III Advanced Research Projects Agency 32, I Advisory Council on Historic Preservation 36, VIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department 2, IV; 5, LXXIII Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Economic Research Service 7, XXXVII Energy Policy and New Uses, Office of 2, IX; 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National Institute of Food and Agriculture. 7, XXXIV Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII, L Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV, L Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII, L Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force Department 32, VII Federal Acquisition Regulation Supplement 48, 53 Air Transportation Stabilization Board 14, VI Alcohol and Tobacco Tax and Trade Bureau 27, I Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII Animal and Plant Health Inspection Service 7, III; 9, I Appalachian Regional Commission 5, IX

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2001 7 CFR—Continued 66 FR Page 7 CFR 66 FR Chapter IX—Continued Page 923.20 Amended...... 58356 Subtitle B 923.25 Revised ...... 58356 Chapter IX 923.41 (c) added...... 58356 905.146 (c)(1) revised ...... 229 923.52 (a)(3) amended...... 58356 905.235 Revised; interim...... 56597 923.54 (b) and (c) amended...... 58356 905.306 (c) and (d) revised ...... 229 924.236 Revised; interim...... 42415 905.350 Revised; interim...... 49093 Regulation at 66 FR 42415 con- 916.115 Revised; interim...... 17484 firmed...... 59677 916.160 (c) revised; interim ...... 39409 916.234 Revised ...... 52309 928.150 Stayed; interim ...... 29219 916.350 (d) revised; interim ...... 17484 Regulation at 66 FR 29219 con- 916.356 (a)(1) introductory text, firmed...... 48529 (iv) Table 1, (3) introductory 928.152 Stayed; interim ...... 29219 text, (4) introductory text and Regulation at 66 FR 29219 con- (6) introductory text revised; firmed...... 48529 interim...... 17484 928.160 (a)(1) revised; interim ...... 29219 (a)(1)(iv) Table 1, (4) and (6) Regulation at 66 FR 29219 con- amended ...... 39620 firmed...... 48529 917.150 Revised; interim...... 17485 928.313 Stayed; interim ...... 29219 917.178 (c) revised; interim ...... 39409 Regulation at 66 FR 29219 con- 917.442 (d) revised; interim ...... 17485 firmed...... 48529 917.459 (a)(1) introductory text, 929.104 (a)(4) revised...... 34351 (iv) Table 1, (2) introductory 929.107 Removed ...... 34351 text, (3) introductory text, (5) 929.110 (d) added ...... 34351 introductory text and (6) intro- 929.125 Revised ...... 34351 ductory text revised; in- 929.148 Removed ...... 34351 terim...... 17486 929.149 Revised ...... 34351 (a)(1)(iv) Table 1 amended...... 39620 929.158 Revised ...... 34351 (a)(6) amended...... 39621 929.251 Added ...... 34352 920.155 Removed ...... 39270 930.16 Revised ...... 35896 920.302 (a)(4)(iii) removed; 930.50 (a) revised ...... 35896 (a)(4)(iv), (v) and (vi) redesig- 930.54 (a) stayed in part; in- nated as new (a)(4)(iii), (iv) and terim...... 232 (v) ...... 39270 Regulation at 66 FR 232 con- (a)(4)(iii) table revised...... 54414 firmed...... 21273 923.4 Revised ...... 58356 930.59 (b) suspended in part; in- 923.14 (a) and (b) revised ...... 58356 terim...... 39413

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7 CFR—Continued 66 FR 7 CFR—Continued 66 FR Page Page Chapter IX—Continued Chapter IX—Continued Regulation at 66 FR 39413 con- Regulation at 66 FR 708 eff. date firmed...... 58362 confirmed ...... 16599 930.83 (d) suspended in part...... 58359 (k) revised; interim ...... 65425 930.120 Added; interim ...... 35889 989.173 (d)(1)(iii) revised; (g), (h) Regulation at 66 FR 35891 con- and (i) redesignated as (h), (i) firmed...... 56599 and (j); new (g) added ...... 39277 930.154 Added; eff. 5–2–01 through 989.254 Marketing percentages.....39628, 6–30–01 ...... 21842 53950 930.162 (a), (b)(3) and (c)(3) re- 993.347 Revised ...... 56604 vised; interim ...... 39413 993.408 Added; eff. 8–1–01 through Regulation at 66 FR 39413 con- 7–31–02 ...... 30646 firmed...... 58362 930.163 Added; interim ...... 35889 2002 Regulation at 66 FR 35891 con- 7 CFR 67 FR firmed...... 56599 Page 930.200 Revised; interim...... 235 Subtitle B Regulation at 66 FR 235 con- Chapter IX firmed...... 21276 900.1—900.18 (Subpart) Authority 930.252 Added; eff. 5–2–01 through citation revised ...... 10829 6–30–01 ...... 21842 900.2 (c) and (d) amended; (e) re- 931.231 Revised ...... 59679 vised; (f) removed...... 10829 932 Marketing order ...... 16593 900.11 (b) revised ...... 10829 932.230 Revised; interim...... 13391 900.15 (c) and (d) revised ...... 10829 Regulation at 66 FR 13391 con- 900.50—900.71 (Subpart) Author- firmed...... 30291 ity citation revised ...... 10829 944.106 (c) revised...... 229 900.51 (c), (d) and (o) amended; (e) 946.104 Regulation at 65 FR 70463 and (j) revised ...... 10829 confirmed...... 18721 900.52 (b)(2), (3), (4), (c)(1) and (2) 946.120 Regulation at 65 FR 70463 heading amended...... 10829 confirmed...... 18721 900.52a (a) amended...... 10829 946.336 Regulation at 65 FR 70463 900.60 (e) removed; (f) redesig- confirmed...... 18721 nated as new (e); new (e) re- 948.215 Suspended; interim ...... 48953 vised...... 10829 948.216 Revised ...... 52312 900.62 (c) amended...... 10829 948.387 (d)(1) introductory text re- 900.64 Heading and (c) heading vised; (d)(1)(v) added; (g) amended...... 10830 900.65 (a) amended...... 10830 amended...... 49513 900.68 Heading and (a)(1) amend- 955.209 Revised ...... 16841 ed ...... 10830 956.142 Regulation at 65 FR 61083 900.69 (d) and (e) revised ...... 10830 confirmed...... 13393 900.70 (a) amended ...... 10830 956.180 Regulation at 65 FR 61083 905.149 Added; interim ...... 62317 confirmed...... 13393 905.152 Removed; interim...... 48017 959.237 Revised; interim...... 16597 Regulation at 67 FR 48017 con- Regulation at 66 FR 16597 confirmed...... 66529 firmed...... 39623 905.153 (a) and (d) amended; in- 966.234 Revised; interim...... 56602 terim...... 809 966.323 Regulation at 65 FR 66495 905.30 Regulation at 67 FR 57326 confirmed...... 13396 confirmed...... 70140 (d)(1) amended ...... 48532 905.235 Regulation at 66 FR 56597 981.442 (a)(3) amended; (a)(5) re- confirmed...... 11213 vised...... 39273 905.306 Tables I and II amended; 982 Marketing percentages ...... 13399 interim...... 48017 984.347 Revised; interim...... 58364 (a) introductory text and (b) in- 985.220 Marketing percentages...... 30296 troductory text revised; (e) 989.156 (t) added; interim...... 708 added; interim ...... 55106

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7 CFR—Continued 67 FR 7 CFR—Continued 67 FR Page Page Chapter IX—Continued Chapter IX—Continued Regulation at 67 FR 48017 con- 917.459 (a)(1) introductory text, firmed...... 66529 (iv) introductory text and Regulation at 67 FR 55106 con- Table 1, (2) introductory text, firmed...... 71803 (3) introductory text, (5) introductory text and (6) introduc- 905.350 Revised; interim...... 809, 57326 tory text revised; interim ...... 16296 Regulation at 66 FR 49093 and 67 (a)(6)(iii) correctly added ...... 37319 FR 809 confirmed...... 40844 (a)(1)(iv) Table 1, (2)(ii), (3)(ii), 906.235 Revised; interim...... 62320 (4)(iii), (5)(iii), (6) and (iii) 911.110 Suspended 2–19–02 through amended ...... 53289 2–24–03...... 6842 920.160 (a)(4), (5) and (6) removed; 911.120 Suspended 2–19–02 through interim...... 54332 2–24–03...... 6842 Regulation at 67 FR 54332 con- 911.130 Suspended 2–19–02 through firmed...... 70146 2–24–03...... 6842 920.213 Revised; interim...... 62322 911.131 Suspended 2–19–02 through 920.302 Corrected...... 1413 2–24–03...... 6842 Regulation at 66 FR 54414 and 67 911.234 Suspended 2–19–02 through FR 1413 confirmed ...... 11396 (a)(4)(v) suspended 8–23–02 2–24–03...... 6842 through 7–31–03; (a)(4)(iii) table 911.311 Suspended 2–19–02 through revised; interim ...... 54332 2–24–03...... 6842 Regulation at 67 FR 54332 con- 911.329 Suspended 2–19–02 through firmed...... 70146 2–24–03...... 6842 920.303 (d) revised; interim ...... 54333 911.344 Suspended 2–19–02 through Regulation at 67 FR 54333 con- 2–24–03...... 6842 firmed...... 70146 915.235 Revised ...... 31717 922.235 Revised ...... 54567 916.115 Revised; interim...... 16294 925.215 Revised ...... 11401 916.160 Regulation at 66 FR 39409 925.304 (a) amended; (b)(1) intro- confirmed...... 11396 ductory text, (i), (iii), (2) and (4) 916.234 Revised; interim...... 42709 revised; interim...... 20612 Regulation at 67 FR 42709 con- Regulation at 67 FR 20612 confirmed...... 58511 firmed...... 54572 927.103 Added ...... 5438 916.350 (a)(4) through (9) redesig- 927.236 Revised ...... 5438 nated as (a)(5) through (7) and 928.160 Suspended ...... 50582 (9) through (11); (a)(1), (5)(ii), 928.226 Suspended ...... 50582 (b) and (d) revised; new (a)(4) 929.236 Revised ...... 6846 and (8) added; interim ...... 16294 Correctly designated ...... 14844 916.356 (a)(1) introductory text, 930.20 (a), (b), (d) and (e) revised; (iv) Table 1, (4) introductory (f) and (g) redesignated as (g) text and (6) introductory text and (h); new (f) and (i) revised; interim...... 16295 added...... 51713 917.150 Revised; interim...... 16296 930.28 Revised ...... 51713 917.178 Regulation at 66 FR 39409 930.32 (a) revised ...... 51714 confirmed...... 11396 930.41 (c) and (f) revised ...... 51714 917.442 (a)(4) through (10) redesig- 930.50 (a), (b) and (g) revised...... 51714 nated as (a)(5) through (8) and 930.51 (c) revised ...... 51714 (10) through (12); new (a)(4), 930.52 (a) revised ...... 51714 (5)(iv) Table 3 and (9) added; 930.54 Revised ...... 51714 (a)(1), new (5)(ii), new (iv) Ta- 930.58 (a) revised ...... 51715 bles 1 and 2, (b) and (d) revised; 930.59 Revised ...... 51715 interim...... 16296 930.62 Revised ...... 51715 930.200 Revised ...... 20616 (a)(5)(iv) Tables 1, 2 and 3 head- 930.253 Added ...... 21167 ings amended ...... 53289 932 Marketing percentages....5440, 20618

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7 CFR—Continued 67 FR 7 CFR—Continued 67 FR Page Page Chapter IX—Continued Chapter IX—Continued 944.209 Suspended 2–19–02 through Regulation at 67 FR 11557 con- 2–24–03...... 6842 firmed...... 34385 945 Policy statement ...... 36788 (a)(1), (q)(2) and (s) revised; (u) 945.130 Removed ...... 66531 added; interim ...... 42474 945.341 (b)(2) removed; (b)(3) and (a)(1), (k) and (s) revised; (b) and (4) redesignated as (b)(2) and (c) amended; interim ...... 71074 (3)...... 66531 989.210 (a) amended; interim ...... 36792 948.150 (b) revised...... 68021 Regulation at 67 FR 36792 con- 948.215 Regulation at 66 FR 48953 firmed...... 57503 confirmed ...... 5442 989.212 (a), (b) heading and note 948.386 Introductory text and (a) and (c) note revised; in- revised ...... 40827 terim...... 36792 Regulation at 67 FR 36792 con- 955.101 Revised; interim...... 41816 firmed...... 57503 Regulation at 67 FR 41816 con- 989.213 (a), (b) introductory text, firmed...... 58515 (c) introductory text and (d) in- 955.142 Revised; interim...... 41816 troductory text revised; (d) Regulation at 67 FR 41816 con- note and (e) note amended; in- firmed...... 58515 terim...... 36792 959.237 Revised ...... 11403 Regulation at 67 FR 36792 con- 966.234 Regulation at 66 FR 56602 firmed...... 57503 confirmed...... 11215 989.601 Table revised; interim ...... 36792 967 Removed...... 53291 Regulation at 67 FR 36792 con- 979.219 Revised ...... 11406 firmed...... 57503 980.1 (i), (h)(1) and (2) redesig- 989.701 Heading revised; (b) nated as (j), (i)(1) and (2); amended; interim ...... 36793 (a)(1)(i), (2)(ii), (b)(2), (e), (f), Regulation at 67 FR 36793 con- (g)(1)(ii) and new (i)(1) and (2) firmed...... 57503 revised ...... 66531 989.702 (a) revised; interim ...... 36793 981 Regulation at 64 FR 8014, 66 Regulation at 67 FR 36793 con- FR 31850 and 67 FR 525 confirmed...... 57503 firmed ...... 41816 993.347 Revised; interim...... 53296 982 Marketing percentages ...... 11411 Regulation confirmed at 67 FR 982.248 Regulation at 66 FR 13399 53296 confirmed ...... 70150 confirmed...... 11218 993.409 Added ...... 31722 982.249 Regulation at 67 FR 11411 996 Added; interim...... 57140 confirmed...... 45053 996.31 Table corrected...... 63503 982.467 Added ...... 5445 997 Removed; interim ...... 57145 984.37 Regulation at 66 FR 58364 998 Removed; interim ...... 57145 confirmed ...... 9185 999.300 (a)(2) and (b)(1) revised ...... 57505 984.347 Revised ...... 70148 999.600 Removed; interim...... 57145 985 Marketing percetages ...... 20623 987.339 Revised ...... 1277 2003 Revised...... 53293 7 CFR 68 FR 989 Marketing percentages ...... 15711, Page 47443 Subtitle B 989.56 (a) amended; interim ...... 71074 Chapter IX 989.110 (j) added; interim ...... 36792 905.149 Regulation at 67 FR 62317 Regulation at 67 FR 36792 con- confirmed...... 62317 firmed...... 57503 (d), (f)(2) and (3) amended; (f)(6) 989.154 (a) revised...... 52393 added; interim ...... 52329 Regulation at 67 FR 52393 con- Regulation at 68 FR 52329 confirmed...... 71808 firmed...... 68720 989.156 (t) revised; interim ...... 11557 905.235 Revised ...... 55809 Regulation at 66 FR 65425 con- 905.306 (a) table and (b) table firmed...... 13563 amended; interim ...... 53024

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7 CFR—Continued 68 FR 7 CFR—Continued 68 FR Page Page Chapter IX—Continued Chapter IX—Continued (a) table corrected...... 59446 944.106 (a) table amended; in- 905.350 Revised; interim...... 53020 terim...... 53024 Regulation at 68 FR 53020 con- 944.209 Removed ...... 10346 firmed...... 64499 944.350 Amended ...... 10346 906.235 Regulation at 67 FR 62320 944.400 Amended ...... 10347 confirmed ...... 1364 945.249 Revised ...... 59527 Revised; interim ...... 66003 948.150 (a) revised...... 40119 911 Removed...... 10346 948.215 Added ...... 52334 948.216 Revised ...... 53283 916.115 Revised; interim...... 17264 956.113 Added ...... 57326 916.234 Revised ...... 48770 956.142 Amended ...... 57326 Regulation at 68 FR 48770 con- 956.180 Amended ...... 57326 firmed...... 64502 958.112 Added ...... 48531 916.350 (a)(1), (8), and (d) revised; 958.240 Revised ...... 48531 interim...... 17264 959.104 Revised; interim...... 11466 (a)(2) and (8) revised; interim ...... 48255 959.237 Amended; interim ...... 11466 916.356 (a)(1) introductory text, Revised...... 15338 (iv) Table 1, (3) introductory 959.322 (c) removed; (d) through text, (4) introductory text, and (h) redesignated as new (c) (6) introductory text revised; through (g); introductory text, interim...... 17264 and new (c)(1), (e), (f) introduc- 917.150 Revised; interim...... 17265 tory text and (f)(4) introduc- 917.258 Revised ...... 48770 tory text revised; interim ...... 11466 Regulation at 68 FR 48770 con- (c)(1) amended...... 37068 firmed...... 64502 966 Authority citation revised ...... 46924 917.442 (a)(1), (5)(iv) Table 3, (9), 966.234 Amended ...... 15339 and (d) revised; interim ...... 17265 Revised...... 70691 (a)(2) and (9) revised; interim ...... 48255 982 Marketing percentages ...... 11736 917.459 (a)(1) introductory text, 982.250 Regulation at 68 FR 11736 (iv) introductory text, Table 1, confirmed...... 32328 (3) introductory text, (5) intro- 984.347 Regulation at 67 FR 70148 ductory text, and (6) introduc- confirmed...... 10349 tory text revised; interim ...... 17266 Revised; interim ...... 65631 (b)(3) and (c)(3) revised; interim 985 Marketing percentages ...... 23574 ...... 48255 985.141 Revised ...... 32330 920.302 (a)(4)(iv) removed; 985.153 (c)(2) added ...... 25486 (a)(4)(v) redesignated as new 987.339 Revised ...... 55811 (a)(4)(iv); new (a)(4)(iv) suspen- 989 Marketing percentages ...... 41691 sion extended to 7–31–04; (b) re- 989.56 Regulation at 67 FR 71074 confirmed...... 13617 vised...... 44195 989.110 (a) revised; (c) removed; 922.235 Revised ...... 52332 (d) through (j) redesignated as 923.236 Revised ...... 52332 (c) through (i); interim...... 42947 923.322 (f) and (g) redesignated as 989.156 (a), (d), (h)(2), (3), (i) and (o) (g) and (h); new (f) added; in- revised; interim ...... 4083 terim...... 15926 Regulation at 67 FR 42474 con- Regulation at 68 FR 15926 confirmed; (b)(6) revised...... 4090 firmed...... 37065 (t) revised; interim...... 13221 924.236 Revised ...... 52332 Regulation at 67 FR 71074 con- 925.304 (a)(2), (b)(3), (4) and (e) re- firmed...... 13617 vised; interim ...... 19711 Regulation at 68 FR 13221 con- Regulation at 68 FR 19711 confirmed...... 25281 firmed...... 41686 (a)(2)(iv) revised...... 32336 927.28 Revised ...... 19142 989.166 (a)(1) revised; interim ...... 42947 930.200 Revised ...... 37730, 57324 989.210 (a) amended; interim ...... 42947 931.231 Revised ...... 60028 989.212 (a) and (b) heading amend- 932.230 Revised ...... 23381 ed; interim...... 42947

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7 CFR—Continued 68 FR 7 CFR—Continued 68 FR Page Page Chapter IX—Continued Chapter IX—Continued 989.213 (a), (b) introductory text, Regulation at 68 FR 40757 con- (c) introductory text and (d) in- firmed...... 55785 troductory text amended; (e) 993.58 Suspended through 7–31–08; removed; interim...... 42947 interim...... 40757 989.256 Added; interim ...... 15932 Regulation at 68 FR 40757 con- Regulation at 68 FR 15926 confirmed...... 55785 firmed...... 41691 993.59 Suspended through 7–31–08; 989.347 Revised ...... 1145 interim...... 40757 989.401 (b) and (c) revised; in- Regulation at 68 FR 40757 con- terim...... 44859 firmed...... 55785 Regulation at 68 FR 44859 con- 993.62 Suspended through 7–31–08; firmed...... 64504 interim...... 40757 989.601 Table revised; interim ...... 42947 Regulation at 68 FR 40757 con- 989.701 (b) amended; interim ...... 42947 firmed...... 55785 989.702 Heading and (a) amended; 993.65 Suspended through 7–31–08; interim...... 42947 interim...... 40757 993.21d Suspended through 7–31– Regulation at 68 FR 40757 con- 08; interim ...... 40757 firmed...... 55785 Regulation at 68 FR 40757 con- 993.97 Suspended in part through firmed...... 57785 7–31–06 ...... 43618 993.33 Suspended in part through Regulation at 68 FR 43618 con- 7–31–08; interim...... 40757 firmed...... 60624 Regulation at 68 FR 40757 con- 993.150 (a), (b), (d), (e), (f) and firmed...... 57785 (g)(1) suspended through 7–31– 993.36 (i) suspended through 7–31– 06; (g)(2)(i), (iii) and (iv) re- 08; interim ...... 40757 moved; (g)(2)(ii) redesignated Regulation at 68 FR 40757 con- as new (g)(2)(i); new (g)(2)(i), firmed...... 57785 (g)(3)(i) and (ii) revised...... 43618 993.41 (b)(2), (3) in part, (4) in part, Regulation at 68 FR 43618 con- (10), (11) and (12) suspended firmed...... 60624 through 7–31–08; interim ...... 40757 993.156 Suspended through 7–31– Regulation at 68 FR 40757 con- 08; interim ...... 40757 firmed...... 57785 Regulation at 68 FR 40757 con- 993.50 (a) through (f) suspended firmed...... 55785 through 7–31–06; (g) amended; 993.157 Suspended through 7–31– interim...... 43618 08; interim ...... 40757 Regulation at 68 FR 43618 con- Regulation at 68 FR 40757 confirmed...... 60624 firmed...... 55785 993.51 Suspended in part through 993.158 Suspended through 7–31– 7–31–06 ...... 43618 08; interim ...... 40757 Regulation at 68 FR 43618 con- Regulation at 68 FR 40757 confirmed...... 60624 firmed...... 55785 993.54 Suspended through 7–31–08; 993.159 Revised ...... 17543 interim...... 40757 Suspended through 7–31–08; in- Regulation at 68 FR 40757 con- terim ...... 40757 firmed...... 55785 Regulation at 68 FR 40757 con- 993.55 Suspended through 7–31–08; firmed...... 55785 interim...... 40757 993.162 (a) through (d) revised...... 17270 Regulation at 68 FR 40757 con- Suspended through 7–31–08; in- firmed...... 55785 terim ...... 40757 993.56 Suspended through 7–31–08; Regulation at 68 FR 40757 con- interim...... 40757 firmed...... 55785 Regulation at 68 FR 40757 con- 993.165 Suspended through 7–31– firmed...... 55785 08; interim ...... 40757 993.57 Suspended through 7–31–08; Regulation at 68 FR 40757 con- interim...... 40757 firmed...... 55785

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7 CFR—Continued 68 FR 7 CFR—Continued 69 FR Page Page Chapter IX—Continued Chapter IX 993.172 Heading and (d) revised; 905.149 (d) amended; (f)(3) re- interim...... 37393 moved; (f)(4), (5) and (6) redes- (e) suspended through 7–31–08; in- ignated as (f)(3), (4) and (5); interim ...... 40757 terim...... 50269 Regulation at 68 FR 37393 con- 905.149 Regulation at 69 FR 50269 firmed...... 54981 confirmed...... 64644 Regulation at 68 FR 40757 con- 905.153 (a) and (d) amended; in- firmed...... 55785 terim...... 50278 993.173 (a)(6) and (c)(1) amended; Regulation at 69 FR 50275 con- interim...... 40757 firmed...... 70877 Regulation at 68 FR 40757 con- 905.306 Regulation at 68 FR 53024 firmed...... 55785 confirmed...... 487 993.347 Revised; interim...... 46439 (e) existing text designated as Regulation at 68 FR 46439 con- (e)(1); (e)(2) added; interim...... 76599 firmed...... 60620 905.350 Amended; interim ...... 5682 993.515 Suspended through 7–31– Regulation at 69 FR 5682 con- 06...... 43618 firmed...... 19081 Regulation at 68 FR 43618 con- Revised; interim ...... 50275 firmed...... 60624 906.235 Regulation at 68 FR 66003 993.516 Suspended through 7–31– confirmed...... 10137 06...... 43618 Revised; interim ...... 45233 Regulation at 68 FR 43618 con- Regulation at 69 FR 45233 confirmed...... 60624 firmed...... 62177 993.517 Suspended through 7–31– 916 Policy statement...... 8325 06...... 43618 916.115 Regulation at 68 FR 17264 Regulation at 68 FR 43618 con- confirmed...... 15640 firmed...... 60624 Revised; interim ...... 15649 993.518 Suspended through 7–31– Regulation at 69 FR 15649 con- 06...... 43618 firmed...... 41128 Regulation at 68 FR 43618 con- 916.160 (b) revised...... 53793 firmed...... 60624 916.234 Revised; interim...... 50283 993.601 (a) suspended through 7– Regulation at 69 FR 50283 con- 31–06 ...... 43618 firmed...... 68759 Regulation at 68 FR 43618 con- 916.350 Regulations at 68 FR 17264 firmed...... 60624 and 48255 confirmed...... 15640 996.2 Revised ...... 1157 (a)(8), (b) and (d) revised; interim 996.7 Revised ...... 1157 ...... 15649 996.30 (b) revised...... 1157 (a)(9) introductory text revised; 996.31 (a) table revised; in- interim ...... 19756 terim...... 46924 Regulation at 69 FR 15649 con- (a) table corrected...... 53490 firmed...... 41128 996.40 (b)(4) revised...... 1157 Regulation at 69 FR 19756 con- (c) added; interim...... 46924 firmed...... 44460 996.50 (d) revised; interim...... 46924 916.356 Regulation at 68 FR 17264 confirmed...... 15640 996.60 (c) revised...... 1158 (a)(1) introductory text, (3) in- 996.75 Revised; interim ...... 46924 troductory text, (4) introduc- 999.200 Suspended through 7–31– tory text, (5) introductory text 06...... 43618 and (6) introductory text re- Regulation at 68 Fr 43614 con- vised; (a)(1)(iv) amended; in- firmed...... 60624 terim ...... 15649 Regulation at 69 FR 15649 con- 2004 firmed; (a)(1)(iv) table and (4) 7 CFR 69 FR introductory text amended ...... 41128 Page (a)(1) introductory text revised Title 7 Nomenclature change...... 18803 ...... 44460

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7 CFR—Continued 69 FR 7 CFR—Continued 69 FR Page Page Chapter IX—Continued Chapter IX—Continued 917 Policy statement...... 8325 Regulation at 69 FR 41385 con- 917.150 Regulation at 68 FR 17265 firmed...... 61592 confirmed...... 15640 930.162 (a), (b)(1) and (2) revised; Revised; interim ...... 15650 (c)(5) added; interim...... 34553 Regulation at 69 FR 15650 con- Regulation at 69 FR 34553 confirmed...... 41128 firmed...... 57820 917.178 (b) revised...... 53793 930.253 Added; eff. through 6–30– 917.258 Revised; interim...... 50283 04 ...... 6910 Regulation at 69 FR 50283 con- 932.230 Revised; interim ...... 5907 firmed...... 68759 Regulation at 69 FR 5907 con- 917.442 Regulations at 68 FR 17265 firmed...... 29173 and 48255 confirmed...... 15640 944.106 Regulation at 68 FR 53024 (a)(9), (b) and (d) revised; interim confirmed...... 487 ...... 15651 955.142 Amended; interim ...... 68761 (a)(10) introductory text revised; 956.163 (b) added; interim ...... 23382 interim ...... 19756 Regulation at 69 FR 23382 con- Regulation at 69 FR 15651 confirmed...... 50289 firmed...... 41128 956.180 Revised; interim...... 23382 Regulation at 69 FR 19756 con- Regulation at 69 FR 23382 confirmed...... 44460 firmed...... 50289 917.459 Regulation at 68 FR 17266 958.240 Revised ...... 42852 and 48255 confirmed...... 15640 958.328 (a)(1), (2), (d) and (h) re- (a)(1)(iv) and (5) amended; (a)(6) vised; interim ...... 56671 introductory text revised...... 15641 Regulation at 69 FR 56671 con- (a)(1) introductory text, (4) in- firmed...... 76385 troductory text, (5) introduc- 959.237 Revised ...... 2493 tory text and (6) introductory Revised; interim; eff. 1–3–05 ...... 78298 text revised; (a)(1)(iv) amend- 979.219 Revised ...... 21949 ed; interim ...... 15651 979.106 Stayed 11–27–04 through 9– Regulation at 69 FR 15651 con- 30–05 ...... 68764 firmed; (a)(1)(iv) table note, (2) 979.112 Stayed 11–27–04 through 9– and (5) amended...... 41128 30–05 ...... 68764 920.213 Revised; interim...... 55736 979.152 Stayed 11–27–04 through 9– Regulation at 69 FR 55736 con- 30–05 ...... 68764 firmed...... 76381 979.155 Stayed 11–27–04 through 9– 920.302 (a)(4)(iii), (iv) and (b) re- 30–05 ...... 68764 vised...... 54199 979.219 Stayed 11–27–04 through 9– 920.303 (c)(1) revised ...... 54199 30–05 ...... 68764 922.235 Revised; interim...... 45236 979.304 Stayed 11–27–04 through 9– Regulation at 69 FR 45236 con- 30–05 ...... 68764 firmed...... 62179 980.117 (a)(2), (b)(1), (2), (h) and (i) 923.236 Revised; interim...... 45236 revised; interim...... 56671 Regulation at 69 FR 45236 con- Regulation at 69 FR 56671 confirmed...... 62179 firmed...... 76385 924.236 Revised ...... 54201 981.343 Revised; interim ...... 1271 925.160 Added; interim ...... 21692 Regulation at 69 FR 1271 con- Regulation at 69 FR 21692 confirmed...... 21695 firmed...... 50286 Revised...... 41909 927.236 Revised ...... 57815 981.442 (a)(2) revised; interim ...... 40536 929.20 Revised ...... 18806 Regulation at 69 FR 40536 con- 929.21 Revised ...... 18806 firmed...... 57822 929.22 Revised ...... 18807 982 Marketing percentages...2497, 19085, 929.23 Revised ...... 18808 73689 929.27 Revised ...... 18808 983 Added ...... 17850 929.32 Revised ...... 18808 983.38 Regulation at 69 FR 17850 930.159 (c) revised; interim ...... 41385 eff. date delayed to 2–1–05 ...... 44460

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7 CFR—Continued 69 FR 7 CFR—Continued 69 FR Page Page Chapter IX—Continued Chapter IX—Continued 983.39 Regulation at 69 FR 17850 996.40 Regulation at 68 FR 46924 eff. date delayed to 2–1–05 ...... 44460 confirmed...... 31731 983.40 Regulation at 69 FR 17850 996.50 Regulation at 68 FR 46924 eff. date delayed to 2–1–05 ...... 44460 confirmed...... 31731 983.41 Regulation at 69 FR 17850 996.75 Regulation at 68 FR 46924 eff. date delayed to 2–1–05 ...... 44460 confirmed...... 31731 983.42 Regulation at 69 FR 17850 eff. date delayed to 2–1–05 ...... 44460 2005 983.43 Regulation at 69 FR 17850 eff. date delayed to 2–1–05 ...... 44460 7 CFR 70 FR 983.44 Regulation at 69 FR 17850 Page eff. date delayed to 2–1–05 ...... 44460 Subtitle B 983.45 Regulation at 69 FR 17850 Chapter IX eff. date delayed to 2–1–05 ...... 44460 900 Authority citation revised...... 2770 983.46 Regulation at 69 FR 17850 900.700 (Subpart) Added...... 2770 eff. date delayed to 2–1–05 ...... 44460 905.153 (a) amended; interim ...... 54242 984.347—984.380 (Subpart) Head- 905.306 Regulation at 69 FR 76599 ing reinstated; CFR correc- confirmed...... 23930 tion ...... 17899 905.350 Removed...... 5917 984.347 Regulation at 68 FR 65631 Added; interim...... 54242 confirmed ...... 6912 906.120 (c)(3)(iii) and (e) amended; Revised...... 63045 interim...... 51578 984.437 Reinstated; CFR correc- Regulation at 70 FR 51578 con- tion ...... 17899 firmed...... 73126 985.223 Marketing percentages.....13218, 906.137 (b) amended; interim ...... 51578 61758 Regulation at 70 FR 51578 con- 987.339 Revised ...... 60949 firmed...... 73126 989.110 Regulation at 68 FR 42947 confirmed ...... 6917 906.340 (a)(1) revised; (a)(2)(i)(A) introductory text, (ii)(A) in- 989.166 Regulation at 68 FR 42947 troductory text and (c) amend- confirmed ...... 6917 ed; interim...... 51578 989.173 (a) introductory text, (c)(1) introductory text, Regulation at 70 FR 51578 con- (d)(1)(iii) and (g) revised; firmed...... 73126 (b)(1)(ii) amended; interim...... 41388 915.150 (e) added; interim ...... 36470 Regulation at 69 FR 41388 con- Regulation at 70 FR 36470 confirmed...... 57824 firmed...... 59625 989.210 Regulation at 68 FR 42947 915.235 Revised ...... 36812 confirmed ...... 6917 915.305 (c) added; interim ...... 36470 989.212 Regulation at 68 FR 42947 Regulation at 70 FR 36470 con- confirmed ...... 6917 firmed...... 59625 989.213 Regulation at 68 FR 42947 916.234 Revised ...... 56111 confirmed ...... 6917 916.350 (a)(5)(iv) Tables 1 and 2 and 989.257 Added; interim ...... 21699 (d) revised; interim ...... 16389 Regulation at 69 FR 21699 con- 916.356 (a)(1) introductory text, firmed...... 50293 Table 1, (3) introductory text, 993.347 Revised ...... 57826 (4) introductory text, (ii), (5) 989.601 Regulation at 68 FR 42947 introductory text, (6) intro- confirmed ...... 6917 ductory text, (ii), (8)(ii) and 989.701 Regulation at 68 FR 42947 (9)(ii) revised; interim...... 16389 confirmed ...... 6917 (a)(1)(iv) Table 1 and (4) introduc- 989.702 Regulation at 68 FR 42947 tory text amended...... 44249 confirmed ...... 6917 917.258 Revised ...... 56111 996.31 Regulation at 68 FR 46924 917.442 (a)(5)(iv) Tables 1 and 2 and confirmed...... 31731 (d) revised; interim ...... 16391

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7 CFR—Continued 70 FR 7 CFR—Continued 70 FR Page Page Chapter IX—Continued Chapter IX—Continued 917.459 (a)(1) introductory text, 946.52 (a)(5) added...... 41134 Table 1, (a)(2) introductory 946.63 (d) redesignated as (e); new text, (5) introductory text, (d) added ...... 41134 (iii), (6) introductory text and 946.120 (a) revised...... 44256 (iii) revised; interim ...... 16391 946.248 Revised ...... 35165 (a)(5) introductory text amended 946.336 (d)(1)(vi), (2), (e)(2) intro- ...... 44249 ductory text, (3)(iii) and (g)(1) 920.213 Revised ...... 56563 revised; (d)(1)(vii) and (e)(5) re- 920.302 (a)(4) revised...... 48841 moved; (d)(1)(viii) and (e)(6) re- 922.235 Revised; interim...... 36814 designated as new (d)(1)(vii) Regulation at 70 FR 36814 con- and (e)(5); (e)(6), (7) and (8) firmed...... 54835 added...... 44256 923.21 Revised ...... 44252 946.336 (c)(1) revised; interim ...... 53725 923.43 Added ...... 44252 948.215 Revised; interim...... 36816 923.64 (c) revised; (d) redesignated Regulation at 70 FR 36816 con- as (e); new (d) added...... 44252 firmed...... 55713 923.322 Heading, (b) introductory 955.142 Regulation at 69 FR 68761 text, (1) and (c) revised...... 7001 confirmed...... 20695 925.215 Revised ...... 11114 955.209 Revised; interim...... 11117 926 Added ...... 1999 Regulation at 70 FR 11117 con- 927 Revised ...... 29392 firmed...... 41608 927.100—927.316 (Subpart) Cor- 958.240 Revised; interim...... 32483 rectly added...... 59625 Regulation at 70 FR 32483 con- 929.10 (a)(2) and (b)(4) revised ...... 7640 firmed...... 51581 929.28 Added ...... 7641 959.237 Regulation at 69 FR 78298 929.45 (a) revised...... 7641 confirmed...... 15201 929.46 Revised ...... 7641 966.124 Added ...... 53540 929.47 Removed ...... 7641 966.323 (c)(5) added; (g) amend- 929.48 Revised ...... 7641 ed ...... 53540 929.49 Revised ...... 7641 979.106 Regulation at 69 FR 68764 929.50 Revised ...... 7642 confirmed ...... 8712 929.51 Revised ...... 7642 Stayed; interim ...... 57998 929.52 Revised ...... 7643 Regulation at 70 FR 57998 con- 929.54 Revised ...... 7643 firmed...... 72701 929.56 Revised ...... 7643 979.112 Regulation at 69 FR 68764 929.58 Revised ...... 7644 confirmed ...... 8712 929.61 Revised ...... 7644 Stayed; interim ...... 57998 929.62 Revised ...... 7644 Regulation at 70 FR 57998 con- 929.64 Revised ...... 7645 firmed...... 72701 930.254 Added ...... 7650 979.152 Regulation at 69 FR 68764 931 Removed; eff. 1-26-06...... 76378 confirmed ...... 8712 932.121 Revised ...... 6326 Stayed; interim ...... 57998 932.125 Revised ...... 6326 Regulation at 70 FR 57998 con- 932.230 Revised ...... 21616 firmed...... 72701 945.341 (a)(2)(i) amended...... 21330 979.155 Regulation at 69 FR 68764 946.17 Added ...... 41133 confirmed ...... 8712 946.18 Added ...... 41133 Stayed; interim ...... 57998 946.22 Existing text designated as Regulation at 70 FR 57998 con- (a); (b) added ...... 41133 firmed...... 72701 946.23 Existing text designated as 979.180 Stayed; interim ...... 57998 (a); (b) added ...... 41133 Regulation at 70 FR 57998 con- 946.24 (a) revised; (b) redesignated firmed...... 72701 as (c); new (b) added...... 41133 979.219 Regulation at 69 FR 68764 946.25 (a) and (c) revised ...... 41133 confirmed ...... 8712 946.31 Revised ...... 41134 Regulation at 70 FR 57998 con- 946.32 (a) revised ...... 41134 firmed...... 72701

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7 CFR—Continued 70 FR 7 CFR—Continued 70 FR Page Page Chapter IX—Continued Chapter IX—Continued Stayed; interim ...... 57998 993.36 (i) stayed; interim ...... 30613 979.304 Regulation at 69 FR 68764 Regulation at 70 FR 30613 con- confirmed ...... 8712 firmed...... 50156 Stayed; interim ...... 57998 993.41 Stayed; interim...... 30613 Regulation at 70 FR 57998 con- Regulation at 70 FR 30613 confirmed...... 72701 firmed...... 50156 981.44 Regulation at 70 FR 36818 993.48 Stayed; interim...... 30613 confirmed...... 60407 Regulation at 70 FR 30613 con- 981.343 Revised ...... 43273 firmed...... 50156 981.441 (a), (b), (e)(6)(ii) and (iv) 993.49 Stayed; interim...... 30613 amended; (e)(4)(ii)(K) revised; Regulation at 70 FR 30613 con- (e)(4)(v) removed; interim ...... 36818 firmed...... 50156 982.252 Regulation at 69 FR 76389 993.50 Stayed; interim...... 30613 confirmed...... 20698 Regulation at 70 FR 30613 con- 983 Technical correction ...... 4191 firmed...... 50156 983.38 Regulation at 69 FR 17850 993.51 Stayed; interim...... 30613 delayed to 8-12-05 ...... 661 Regulation at 70 FR 30613 con- 983.39 Regulation at 69 FR 17850 firmed...... 50156 delayed to 8-12-05 ...... 661 993.52 Stayed; interim...... 30613 (a) Table 3 revised...... 40186 Regulation at 70 FR 30613 con- 983.40 Regulation at 69 FR 17850 firmed...... 50156 delayed to 8-12-05 ...... 661 993.53 Stayed; interim...... 30613 983.41 Regulation at 69 FR 17850 Regulation at 70 FR 30613 con- delayed to 8-12-05 ...... 661 firmed...... 50156 983.42 Regulation at 69 FR 17850 delayed to 8-12-05 ...... 661 993.54 Stayed; interim...... 30613 983.43 Regulation at 69 FR 17850 Regulation at 70 FR 30613 con- delayed to 8-12-05 ...... 661 firmed...... 50156 983.44 Regulation at 69 FR 17850 993.55 Stayed; interim...... 30613 delayed to 8-12-05 ...... 661 Regulation at 70 FR 30613 con- 983.45 Regulation at 69 FR 17850 firmed...... 50156 delayed to 8-12-05 ...... 661 993.56 Stayed; interim...... 30613 983.138 Added ...... 61226 Regulation at 70 FR 30613 con- 983.141 Added; interim ...... 42259 firmed...... 50156 Regulation at 70 FR 42259 con- 993.57 Stayed; interim...... 30613 firmed...... 62057 Regulation at 70 FR 30613 con- 983.143 Added ...... 61226 firmed...... 50156 983.147 (Subpart) Added ...... 39907 993.58 Stayed; interim...... 30613 983.253 (Subpart) Added...... 9846 Regulation at 70 FR 30613 con- 984.38 Stayed; interim...... 50153 firmed...... 50156 Regulation at 70 FR 50153 con- 993.59 Stayed; interim...... 30613 firmed...... 72196 Regulation at 70 FR 30613 con- 984.347 Regulation at 69 FR 63045 firmed...... 50156 confirmed ...... 7004 993.62 Stayed; interim...... 30613 Revised...... 72895 Regulation at 70 FR 30613 con- 985 Marketing percentages...8716, 14974, firmed...... 50156 15560, 29920, 55717, 72358 993.65 Stayed; interim...... 30613 987.157 Revised ...... 11119 Regulation at 70 FR 30613 con- 987.339 Revised ...... 67087 firmed...... 50156 989.347 Revised ...... 6329 993.72 Stayed; interim...... 30613 993.21d Stayed; interim...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.73 Stayed; interim...... 30613 993.33 Stayed in part; interim...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.74 Stayed; interim...... 30613

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7 CFR—Continued 70 FR 7 CFR—Continued 70 FR Page Page Chapter IX—Continued Chapter IX—Continued Regulation at 70 FR 30613 con- 993.347 Revised ...... 15563 firmed...... 50156 Revised; interim ...... 54471 993.75 Stayed; interim...... 30613 Regulation at 70 FR 54471 con- Regulation at 70 FR 30613 confirmed...... 76973 firmed...... 50156 993.400 Stayed; interim ...... 30613 993.97 Stayed; interim...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.409 Stayed; interim ...... 30613 993.104 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.501 Stayed; interim ...... 30613 993.105 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.503 Stayed; interim ...... 30613 993.106 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.504 Stayed; interim ...... 30613 993.107 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.505 Stayed; interim ...... 30613 993.108 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.506 Stayed; interim ...... 30613 993.149 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.515 Stayed; interim ...... 30613 993.150 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.516 Stayed; interim ...... 30613 993.156 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.517 Stayed; interim ...... 30613 993.157 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.518 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- 993.158 Stayed; interim ...... 30613 firmed...... 50156 Regulation at 70 FR 30613 con- 993.601 Stayed; interim ...... 30613 firmed...... 50156 Regulation at 70 FR 30613 con- 993.159 Stayed; interim ...... 30613 firmed...... 50156 Regulation at 70 FR 30613 con- 993.602 Stayed; interim ...... 30613 firmed...... 50156 Regulation at 70 FR 30613 con- 993.162 Stayed; interim ...... 30613 firmed...... 50156 Regulation at 70 FR 30613 con- 996.30 (b) revised ...... 44046 firmed...... 50156 999.200 Stayed; interim ...... 30613 993.165 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- Regulation at 70 FR 30613 confirmed...... 50156 firmed...... 50156 993.172 Stayed; interim ...... 30613 Regulation at 70 FR 30613 con- 2006 firmed...... 50156 7 CFR 71 FR 993.173 Stayed; interim ...... 30613 Page Regulation at 70 FR 30613 con- Subtitle B firmed...... 50156 Chapter IX 993.174 Stayed; interim ...... 30613 905.235 Revised; interim ...... 5159 Regulation at 70 FR 30613 con- Regulation at 71 FR 5159 confirmed...... 50156 firmed...... 27585

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7 CFR—Continued 71 FR 7 CFR—Continued 71 FR Page Page Chapter IX—Continued Chapter IX—Continued 905.350 Removed ...... 16979 917.25 Regulation at 59 FR 10055 915.150 (a), (b) and (c) suspended; suspension lifted; introduc- interim...... 76899 tory text redesignated as (a) 915.332 (a)(2) Table 1 correctly and suspended in part; (b) added...... 41352 amended...... 11294 917.29 (d) revised ...... 41352 916.5 Revised ...... 41350 917.35 (d) amended ...... 41352 916.9 Revised ...... 41350 917.37 Revised ...... 41352 916.11 Revised ...... 41350 917.61 (e) suspended in part eff. 12– 916.12 (a) and (b) revised ...... 41350 1–06 through 2–15–07; in- 916.15 Revised ...... 41350 terim...... 78044 916.16 Added ...... 41350 917.110 Amended; interim ...... 78041 916.20 Revised ...... 41350 917.119 (a) through (d) redesig- 916.22 (b) revised ...... 41350 nated as (b) through (e); new (a) 916.25 Revised ...... 41351 added; interim ...... 78041 916.32 Revised ...... 41351 917.120 Removed; interim...... 78041 917.258 Revised ...... 51985 916.37 Removed...... 41351 917.442 (a)(2), (12) and (d) revised; 916.41 (b) amended...... 41351 interim...... 17978 916.64 (e) suspended in part eff. 12– Regulation at 71 FR 17978 con- 1–06 through 2–15–07; in- firmed...... 55095 terim...... 78044 917.459 (a)(1) introductory text, 916.102 Removed; interim...... 78041 (iv) Table 1, (3) introductory 916.105 Removed; interim...... 78041 text, (5) introductory text and 916.107 Removed; interim...... 78041 (6) introductory text revised; 916.234 Revised ...... 51985 interim...... 17978 916.350 (a)(2), (11) and (d) revised; Regulation at 71 FR 17978 con- (a)(5)(iv) amended; interim ...... 17976 firmed...... 55095 Regulation at 71 FR 17976 con- 920.303 (d) revised; (f) added; in- firmed...... 55095 terim...... 58249 922.306 Suspended through 3–31– 916.356 (a)(1) introductory text, 07...... 16982 (iv) Table 1, (2)(ii), (3) introduc- Regulation at 71 FR 16982 con- tory text, (ii), (4) introductory firmed...... 40639 text, (ii), (5)(ii), (6) introduc- 922.321 (a)(1) revised; eff. 8–3–06 tory (ii), (7)(ii), (8)(ii), (9)(ii) re- through 4–31–07 interim ...... 43643 vised; interim ...... 17976 Regulation at 71 FR 43643 con- Regulation at 71 FR 17976 confirmed...... 66095 firmed...... 55095 923.236 Revised; interim...... 35145 (a)(1) introductory text amended Regulation at 71 FR 35145 con- ...... 55096 firmed...... 55282 917.4 Regulation at 59 FR 10055 923.322(b)(2)(i), (ii) and (d) re- suspension lifted; revised and moved; (f)(1)(ii) and (g) intro- suspended in part...... 41351 ductory text amended; in- 917.5 Revised ...... 41351 terim...... 17982 917.6 Revised ...... 41351 Regulation at 71 FR 17982 confirmed...... 41725 917.8 Added ...... 41351 924.110 Stayed; interim ...... 26821 917.14 (n) and (o) revised ...... 41351 Regulation at 71 FR 26821 con- 917.18 Regulation at 59 FR 10055 firmed...... 60810 suspension lifted; (a) amended; 924.121 Added; interim ...... 26821 (b) revised...... 41351 Regulation at 71 FR 26821 con- (a) suspended in part...... 41352 firmed...... 60810 917.22 Revised ...... 41352 924.160 Added; interim ...... 26821 917.24 (a), (b) and (c) amended; (d) Regulation at 71 FR 26821 con- added...... 41352 firmed...... 60810

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7 CFR—Continued 71 FR 7 CFR—Continued 71 FR Page Page Chapter IX—Continued Chapter IX—Continued 924.319 Stayed; interim ...... 26821 Regulation at 71 FR 16985 con- Regulation at 71 FR 26821 confirmed...... 66098 firmed...... 60810 930.162 (b)(1) and (2) revised; in- 926.1 Suspended; interim ...... 78046 terim...... 16986 926.2 Suspended; interim ...... 78046 Regulation at 71 FR 16986 con- 926.3 Suspended; interim ...... 78046 firmed...... 66098 926.4 Suspended; interim ...... 78046 930.200 Revised ...... 66835 926.5 Suspended; interim ...... 78046 932 Marketing percentages ...... 12616, 926.6 Suspended; interim ...... 78046 35495 926.7 Suspended; interim ...... 78046 944.700 Stayed; interim ...... 26821 926.8 Suspended; interim ...... 78046 Regulation at 71 FR 26821 con- 926.9 Suspended; interim ...... 78046 firmed...... 60810 926.10 Suspended; interim ...... 78046 945.341 (g) revised...... 29567 926.11 Suspended; interim ...... 78046 946.336 Regulation at 70 FR 53725 926.12 Suspended; interim ...... 78046 confirmed ...... 1921 926.13 Suspended; interim ...... 78046 948.215 Suspended; interim ...... 40641 926.14 Suspended; interim ...... 78046 Regulation at 71 FR 40641 con- 926.15 Suspended; interim ...... 78046 firmed...... 66837 926.16 Suspended; interim ...... 78046 948.386 (a)(3) and (4) revised...... 9429 926.17 Suspended; interim ...... 78046 (a)(3), (4) and (b) introductory 926.18 Suspended; interim ...... 78046 text revised; interim ...... 77586 926.19 Suspended; interim ...... 78046 955.101 (a) amended; (b) revised; 926.20 Suspended; interim ...... 78046 interim...... 34509 926.21 Suspended; interim ...... 78046 Regulation at 71 FR 34509 con- 927.100—927.316 (Subpart) Head- firmed...... 58252 ing revised ...... 7676 955.142 Revised; interim...... 34509 927.100 Amended...... 7676 Regulation at 71 FR 34509 con- 927.101 Removed...... 7676 firmed...... 58252 927.102 Revised ...... 7676 958.112 Undesignated subpart 927.105 Revised ...... 7676 heading added; interim ...... 65040 927.110—927.114 Undesignated 958.240 Undesignated subpart center heading removed ...... 7676 927.110 Removed...... 7676 heading removed; interim...... 65040 927.110a Removed ...... 7676 958.250 Added; interim ...... 65040 927.111 Removed...... 7676 958.328 (d), (e) and (f) revised; in- 927.112 Removed...... 7676 terim...... 65040 927.113 Removed...... 7676 979 Removed...... 33181 927.114 Removed...... 7676 981.442 (a)(4)(i) and (5) amend- 927.120 Amended...... 7676 ed ...... 65376 927.121 Amended...... 7676 (a)(4)(i) and (5) correctly amend- 927.122 Removed...... 7676 ed...... 70646 927.123 Amended...... 7676 982 Marketing percentages...... 1925 927.125 Revised ...... 7676 983.143 (b)(2) revised...... 51987 927.126 Added ...... 7677 983.147 (c) and (g) revised ...... 51987 927.142 Removed...... 7677 983.170 Added ...... 51987 927.236 Revised ...... 7677 983.253 (a) revised...... 66645 927.237 Added ...... 7677 984.347 Revised; interim...... 66648 927.316 Revised ...... 7677 985 Marketing percentages ...... 30269, 930 Marketing percentages...... 1919 52738 930.120 Revised; interim...... 16985 985.224 Regulations at 70 FR 55713 Regulation at 71 FR 16985 con- and 72358 confirmed...... 16019 firmed...... 66098 985.225 Added ...... 16991 930.158 (b) introductory text re- 989 Marketing orders ...... 4805 vised; interim ...... 16985 989.258 Marketing percentages...... 29571 (b) introductory text revised ...... 66098 989.347 Revised; interim ...... 8926 930.159 (a) and (d) revised; in- Regulation at 71 FR 8926 con- terim...... 16985 firmed...... 30576

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7 CFR—Continued 71 FR 7 CFR—Continued 72 FR Page Page Chapter IX—Continued Chapter IX—Continued 993 Policy statement...... 7395 917.120 Regulation at 71 FR 78041 993.347 Revised ...... 66839 confirmed...... 13674 917.150 Revised; interim...... 18854 2007 Regulation at 72 FR 18854 confirmed...... 49134 7 CFR 72 FR 917.178 Removed; interim...... 18854 Page Regulation at 72 FR 18854 con- Subtitle B firmed...... 49134 Chapter IX 917.179 Partial suspension lifted; 905.235 Revised; interim...... 41425 removed; interim...... 18854 Regulation at 72 FR 41425 con- Regulation at 72 FR 18854 confirmed; eff. 1–4–08...... 68473 firmed...... 49134 915.150 Regulation at 71 FR 76899 917.258 Revised ...... 44728 confirmed...... 16263 917.259 Added ...... 25947 916.23 Correctly amended ...... 7821 917.442 (a) introductory text and 916.64 Regulation at 71 FR 78044 (3) revised; (a)(9) removed; confirmed...... 12040 (a)(10), (11) and (12) redesig- 916.102 Regulation at 71 FR 78041 nated as (a)(9), (10) and (11); in- confirmed...... 13674 terim...... 18854 916.105 Regulation at 71 FR 78041 Regulation at 72 FR 18854 con- confirmed...... 13674 firmed...... 49134 916.107 Regulation at 71 FR 78041 917.459 (a) introductory text, (1) confirmed...... 13674 introductory text, (iv) Table 1, 916.115 Revised; interim...... 18853 (2) through (6) introductory Regulation at 72 FR 18853 con- texts, (i) and (iii) revised; in- firmed...... 49134 terim...... 18855 916.160 Removed; interim...... 18853 Regulation at 72 FR 18854 con- Regulation at 72 FR 18853 confirmed...... 49134 firmed...... 49134 920.303 Regulation at 71 FR 58249 916.234 Revised ...... 44728 confirmed ...... 7549 916.235 Added ...... 25947 922.235 Revised ...... 49136 916.350 (a) introductory text and 922.306 Suspended; interim ...... 16265 (3) revised; (a)(8) removed; Regulation at 72 FR 16265 con- (a)(9), (10) and (11) redesignated firmed...... 37993 as (a)(8), (9) and (10); in- 923 Policy statement ...... 71055 terim...... 18853 923.236 Revised ...... 44369 Regulation at 72 FR 18853 con- 924.236 Revised; interim...... 38465 firmed...... 49134 Regulation at 72 FR 38465 con- 916.356 (a) introductory text, (1) firmed...... 58005 introductory text, (iv) Table 1, 925.160 Existing text designated (3) introductory text, (4) intro- as (a); (b) added ...... 29840 ductory text, (6) introductory 925.215 Revised ...... 37425 text, (i), (ii), (9)(i) and (ii) re- 926.1 Regulation at 71 FR 78046 vised; interim ...... 18853 confirmed...... 16267 Regulation at 72 FR 18853 con- 926.2 Regulation at 71 FR 78046 firmed...... 49134 confirmed...... 16267 917.18 (a) suspension correctly 926.3 Regulation at 71 FR 78046 lifted...... 7821 confirmed...... 16267 917.24 (a) correctly suspended in 926.4 Regulation at 71 FR 78046 part ...... 7821 confirmed...... 16267 917.61 Regulation at 71 FR 78044 926.5 Regulation at 71 FR 78046 confirmed...... 12040 confirmed...... 16267 917.110 Regulation at 71 FR 78041 926.6 Regulation at 71 FR 78046 confirmed...... 13674 confirmed...... 16267 917.119 Regulation at 71 FR 78041 926.7 Regulation at 71 FR 78046 confirmed...... 13674 confirmed...... 16267

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7 CFR—Continued 72 FR 7 CFR—Continued 72 FR Page Page Chapter IX—Continued Chapter IX—Continued 926.8 Regulation at 71 FR 78046 (a)(3)(iii) revised; interim ...... 5329 confirmed...... 16267 966.323 Regulation at 72 FR 5329 926.9 Regulation at 71 FR 78046 confirmed ...... 24532 confirmed...... 16267 980.212 (b)(1) amended...... 2172 926.10 Regulation at 71 FR 78046 981.442 (a)(7)(iv) undesignated confirmed...... 16267 text redesignated as (a)(7)(v); 926.11 Regulation at 71 FR 78046 (b) added ...... 15034 confirmed...... 16267 (b)(6)(i)(A) correctly amended ...... 29055 926.12 Regulation at 71 FR 78046 981.455 (a) revised...... 51992 confirmed...... 16267 982.254 (Subpart) Added; in- 926.13 Regulation at 71 FR 78046 terim ...... 2603 confirmed...... 16267 Regulation at 72 FR 2603 con- 926.14 Regulation at 71 FR 78046 firmed...... 23765 confirmed...... 16267 926.15 Regulation at 71 FR 78046 983.6 Amended; interim ...... 69141 confirmed...... 16267 983.7 Amended; interim ...... 69141 926.16 Regulation at 71 FR 78046 983.11 (b) amended; interim ...... 69141 confirmed...... 16267 983.19 Suspended; interim ...... 69141 926.17 Regulation at 71 FR 78046 983.20 Suspended; interim ...... 69141 confirmed...... 16267 983.31 Amended; interim ...... 69141 926.18 Regulation at 71 FR 78046 983.38 (d)(1) and (4) amended; in- confirmed...... 16267 terim...... 69141 926.19 Regulation at 71 FR 78046 983.39 Suspended; interim ...... 69141 confirmed...... 16267 983.40 (a) and (e) suspended; (b) 926.20 Regulation at 71 FR 78046 and (c) amended; interim ...... 69141 confirmed...... 16267 983.41 (b) suspended; interim ...... 69141 926.21 Regulation at 71 FR 78046 983.42 Amended; interim ...... 69141 confirmed...... 16267 983.45 Amended; interim ...... 69141 928 Removed...... 38466 983.71 Removed; interim ...... 69141 929.236 Revised ...... 14654 983.138 Revised; interim...... 69141 930.255 Added ...... 13679 983.141 Suspended; interim ...... 69141 932.230 Revised ...... 18345 983.143 (b) revised; interim ...... 69141 946.103 Revised ...... 17795 983.147 (a) revised; interim ...... 69141 946.104 Revised ...... 17795 (d) suspended; interim...... 69142 948 Policy statement ...... 35141 984.347 Regulation at 71 FR 66648 948.386 Regulation at 71 FR 77586 confirmed ...... 9843 confirmed...... 14657 Revised...... 57841 958.112 Regulation at 71 FR 65040 985 Marketing orders; interim ...... 18349 confirmed ...... 7551 Regulation at 72 FR 18349 con- 958.240 Regulation at 71 FR 65040 firmed...... 41615 confirmed ...... 7551 985.226 Added ...... 14662 958.250 Regulation at 71 FR 65040 confirmed ...... 7551 Marketing orders; interim ...... 71202 958.328 Regulation at 71 FR 65040 987.339 Revised; interim...... 51357 confirmed ...... 7551 989.154 (b) revised...... 54347 959.322 (e)(1) revised; (f) amended; 989.173 (g)(1), (2) and (3) correctly interim...... 17362 added...... 33852 Introductory text revised; in- (d) revised; interim ...... 44031 terim ...... 25679 Regulation at 72 FR 44031 con- Regulation at 72 FR 17362 confirmed...... 54343 firmed...... 37795 989.257 Revised; interim...... 17366 Regulation at 72 FR 25679 con- Regulation at 72 FR 17366 confirmed...... 49139 firmed...... 59157 966.234 Revised ...... 1919 989.258 Regulation at 71 FR 29571 Revised; interim ...... 64126 confirmed ...... 2177 966.323 (d)(5) added...... 1922 993.347 Revised ...... 62412

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2008 7 CFR—Continued 73 FR Page 7 CFR 73 FR Chapter IX—Continued Page 981.442 (a)(5) amended; interim...... 43058 Subtitle B Regulation at 73 FR 43058 con- Chapter IX firmed...... 66721 900.20—900.33 (Subpart) Added ...... 49088 982.255 Added; interim...... 9005 900.36—900.43 (Subpart) Added ...... 49310 Regulation at 73 FR 9005 con- 905 Marketing order ...... 14371 firmed...... 35893 915.11 (a) and (b) revised...... 6837 983.6 Regulation at 72 FR 69141 915.22 (b)(1) revised...... 6837 confirmed...... 14919 915.30 (c) revised...... 6837 983.7 Regulation at 72 FR 69141 915.41 (b) revised...... 6837 confirmed...... 14919 915.43 Added ...... 6837 983.11 Regulation at 72 FR 69141 915.45 Revised ...... 6837 confirmed...... 14919 915.305 (d) and (e) added ...... 66719 983.19 Regulation at 72 FR 69141 915.306 (a)(1), (6) and (7) re- confirmed...... 14919 vised...... 66719 983.20 Regulation at 72 FR 69141 915.332 (a)(3) added ...... 26945 confirmed...... 14919 916.356 (a)(3) introductory text, 983.31 Regulation at 72 FR 69141 (4) introductory text and (6) in- confirmed...... 14919 troductory text revised; in- 983.38 Regulation at 72 FR 69141 terim...... 14375 confirmed...... 14919 Regulation at 73 FR 14375 con- 983.39 Regulation at 72 FR 69141 firmed...... 43056 confirmed...... 14919 917.459 (a)(2) introductory text, 983.40 Regulation at 72 FR 69141 (3) introductory text, (5) intro- confirmed...... 14919 ductory text and (6) introduc- 983.41 Regulation at 72 FR 69141 tory text revised; interim ...... 14376 confirmed...... 14919 Regulation at 73 FR 14376 con- 983.42 Regulation at 72 FR 69141 firmed; (a)(6) introductory text confirmed...... 14919 revised...... 43056 920.213 Revised; interim...... 75540 983.45 Regulation at 72 FR 69141 922.235 Revised ...... 54670 confirmed...... 14919 927 Section 610 review ...... 78149 983.71 Regulation at 72 FR 69141 930.107 Added; interim ...... 75929 confirmed...... 14919 930.256 Added ...... 11328 983.138 Regulation at 72 FR 69141 932.230 Revised; interim ...... 7201 confirmed...... 14919 Regulation at 73 FR 7201 con- 983.141 Regulation at 72 FR 69141 firmed...... 26315 confirmed...... 14919 944.31 (a)(3) added...... 26945 983.143 Regulation at 72 FR 69141 946.141 Revised ...... 74348 confirmed...... 14919 946.336 (a)(2)(i) revised; in- 983.147 Regulation at 72 FR 69141 terim...... 52576 and 69142 confirmed...... 14919 Regulation at 73 FR 52576 con- (g) and (h) redesignated as (h) and firmed; eff. 1–14–09 ...... 75931 (i); new (g) added...... 18705 948.215 Suspension lifted...... 52173 984 Section 610 review ...... 78151 948.386 (a)(2) revised ...... 5424 984.6 Revised ...... 11336 955.209 Revised ...... 31607 984.7 Revised ...... 11337 956.202 Revised ...... 35888 984.13 Revised ...... 11337 959.42 (e) added...... 10976 984.14 Revised ...... 11337 959.84 (d) redesignated as (e); new 984.15 Revised ...... 11337 (d) added ...... 10976 984.21 Revised ...... 11337 959.237 Revised ...... 21026 984.22 Revised ...... 11337 966 Section 610 review ...... 78150 984.35 Revised ...... 11337 966.234 Regulation at 72 FR 64126 984.37 Revised ...... 11337 confirmed...... 10978 984.38 Regulation at 70 FR 50153 966.323 (d)(5) amended; interim...... 76193 suspension lifted; revised...... 11338 981.42 (b) amended...... 45156 984.39 Revised ...... 11338 981.43 Added ...... 45156 984.40 Revised ...... 11338

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7 CFR—Continued 73 FR 7 CFR—Continued 74 FR Page Page Chapter IX—Continued Chapter IX—Continued 984.42 Revised ...... 11338 Regulation at 74 FR 28872 con- 984.45 (b) and (c) revised; (d) firmed...... 48847 added...... 11338 916.356 (a)(3) introductory text, 984.46 Revised ...... 11339 (4) introductory text and (6) in- 984.48 (a) introductory text, (2), troductory text revised; in- (4) and (5) revised ...... 11339 terim ...... 7781 984.50 Heading and (d) revised...... 11339 Regulation at 74 FR 7781 con- 984.51 (a) revised ...... 11339 firmed...... 37496 984.52 (a) revised; (c) added ...... 11339 917.258 Revised; interim...... 28872 984.59 Revised ...... 11339 Regulation at 74 FR 28872 con- 984.67 (a) revised ...... 11339 firmed...... 48847 984.69 (c) revised ...... 11339 917.459 (a)(2) introductory text, 984.70 Added ...... 11340 (3) introductory text, (5) intro- 984.71 Revised ...... 11340 ductory text and (6) introduc- 984.73 Revised ...... 11340 984.89 (b)(4) redesignated as (b)(5); tory text revised; (a)(6)(iii) new (b)(4) added ...... 11340 added; interim...... 7782 984.91 Added ...... 11340 Regulation at 74 FR 7782 con- 984.347 Revised ...... 57488 firmed...... 37496 Revised; interim ...... 73764 920.160 (a) amended; (b) revised; 984.437 (a) and (b) revised; in- (d) and (e) added ...... 46309 terim...... 73997 920.213 Regulation at 73 FR 75540 985.226 Regulation at 72 FR 71202 confirmed...... 12053 confirmed...... 19746 922.235 Revised ...... 37499 985.227 Added ...... 21220 Regulation at 74 FR 37499 con- 987.339 Regulation at 72 FR 51357 firmed...... 53402 confirmed ...... 3379 924.236 Revised ...... 48850 Revised; interim ...... 50191 925.215 Revised; interim ...... 8143 Regulation at 73 FR 50191 con- Regulation at 74 FR 8143 confirmed...... 75934 firmed...... 36604 989.158 (c)(2), (3) and (4)(i) amend- 925.304 Introductory text revised; ed; (c)(6)(ii) revised ...... 42259 interim ...... 3419 989.173 (d)(2) removed...... 42259 (a) introductory text revised; in- 989.257 Revised; interim ...... 9009 terim ...... 11277 Regulation at 73 FR 9009 con- Regulation at 74 FR 11277 confirmed...... 38311 firmed...... 38324 993.347 Revised; interim...... 50194 927.237 Introductory text and (a) Regulation at 73 FR 50194 con- revised ...... 52667 firmed...... 75936 930 Marketing percentages...... 8148 930.107 Regulation at 73 FR 75929 2009 confirmed...... 12055 7 CFR 74 FR 932.230 Revised; interim ...... 7784 Page Regulation at 74 FR 7784 con- Subtitle B firmed...... 38326 Chapter IX 944.106 (a) table amended; in- 905.22 (a)(2) and (b)(2) revised...... 46306 terim...... 15644 905.23 Revised ...... 46306 Regulation at 74 FR 15644 con- 905.29 (b) redesignated as (c); new firmed...... 47048 (b) added ...... 46306 944.400 (d)(3) through (7) redesig- 905.34 (c) revised ...... 46306 nated as (d)(4) through (8); new 905.54 Added ...... 46306 (d)(3) added...... 2808 905.306 (a) Table I amended; in- 944.401 (i)(3) through (8) redesig- terim...... 15643 nated as (i)(4) through (9); new Regulation at 74 FR 15643 con- (i)(3) added ...... 2808 firmed...... 47048 944.503 (a)(1) introductory text, 916.234 Revised; interim...... 28872 (ii) and (3) revised; interim...... 3419

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7 CFR—Continued 74 FR 7 CFR—Continued 74 FR Page Page Chapter IX—Continued Chapter IX—Continued (a)(1) introductory text revised; 983.22 Redesignated as 983.21; new interim ...... 11277 983.22 redesignated from 983.23 Regulation at 74 FR 11277 con- and revised ...... 56539 firmed...... 38324 983.23 Redesignated as 983.22; new 945.341 (a)(2)(i) and (iii) revised...... 45734 983.23 redesignated from 948.386 (a)(2) revised; interim ...... 17591 983.24 ...... 56539 Regulation at 74 FR 17591 con- 983.24 Redesignated as 983.23; new firmed...... 38505 983.24 redesignated from 948.387 (h) removed; eff. 1–11–10...... 65393 983.25 ...... 56539 953.322 (g) removed; eff. 1–11–10 ...... 65393 983.25 Redesignated as 983.24; new 959.237 Revised; interim...... 38508 983.25 redesignated from 983.26 Regulation at 74 FR 38508 con- and revised ...... 56539 firmed...... 61265 983.26 Redesignated as 983.25; new 959.322 Introductory text revised; 983.26 redesignated from interim...... 18623 983.27 ...... 56539 Regulation at 74 FR 18623 con- 983.27 Redesignated as 983.26; new firmed...... 47050 983.27 redesignated from 966.234 Revised ...... 857 983.28 ...... 56539 Revised; interim ...... 57059 983.28 Redesignated as 983.27; new 966.323 Regulation at 73 FR 76193 983.28 redesignated from confirmed...... 17593 983.29 ...... 56539 980.1 (g)(4)(iii) through (vii) re- 983.29 Redesignated as 983.28; new designated as (g)(4)(iv) through 983.29 redesignated from (viii); new (g)(4)(iii) added...... 2808 983.30 ...... 56539 (a)(2)(i), (ii), (b)(1), (2) and (j) re- 983.30 Redesignated as 983.29 ...... 56539 vised; eff. 1–11–10 ...... 65394 Redesignated from 983.31 and re- 980.117 (f)(5)(iii) through (vii) revised ...... 56540 designated as (f)(5)(iv) through 983.31 Suspension lifted; redesig- (viii); new (f)(5)(iii) added ...... 2808 nated as 983.30 ...... 56540 (e) revised; (f)(2) and (h) amend- 983.32 Redesignated as 983.41 ...... 56541 ed; eff. 1–11–10 ...... 65394 983.33 Redesignated as 983.42 ...... 56541 980.212 (f)(5)(iii) through (vii) re- 983.34 Redesignated as 983.43 ...... 56541 designated as (f)(5)(iv) through 983.35 Redesignated as 983.44 ...... 56541 (viii); new (f)(5)(iii) added ...... 2808 983.36 Redesignated as 983.45 ...... 56541 (b)(1) amended...... 45736 983.37 Redesignated as 983.47 ...... 56541 (e) revised; (f)(2) and (h) amend- 983.38 Suspension lifted; undesig- ed; eff. 1–11–10 ...... 65394 nated center heading and sec- 980.501 (a)(4) and (d) amended; eff. tion redesignated as 983.50...... 56541 1–11–10 ...... 65394 983.39 Suspension lifted; redesig- 981.442 (b)(3)(i) revised; in- nated as 983.51 ...... 56541 terim...... 28874 983.40 Suspension lifted; redesig- Regulation at 74 FR 28874 con- nated as 983.52 ...... 56542 firmed...... 50683 983.41 Suspension lifted; redesig- 983 Heading revised...... 56539 nated as 983.53 ...... 56540 983.1 Revised ...... 56539 Redesignated from 983.32; intro- 983.6 Suspension lifted; revised .....56539 ductory text amended; (b) re- 983.7 Suspension lifted; revised .....56539 vised ...... 56541 983.8 Revised ...... 56539 983.42 Suspension lifted; redesig- 983.11 (a)(4) added...... 56539 nated as 983.54 ...... 56540 983.19 Removed...... 56539 Redesignated from 983.33; (a), (j) 983.20 Removed; new 983.20 redes- and (n) amended ...... 56541 ignated from 983.21 and re- 983.43 Redesignated as 983.55 ...... 56540 vised...... 56539 Redesignated from 983.34; (a) re- 983.21 Redesignated as 983.20; new vised ...... 56541 983.21 redesignated from 983.44 Redesignated as 983.56 ...... 56540 983.22 ...... 56539 Redesignated from 983.35...... 56541

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7 CFR—Continued 74 FR 7 CFR—Continued 74 FR Page Page Chapter IX—Continued Chapter IX—Continued 983.45 Suspension lifted; redesig- Redesignated from 983.52...... 56541 nated as 983.57 ...... 56540 983.71 Redesignated from 983.53; Redesignated from 983.36...... 56541 (a) revised...... 56540 983.46 Redesignated as 983.59 ...... 56541 983.72 Redesignated from 983.54 Undesignated center heading and revised ...... 56540 and section added ...... 56542 983.73 Redesignated from 983.47 Redesignated as 983.64; new 983.55 ...... 56540 983.47 redesignated from 983.74 Redesignated from 983.56; 983.37 ...... 56541 (a)(1) amended ...... 56540 983.48 Redesignated as 983.65 ...... 56541 983.75 Redesignated from 983.57 983.49 Redesignated as 983.66 ...... 56541 and revised ...... 56540 983.50 Redesignated as 983.67; new 983.80 Redesignated from 983.50 redesignated from 983.38; 983.58 ...... 56540 new 983.50 revised...... 56541 983.81 Redesignated from 983.51 Redesignated as 983.68; new 983.59 ...... 56540 983.51 redesignated from 983.39 983.82 Redesignated from and revised ...... 56541 983.60 ...... 56540 983.52 Redesignated as 983.70 ...... 56541 983.83 Redesignated from Redesignated from 983.40 and re- 983.61 ...... 56540 vised ...... 56542 983.84 Redesignated from 983.53 Redesignated as 983.71; new 983.62 ...... 56540 983.53 redesignated from 983.41 983.85 Redesignated from and revised ...... 56540 983.63 ...... 56540 983.54 Redesignated as 983.72; re- 983.86 Redesignated from designated from 983.42 and re- 983.64 ...... 56540 vised...... 56540 983.87 Redesignated from 983.65 983.55 Redesignated as 983.73; new and revised ...... 56540 983.55 redesignated from 983.88 Redesignated from 983.43 ...... 56540 983.66 ...... 56540 983.56 Redesignated as 983.74; new 983.89 Redesignated from 983.56 redesignated from 983.44 983.67 ...... 56540 and revised ...... 56540 983.90 Redesignated from 983.57 Redesignated as 983.75; new 983.68 ...... 56540 983.57 redesignated from 983.45 983.91 Redesignated from and revised ...... 56540 983.69 ...... 56540 983.58 Redesignated as 983.80 ...... 56540 983.92 Redesignated from 983.70 Added ...... 56541 and revised ...... 56540 983.59 Redesignated as 983.81 ...... 56540 983.138 Removed ...... 56530 Redesignated from 983.46 and re- 983.141 Removed ...... 56530 vised ...... 56541 983.143 Redesignated as 983.155 ...... 56530 983.60 Redesignated as 983.82 ...... 56540 983.147 (d) suspension lifted; re- 983.61 Redesignated as 983.83 ...... 56540 designated as 983.164 ...... 56530 983.62 Redesignated as 983.84 ...... 56540 983.150 Added ...... 56530 983.63 Redesignated as 983.85 ...... 56540 983.152 Added ...... 56531 983.64 Redesignated as 983.86 ...... 56540 983.155 Redesignated from 983.143; Redesignated from 983.47...... 56541 (b) amended ...... 56530 983.65 Redesignated as 983.87 ...... 56540 983.164 Redesignated from 983.147; Redesignated from 983.48...... 56541 (d) revised...... 56530 983.66 Redesignated as 983.88 ...... 56540 983.170 Removed ...... 56531 Redesignated from 983.49...... 56541 983.253 (a) amended; (b) revised...... 56531 983.67 Redesignated as 983.89 ...... 56540 984.36 Correctly revised ...... 18464 Redesignated from 983.50...... 56541 984.347 Regulation at 73 FR 73764 983.68 Redesignated as 983.90 ...... 56540 confirmed ...... 9346 Redesignated from 983.51...... 56541 Revised...... 56696 983.69 Redesignated as 983.91 ...... 56540 984.437 (a) and (b) revised ...... 9047 983.70 Redesignated as 983.92 ...... 56540 984.456 (a) and (b) revised...... 56696

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7 CFR—Continued 74 FR 7 CFR—Continued 75 FR Page Page Chapter IX—Continued Chapter IX—Continued 984.464 (c) revised...... 56696 917.459 (a)(2) introductory text, 984.471 Revised ...... 56696 (3) introductory text, (5) intro- 984.472 Revised ...... 56696 ductory text and (6) introduc- 984.476 Revised ...... 56696 tory text revised; interim ...... 17030 Regulation at 75 FR 17030 con- 984.480 (d) revised...... 56697 firmed...... 38698 985.228 Added ...... 16326 920.12 Revised ...... 37291 987.124 (a) revised...... 61267 920.20 Revised ...... 37291 987.162 Revised ...... 61267 920.22 (a) amended(a) amended...... 37291 987.339 Revised ...... 56699 920.32 (b) revised ...... 37291 989.257 Revised; interim ...... 9956 920.131 Removed; interim...... 43039 Regulation at 74 FR 9956 con- Regulation at 75 FR 43039 confirmed...... 44273 firmed...... 67607 993.347 Revised; interim...... 46312 922.235 Revised ...... 51926 999.1 (c)(2)(iii), (iv) and (v) redes- 922.321 (a)(1) correctly added ...... 72935 ignated as (c)(2)(iv), (v) and 923.322 (e) redesignated as (d); new (vi); new (c)(2)(iii) added; (e) in- (e) added; (g) introductory text troductory text, (2) and (3) re- amended...... 31665 vised; (e)(1), (4), (f) and (g) 924.160 Suspended; interim ...... 43042 amended ...... 2808 Regulation at 75 FR 43042 con- 999.100 (c)(2)(iv) and (v) redesig- firmed...... 65938 nated as (c)(2)(v) and (vi); new 924.236 Suspended; interim ...... 43042 (c)(2)(iv) added ...... 2809 Regulation at 75 FR 43042 con- 999.200 Suspension of 5–27–05 lift- firmed...... 65938 ed; (e)(2) and (3) removed; (b)(5) 925.304 Regulation at 74 FR 3419 and (e)(1) amended; (c)(2)(iii), confirmed ...... 5886 (iv), (v) and (e)(4) redesignated (a) amended; interim...... 17033 as (c)(2)(iv), (v), (vi) and new Regulation at 75 FR 17033 con- (e)(2); new (c)(2)(iii) added; new firmed...... 34345 (e)(2) revised ...... 2809 929.105 (b) introductory text re- 999.200 Suspended indefinitely ...... 2809 vised...... 20516 929.161 Added ...... 18395 999.300 (c)(2)(iv), (v) and (vi) re- 930.20 (g) revised ...... 33677 designated as (c)(2)(v), (vi) and 930.23 (c)(3) redesignated as (vii); new (c)(2)(iv) added; (e)(2) (c)(3)(i); (c)(3)(ii) added; (b)(2), amended; (e)(2)(i) and (ii) re- (5) and (c)(4) revised ...... 33677 moved ...... 2809 930.50 (i) revised...... 33677 999.400 (c)(3)(iv), (v) and (vi) re- 930.54 (d) added ...... 33678 designated as (c)(3)(v), (vi) and 930.55 (b) revised ...... 33678 (vii); new (c)(3)(iv) added ...... 2809 930.200 Revised ...... 57163 930.256 Marketing percentages...... 29652 2010 932.230 Revised ...... 22213 944.503 Regulation at 74 FR 3419 7 CFR 75 FR Page confirmed ...... 5886 (a)(1) amended; interim ...... 17034 Chapter IX Regulation at 74 FR 17034 con- 900.211 Amended ...... 17560 firmed...... 34345 915.235 Revised; interim...... 55944 946.143 Added; interim ...... 43045 916.234 Revised ...... 31279 Regulation at 75 FR 43045 con- 916.356 (a)(2) introductory text, firmed; introductory text (3) introductory text, (4) intro- amended; eff. 1–13–11...... 77752 ductory text and (6) introduc- 946.336 Revised; interim...... 43045 tory text revised; interim ...... 17030 Regulation at 75 FR 43045 con- Regulation at 75 FR 17030 confirmed; revised; eff. 1–13–11 ...... 77752 firmed...... 38698 948.386 (a)(2) revised ...... 3335 917.258 Revised ...... 31279 948.387 (a) revised; interim ...... 17036

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7 CFR—Continued 75 FR 7 CFR—Continued 75 FR Page Page Chapter IX—Continued Chapter IX—Continued Regulation at 75 FR 17036 con- 984.347 Revised; interim...... 55947 firmed...... 38699 984.445 Revised ...... 1527 956.142 Revised ...... 34347 984.450 (a) amended; (c) added...... 51929 956.180 (b) introductory text re- 985.229 Marketing percentages...... 27636 vised...... 34347 987.339 Revised ...... 70573 966.234 Regulation at 74 FR 57059 989.257 Revised; interim...... 20901 confirmed...... 10410 Regulation at 75 FR 20901 con- 980.117 (h) correctly amended ...... 1269 firmed...... 35962 983.150 (a), (d)(2), (3), (4) and (6) re- 993.347 Regulation at 74 FR 46312 vised; interim ...... 43048 confirmed ...... 1271 Regulation at 75 FR 43048 con- Revised...... 67609 firmed...... 68682 996 Review...... 22213 Æ

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