68512 Federal Register / Vol. 75, No. 215 / Monday, November 8, 2010 / Proposed Rules 

regulations without negative impact, 

and that the costs associated with the 

order outweigh the benefits. The 

Committee also believes that the overall 

decline in the scope and volume of the 

fresh prune industry in Washington and 

Oregon supports order termination. As a 

consequence, in action taken on June 1, 

2010, the Committee unanimously 

recommended that USDA terminate the 

order. 

Section 924.64 of the order provides 

that USDA terminate or suspend any or 

all provisions of the order when a 

finding is made that the order does not 

tend to effectuate the declared policy of 

the Act. Furthermore, § 608c(16)(A) of 

the Act provides that USDA shall 

terminate or suspend the operation of 

any order whenever the order or 

provision thereof obstructs or does not 

tend to effectuate the declared policy of 

the Act. An additional provision 

requires that Congress be notified not 

later than 60 days before the date the 

order would be terminated. 

The proposed termination of the order 

is a regulatory relaxation and would 

consequently reduce the costs to both 

handlers and producers (while 

marketing order requirements are 

applied to handlers, the costs of such 

requirements are often passed on to 

producers). Furthermore, the Committee 

has determined, through its analysis of 

the four year period of regulatory 

suspension, that termination would not 

negatively impact the marketing of fresh 

prunes. The Committee considered 

alternatives to this rule including 

leaving the order active but continuing 

with regulatory suspension, and 

suspending the order rather than 

terminating it. Interest was not shown 

for either option, however, and the 

Committee subsequently recommended 

that the order be terminated. 

This proposed rule is intended to 

solicit input and other available 

information from interested parties on 

whether the order should be terminated. 

USDA will evaluate all available 

information prior to making a final 

determination on this matter. 

In accordance with the Paperwork 

Reduction Act of 1995, (44 U.S.C. 

Chapter 35), the information collection 

requirements being suspended were 

approved previously by the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0189, Fruit 

Crops. Termination of the reporting 

requirements under the order is 

expected to reduce the reporting burden 

on Washington-Oregon prune handlers 

by 2.92 hours, and should further 

reduce industry expenses. Handlers are 

no longer required to file forms with the 

Committee. This proposed rule would 

thus not impose any additional 

reporting or recordkeeping requirements 

on either small or large prune handlers. 

As with all Federal marketing order 

programs, reports and forms are 

periodically reviewed to reduce 

information requirements and 

duplication by industry and public 

sector agencies. 

In addition, USDA has not identified 

any relevant Federal rules that 

duplicate, overlap or conflict with this 

rule. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

The Committee’s meeting was widely 

publicized throughout the WashingtonOregon fresh prune industry and all 

interested persons were invited to 

attend the meeting and participate in 

Committee deliberations. Like all 

Committee meetings, the June 1, 2010, 

meeting was a public meeting and all 

entities, both large and small, were able 

to express their views on this issue. 

Additionally, interested persons are 

invited to submit information on the 

regulatory and informational impacts of 

this action on small businesses. 

A small business guide on complying 

with fruit, vegetable, and specialty crop 

marketing agreements and orders may 

be viewed at: http://www.ams.usda.gov/ 

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Antoinette 

Carter at the previously mentioned 

address in the FOR FURTHER INFORMATION

CONTACT section. 

This rule invites comments on the 

proposed termination of Marketing 

Order 924, which regulates the handling 

of fresh prunes grown in designated 

counties in Washington and in Umatilla 

County, Oregon. All written comments 

received in a timely manner will be 

considered before a final determination 

is made on this matter. 

Based on the foregoing, and pursuant 

to § 608c(16)(A) of the Act and § 924.64 

of the order, USDA is considering 

termination of the order. If USDA 

decides to terminate the order, trustees 

would be appointed to conclude and 

liquidate the affairs of the Committee, 

and would continue in that capacity 

until discharged by USDA. In addition, 

USDA would notify Congress 60 days in 

advance of termination pursuant to 

§ 608c(16)(A) of the Act. 

List of Subjects in 7 CFR Part 924 

Prunes, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

PART 924—FRESH PRUNES GROWN 

IN DESIGNATED COUNTIES IN 

WASHINGTON AND IN UMATILLA 

COUNTY, OREGON—[REMOVED] 

For the reasons set forth in the 

preamble, under the authority of 

7 U.S.C. 601–674, 7 CFR part 924 is 

proposed to be removed. 

Dated: November 2, 2010. 

David R. Shipman, 

Acting Administrator. 

[FR Doc. 2010–28046 Filed 11–5–10; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1214 

[Document No. AMS–FV–10–0008–PR–1A] 

RIN 0581–AD00 

Proposed Christmas Tree Promotion, 

Research, and Information Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule with request for 

comments. 

SUMMARY: This proposed rule invites 

comments on the establishment of an 

industry-funded promotion, research, 

and information program for fresh cut 

Christmas trees. The proposed 

Christmas Tree Promotion, Research, 

and Information Order (Proposed 

Order), was submitted to the 

Department of Agriculture (Department) 

by the Christmas Tree Checkoff Task 

Force, an industry wide group of 

producers and importers that support 

this proposed program. Under the 

Proposed Order, producers and 

importers of fresh cut Christmas trees 

would pay an initial assessment of $0.15 

per tree, which would be paid to the 

proposed Christmas Tree Promotion 

Board (Board). This Board would be 

responsible for administration and 

operation of the proposed Order. 

Producers and importers that 

domestically produce or import less 

than 500 Christmas trees annually 

would be exempt from the assessment. 

The proposed program is authorized 

under the Commodity Promotion, 

Research, and Information Act of 1996 

(1996 Act). A referendum will be 

conducted, among producers and 

importers, three years after the 


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collection of assessments begin to 

determine if Christmas tree producers 

and importers favor the continuation of 

this program. This proposed rule also 

announces the Agricultural Marketing 

Service’s (AMS) intention to request 

approval of new Christmas tree 

information collection requirements by 

the Office of Management and Budget 

(OMB) for the operation of the Proposed 

Order. 

DATES: Comments must be received by 

February 7, 2011. Pursuant to the 

Paperwork Reduction Act (PRA), 

comments on the information collection 

burden that would result from this 

proposal must be received by February 

7, 2011. 

ADDRESSES: Interested persons are 

invited to submit written comments on 

the Internet at http:// 

www.regulations.gov or to the Research 

and Promotion Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., Stop 0244, 

Room 0632–S, Washington, DC 20250– 

0244; fax: (202) 205–2800. All 

comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register and 

will be made available for public 

inspection in the above office during 

regular business hours or can be viewed 

at http://www.regulations.gov. All 

comments submitted in response to this 

proposed rule will be included in the 

record and will be made available to the 

public. Please be advised that the 

identity of the individuals or entities 

submitting comments will be made 

public on the Internet at the address 

provided above. 

Pursuant to PRA, comments regarding 

the accuracy of the burden estimate, 

ways to minimize the burden, including 

the use of automated collection 

techniques or other forms of information 

technology, or any other aspect of this 

collection of information, should be sent 

to the above address. In addition, 

comments concerning the information 

collection should also be sent to the 

Desk Office for Agriculture, Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, New 

Executive Office Building, 725 17th 

Street, NW., Room 725, Washington, DC 

20503. 

FOR FURTHER INFORMATION CONTACT: 

Patricia A. Petrella, Marketing 

Specialist, Research and Promotion 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., Room 0632, Stop 0244, 

Washington, DC 20250–0244; telephone: 

(301) 334–2891; or facsimile: (301) 334– 

2896; or e-mail: 

Patricia.Petrella@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This 

proposed rule is issued pursuant to the 

Commodity Promotion, Research, and 

Information Act of 1996 (1996 Act) 

(7 U.S.C. 7411–7425). 

Executive Order 12866 

This proposed rule has been 

determined not significant for purposes 

of Executive Order 12866 and therefore 

has not been reviewed by the Office of 

Management and Budget (OMB). 

Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It is not intended to 

have retroactive effect. Section 524 of 

the 1996 Act provides that it shall not 

affect or preempt any other Federal or 

state law authorizing promotion or 

research relating to an agricultural 

commodity. 

Under section 519 of the 1996 Act, a 

person subject to an order may file a 

written petition with the Department 

stating that an order, any provision of an 

order, or any obligation imposed in 

connection with an order, is not 

established in accordance with the law, 

and requesting a modification of an 

order or an exemption from an order. 

Any petition filed challenging an order, 

any provision of an order, or any 

obligation imposed in connection with 

an order, shall be filed within two years 

after the effective date of an order, 

provision, or obligation subject to 

challenge in the petition. The petitioner 

will have the opportunity for a hearing 

on the petition. Thereafter, the 

Department will issue a ruling on the 

petition. The 1996 Act provides that the 

district court of the United States for 

any district in which the petitioner 

resides or conducts business shall have 

the jurisdiction to review a final ruling 

on the petition, if the petitioner files a 

complaint for that purpose not later 

than 20 days after the date of the entry 

of the Department’s final ruling. 

Executive Order 13132 

This proposed rule has been reviewed 

under Executive Order 13132, 

Federalism. This Executive Order 

directs agencies to construe, in 

regulations and otherwise, a Federal 

Statute to preempt State law only when 

the statute contains an express 

preemption provision. Section 524 of 

the 1996 Act provides that the Act shall 

not affect or preempt any other Federal 

or State law authorizing promotion or 

research relating to an agricultural 

commodity. 

The proponent, the Christmas Tree 

Checkoff Task Force is an industry wide 

group of producers and importers that 

support this proposed program. They 

have conducted meetings throughout 

the United States with several State and 

multi-State Christmas tree 

organizations. The proposed program is 

not intended to duplicate any State 

program. The proponents have 

determined that they need a mechanism 

that would be sustainable over time. A 

national Christmas tree research and 

promotion program would accomplish 

this goal. 

Summary 

This proposed rule invites comments 

on the establishment of an industryfunded promotion, research, and 

information program for fresh cut 

Christmas trees. The proposed 

Christmas Tree Promotion, Research, 

and Information Order (Proposed 

Order), was submitted to the 

Department of Agriculture (Department) 

by the Christmas Tree Checkoff Task 

Force (Task Force), an industry wide 

group of producers and importers that 

support this proposed program. Under 

the Proposed Order, producers and 

importers of fresh cut Christmas trees 

would pay an initial assessment of $0.15 

cents per tree, which would be paid to 

the Christmas Tree Promotion Board 

(Board). This Board would be 

responsible for administration and 

operation of the Proposed Order. 

Producers and importers that 

domestically produce or import less 

than 500 Christmas trees annually 

would be exempt from the assessment. 

The proposed program is authorized 

under the 1996 Act. 

A referendum will be conducted, 

among producers and importers, three 

years after the collection of assessments 

begin to determine if Christmas tree 

producers and importers favor the 

continuation of this program. This 

proposed rule also announces the 

Agricultural Marketing Service’s (AMS) 

intention to request approval of new 

Christmas tree information collection 

requirements by the OMB for the 

operation of Proposed Order. 

Authority in 1996 Act 

The proposed Order is authorized 

under the 1996 Act which authorizes 

USDA to establish agricultural 

commodity research and promotion 

orders which may include a 

combination of promotion, research, 

industry information, and consumer 

information activities funded by 

mandatory assessments. These programs 

are designed to maintain and expand 

markets and uses for agricultural 

commodities. As defined under section 

513(1)(D) of the 1996 Act, agricultural 

commodities include the products of 


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68514 Federal Register / Vol. 75, No. 215 / Monday, November 8, 2010 / Proposed Rules 

forestry. The proposed Order would 

provide for the development and 

financing of a coordinated program of 

research, promotion, and information 

for Christmas trees. 

The 1996 Act provides for a number 

of optional provisions that allow the 

tailoring of orders for different 

commodities. Section 516 of the 1996 

Act provides permissive terms for 

orders, and other sections provide for 

alternatives. For example, section 514 of 

the 1996 Act provides for orders 

applicable to (1) Producers, (2) first 

handlers and others in the marketing 

chain as appropriate, and (3) importers 

(if imports are subject to assessments). 

Section 516 states that an order may 

include an exemption of de minimis 

quantities of an agricultural commodity; 

different payment and reporting 

schedules; coverage of research, 

promotion, and information activities to 

expand, improve, or make more efficient 

the marketing or use of an agricultural 

commodity in both domestic and 

foreign markets; provision for reserve 

funds; provision for credits for generic 

and branded activities; and assessment 

of imports. 

In addition, section 518 of the 1996 

Act provides for referenda to ascertain 

approval of an order to be conducted 

either prior to its going into effect or 

within three years after assessments first 

begin under the order. An order also 

may provide for its approval in a 

referendum based upon different voting 

patterns. Section 515 provides for 

establishment of a board or council from 

among producers, first handlers and 

others in the marketing chain as 

appropriate, and importers, if imports 

are subject to assessment. 

Industry Background 

Christmas trees have been 

commercially sold in the United States 

since about 1850, when most were cut 

from wild stands. In the last 55 to 60 

years, Christmas trees have been farmed 

and harvested as an agricultural row 

crop. Most Christmas trees are now 

grown on or selected and cut by 

consumers on tree farms. The U.S. 

Christmas tree industry consists of over 

12,000 farms producing over 17 million 

Christmas trees per year. The best 

selling Christmas trees are Scotch pine, 

Douglas fir, noble fir, Fraser fir, Virginia 

pine, balsam fir and white pine. 

Christmas trees are grown for retail 

sale in almost all U.S. states. Oregon, 

Michigan, Wisconsin, North Carolina 

and Pennsylvania together produce 

more than 75 percent of the trees 

produced each year. During 2007, 47 out 

of the 50 States contributed to the 

production of Christmas trees. 

Competition 

The fresh cut Christmas tree industry 

competes directly with the artificial 

Christmas tree industry. Artificial 

Christmas tree companies advertise 

heavily throughout the fall and 

Christmas seasons. According to data 

supplied by the proponents artificial 

tree purchases have increased from 9.8 

million in 2003 to 17.4 million in 2007. 

Imports 

According to U.S. Department of 

Commerce, U.S. Census Bureau, Foreign 

Trade Statistics, imports of Christmas 

trees from 2006 through 2008 averaged 

about 1.9 million trees. During those 

years, imports from Canada accounted 

for 99.72 percent of the total imports. 

Italy, Colombia and Mali comprised 

about .28 million trees or less than one 

percent. For the same period, these 

imports were valued at 27.427 million 

dollars. 

Prices 

According to the Task Force, in 2007 

the average price per tree for a Noble 

was approximately $18.00 and the 

average price per tree for a Douglas was 

$11.00. By averaging these two types of 

Christmas trees, prices would be 

approximately $15 per tree. With 31 

million trees cut in 2007, the value 

would be approximately $465 million 

(value at point of first sale). 

Need for a Program 

A national research and promotion 

program for Christmas trees would help 

the industry to address the many market 

problems it currently faces. According 

to the Task Force, two main factors 

currently affecting Christmas tree sales, 

both in the domestic market and abroad, 

are increased competition and changing 

consumer habits. 

According to additional data supplied 

by the Task Force, the market share of 

fresh Christmas trees in the U.S. from 

1965 to 2008 has declined by 6 percent. 

In comparison, the market share of 

artificial trees has increased 655 percent 

from 1965 to 2008. 

According to the proponent data, 

sales of fresh cut Christmas trees 

decreased by 15 million trees from 37 

million trees sold in 1991 down to 22 

million trees sold in 2002. The industry 

saw an increase in sales in 2003 through 

2007 when the industry conducted a 

voluntary marketing campaign which 

was lead by a small group of producers 

and retailers. This voluntary marketing 

campaign saw sales rebound by 9 

million trees—from 22 million trees 

sold in 2002 to 31 million trees sold in 

2007. Even with the strong sales 

response to the marketing efforts, the 

voluntary marketing program suffers 

from a lack of funding. 

The Christmas tree industry has tried 

three different times to conduct 

promotional programs based on 

voluntary contributions. Each time, after 

about three years, the revenue declined 

to a point where the programs were 

ineffective. The decline in revenue is 

attributable to the voluntary nature of 

these programs. Therefore, the 

proponents have determined that they 

need a mechanism that would be 

sustainable over time. They believe that 

a national Christmas tree research and 

promotion program would accomplish 

this goal. 

Specific Provisions 

Definitions 

Pursuant to section 513 of the 1996 

Act, sections 1214.1 through 1214.30 of 

the proposed Order define certain terms 

that would be used throughout the 

Order. Several of the terms are common 

to all research and promotion programs 

authorized under the 1996 Act while 

other terms are specific to the proposed 

Christmas tree Order. 

Section 1214.1 would define the term 

‘‘Act’’ to mean the Commodity 

Promotion, Research, and Information 

Act of 1996 (7 U.S.C. 7411–7425), and 

any amendments thereto. 

Section 1214.2 would define the term 

‘‘Christmas Tree Promotion Board’’ to 

mean the administrative body 

established pursuant to § 1214.40. 

Section 1214.3 would define the term 

‘‘Christmas tree’’ to mean any tree of the 

coniferous species that is severed or cut 

from its roots and marketed as a 

Christmas tree. The coniferous species 

include the botanical group of trees that 

have needle-like or scale-like leaves. 

Section 1214.5 would define the term 

‘‘crop year’’ to mean August 1 through 

July 31. 

Section 1214.6 would define the term 

‘‘Customs’’ to mean the U.S. Customs 

and Border Protection or U.S. Customs 

Service, an agency of the U.S. 

Department of Homeland Security. 

Section 1214.8 would define the term 

‘‘fiscal period’’ or ‘‘fiscal year’’ to mean 

the period August 1 through July 31. 

Section 1214.9 would define the term 

‘‘importer’’ to mean any person 

importing Christmas trees into the 

United States in a fiscal period as a 

principal or agent, broker, or consignee 

of any person who domestically 

produces Christmas trees outside of the 

United States for sale in the United 

States, and who is listed in the import 

records as the importer of record for 

such Christmas trees. 

Section 1214.10 would define the 

term ‘‘information’’ to mean activities or 


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programs designed to disseminate the 

results of research, new and existing 

marketing programs, new and existing 

marketing strategies, new and existing 

uses and applications, and to enhance 

the image of Christmas trees. 

Section 1214.11 would define the 

term ‘‘marketing’’ to mean the sale or 

other disposition of Christmas trees in 

interstate, foreign, or intrastate 

commerce. 

Section 1214.13 would define the 

terms ‘‘part’’ and ‘‘subpart.’’ The term 

‘‘part’’ would mean the Christmas Tree 

Promotion, Research, and Information 

Order and all rules, regulations, and 

supplemental orders issued pursuant to 

the Act and the Order. The Order would 

be a ‘‘subpart’’ of the part. 

Section 1214.15 would define the 

terms programs, plans, and projects to 

mean research, promotion and 

information programs, plans, or projects 

established under the Order. 

Section 1214.16 would define 

‘‘produce’’ to mean to engage in the 

cutting and selling of Christmas trees for 

the holiday market. 

Section 1214.17 would define 

‘‘producer’’ to mean any person who is 

engaged in the production of Christmas 

trees in the United States, and who 

owns, or shares the ownership and risk 

of loss of production of Christmas trees 

or a person who is engaged in the 

business of producing, or causing to be 

domestically produced, Christmas trees 

beyond personal use and having value 

at first point of sale. 

Section 1214.18 would define the 

term ‘‘promotion’’ to mean any action 

taken, including paid advertising, 

public relations and other 

communications, and promoting the 

results of research, that presents a 

favorable image of Christmas trees to the 

public and to any and all consumers 

and those who influence consumption 

of Christmas trees with the intent of 

improving the perception, markets and 

competitive position of Christmas trees 

and stimulating sales of Christmas trees. 

Section 1214.19 would define the 

term ‘‘research’’ to mean any activity 

that advances the position of Christmas 

trees in the market place that includes, 

but is not limited to any type of test, 

study, or analysis designed to advance 

the image, desirability, use, 

marketability, sales, product 

development, or quality of Christmas 

trees; and the effectiveness of market 

development and promotion efforts 

including competitiveness, efficiency, 

pest and disease control, and other 

aspects of Christmas tree production. 

Sections 1214.4, 1214.7, 1214.12, 

1214.14, 1214.20, 1214.21, 1214.22, 

1214.23, and 1214.24 would define the 

terms ‘‘conflict of interest,’’ ‘‘Department 

or UDSA,’’ ‘‘Order,’’ ‘‘person,’’ 

‘‘Secretary,’’ ‘‘State,’’ ‘‘suspend,’’ 

‘‘terminate,’’ and ‘‘United States,’’ 

respectively. The definitions are the 

same as those specified in section 513 

of the Act. 

Establishment of the Board 

Pursuant to section 515 of the 1996 

Act, §§ 1214.40 through 1214.47 of the 

proposed Order would detail the 

establishment and membership of the 

proposed Christmas Tree Promotion 

Board, nominations and appointments, 

the term of office, removal and 

vacancies, procedure, reimbursement 

and attendance, powers and duties, and 

prohibited activities. 

Section 1214.40 would specify the 

Board establishment and membership. 

The Board would be composed of 12 

members. Eleven members would be 

domestic producers and would be 

allocated to three regions in the United 

States based on the volume of Christmas 

trees domestically produced from each 

respective region. The total number of 

Board members could not be increased. 

The 11 members would be allocated as 

follows: Region number 1 (Western 

Region), 5 members; region number 2 

(Central Region), 2 members; and region 

number 3 (Eastern Region), 4 members. 

Specific States and territories within 

each domestic region would be 

specified in § 1214.40(a)(1) of the 

proposed Order. One member would be 

an importer who imports Christmas 

trees into the United States. 

The Task Force recommended that the 

Board have no alternate Board members. 

It wants to ensure that industry 

members who seek representation and 

serve on the Board are committed to 

their service and participate in all Board 

meetings. 

Every 5 years, but no more often than 

once every 3 years, the Board must 

review, based on a 3-year average, the 

geographical distribution of the 

production of Christmas trees within the 

United States and the number of 

Christmas trees imported into the 

United States. If warranted, the Board 

would recommend to the Secretary that 

the Board membership be reapportioned 

appropriately to reflect such changes. 

Any changes in Board composition 

would be implemented by the Secretary 

through rulemaking. 

Section 1214.41 of the proposed 

Order would specify Board nominations 

and appointments. The initial 

nominations would be conducted by the 

Department. The Department would 

publicize the nomination process, using 

trade press or other means it deems 

appropriate, and outreach to all sizes of 

Christmas tree producers for the U.S. 

market. The Department could use 

regional caucuses, mail or other 

methods to elicit potential nominees. 

The Secretary would select the members 

of the Board from the nominations. 

Regarding subsequent nominations, 

the Board staff would solicit 

nominations as described in the 

preceding paragraph. Nominees would 

have the opportunity to provide the 

Board a short background statement 

outlining their qualifications and desire 

to serve on the Board. Nominees for the 

initial and subsequent Boards must 

domestically produce 500 or more 

Christmas trees during the crop year to 

be eligible to serve on the Board. 

Producers who domestically produce 

Christmas trees in more than one region 

could seek nomination in the region 

where the majority of their trees are 

produced. The names of producers 

would be placed on a ballot by region. 

The ballots along with the background 

statements would be mailed to 

producers in each respective region for 

a vote. Producers who produce in more 

than one region could only vote in the 

region in which they produce a majority 

of their Christmas trees. The nominee 

receiving the highest number of votes 

and the nominee receiving the second 

highest number of votes shall be 

submitted to the Department as the 

producers’ first and second choice 

nominees. 

Importer nominees would be solicited 

by the Board from those importers who 

have paid their assessments to the Board 

in the most recent fiscal period. They 

also must have imported more than 500 

Christmas trees during the fiscal period. 

The names of importer nominees would 

then be placed on a ballot. The ballots 

along with the background statements 

would be mailed to importers for a vote. 

The nominee receiving the highest 

number of votes and the nominee 

receiving the second highest number of 

votes shall be submitted to the 

Department as the producers’ first and 

second choice nominees. If there is an 

insufficient number of nominees from 

whom to appoint members to the Board, 

the Secretary may appoint members in 

such a manner as the Secretary 

determines appropriate. 

The Board would submit nominations 

to the Secretary 90 days before the new 

Board term begins. The Secretary would 

select the members of the Board from 

the nominations submitted by the Board 

(through the balloting process). In order 

to provide the Board flexibility, the 

Board could recommend to the 

Secretary modifications to its 

nomination procedures. Any such 

modifications would be implemented 


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68516 Federal Register / Vol. 75, No. 215 / Monday, November 8, 2010 / Proposed Rules 

through rulemaking by the Secretary. 

Section 1214.42 of the proposed Order 

would specify the term of office. With 

the exception of the initial Board, each 

Board member would serve a three-year 

term or until the Secretary selected his 

or her successor. Each term of office 

would begin on January 1 and end on 

December 31. No member could serve 

more than two consecutive terms, 

excluding any term of office less than 

three years. For the initial board, the 

terms of Board members would be 

staggered for two, three, and four years. 

Section 1214.43 of the proposed 

Order would specify criteria for the 

removal of members and for filling 

vacancies. If a Board member ceased to 

work for a producer or importer or 

ceased to do business in the region he 

or she represented, such position would 

become vacant. Additionally, the Board 

could recommend to the Secretary that 

a member be removed from office if the 

member consistently refused to perform 

his or her duties or engaged in dishonest 

acts or willful misconduct. The 

Secretary could remove the member if 

he or she finds that the Board’s 

recommendation shows adequate cause. 

Further, without recommendation of the 

Board, a member may be removed by 

the Secretary upon showing of adequate 

cause, including the failure by a 

member to submit reports or remit 

assessments required under this part, if 

the Secretary determines that such 

member’s continued service would be 

detrimental to the achievement of the 

purposes of the Act. 

If a position became vacant, 

nominations to fill the vacancy would 

be conducted using the nominations 

process as proposed in § 1214.41 of the 

Order. A vacancy would not be required 

to be filled if the unexpired term is less 

than six months. 

Section 1214.44 of the proposed 

Order would specify procedures of the 

Board. A majority of the Board members 

(7) would constitute a quorum. If 

participation by telephone or other 

means were permitted, members 

participating by such means would 

count towards the quorum requirements 

or other voting requirements as 

authorized under the Order. Proxy 

voting would not be permitted. A 

motion would carry if supported by a 

majority of Board members present. 

The proposed Order would also 

provide for the Board to take action by 

mail, telephone, electronic mail, 

facsimile, or any other electronic means 

when the chairperson believes it is 

necessary. Actions taken under these 

procedures would be valid only if all 

members and the Secretary were 

notified of the meeting and all members 

were provided the opportunity to vote 

and a majority of the members present 

voted in favor of the action. 

Additionally, all votes would have to be 

confirmed in writing and recorded in 

Board minutes. 

Section 1214.45 of the proposed 

Order would specify that Board 

members or committee members would 

serve without compensation. However, 

Board members or committee members 

would be reimbursed for reasonable 

travel expenses, as approved by the 

Board, incurred when performing Board 

business. 

Section 1214.46 of the proposed 

Order would specify powers and duties 

of the Board. These are similar to 

promotion programs authorized under 

the 1996 Act. They include, among 

other things, to administer the Order 

and collect assessments; to develop 

bylaws and recommend regulations 

necessary to administer the Order; to 

select a chairperson and other Board 

officers; to create an executive 

committee and form other committees 

and subcommittees as necessary; to hire 

staff or contractors; to provide 

appropriate notice of meetings to the 

industry and USDA and keep minutes of 

such meetings; to develop programs and 

enter into contracts to implement 

programs; to submit a budget to USDA 

for approval within 60 calendars days 

after assessments are due; to borrow 

funds necessary to cover startup costs of 

the Order; to invest Board funds 

appropriately; to recommend changes in 

the assessment rate as appropriate and 

within the limits of the Order; to have 

its books audited by an outside certified 

public accountant at the end of each 

fiscal period and at other times as 

requested by the Secretary; to report its 

activities to manufacturers for the U.S. 

market; to make public an accounting of 

funds received and expended; to 

receive, investigate and report to the 

Secretary complaints of violations of the 

Order; and to recommend amendments 

to the Order as appropriate. 

Section 1214.47 of the proposed 

Order would specify prohibited 

activities that appear in other promotion 

programs authorized under the 1996 

Act. In summary, neither the Board nor 

its employees and agents could engage 

in actions that would be a conflict of 

interest; use Board funds to lobby 

(influencing legislation or governmental 

action or policy, by local, state, national, 

and foreign governments or 

subdivisions thereof, other than 

recommending to the Secretary 

amendments to the Order); or engage in 

any advertising or activities that may be 

false, misleading or disparaging to 

another agricultural commodity. 

Expenses and Assessments 

Pursuant to sections 516 and 517 of 

the 1996 Act, §§ 1214.50 through 

1214.56 of the proposed Order detail 

requirements regarding the Board’s 

budget and expenses, financial 

statements, assessments, and exemption 

from assessments. Within 60 days after 

assessments are due to the Board, and 

as necessary during the year, the Board 

would submit a budget to USDA 

covering its projected expenses. The 

budget must include a summary of 

anticipated revenue and expenses for 

each program along with a breakdown 

of staff and administrative expenses. 

Except for the initial budget, the Board’s 

budgets should include comparative 

data for at least one preceding fiscal 

period. 

Assessments are due to the Board on 

February 15th of each crop year. 

Providing the Board sixty days after 

assessments are due to develop and 

submit a budget allow enough time for 

the budget to be approved prior to the 

beginning of the fiscal period (August 

1). Also, this allows the Board to have 

knowledge of the monies available to 

develop promotion, research, or 

information programs for the upcoming 

fiscal period. 

Each budget must provide for 

adequate funds to cover the Board’s 

anticipated expenses. Any amendment 

or addition to an approved budget must 

be approved by USDA, including 

shifting of funds from one program, plan 

or project to another. Shifts of funds that 

do not result an increase in the Board’s 

approved budget would not have to 

have prior approval from USDA. For 

example, if the Board’s approved budget 

provided for $1 million in consumer 

advertising and $500,000 in research 

projects, a shift of $50,000 from 

consumer advertising to research would 

require USDA approval. However, a 

shift within the $1 million consumer 

advertising line item would not require 

prior USDA approval. 

The Board would be authorized to 

incur reasonable expenses for its 

maintenance and functioning. During its 

first year of operation, the Board could 

borrow funds for startup costs and 

capital outlay. Any borrowed funds 

would be subject to the same fiscal, 

budget and audit controls as other funds 

of the Board. 

The Board could also accept 

voluntary contributions and seek other 

funding sources to carry out activities 

authorized under the Order. Any 

contributions received by the Board 

would be free from encumbrances by 

the donor and the Board would retain 

control over use of the funds. However, 


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the Board could receive funds from 

outside sources targeted for specific 

authorized projects. For example, the 

Board could receive Federal grant funds, 

subject to approval by the Secretary, for 

a specific research project. The Board 

would also be required to reimburse 

USDA for costs incurred by USDA in 

overseeing the Order’s operations, 

including all costs associated with 

referenda. 

The Board would be limited to 

spending no more than 10 percent of its 

available funds for administration, 

maintenance, and the functioning of the 

Board. Reimbursements to USDA would 

not be considered administrative costs. 

As an example, if the Board received $2 

million in assessments during a fiscal 

period, and had available $500,000 in 

reserve funds, the Board’s available 

funds would be $2,500,000. In this 

scenario, the Board would be limited to 

spending no more than $250,000 (.10 × 

$2.5 million) on administrative costs. 

While section 515 of the 1996 Act limits 

such spending to 15 percent of a board’s 

budget, the Task Force believes that 10 

percent is appropriate. 

The Board could also maintain a 

monetary reserve and carry over excess 

funds from one fiscal period to the next. 

However, such reserve funds could not 

exceed one fiscal period’s budgeted 

expenses. For example, if the Board’s 

budgeted expenses for a fiscal period 

were $2 million, it could carry over no 

more than $2 million in reserve. With 

approval of the Secretary, reserve funds 

could be used to pay expenses. 

The Board could invest its revenue 

collected under the Order in the 

following: (1) Obligations of the United 

States or any agency of the United 

States; (2) general obligations of any 

State or any political subdivision of a 

State; (3) interest bearing accounts or 

certificates of deposit of financial 

institutions that are members of the 

Federal Reserve; and (4) obligations 

fully guaranteed as to principal interest 

by the United States. 

The Board would be required to 

submit to USDA financial statements on 

a quarterly basis, or at any other time as 

requested by the Secretary. Financial 

statements should include, at a 

minimum, a balance sheet, an income 

statement, and an expense budget. 

Assessments 

The Board’s programs and expenses 

would be funded through assessments 

on producers, importers, donations, 

other income, and other funds available 

to the Board. The Order would provide 

for an initial assessment rate of $0.15 

per Christmas tree domestically 

produced or imported into the United 

States. 

This assessment rate will be reviewed 

by the Board after the initial referendum 

is conducted (3 years after assessments 

first begin). The assessment rate cannot 

be changed during the first three years 

of operation of the Order. The 

assessment rate may be increased or 

decreased no more than 2 cents per 

Christmas tree during the fiscal period. 

Any change in the assessment rate 

within this range would be subject to 

rulemaking by the Secretary. The 

assessment rate shall not exceed 20 

cents per Christmas tree, nor shall it be 

less than 10 cents per Christmas tree, 

unless a majority of producers and 

importers approve such other levels of 

assessments through a referendum 

conducted pursuant to this subpart. 

The number of entities assessed under 

the program would be approximately 

3,263. Estimated revenue is expected at 

$2 million of which 10 percent is 

expected from imported product and 90 

percent from domestic product. 

Producers would be required to pay 

their assessments owed to the Board by 

February 15th of each fiscal period. 

Importer assessments would be 

collected through Customs. The Order 

would specify a list of numbers of the 

Harmonized Tariff Schedule of the 

United States that would identify 

Christmas trees subject to assessments. 

If Customs did not collect the 

assessment from an importer, then the 

importer would be responsible for 

paying the assessment directly to the 

Board within 30 calendar days after 

importation. 

The Order would provide authority 

for the Board to impose a late payment 

charge and interest for assessments 

overdue to the Board. The late payment 

charge and rate of interest would be 

prescribed in the Order’s regulations 

issued by the Secretary. 

Exemptions 

The Order would provide for two 

exemptions. First, producers who 

produce domestically less than 500 

Christmas trees or importers that import 

less than 500 Christmas trees during a 

fiscal period would be exempt from 

paying assessments. Producers or 

importers would apply to the Board for 

an exemption prior to the start of the 

fiscal period. This would be an annual 

exemption; entities would have to 

reapply each year. They would have to 

certify that they expect to produce 

domestically or import less than 500 

Christmas trees for the applicable fiscal 

period. The Board could request past 

sales or import data to support the 

exemption request. The Board would 

then issue, if deemed appropriate, a 

certificate of exemption to the eligible 

producer or importer. Once approved, 

producers would not have to pay 

assessments to the Board for the 

applicable fiscal period. Approved 

importers would have their assessments 

as collected by Customs refunded by the 

Board within 60 calendar days after 

receipt of such assessments by the 

Board. No interest would be paid on the 

assessments collected by Customs. 

Producers who did not apply to the 

Board for an exemption and 

domestically produced or imported less 

than 500 Christmas trees during the 

fiscal period would receive a refund 

from the Board for the applicable 

assessments within 30 calendar days 

after the end of the fiscal period. 

Producers who receive an exemption 

certificate but domestically produce or 

import more than 500 Christmas trees 

during the fiscal period would have to 

pay the Board the applicable 

assessments owed within 30 calendar 

days after the end of the fiscal period 

and submit any necessary reports to the 

Board. 

The Board could develop additional 

procedures to administer the exemption 

as appropriate. Such procedures would 

be implemented through rulemaking by 

the Secretary. 

The second exemption under the 

proposed Order would be for organic 

Christmas trees. A producer who 

operates under an approved National 

Organic Program (NOP) (7 CFR part 205) 

system plan, only domestically 

produces Christmas trees that are 

eligible to be labeled as 100 percent 

organic under the NOP, and is not a 

split operation would be exempt from 

payment of assessments. Likewise, an 

importer who imports only Christmas 

trees that is eligible to be labeled as 100 

percent organic under the NOP and who 

does not import any nonorganic 

Christmas trees would be exempt from 

the payment of assessments. 

Refunds 

Pursuant to section 518 of the 1996 

Act, section 1214.54 of the proposed 

Order would specify the refund 

procedures if the initial referendum 

does not pass. The Task Force has 

proposed that the proposed Order be 

voted in a referendum of producers and 

importers three years after assessments 

first begin under the Order. The Board 

shall establish an interest bearing 

escrow account with a financial 

institution that is a member of the 

Federal Reserve System and will deposit 

into such account an amount equal to 10 

percent of the assessments collected 

during the period beginning on the 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
68518 Federal Register / Vol. 75, No. 215 / Monday, November 8, 2010 / Proposed Rules 

effective date of the Order and ending 

on the date the Secretary announces the 

results of the required referendum. 

If the required referendum fails, the 

Board shall promptly pay refunds of 

assessments to all producers and 

importers that have paid assessments 

during the period beginning on the 

effective date of the Order and ending 

on the date the Secretary announces the 

results of the required referendum in the 

manner specified in the proposed Order. 

Producers and importers shall notify the 

Board, in a manner specified by the 

Secretary, within 30 days after the 

announcement of the referendum of 

their demand to receive a refund. 

If the amount deposited in the escrow 

account is less than the amount of all 

refunds that producers and importers 

subject to the Order have a right to 

receive, the Board shall prorate the 

amount deposited in such account 

among all producers and importers who 

desire a refund of assessments paid no 

later than 90 days after the required 

referendum results are announced by 

the Secretary. 

If the proposed Order is approved by 

the required referendum conducted 

under this section, the Board will close 

the escrow account and all funds will be 

available to the Board under section 

1214.50. 

Promotion, Research and Information 

Pursuant to section 516 of the 1996 

Act, §§ 1214.60 through 1214.62 of the 

proposed Order would detail 

requirements regarding promotion, 

research and information projects 

authorized under the Order. The Board 

would develop and submit to the 

Secretary for approval plans and 

programs regarding promotion, research, 

education, and other activities, 

including consumer and industry 

information and advertising designed to, 

among other things, build markets for 

Christmas trees, and enhance the image 

and reputation of Christmas trees. The 

Board would be required to evaluate 

each plan and program to ensure that it 

contributes to an effective promotion 

program. Christmas trees of all origins 

would have to be treated equally by the 

Board, and no program, plan, or project 

could be false, misleading, or disparage 

against another agricultural commodity. 

The Order would also require that, at 

least once every five years, the Board 

fund an independent evaluation of the 

effectiveness of the Order and programs 

conducted by the Board. Finally, the 

Order would specify that any patents, 

copyrights, trademarks, inventions, 

product formulations and publications 

developed through the use of funds 

received by the Board would be the 

property of the U.S. Government, as 

represented by the Board. These along 

with any rents, royalties and the like 

from their use would be considered 

income subject to the same fiscal, 

budget, and audit controls as other 

funds of the Board, and could be 

licensed with approval of the Secretary. 

Reports, Books and Records 

Pursuant to section 515 of the 1996 

Act, §§ 1214.70 through 1214.72 specify 

the reporting and recordkeeping 

requirements under the proposed Order 

as well as requirements regarding 

confidentiality of information. 

Producers and importers would be 

required to submit periodically to the 

Board certain information as the Board 

may request. Specifically, producers 

and importers would submit a report to 

the Board that would include, but not be 

limited to, the producers’ or importers’ 

name and address; the number of trees 

produced or imported; the number of 

Christmas trees on which the 

assessment was paid; and the date the 

assessment was paid. Producers and 

importers would submit this report at 

the same time they remit their 

assessments to the Board. Producers or 

importers who received a certificate of 

exemption from the Board would not 

have to submit such a report to the 

Board. Importers who paid their 

assessments through Customs would not 

have to submit such reports to the Board 

because Customs would collect this 

information upon entry. However, 

exempt producers or importers who 

domestically produced or imported over 

the exemption threshold of 500 

Christmas trees during the fiscal period 

would have to submit such reports to 

the Board with the payment of 

assessments as specified in § 1214.53. 

The Board would have the flexibility 

to request additional information from 

producers and importers as deemed 

appropriate to administer the Order. 

Additionally, producers and importers, 

including those who were exempt, 

would be required to maintain books 

and records needed to verify any 

required reports. Such books and 

records must be made available during 

normal business hours for inspection by 

the Board’s or USDA’s employees or 

agents. Producers and importers would 

be required to maintain such books and 

records for two years beyond the 

applicable fiscal period. 

The Order would also require that all 

information obtained from persons 

subject the Order as a result of proposed 

recordkeeping and reporting 

requirements would be kept 

confidential by all officers, employees, 

and agents of the Board and USDA. 

Such information could only be 

disclosed if the Secretary considered it 

relevant, and the information were 

revealed in a judicial proceeding or 

administrative hearing brought at the 

direction or at the request of the 

Secretary or to which the Secretary or 

any officer of USDA were a party. Other 

exceptions for disclosure of confidential 

information would include the issuance 

of general statements based on reports 

or on information relating to a number 

of persons subject to the Order, if the 

statements did not identify the 

information furnished by any person, or 

the publication, by direction of the 

Secretary, of the name of any person 

violating the Order and a statement of 

the particular provisions of the Order 

violated. 

Miscellaneous Provisions 

Referenda 

Pursuant to section 518 of the 1996 

Act, § 1214.81(a)(1) of the proposed 

Order specifies that the program would 

be implemented and a referendum 

conducted three years after assessments 

first begin under the Order. The Order 

would not continue unless it is 

approved by a majority of those persons 

voting in the referendum for approval. 

Section 1214.81(b) of the proposed 

Order specifies criteria for subsequent 

referenda. Under the Order, a 

referendum would be held to ascertain 

whether the program should continue, 

be amended, or be terminated. This 

section specifies that a referendum 

would be held every seven years to 

determine whether producers and 

importers favor continuation of the 

Order. The Order would continue if 

favored by a majority of producers and 

importers voting in the referendum. 

Additionally, a referendum could be 

conducted at the request of the Board. 

A referendum could also be conducted 

at the request of 10 percent or more of 

the number of persons eligible to vote in 

a referendum under the Order. Finally, 

a referendum could be conducted at any 

time as determined by the Secretary. 

Other Miscellaneous Provisions 

Section 1214.80 and §§ 1214.82 

through 1214.88 describe the rights of 

the Secretary; authorize the Secretary to 

suspend or terminate the Order when 

deemed appropriate; prescribe 

proceedings after termination; address 

personal liability, separability, and 

amendments; and provide OMB control 

numbers. These provisions are common 

to all research and promotion programs 

authorized under the 1996 Act. 


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Initial Regulatory Flexibility Act 

Analysis 

In accordance with the Regulatory 

Flexibility Act (RFA) (5 U.S.C. 601– 

612), AMS is required to examine the 

impact of the proposed rule on small 

entities. Accordingly, AMS has 

considered the economic impact of this 

action on small entities. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

businesses subject to such actions so 

that small businesses will not be 

disproportionately burdened. The Small 

Business Administration defines, in 13 

CFR part 121, small agricultural 

producers as those having annual 

receipts of no more than $750,000 and 

small agricultural service firms 

(producers and importers) as those 

having annual receipts of no more than 

$7.0 million. 

Under these criteria, the majority of 

the producers that would be affected by 

this Proposed Order would be 

considered small entities, while most 

importers would not. Producers and 

importers who domestically produce or 

imported less than 500 Christmas trees 

annually would be exempt from the 

assessment. Organic producers and 

importers also would be exempt from 

assessments. The number of entities 

assessed under the program would be 

approximately 3,263. Estimated revenue 

is expected at $2 million of which 10 

percent is expected from imported 

product and 90 percent from domestic 

product. 

According to the Task Force, based on 

data from the 2007 Census of 

Agriculture, there were approximately 

12,255 Christmas tree farms that 

produced Christmas trees in the United 

States. Approximately 25 percent of the 

producers, or 3,100 Christmas tree 

producers, would be subject to the 

assessment based on the exemption of 

those producing less than 500 trees 

would be exempt from assessments. 

Approximately 95 percent of these 

producers subject to the assessment 

would be considered small entities 

under SBA criteria. During 2007, 47 out 

of 50 States produced Christmas trees in 

the United States. Oregon, Michigan, 

Wisconsin, North Carolina, and 

Pennsylvania together produced more 

than 75 percent of the trees produced in 

2007. In 2008, there were approximately 

200 importers. Based on the 2008 U.S. 

Customs data, 163 importers that 

imported more than 500 Christmas trees 

would be subject to the assessment rate 

under the proposed Order. 

This proposed rule invites comments 

on a proposed industry-funded research, 

promotion, and information program for 

fresh cut Christmas trees. The program 

would be financed by an assessment on 

Christmas tree producers and importers 

and would be administered by a board 

of industry members selected by the 

Secretary. The initial assessment rate 

would be $0.15 per Christmas tree 

domestically produced or imported to 

the United States and could be 

increased to $0.20 per Christmas tree. 

Entities that domestically produce or 

import less than 500 Christmas trees 

within a crop year would be exempt. 

The purpose of the program would be to 

strengthen the position of Christmas 

trees in the marketplace, and maintain 

and expand markets for Christmas trees. 

A referendum would be held among 

eligible producers and importers to 

determine whether they favor 

implementation of the program three 

years after the first assessments begin. 

The Order would continue if favored by 

a majority of producers and importers 

voting in the referendum. The program 

is authorized under the 1996 Act. 

Regarding the economic impact of the 

proposed Order on affected entities, 

Christmas tree producers and importers 

would be required to pay assessments to 

the Board. As previously mentioned, the 

initial assessment rate would be $0.15 

per Christmas tree domestically 

produced or imported to the United 

States and could be increased to no 

more than $0.20 per Christmas tree. 

Regarding the impact on the industry 

as a whole, the proposed program is 

expected to help stabilize prices and 

grow demand for fresh cut Christmas 

trees. The Christmas tree industry hopes 

to achieve a stable funding base to 

promote Christmas now and into the 

future. 

Regarding alternatives, the Christmas 

tree industry has already considered 

and implemented voluntary programs, 

but based on past experience, these 

programs only worked in the short term; 

until monies were depleted. 

This action would impose additional 

reporting and recordkeeping burden on 

producers and importers of fresh cut 

Christmas trees. Producers and 

importers interested in serving on the 

Board may be asked to submit a 

nomination form to the Board indicating 

their desire to serve or nominating 

another industry member to serve on the 

Board. Interested persons would also 

submit a background statement 

outlining their qualifications to serve on 

the Board. Producers and importers 

would have the opportunity to cast a 

ballot and vote for candidates to serve 

on the Board. Producer and importer 

nominees to the Board would have to 

submit a background form to the 

Secretary to ensure they are qualified to 

serve on the Board. 

Additionally, producers and 

importers who domestically produce or 

import less than 500 Christmas trees 

annually could submit a request to the 

Board for an exemption from paying 

assessments on this volume. Producers 

and importers also would report 

regarding their sales/imports that would 

accompany their assessments paid to 

the Board. Producers and importers who 

would qualify as 100 percent organic 

under the NOP could submit a request 

to the Board for an exemption from 

assessments. 

Finally, producers and importers who 

wanted to participate in a referendum to 

vote on whether the Order should 

continue would have to complete a 

ballot for submission to the Secretary. 

These forms are being submitted to 

OMB for approval under OMB Control 

No. 0581–NEW. Specific burdens for the 

forms are detailed later in this 

document in the section titled 

Paperwork Reduction Act. As with all 

Federal promotion programs, reports 

and forms are periodically reviewed to 

reduce information requirements and 

duplication by industry and public 

sector agencies. Finally, USDA has not 

identified any relevant Federal rules 

that duplicate, overlap, or conflict with 

this proposed rule. 

AMS is committed to complying with 

the E-Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

Regarding outreach efforts, as 

previously mentioned, the Task Force 

conducted sessions throughout the 

United Sates in different States and 

regions. These were held in conjunction 

with regional and state organization 

meetings. Approximately 50 sessions 

were held across the United States. 

Input regarding the proposed program 

was incorporated into the Task Force’s 

proposal. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

chapter 35), AMS announces its 

intention to request an approval of a 

new information collection and 

recordkeeping requirements for the 

proposed Christmas tree program. 

Title: Research and Promotion 

Background Information. 

OMB Number for background form 

AD–755: (Approved under OMB No. 

0505–0001). 

Expiration Date of Approval: 

Awaiting renewal. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS
68520 Federal Register / Vol. 75, No. 215 / Monday, November 8, 2010 / Proposed Rules 

Title: National Research, Promotion, 

and Consumer Information Programs. 

OMB Number: 0581–NEW. 

Expiration Date of Approval: 

7/31/2012. 

Type of Request: New information 

collection for research and promotion 

programs. 

Abstract: The information collection 

requirements in the request are essential 

to carry out the intent of the 1996 Act. 

The information collection concerns a 

proposal received by USDA for a 

national research and promotion 

program for the Christmas tree industry. 

The program would be financed by an 

assessment on Christmas tree producers 

and importers and would be 

administered by a board of industry 

members selected by the Secretary. The 

program would provide for an 

exemption for producers and importers 

that domestically produce or import less 

than 500 Christmas trees during the 

year. A referendum would be held 

among eligible producers and importers 

to determine whether they favor 

continuation of the program three years 

after assessments first begin. The 

purpose of the program would be to 

help increase demand for fresh cut 

Christmas trees. 

In summary, the information 

collection requirements under the 

program concern Board nominations, 

refunds of assessments, exemption 

applications, and the collection of 

assessments. For Board nominations, 

producers and importers interested in 

serving on the Board would be asked to 

submit a ‘‘Nomination Form’’ to the 

Board indicating their desire to serve or 

to nominate another industry member to 

serve on the Board. Producers and 

importers would have the opportunity 

to submit a ‘‘Nomination Ballot’’ to the 

Board where they would vote for 

candidates to serve on the Board. 

Nominees would also have to submit a 

background information form, ‘‘AD– 

755,’’ to the Secretary to ensure they are 

qualified to serve on the Board. 

Regarding assessments, producers and 

importers who domestically produce or 

import less than 500 Christmas trees 

annually could submit a request, 

‘‘Application for Exemption from 

Assessments,’’ to the Board for an 

exemption from paying assessments. 

Producers and importers may be asked 

to submit a ‘‘Sales/Import Report’’ that 

would accompany their assessments 

paid to the Board and report the 

quantity of Christmas trees domestically 

produced or imported during the 

applicable period, the quantity for 

which assessments were paid, and the 

port of entry (for imports). As 

previously mentioned, the majority of 

importer assessments would be 

collected by Customs. Customs would 

remit the funds to the Board along with 

this information. Finally, producers and 

importers who would qualify as 100 

percent organic under the NOP could 

submit an ‘‘Organic Exemption Form’’ to 

the Board and request an exemption 

from assessments. 

Producers and importers would also 

file a form to request a refund of 

assessments paid if the referendum fails 

to pass. A referendum is proposed to be 

conducted three years after the 

assessments first begin to determine if 

producers and importers favor the 

continuance of the Order. 

There would also be an additional 

burden on producers and importers 

voting in referenda. The referendum 

ballot, which represents the information 

collection requirement relating to 

referenda, is addressed in a proposed 

rule on referendum procedures which is 

published separately in this issue of the 

Federal Register. 

Information collection requirements 

that are included in this proposal 

include: 

(1) Background Information Form AD– 

755 (OMB Form No. 0505–0001) 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.5 hour per application. 

Respondents: Producers and 

importers. 

Estimated Number of Respondents: 8 

(24 for initial nominations to the Board, 

8 in subsequent years). 

Estimated Number of Responses per 

Respondent: 1 every 3 years (0.3). 

Estimated Total Annual Burden on 

Respondents: 12 hours for the initial 

nominations to the Board and 4 hours 

annually thereafter. 

(2) Sales/Import Report by Each 

Producer or Importer of Christmas Trees 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 0.5 hours per 

producer reporting on Christmas trees 

produced. 

Respondents: Producers and 

importers. 

Estimated Number of Respondents: 

3,110. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 1,555 hours. 

(3) An Exemption Application for 

Producers and Importers Who Are 

Exempt From Assessments 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 0.25 hours per 

producers or importer reporting on 

Christmas trees sold or imported. Upon 

approval of an application, producers 

and importers will receive exemption 

certification. 

Respondents: Exempt producers and 

importers. 

Estimated Number of Respondents: 

9,192. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 2,298 hours. 

(4) Application for Reimbursement of 

Assessment 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 0.25 hours per 

request for reimbursement. 

Respondents: Importers. 

Estimated Number of Respondents: 

37. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 9.25 hours. 

(5) A Requirement To Maintain Records 

Sufficient To Verify Reports Submitted 

Under the Order 

Estimate of Burden: Public 

recordkeeping burden for keeping this 

information is estimated to average 0.5 

hours per recordkeeper maintaining 

such records. 

Recordkeepers: Producers and 

importers. 

Estimated Number of Recordkeepers: 

12,455. 

Estimated Total Recordkeeping 

Hours: 6,227.5 hours. 

(6) Nomination Form 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.25 hours per application. 

Respondents: Producers and 

importers. 

Estimated Number of Respondents: 

40. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 10.00 hours. 

(7) Background Statement 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.25 hour per application. 

Respondents: Producers and 

importers. 

Estimated Number of Respondents: 

40. 

Estimated Number of Responses per 

Respondent: 1. 


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Estimated Total Annual Burden on 

Respondents: 10.00. 

(8) Nomination Ballot 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.25 hours per application. 

Respondents: Producers and 

importers. 

Estimated Number of Respondents: 

1,200. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 300 hours. 

(9) Organic Exemption Form 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.5 hours per exemption form. 

Respondents: Producers and 

importers. 

Estimated Number of Respondents: 5. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 2.5 hours. 

(10) Application for Refund Form 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

0.5 hours per refund form. 

Respondents: Producers, importers 

and organic producers and importers. 

Estimated Number of Respondents: 

325. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 162.5. 

As noted above, under the proposed 

program, producers and importers 

would be required to pay assessments 

and file reports with and submit 

assessments to the Board (importers 

through Customs). While the proposed 

Order would impose certain 

recordkeeping requirements on 

producers and importers, information 

required under the proposed Order 

could be compiled from records 

currently maintained. Such records 

shall be retained for at least two years 

beyond the marketing year of their 

applicability. 

An estimated 12,455 respondents 

would provide information to the Board 

(12,255 producers and 200 importers). 

The estimated cost of providing the 

information to the Board by respondents 

would be $348,975. This total has been 

estimated by multiplying 10,575 total 

hours required for reporting and 

recordkeeping by $33, the average mean 

hourly earnings of various occupations 

involved in keeping this information. 

Data for computation of this hourly rate 

was obtained from the U.S. Department 

of Labor Statistics. 

The proposed Order’s provisions have 

been carefully reviewed, and every 

effort has been made to minimize any 

unnecessary recordkeeping costs or 

requirements, including efforts to utilize 

information already submitted under 

other programs administered by USDA 

and other state programs. 

The proposed forms would require 

the minimum information necessary to 

effectively carry out the requirements of 

the program, and their use is necessary 

to fulfill the intent of the 1996 Act. Such 

information can be supplied without 

data processing equipment or outside 

technical expertise. In addition, there 

are no additional training requirements 

for individuals filling out reports and 

remitting assessments to the Board. The 

forms would be simple, easy to 

understand, and place as small a burden 

as possible on the person required to file 

the information. 

Collecting information quarterly 

would coincide with normal industry 

business practices. The timing and 

frequency of collecting information are 

intended to meet the needs of the 

industry while minimizing the amount 

of work necessary to fill out the required 

reports. The requirement to keep 

records for two years is consistent with 

normal industry practices. In addition, 

the information to be included on these 

forms is not available from other sources 

because such information relates 

specifically to individual producers and 

importers who are subject to the 

provisions of the 1996 Act. Therefore, 

there is no practical method for 

collecting the required information 

without the use of these forms. 

Request for Public Comment Under the 

Paperwork Reduction Act 

Comments are invited on: (a) Whether 

the proposed collection of information 

is necessary for the proper performance 

of functions of the proposed Order and 

USDA’s oversight of the proposed 

Order, including whether the 

information would have practical 

utility; (b) the accuracy of USDA’s 

estimate of the burden of the proposed 

collection of information, including the 

validity of the methodology and 

assumptions used; (c) the accuracy of 

USDA’s estimate of the principal 

producing areas in the United States for 

Christmas trees; (d) the accuracy of 

USDA’s estimate of the number of 

producers and importers of Christmas 

trees that would be covered under the 

program; (e) ways to enhance the 

quality, utility, and clarity of the 

information to be collected; and (f) ways 

to minimize the burden of the collection 

of information on those who are to 

respond, including the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology. 

Comments concerning the 

information collection requirements 

contained in this action should 

reference OMB No. 0581–NEW. In 

addition, the docket number, date, and 

page number of this issue of the Federal 

Register also should be referenced. 

Comments should be sent to the same 

addresses referenced in the ADDRESSES

section of this proposed rule. 

OMB is required to make a decision 

concerning the collection of information 

contained in this proposed rule between 

30 and 60 days after publication. 

Therefore, a comment to OMB is best 

assured of having its full effect if OMB 

receives it within 30 days of 

publication. 

USDA made modifications to the 

proponent’s proposal to conform with 

other similar national research and 

promotion programs implemented 

under the 1996 Act. 

While the proposal set forth below 

has not received the approval of USDA, 

it is determined that this proposed 

Order is consistent with and would 

effectuate the purposes of the 1996 Act. 

A 90-day comment period is provided 

to allow interested persons to respond 

to this proposal. All written comments 

received in response to this proposed 

rule by the date specified will be 

considered prior to finalizing this 

action. 

List of Subjects in 7 CFR Part 1214 

Administrative practice and 

procedure, Advertising, Consumer 

information, Marketing agreements, 

Christmas trees promotion, Reporting 

and recordkeeping requirements. 

For the reasons set forth in the 

preamble, it is proposed that Title 7, 

Chapter XI of the Code of Federal 

Regulations be amended by adding part 

1214 to read as follows: 

PART 1214—CHRISTMAS TREE 

PROMOTION, RESEARCH, AND 

INFORMATION ORDER 

Subpart A—Christmas Tree Promotion, 

Research, and Information Order 

Definitions 

Sec. 

1214.1 Act. 

1214.2 Board. 

1214.3 Christmas tree. 

1214.4 Conflict of interest. 

1214.5 Crop year. 

1214.6 Customs. 


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1214.7 Department. 

1214.8 Fiscal period. 

1214.9 Importer. 

1214.10 Information. 

1214.11 Marketing. 

1214.12 Order. 

1214.13 Part and subpart. 

1214.14 Person. 

1214.15 Programs, plans, and projects. 

1214.16 Produce. 

1214.17 Producer. 

1214.18 Promotion. 

1214.19 Research. 

1214.20 Secretary. 

1214.21 State. 

1214.22 Suspend. 

1214.23 Terminate. 

1214.24 United States. 

Christmas Tree Promotion Board 

1214.40 Establishment and membership. 

1214.41 Nominations and appointments. 

1214.42 Term of office. 

1214.43 Vacancies. 

1214.44 Procedure. 

1214.45 Compensation and reimbursement. 

1214.46 Powers and duties. 

1214.47 Prohibited activities. 

Expenses and Assessments 

1214.50 Budget and expenses. 

1214.51 Financial statements. 

1214.52 Assessments. 

1214.53 Exemption from and refunds of 

assessments. 

1214.54 Refund escrow accounts. 

1214.55 Refunds. 

1214.56 Procedures for obtaining a refund. 

Promotion, Research, and Information 

1214.60 Programs, plans, and projects. 

1214.61 Independent evaluation. 

1214.62 Patents, copyrights, trademarks, 

information, publications, and product 

formulations. 

Reports, Books, and Records 

1214.70 Reports. 

1214.71 Books and records. 

1214.72 Confidential treatment. 

Miscellaneous 

1214.80 Right of the Secretary. 

1214.81 Referenda. 

1214.82 Suspension and termination. 

1214.83 Proceedings after termination. 

1214.84 Effect of termination or 

amendment. 

1214.85 Personal liability. 

1214.86 Separability. 

1214.87 Amendments. 

1214.88 OMB control numbers. 

Subpart B—[Reserved] 

Authority: 7 U.S.C. 7411–7425; 7 U.S.C. 

7401. 

Subpart A—Christmas Tree Promotion, 

Research, and Information Order 

Definitions 

§ 1214.1 Act. 

Act means the Commodity Promotion, 

Research, and Information Act of 1996 

(7 U.S.C. 7411–7425), and any 

amendments thereto. 

§ 1214.2 Board. 

Board or the Christmas Tree 

Promotion Board means the 

administrative body established 

pursuant to § 1214.40. 

§ 1214.3 Christmas tree. 

Christmas tree means any tree of the 

coniferous species, that is severed or cut 

from its roots and marketed as a 

Christmas tree for holiday use. 

§ 1214.4 Conflict of interest. 

Conflict of interest means a situation 

in which a member or employee of the 

Board has a direct or indirect financial 

interest in a person who performs a 

service for, or enters into a contract 

with, the Board for anything of 

economic value. 

§ 1214.5 Crop year. 

Crop year means the period August 1 

through July 31. 

§ 1214.6 Customs. 

Customs means the United States 

Customs and Border Protection or U.S. 

Customs Service, an agency of the 

United States Department of Homeland 

Security. 

§ 1214.7 Department. 

Department means the United States 

Department of Agriculture or any officer 

or employee of the Department to whom 

authority has heretofore been delegated, 

or to whom authority may hereafter be 

delegated, to act in the Secretary’s stead. 

§ 1214.8 Fiscal period. 

Fiscal period means the period 

August 1 through July 31. 

§ 1214.9 Importer. 

Importer means any person importing 

Christmas trees into the United States in 

a fiscal period as a principal or as an 

agent, broker, or consignee of any 

person who domestically produces 

Christmas trees outside of the United 

States for sale in the United States, and 

who is listed in the import records as 

the importer of record for such 

Christmas trees. 

§ 1214.10 Information. 

Information means information, 

program, and activities that are designed 

to increase efficiency in processing, 

enhance the development of new 

markets and marketing strategies, 

increase market efficiency, and enhance 

the image of Christmas trees and the 

Christmas tree industry in the United 

States. 

§ 1214.11 Marketing. 

Marketing means to sell or otherwise 

dispose of Christmas trees in interstate, 

foreign or intrastate commerce. 

§ 1214.12 Order. 

Order means an order issued by the 

Secretary under section 514 of the Act 

that provides for a program of generic 

promotion, research, and information 

regarding agricultural commodities 

authorized under the Act. 

§ 1214.13 Part and subpart. 

Part means the Christmas Tree 

Promotion, Research, and Information 

Order and all rules, regulations, and 

supplemental orders issued pursuant to 

the Act and the Order. The Order shall 

be a subpart of such part. 

§ 1214.14 Person. 

Person means any individual, group 

of individuals, partnership, corporation, 

association, cooperative, or any other 

legal entity. 

§ 1214.15 Programs, plans, and projects. 

Programs, plans and projects mean 

those research, promotion and 

information programs, plans, or projects 

established pursuant to this Order. 

§ 1214.16 Produce. 

Produce means to engage in the 

cutting and selling of Christmas trees for 

the holiday market. 

§ 1214.17 Producer. 

Producer means any person who is 

engaged in the production of Christmas 

trees in the United States, and who 

owns, or shares the ownership and risk 

of loss of the production of Christmas 

trees or a person who is engaged in the 

business of producing, or causing to be 

domestically produced, Christmas trees 

beyond personal use and having value 

at first point of sale. 

§ 1214.18 Promotion. 

Promotion means any action, 

including paid advertising and public 

relations that presents a favorable image 

of Christmas trees to the general public 

with the intent of improving the 

perception and competitive position of 

Christmas trees and stimulating sales of 

Christmas trees. 

§ 1214.19 Research. 

Research means any type of test, 

systematic study, study, investigation, 

analysis and/or evaluation designed to 

advance the image, desirability, use, 

marketability, quality, product 

development, or production of 

Christmas trees, including but not 

limited to research related to cost of 

production, market development, 

testing the effectiveness of market 

development and promotional efforts, 

new species of Christmas trees and 

environmental issues relating to the 

Christmas tree industry. 


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§ 1214.20 Secretary. 

Secretary means the Secretary of 

Agriculture of the United States, or any 

officer or employee of the Department to 

whom authority has been delegated, or 

to whom authority may be delegated, to 

act in the Secretary’s stead. 

§ 1214.21 State. 

State means any of the several 50 

States of the United States, the District 

of Columbia, the Commonwealth of 

Puerto Rico, and the territories and 

possessions of the United States. 

§ 1214.22 Suspend. 

Suspend means to issue a rule under 

section 553 of title 5 U.S.C. to 

temporarily prevent the operation of an 

order or part thereof during a particular 

period of time specified in the rule. 

§ 1214.23 Terminate. 

Terminate means to issue a rule under 

section 553 of title 5 U.S.C. to cancel 

permanently the operation of an order 

or part thereof beginning on a certain 

date specified in the rule. 

§ 1214.24 United States. 

United States means collectively the 

50 states, the District of Columbia, the 

Commonwealth of Puerto Rico, and the 

territories and possessions of the United 

States. 

Christmas Tree Promotion Board 

§ 1214.40 Establishment and membership. 

(a) Establishment of the Christmas 

Tree Promotion Board. There is hereby 

established a Christmas Tree Promotion 

Board, composed of no more than 

twelve (12) members as follows: 

(1) Producer members from each of 

the following regions: 

(i) Five producer members from 

Region #1—Western Region (states from 

the Pacific Ocean east to the Rocky 

Mountains): Alaska, Arizona, California, 

Colorado, Hawaii, Idaho, Montana, 

Nevada, New Mexico, Oregon, Utah, 

Washington, Wyoming and all U.S. 

Territories located in the Pacific Ocean. 

(ii) Two producer members from 

Region #2—Central Region (states east 

of the Rocky Mountains to the Great 

Lakes): Arkansas, Illinois, Indiana, Iowa, 

Kansas, Michigan, Minnesota, Missouri, 

Nebraska, North Dakota, Ohio, 

Oklahoma, South Dakota, Texas, and 

Wisconsin. 

(iii) Four producer members from 

Region #3—Eastern Region (states east 

of the Great Lakes): Alabama, 

Connecticut, Delaware, Florida, Georgia, 

Kentucky, Louisiana, New York, Maine, 

Maryland, Massachusetts, Mississippi, 

New Hampshire, New Jersey, North 

Carolina, Pennsylvania, Rhode Island, 

South Carolina, Tennessee, Virginia, 

Vermont, Washington, D.C., West 

Virginia, and all U.S. Territories located 

in the Atlantic Ocean and Caribbean 

Sea, including but not limited to Puerto 

Rico. 

(2) One Importer member. 

(b) Adjustment of membership. At 

least once every five years upon 

implementation of the Order, but not 

more frequently than once every three 

years, the Board will review the 

geographic distribution of United States 

production of Christmas trees and the 

quantity and source of Christmas tree 

imports. The review will be conducted 

through State crop production figures 

and Board assessment records, 

including the amount of assessments 

collected from importers, or other 

government data. If warranted, the 

Board will recommend to the Secretary 

that membership on the Board be 

altered to reflect any changes in 

geographic distribution of domestic 

Christmas tree production and the 

quantity of imports. Provided, that there 

shall be at least one importer member 

on the Board. Such adjustments shall 

not increase the total number of Board 

members. The adjustments to the Board 

membership would be submitted to the 

Secretary by Board recommendation 

and be implemented by the Secretary 

through rulemaking. 

§ 1214.41 Nominations and appointments. 

(a) Voting for producer members will 

be made by mail ballot, electronic mail, 

in person, or by facsimile. 

(b) Nominations for the initial Board 

will be conducted by the Department. 

Subsequent nominations will be 

conducted by the Board. 

(c) The Board shall outreach to all 

segments of the Christmas tree industry 

and solicit nominations as described in 

paragraphs (d) and (e) of this section. 

Nominees must domestically produce or 

import more than 500 Christmas trees 

during the most recent fiscal period. 

(d) Nomination of producer members 

will be conducted by the Board. The 

Board staff will seek nominations for 

each vacant producer seat from each 

region from producers who have paid 

their assessments to the Board in the 

most recent fiscal period. Producers 

who produce Christmas trees in more 

than one region may seek nomination 

only in the region in which they 

produce the majority of their Christmas 

trees. For selection to the initial Board, 

the Secretary would notify producers to 

request nominations to the Board. 

Subsequent nominations will be 

submitted to the Board office and placed 

on a ballot that will be sent to producers 

in each region for a vote. Producers who 

produce Christmas trees in more than 

one region may only vote in the region 

in which they produce the majority of 

their Christmas trees. The nominee 

receiving the highest number of votes 

and the nominee receiving the second 

highest number of votes shall be 

submitted to the Department as the 

producers’ first and second choice 

nominees. The Board shall submit 

nominations to the Secretary not less 

than 90 days prior to the expiration of 

the term of office. 

(e) Nominations for the importer 

member(s) will be conducted by the 

Board. The Board will solicit importer 

nominations from those importers who 

have paid their assessments to the Board 

in the most recent fiscal period. For 

selection to the initial Board, the 

Secretary would notify importers to 

request nominations to the Board. 

Subsequent nominations will be 

submitted to the Board office and placed 

on a ballot that will be sent to importers 

for a vote. The Board shall submit those 

nominations to the Secretary not less 

than 90 days prior to the expiration of 

the term of office. Two nominees for 

each importer position will be 

submitted to the Secretary for 

consideration. 

(f) From the nominations, the 

Secretary shall select the members of 

the Board for each position on the 

Board. Members will serve until their 

successors have been appointed by the 

Secretary. 

§ 1214.42 Term of office. 

Board members will serve for a term 

of three years and be able to serve a 

maximum of two consecutive three-year 

terms. When the Board is first 

established, the members will be 

assigned initial terms of two, three, and 

four years. Initial terms will be 

staggered to assure continuity of the 

Board. The term of office will begin on 

January 1 and conclude on December 

31. Members serving the initial term of 

two and four years will be eligible to 

serve a second term of three years. 

Thereafter, each of the positions will 

carry a full three year term. Board 

members shall serve during the term of 

office for which they have been 

appointed and qualified, and until their 

successors are appointed and have 

qualified. 

§ 1214.43 Vacancies. 

(a) In the event that any member of 

the Board ceases to be a member of the 

category of membership from which the 

member was appointed to the Board, 

such position shall automatically 

become vacant. 


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(b) If a member of the Board 

consistently refuses to perform the 

duties of a member of the Board, or if 

a member of the Board engages in acts 

of dishonesty or willful misconduct, the 

Board may recommend to the Secretary 

that the member be removed from office. 

If the Secretary finds the 

recommendation of the Board shows 

adequate cause, the Secretary may 

remove such member from office. 

Further, without recommendation of the 

Board, a member may be removed by 

the Secretary upon showing of adequate 

cause, including the failure by a 

member to submit reports or remit 

assessments required under this part, if 

the Secretary determines that such 

member’s continued service would be 

detrimental to the achievement of the 

purposes of the Act. 

(c) Should any member position 

become vacant, successors for the 

unexpired terms of such member shall 

be appointed in the manner specified in 

§ 1214.41. A vacancy will not be 

required to be filled if the unexpired 

term is less than six months. 

§ 1214.44 Procedure. 

(a) At a Board meeting, it will be 

considered a quorum when a majority of 

the Board members is present. 

(b) All Board members will receive a 

minimum of 14 days advance notice of 

all Board and committee meetings, 

except when emergency circumstances 

exist and meetings need to be held prior 

to the advance notice. 

(c) Each member of the Board will be 

entitled to one vote on any matter put 

to the Board. For any action of the Board 

to pass, at least a majority of the Board 

members present must vote in support 

of such action. 

(d) The Board may appoint 

committees as necessary. It will be 

considered a quorum at a committee 

meeting when at least a majority of 

those appointed to the committee are 

present. Committees may consist of 

persons other than Board members, and 

such persons may vote in committee 

meetings as the Board shall determine. 

These committee members shall serve 

without compensation, but shall be 

reimbursed for reasonable travel 

expenses, as approved by the Board. 

(e) In lieu of voting at a properly 

convened meeting, and when, in the 

opinion of the Board’s chairperson, such 

action is considered necessary, the 

Board may take action by mail, 

telephone, electronic mail, facsimile, or 

any other means of communication. 

Any action taken under this procedure 

is valid only if: 

(1) All members and the Secretary are 

notified and the members are provided 

the opportunity to vote; 

(2) A majority of the members vote in 

favor of the action; and 

(3) All votes are promptly confirmed 

in writing and recorded in the Board 

minutes. 

(f) There shall be no voting by proxy. 

(g) The chairperson shall be a voting 

member. 

§ 1214.45 Compensation and 

reimbursement. 

The members of the Board shall serve 

without compensation but shall be 

reimbursed for reasonable travel 

expenses, as approved by the Board, 

incurred by them in the performance of 

their duties as Board members. 

§ 1214.46 Powers and duties. 

The Board shall have the following 

powers and duties: 

(a) To administer the Order in 

accordance with its terms and 

conditions and to collect assessments; 

(b) To develop and recommend to the 

Secretary for approval such bylaws as 

may be necessary for the functioning of 

the Board, and such rules as may be 

necessary to administer the Order, 

including activities authorized to be 

carried out under the Order; 

(c) To meet, organize, and select from 

among the members of the Board a 

chairperson, other officers, committees, 

and subcommittees, as the Board 

determines to be appropriate, provided 

that the committee and subcommittee 

members may also include individuals 

other than Board members; 

(d) To notify producers and importers 

of all Board meetings through press 

releases or other means; 

(e) To give the Secretary the same 

notice of meetings of the Board and 

committees as is given to members, 

including committee members if 

committee members are not members of 

the Board, in order that the Secretary’s 

representative(s) may attend such 

meetings, and to keep and report 

minutes of each meeting of the Board 

and all committees to the Secretary; 

(f) To appoint and convene, from time 

to time, committees that may include 

importers, exporters, producers or other 

members of the Christmas tree industry 

and public to assist in the development 

of research, promotion, advertising, and 

information programs for Christmas 

trees; 

(g) To employ persons, other than 

members, as the Board considers 

necessary to assist the Board in carrying 

out its duties and to determine the 

compensation and specify the duties of 

such persons; 

(h) To act as intermediary between the 

Secretary and any producer or importer; 

(i) To furnish to the Secretary any 

information or records that the Secretary 

may request; 

(j) To receive, investigate, and report 

to the Secretary complaints of violations 

of the Order; 

(k) To maintain such records and 

books and prepare and submit such 

reports and records from time to time to 

the Secretary as the Secretary may 

require and to make the records 

available to the Secretary for inspection 

and audit; to make appropriate 

accounting with respect to the receipt 

and disbursement of all funds entrusted 

to it; and to keep records that accurately 

reflect the actions and transactions of 

the Board; 

(l) To recommend to the Secretary 

such amendments to the Order as the 

Board considers appropriate; 

(m) To develop and carry out generic 

promotion, research, and information 

activities relating to Christmas trees; 

(n) To work to achieve an effective, 

continuous, and coordinated program of 

promotion, research, evaluation, and 

information designed to strengthen the 

Christmas tree industry’s position in the 

marketplace; maintain and expand 

existing markets for Christmas trees; and 

to carry out programs, plans, and 

projects designed to provide maximum 

benefits to the Christmas tree industry; 

(o) To develop programs, plans, and 

projects, and enter into contracts or 

agreements, which must be approved by 

the Secretary before becoming effective, 

for the development and carrying out of 

programs or projects of research, 

information, or promotion, and the 

payment of costs thereof with funds 

collected pursuant to this subpart. Each 

contract or agreement shall provide that 

any person who enters into a contract or 

agreement with the Board shall develop 

and submit to the Board a proposed 

activity; keep accurate records of all of 

its transactions relating to the contract 

or agreement; account for funds 

received and expended in connection 

with the contract or agreement; make 

periodic reports to the Board of 

activities conducted under the contract 

or agreement; and make such other 

reports available as the Board or the 

Secretary considers necessary. Any 

contract or agreement shall provide that: 

(1) The contractor or agreeing party 

shall develop and submit to the Board 

a program, plan, or project together with 

a budget or budgets that shall show the 

estimated cost to be incurred for such 

program, plan, or project; 

(2) The contractor or agreeing party 

shall keep accurate records of all its 

transactions and make periodic reports 


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to the Board of activities conducted, 

submit accounting for funds received 

and expended, and make such other 

reports as the Secretary or the Board 

may require; 

(3) The Secretary may audit the 

records of the contracting or agreeing 

party periodically; and 

(4) Any subcontractor who enters into 

a contract with a Board contractor and 

who receives or otherwise uses funds 

allocated by the Board shall be subject 

to the same provisions as the contractor; 

(p) To prepare and submit for 

approval of the Secretary, within 60 

days after assessments are due to the 

Board, rates of assessment and a fiscal 

period budget of the anticipated 

expenses to be incurred in the 

administration of the Order, in 

accordance with § 1214.50; 

(q) To borrow funds necessary for the 

startup expenses of the order; 

(r) To invest assessments collected 

under this part in accordance with 

§ 1214.50; 

(s) To pay the cost of the activities 

with assessments collected under 

§ 1214.52; 

(t) To recommend adjustments to the 

assessments as provided in § 1214.52; 

(u) To periodically prepare, make 

public and to make available to 

producers and importers, reports of its 

activities and, at least once each fiscal 

period, to make public an accounting of 

funds received and expended; and 

(v) To cause its books to be audited 

by an independent certified public 

accountant at the end of each fiscal 

period and at such other times as the 

Secretary may request, and to submit a 

report of the audit directly to the 

Secretary. 

§ 1214.47 Prohibited activities. 

The Board may not engage in, and 

shall prohibit the employees and agents 

of the Board from engaging in: 

(a) Any action that would be a conflict 

of interest; 

(b) Using funds collected by the Board 

under the Order to undertake any action 

for the purpose of influencing 

legislation or governmental action or 

policy, by local, state, national, and 

foreign governments or any subdivision 

thereof, other than recommending to the 

Secretary amendments to the Order; and 

(c) No program, plan, or project 

including advertising shall be false or 

misleading or disparaging to another 

agricultural commodity. Christmas trees 

of all origins shall be treated equally. 

Expenses and Assessments 

§ 1214.50 Budget and expenses. 

(a) Within 60 days after assessments 

are due to the Board, and as may be 

necessary thereafter, the Board shall 

prepare and submit to the Secretary a 

budget for the fiscal period covering its 

anticipated expenses and disbursements 

in administering this part. Each budget 

shall include: 

(1) A statement of objectives and 

strategy for each program, plan, or 

project; 

(2) A summary of anticipated revenue, 

with comparative data or at least one 

preceding year, except for the initial 

budget; 

(3) A summary of proposed 

expenditures for each program, plan, or 

project; and 

(4) Staff and administrative expense 

breakdowns, with comparative data for 

at least one preceding year, except for 

the initial budget. 

(b) Each budget shall provide 

adequate funds to defray its proposed 

expenditures and to provide for a 

reserve as set forth in this part. 

(c) Subject to this section, any 

amendment or addition to an approved 

budget must be approved by the 

Secretary, including shifting funds from 

one program, plan, or project to another. 

(d) The Board is authorized to incur 

such expenses, including provision for 

a reserve, as the Secretary finds are 

reasonable and likely to be incurred by 

the Board for its maintenance and 

functioning, and to enable it to exercise 

its powers and perform its duties in 

accordance with the provisions of this 

part. Such expenses shall be paid from 

funds received by the Board. 

(e) With approval of the Secretary, the 

Board may borrow money for the 

payment of administrative expenses, 

subject to the same fiscal, budget, and 

audit controls as other funds of the 

Board. Any such funds borrowed by the 

Board shall be expended for startup 

costs and are limited to the first year of 

operation of the Board. 

(f) The Board may accept voluntary 

contributions, but these shall only be 

used to pay expenses incurred in the 

conduct of programs, plans, and projects 

approved by the Secretary. Such 

contributions shall be free from any 

encumbrance by the donor and the 

Board shall retain complete control of 

their use. 

(g) In accordance with § 1214.54, the 

Board shall deposit funds in a refund 

escrow account and shall not use such 

funds for expenses, except as provided 

for in that section. 

(h) The Board may also receive funds 

provided through the Department’s 

Foreign Agricultural Service or from 

other sources, with the approval of the 

Secretary, for authorized activities. 

(i) The Board shall reimburse the 

Secretary for all expenses incurred by 

the Secretary in the implementation, 

administration, enforcement, and 

supervision of the Order, including all 

referendum costs in connection with the 

Order. 

(j) The Board may not expend for 

administration, maintenance, and 

functioning of the Board in any fiscal 

period an amount that exceeds 10 

percent of the assessments and other 

income received by or available to the 

Board for that fiscal period. 

Reimbursements to the Secretary 

required under paragraph (i) of this 

section are excluded from this 

limitation on spending. 

(k) The Board may establish an 

operating monetary reserve and may 

carry over to subsequent fiscal periods 

excess funds in any reserve so 

established: Provided: That, the funds in 

the reserve do not exceed one fiscal 

period’s budget of expenses. Subject to 

approval by the Secretary, such reserve 

funds may be used to defray any 

expenses authorized under this part. 

(l) Pending disbursement of 

assessments and all other revenue under 

a budget approved by the Secretary, the 

Board may invest assessments and all 

other revenues collected under this 

section in: 

(1) Obligations of the United States or 

any agency of the United States; 

(2) General obligations of any State or 

any political subdivision of a State; 

(3) Interest bearing accounts or 

certificates of deposit of financial 

institutions that are members of the 

Federal Reserve System; or 

(4) Obligations fully guaranteed as to 

principal interest by the United States. 

§ 1214.51 Financial statements. 

(a) The Board shall prepare and 

submit quarterly financial statements to 

the Secretary, or at any other time 

requested by the Secretary. Each such 

financial statement shall include, but 

not be limited to, a balance sheet, 

income statement, and expense budget. 

The expense budget shall show 

expenditures during the time period 

covered by the report, year-to-date 

expenditures, and the unexpended 

budget. 

(b) Each financial statement shall be 

submitted to the Secretary within 45 

days after the end of the time period to 

which it applies. 

(c) The Board shall submit annually to 

the Secretary an annual financial 

statement within 90 days after the end 

of the fiscal period to which it applies. 

§ 1214.52 Assessments. 

(a) The funds to cover the Board’s 

expenses shall be paid from assessments 

on producers, importers, and donations 


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from any person including those not 

subject to assessments under this Order, 

and other funds available to the Board 

including those collected pursuant to 

§ 1214.62 and subject to the limitations 

contained therein. 

(b) The payment of assessments on 

domestic Christmas trees that are cut 

and sold will be the responsibility of the 

producer who produces the Christmas 

trees or causes the trees to be cut. 

(c) Each importer of Christmas trees 

shall pay the assessment to the Board on 

Christmas trees imported for marketing 

in the United States, through Customs. 

If Customs does not collect an 

assessment from an importer, the 

importer would be responsible for 

paying the assessment directly to the 

Board 30 calendar days after 

importation. 

(1) The assessment rate for imported 

Christmas trees shall be the same or 

equivalent to the rate for Christmas trees 

domestically produced in the United 

States. 

(2) The import assessment shall be 

uniformly applied to imported 

Christmas trees that are identified by the 

numbers 0604.91.00.20, 0604.91.00.40, 

and 0604.91.00.60 in the Harmonized 

Tariff Schedule of the United States or 

any other numbers used to identify 

Christmas trees in that schedule. 

(3) The assessments due on imported 

Christmas trees shall be paid when they 

enter into the United States. 

(d) Such assessments shall be levied 

at an initial rate of 15 cents per 

Christmas tree domestically produced or 

imported into the United States. The 

assessment rate will be reviewed by the 

Board, after the initial referendum is 

conducted pursuant to this subpart. The 

assessment rate may be increased or 

decreased no more than 2 cents per 

Christmas tree during the fiscal period. 

Any change in the assessment rate shall 

be subject to rulemaking by the 

Department. The assessment rate shall 

not exceed 20 cents per Christmas tree, 

nor shall it be less than 10 cents per 

Christmas tree, unless a majority of 

producers and importers approve such 

other levels of assessment through a 

referendum conducted pursuant to this 

subpart. 

(e) All assessment payments and 

reports will be submitted to the office of 

the Board. All assessment payments are 

to be received no later than February 15 

of the crop year following for producers 

and importers of Christmas trees. A late 

payment charge, may be imposed on 

any producer or importer who fails to 

remit to the Board, the total amount for 

which any such producer or importer is 

liable on or before the due date 

established by the Board. In addition to 

the late payment charge, an interest 

charge may be imposed on the 

outstanding amount for which the 

producer or importer is liable. The rate 

for late payment and interest charges 

shall be specified by the Secretary 

through rulemaking. 

(f) Persons failing to remit total 

assessments due in a timely manner 

may also be subject to actions under 

Federal debt collection procedures. 

(g) The Board may authorize other 

organizations, to collect assessments on 

its behalf with the approval of the 

Secretary. 

§ 1214.53 Exemption from and refunds of 

assessments. 

(a) Producers that domestically 

produce and importers that import less 

than 500 Christmas trees. (1) Any 

producer who domestically produces 

less than 500 Christmas trees who 

desires to claim an exemption from 

assessments as provided in § 1214.52 

shall file an application on a form by the 

Board, for a certificate of exemption. 

Such producer shall certify that he/she 

will domestically produce less than 500 

trees for the fiscal period for which the 

exemption is claimed. It is the 

responsibility of the producer to retain 

a copy of the certificate of exemption. 

(2) Any importer who imports less 

than 500 trees in a fiscal period who 

desires to claim an exemption from 

assessments as provided in § 1214.52 

shall file an application on a form by the 

Board, for a certificate of exemption. 

Such importer shall certify that the 

importer’s total imports of Christmas 

trees are fewer than 500 trees for the 

fiscal period for which the exemption is 

claimed. It is the responsibility of the 

importer to retain a copy of the 

certificate of exemption. 

(3) On receipt of an exemption 

application, the Board shall determine 

whether an exemption may be granted. 

The Board will then issue, if deemed 

appropriate, a certificate of exemption 

to the producer or importer which is 

eligible to receive one. 

(4) The Board, with the Secretary’s 

approval, may require persons receiving 

an exemption from assessments to 

provide to the Board reports on the 

disposition of exempt Christmas trees 

and, in the case of importers, proof of 

payment of assessments. 

(5) The exemption will apply 

immediately following the issuance of 

the certificate of exemption. 

(6) Producers and importers who 

received an exemption certificate from 

the Board but domestically produced or 

imported more than 500 Christmas trees 

during the fiscal period shall pay the 

Board the applicable assessments owed 

and submit any necessary reports to the 

Board pursuant to § 1214.70. 

(7) The Board may develop additional 

procedures as it deems necessary for 

accurately accounting for this 

exemption. Such procedures shall be 

implemented through rulemaking by the 

Secretary. 

(b) Assessment refunds to importers. 

(1) Importers who are exempt from 

assessment shall be eligible for a refund 

of assessments collected by Customs 

during the applicable fiscal period. No 

interest will be paid on assessments 

collected by Customs. The Board shall 

refund such importers their assessments 

as collected by Customs no later than 60 

calendar days after receipt by the Board. 

(c) Organic. (1) Organic Act means 

section 2103 of the Organic Foods 

Production Act of 1990 (7 U.S.C. 6502). 

(2) A producer who domestically 

produces Christmas trees under an 

approved National Organic Program 

(NOP) (7 CFR part 205) system plan, 

produces only products that are eligible 

to be labeled as 100 percent organic 

under the NOP and is not a split 

operation shall be exempt from payment 

of assessments. To obtain an organic 

exemption, an eligible producer shall 

submit a request for exemption to the 

Board, on a form provided by the Board, 

at any time initially and annually 

thereafter on or before the start of the 

fiscal period as long as such producer 

continues to be eligible for the 

exemption. The request shall include 

the following: The producer’s name and 

address; a copy of the organic operation 

certificate provided by a USDAaccredited certifying agent as defined in 

the Organic Act, a signed certification 

that the applicant meets all of the 

requirements specified for an 

assessment exemption, and such other 

information as may be required by the 

Board and with the approval of the 

Secretary. The Board shall have 30 

calendar days to approve the exemption 

request. If the exemption is not granted, 

the Board will notify the applicant and 

provide reasons for the denial within 

the same time frame. 

(3) An importer who imports only 

Christmas trees that are eligible to be 

labeled as 100 percent organic under the 

NOP and is not a split operation shall 

be exempt from the payment of 

assessments. To obtain an organic 

exemption, an eligible importer must 

submit documentation to the Board and 

request an exemption from assessment 

on 100 percent of organic Christmas 

trees, on a form provided by the Board, 

at any time initially and annually 

thereafter on or before the beginning of 

the fiscal period as long as the importer 

continues to be eligible for the 


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exemption. This documentation shall 

include the same information as 

required by producers in paragraph 

(c)(2) of this section. If the importer 

complies with the requirements of this 

section, the Board will grant the 

exemption and issue a Certificate of 

Exemption to the importer. The Board 

will also issue the importer a 9-digit 

alphanumeric Harmonized Tariff 

Schedule of the United States (HTSUS) 

classification valid for 1 year from the 

date of issue. This HTSUS classification 

should be entered by the importer on 

the Customs entry documentation. Any 

line item entry of 100 percent organic 

Christmas trees bearing this HTSUS 

classification assigned by the Board will 

not be subject to assessments. 

(4) Importers who are exempt from 

assessment in paragraph (c)(3) of this 

section shall also be eligible for 

reimbursement of assessments collected 

by Customs and may apply to the Board 

for a reimbursement. The importer 

would be required to submit satisfactory 

proof to the Board that the importer 

paid the assessment on exempt organic 

products. 

(5) The exemption will apply 

immediately following the issuance of 

the exemption certificate. 

§ 1214.54 Refund escrow accounts. 

(a) The Board shall establish an 

interest bearing escrow account with a 

financial institution that is a member of 

the Federal Reserve System and will 

deposit into such account an amount 

equal to 10 percent of the assessments 

collected during the period beginning 

on the effective date of the Order and 

ending on the date the Secretary 

announces the results of the required 

referendum. 

(b) If the Order is not approved by the 

required referendum, the Board shall 

promptly pay refunds of assessments to 

all producers and importers that have 

paid assessments during the period 

beginning on the effective date of the 

Order and ending on the date the 

Secretary announces the results of the 

required referendum in the manner 

specified in paragraph (c) of this 

section. 

(c) If the amount deposited in the 

escrow account is less than the amount 

of all refunds that producers and 

importers subject to the Order have a 

right to receive, the Board shall prorate 

the amount deposited in such account 

among all producers and importers who 

desire a refund of assessments paid no 

later than 90 days after the required 

referendum results are announced by 

the Secretary. 

(d) Any producer or importer 

requesting a refund shall submit an 

application on the prescribed form to 

the Board within 60 days from the date 

the assessments were paid by such 

producer or importer but no later than 

the date the results of the required 

referendum are announced by the 

Secretary. The producer and importer 

shall also submit documentation to 

substantiate that assessments were paid. 

Any such demand shall be made by 

such producer or importer in 

accordance with the provisions of this 

subpart and in a manner consistent with 

regulations recommended by the Board 

and prescribed by the Secretary. 

(e) If the Order is approved by the 

required referendum conducted under 

§ 1214.71 then: 

(1) The escrow account shall be 

closed; and, 

(2) The funds shall be available to the 

Board for disbursement under § 1214.50. 

Promotion, Research, and Information 

§ 1214.60 Programs, plans, and projects. 

(a) The Board shall receive and 

evaluate, or on its own initiative, 

develop and submit to the Secretary for 

approval any program, plan, or project 

authorized under this subpart. Such 

programs, plans, or projects shall 

provide for: 

(1) The establishment, issuance, 

effectuation, and administration of 

appropriate programs for promotion, 

research, and information, including 

producer and consumer industry 

information, with respect to Christmas 

trees; 

(2) The establishment and conduct of 

research with respect to the image, 

desirability, use, marketability, quality, 

product development or production of 

Christmas trees, to the end that the 

marketing and use of Christmas trees 

may be encouraged, expanded, 

improved, or made more acceptable and 

to advance the image, desirability, or 

quality of Christmas trees. 

(b) A program, plan, or project may 

not be implemented prior to approval of 

the program, plan, or project by the 

Secretary. Once a program, plan, or 

project is so approved, the Board shall 

take appropriate steps to implement it. 

(c) Each program, plan, or project 

implemented under this subpart shall be 

reviewed or evaluated periodically by 

the Board to ensure that it contributes 

to an effective program of promotion, 

research, or information. If it is found by 

the Board that any such program, plan, 

or project does not contribute to an 

effective program of promotion, 

research, or information, then the Board 

shall terminate such program, plan, or 

project. 

§ 1214.61 Independent evaluation. 

The Board shall, not less often than 

once every five years, authorize and 

fund, from funds otherwise available to 

the Board, an independent evaluation of 

the effectiveness of the Order and 

programs conducted by the Board 

pursuant to the Act. The Board shall 

submit to the Secretary, and make 

available to the public, the results of 

each periodic independent evaluation 

conducted under this paragraph. 

§ 1214.62 Patents, copyrights, trademarks, 

information, publications, and product 

formulations. 

Patents, copyrights, trademarks, 

information, publications, and product 

formulations developed through the use 

of funds received by the Board under 

this subpart shall be the property of the 

U.S. Government as represented by the 

Board and shall, along with any rents, 

royalties, residual payments, or other 

income from the rental, sales, leasing, 

franchising, or other uses of such 

patents, copyrights, trademarks, 

information, publications, or product 

formulations, inure to the benefit of the 

Board, shall be considered income 

subject to the same fiscal, budget, and 

audit controls as other funds of the 

Board, and may be licensed subject to 

approval by the Secretary. Upon 

termination of this subpart, § 1214.73 

shall apply to determine disposition of 

all such property. 

Reports, Books, and Records 

§ 1214.70 Reports. 

(a) Each producer and importer 

subject to this subpart shall be required 

to provide to the Board periodically 

such information as required by the 

Board, with the approval of the 

Secretary, which may include but not be 

limited to the following: 

(1) Number of trees produced or total 

imports; 

(2) Number of Christmas trees on 

which an assessment was paid; 

(3) Name and address of producer or 

importer; and 

(4) Date assessment was paid on each 

Christmas tree produced or imported. 

(b) All reports required under 

§ 1214.70 are due to the Board by 

February 15 of the crop year. 

(c) This report shall accompany the 

payment of the collected assessments. 

§ 1214.71 Books and records. 

Each producer and importer subject to 

this subpart, including those who are 

exempt under this subpart, shall 

maintain any books and records 

necessary to carry out the provisions of 

this subpart and the regulations issued 

thereunder, including such records as 


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are necessary to verify any reports 

required. Such books and records must 

be made available during normal 

business hours for inspection by the 

Board’s or Secretary’s employees or 

agents. Such records shall be retained 

for at least two years beyond the fiscal 

period of their applicability. 

§ 1214.72 Confidential treatment. 

All information obtained from books, 

records, or reports under the Act, this 

subpart, and the regulations issued 

thereunder shall be kept confidential by 

all persons, including all employees and 

former employees of the Board, all 

officers and employees and former 

officers and employees of contracting 

and subcontracting agencies or agreeing 

parties having access to such 

information. Such information shall not 

be available to Board members, 

producers, or importers. Only those 

persons having a specific need for such 

information to effectively administer the 

provisions of this subpart shall have 

access to such information. Only such 

information so obtained as the Secretary 

deems relevant shall be disclosed by 

them, and then only in a judicial 

proceeding or administrative hearing 

brought at the direction, or on the 

request, of the Secretary, or to which the 

Secretary or any officer of the United 

States is a party, and involving this 

subpart. Nothing in this section shall be 

deemed to prohibit: 

(a) The issuance of general statements 

based upon the reports of the number of 

persons subject to this subpart or 

statistical data collected therefrom, 

which statements do not identify the 

information furnished by any person; 

and 

(b) The publication, by direction of 

the Secretary, of the name of any person 

who has been adjudged to have violated 

this subpart, together with a statement 

of the particular provisions of this 

subpart violated by such person. 

Miscellaneous 

§ 1214.80 Right of the Secretary. 

All fiscal matters, programs, plans, or 

projects, rules or regulations, contracts, 

reports, or other substantive actions 

proposed or prepared by the Board shall 

be submitted to the Secretary for 

approval. 

§ 1214.81 Referenda. 

(a) Required referendum. For the 

purpose of ascertaining whether the 

persons subject to this Order favor the 

continuation, suspension, amendment, 

or termination of this Order, the 

Secretary shall conduct a referendum 

among persons subject to assessments 

under § 1214.52 who, during a 

representative period determined by the 

Secretary, have engaged in the 

production or importation of Christmas 

trees: 

(1) The first referendum shall be 

conducted not later than 3 years after 

assessments first begin under the Order; 

(2) The order will be approved in a 

referendum if a majority of producers 

and importers vote for approval in the 

referendum. 

(b) Subsequent referenda. The 

Secretary shall conduct subsequent 

referenda: 

(1) For the purpose of ascertaining 

whether producers and importers favor 

the continuation, suspension, or 

termination of the Order; 

(2) Every seven years the Secretary 

shall hold a referendum to determine 

whether producers and importers of 

Christmas trees favor the continuation 

of the Order. The Order shall continue 

if it is favored by a majority of 

producers and importers voting for 

approval in the referendum who have 

been engaged in the production or 

importation of Christmas trees; 

(3) At the request of the Board 

established in this Order; 

(4) At the request of 10 percent or 

more of the number of persons eligible 

to vote in a referendum as set forth 

under the Order; or 

(5) At any time as determined by the 

Secretary. 

§ 1214.82 Suspension or termination. 

(a) The Secretary shall suspend or 

terminate this part or subpart or a 

provision thereof, if the Secretary finds 

that the subpart or a provision thereof 

obstructs or does not tend to effectuate 

the purpose of the Act, or if the 

Secretary determines that this subpart or 

a provision thereof is not favored by 

persons voting in a referendum 

conducted pursuant to the Act. 

(b) The Secretary shall suspend or 

terminate this subpart at the end of the 

fiscal period whenever the Secretary 

determines that its suspension or 

termination is favored by a majority of 

producers and importers voting in a 

referenda who, during a representative 

period determined by the Secretary, 

have been engaged in the production or 

importation of Christmas trees. 

(c) If, as a result of a referendum the 

Secretary determines that this subpart is 

not approved, the Secretary shall: 

(1) Not later than one hundred and 

eighty (180) days after making the 

determination, suspend or terminate, as 

the case may be, collection of 

assessments under this subpart; and 

(2) As soon as practical, suspend or 

terminate, as the case may be, activities 

under this subpart in an orderly 

manner. 

§ 1214.83 Proceedings after termination. 

(a) Upon the termination of this 

subpart, the Board shall recommend not 

more than three of its members to the 

Secretary to serve as trustees for the 

purpose of liquidating the affairs of the 

Board. Such persons, upon designation 

by the Secretary, shall become trustees 

of all of the funds and property then in 

the possession or under control of the 

Board, including claims for any funds 

unpaid or property not delivered, or any 

other claim existing at the time of such 

termination. 

(b) The said trustees shall: 

(1) Continue in such capacity until 

discharged by the Secretary; 

(2) Carry out the obligations of the 

Board under any contracts or 

agreements entered into pursuant to the 

Order; 

(3) From time to time account for all 

receipts and disbursements and deliver 

all property on hand, together with all 

books and records of the Board and the 

trustees, to such person or persons as 

the Secretary may direct; and 

(4) Upon request of the Secretary 

execute such assignments or other 

instruments necessary and appropriate 

to vest in such persons title and right to 

all funds, property and claims vested in 

the Board or the trustees pursuant to the 

Order. 

(c) Any person to whom funds, 

property or claims have been transferred 

or delivered pursuant to the Order shall 

be subject to the same obligations 

imposed upon the Board and upon the 

trustees. 

(d) Any residual funds not required to 

defray the necessary expenses of 

liquidation shall be turned over to the 

Secretary to be disposed of, to the extent 

practical, to one or more Christmas tree 

organizations in the United States in the 

interest of continuing Christmas tree 

promotion, research, and information 

programs. 

§ 1214.84 Effect of termination or 

amendment. 

Unless otherwise expressly provided 

by the Secretary, the termination of this 

subpart or of any regulation issued 

pursuant thereto, or the issuance of any 

amendment to either thereof, shall not: 

(a) Affect or waive any right, duty, 

obligation or liability which shall have 

arisen or which may thereafter arise in 

connection with any provision of this 

subpart or any regulation issued 

thereunder. 

(b) Release or extinguish any violation 

of this subpart or any regulation issued 

thereunder. 

(c) Affect or impair any rights or 

remedies of the United States, or of the 


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Secretary or of any other persons, with 

respect to any such violation. 

§ 1214.85 Personal liability. 

No member or employee of the Board 

shall be held personally responsible, 

either individually or jointly with 

others, in any way whatsoever, to any 

person for errors in judgment, mistakes, 

or other acts, either of commission or 

omission, as such member or employee, 

except for acts of dishonesty or willful 

misconduct. 

§ 1214.86 Separability. 

If any provision of this subpart is 

declared invalid or the applicability 

thereof to any person or circumstances 

is held invalid, the validity of the 

remainder of this subpart or the 

applicability thereof to other persons or 

circumstances shall not be affected 

thereby. 

§ 1214.87 Amendments. 

Amendments to this subpart may be 

proposed from time to time by the Board 

or by any interested person affected by 

the provisions of the Act, including the 

Secretary. 

§ 1214.88 OMB control numbers. 

The control number assigned to the 

information collection requirements by 

the Office of Management and Budget 

pursuant to the Paperwork Reduction 

Act of 1995, 44 U.S.C. chapter 35, is 

OMB control number 0505–0001, and 

OMB control number 0581–NEW. 

Subpart B—[Reserved] 

Dated: November 2,2010. 

David R. Shipman, 

Acting Administrator. 

[FR Doc. 2010–28038 Filed 11–5–10; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1214 

[Document No. AMS–FV–10–0008–PR] 

RIN 0581–AD00 

Proposed Christmas Tree Promotion, 

Research, and Information Order; 

Referendum Procedures 

AGENCY: Agricultural Marketing Service, 

Agriculture, USDA. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule invites 

comments on procedures for conducting 

a referendum to determine whether the 

issuance or continuation of the 

proposed Christmas Promotion, 

Research, and Information Order 

(Proposed Order) is favored by domestic 

producers and importers of Christmas 

trees. This proposed program would be 

implemented under the Commodity 

Promotion, Research, and Information 

Act of 1996 (1996 Act). The 1996 Act 

allows for a referendum to be conducted 

determining if domestic producers and 

importers favor the proposed order and 

also providing that a referendum be 

conducted up to three years after the 

effective date of the Proposed Order. 

The program would be implemented or 

continued if approved by a simple 

majority of the eligible domestic 

producers and importers voting in the 

referendum. These procedures would 

also be used for any subsequent 

referendum under the Proposed Order, 

if it is approved in the initial 

referendum. The Proposed Order is 

being published separately in this issue 

of the Federal Register. This proposed 

rule also announces the Agricultural 

Marketing Service’s (AMS) intent to 

request approval by the Office of 

Management and Budget (OMB) of new 

information collection requirements to 

implement the program. 

DATES: Comments must be received by 

February 7, 2011. Pursuant to the 

Paperwork Reduction Act, comments on 

the information collection burden that 

would result from this proposal must be 

received by February 7, 2011. 

ADDRESSES: Interested persons are 

invited to submit written comments 

concerning this proposed rule. 

Comments can be made on the Internet 

at http://www.regulations.gov or to the 

Research and Promotion Branch, Fruit 

and Vegetable Programs, Agricultural 

Marketing Service, USDA, Stop 0244, 

Room 0634–S, 1400 Independence 

Avenue, SW., Washington, DC 20250– 

0244; Fax (202) 205–2800; Toll Free 

(888) 720–9917. Comments should 

reference the docket number, title of 

action, date, and page number of this 

issue of the Federal Register and will be 

made available for public inspection at 

the above address during regular 

business hours or at http:// 

www.regulations.gov. All comments 

submitted in response to this proposed 

rule will be included in the record and 

will be made available to the public. 

Please be advised that the identity of the 

individuals or entities submitting 

comments will be made public on the 

Internet at the address provided above. 

Pursuant to the Paperwork Reduction 

Act (PRA), send comments regarding the 

accuracy of the burden estimate, ways to 

minimize the burden, including the use 

of automated collection techniques or 

other forms of information technology, 

or any other aspect of this collection of 

information, to the above address and to 

the Desk Office for Agriculture, Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, New 

Executive Office Building, 725 17th 

Street, NW., Room 725, Washington, DC 

20503. 

FOR FURTHER INFORMATION CONTACT: 

Patricia A. Petrella, Marketing 

Specialist, Research and Promotion 

Branch, FV, AMS, USDA, Stop 0244, 

Room 0634–S, 1400 Independence 

Avenue, SW., Washington, DC 20250– 

0244; telephone 202–720–9915 or (888) 

720–9917 (toll free) or e-mail: 

Patricia.Petrella@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This 

proposed rule is issued pursuant to the 

Commodity Promotion, Research, and 

Information Act of 1996 (1996 Act) (7 

U.S.C. 7411–7425). 

Executive Order 12866 

This proposed rule has been 

determined to be not significant for 

purposes of Executive Order 12866 and, 

therefore, has not been reviewed by the 

Office of Management and Budget 

(OMB). 

Executive Order 12988 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. It is not intended to 

have retroactive effect. Section 524 of 

the 1996 Act provides that the Act shall 

not affect or preempt any other Federal 

or State law authorizing promotion or 

research relating to an agricultural 

commodity. 

Under Section 519 of the 1996 Act, a 

person subject to an order may file a 

petition with the Department (USDA) 

stating that an order, any provision of an 

order, or any obligation imposed in 

connection with an order, is not 

established in accordance with the law. 

In the petition, the person may request 

a modification of an order or an 

exemption from an order. Any petition 

filed challenging an order, any 

provision of an order, or any obligation 

imposed in connection with an order, 

shall be filed within two years after the 

effective date of an order, provision or 

obligation subject to challenge in the 

petition. The petitioner will have the 

opportunity for a hearing on the 

petition. Thereafter, the Department will 

issue a ruling on the petition. The 1996 

Act provides that the district court of 

the United States for any district in 

which the petitioner resides or conducts 

business shall have the jurisdiction to 

review a final ruling on the petition, if 

the petitioner files a complaint for that 


emcdonald on DSK2BSOYB1PROD with PROPOSALS