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Subpart A – Wheat Flour Foods Promotion, Research, and Information Order

General

§ 12XX.10 General.

The terms defined/specified in this subpart shall apply to all research and 

promotion programs authorized under the Act.

Definitions

§ 12XX.20 Definitions.

Act means the Commodity Promotion, Research, and Information Act of 

1996 (7 U.S.C. 7411-7425), and any amendments thereto.

Baker means a person who utilizes wheat flour to produce grain foods to 

market, or who purchases from or otherwise causes a sub-baker to produce grain 

foods for such person to market, and who is not exempt from assessment under 

the provisions of this Part.

Board or the Wheat Flour Foods Promotion, Research, and Information

Board means the administrative body established pursuant to § 12XX.40 or such 

other name as recommended by the Board and approved by the Secretary.

Commerce means interstate, foreign, or intrastate commerce.

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 that performs a service 

for, or enters into a contract with, the Board for anything of economic value.

Department or USDA means the U.S. 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.

Fiscal period means the 12-month period as shall be recommended by the 

Board and approved by the Secretary.

Grain foods means bread-basket products made from wheat flour, including 

but not limited to sliced bread, unsliced bread, rolls and buns, bagels, naan, pitas, 

other flatbreads (but excluding tortillas), and English muffins. Grain foods does

not include products sold in frozen form to the consumer, or bars, crackers,

biscuits, or sweet goods. 

Information means information, program, and activities that are designed to 

increase efficiency in processing, enhance the development of new markets and 

marketing strategies, increase marketing efficiency, and enhance the image of 

grain foods produced in the United States and the United States’ grain foods

industry, both on a national and international basis.
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Market means to sell or otherwise dispose of grain foods in interstate, 

foreign or intrastate commerce. 

Miller means a person who mills grain into wheat flour to be baked to 

produce grain foods to be marketed in commerce, and who is not exempt from 

assessment under the provisions of this Part.

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.

Part means the Wheat Flour Foods Promotion, Research, and Information 

Order and all rules, regulations, and supplementary orders, issued pursuant to the 

Act and the Order. The Order shall be a "subpart" of such part.

Person means any individual, group of individuals, partnership, corporation, 

association, cooperative or other legal entity, including combinations of two or 

more legal entities that are under common control pursuant to such rules 

recommended by the Board pursuant to §12XX.50(b) and approved by the 

Secretary. 

Promotion means any action taken by the Board, including paid advertising,

to present a favorable image for grain foods to the public to improve the 

competitive position of grain foods in the marketplace and to stimulate sales of 

grain foods.

Research means any type of systematic study, investigation, analysis 

and/or evaluation designed to advance the image, desirability, use, marketability, 

quality or production of grain foods, including but not limited to research related to 

cost of production, testing the effectiveness of market development and 

promotional efforts, nutritional value, new types of grain foods, new uses for wheat 

flour, and environmental issues relating to the grain foods and wheat flour industry.

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.

State means any of the 50 States of the United States, the District of 

Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the 

United States.

Sub-baker means a person who utilizes wheat flour to produce grain foods 

that will be sold to, or otherwise produced for, a baker.

Suspend means to issue a rule under 5 U.S.C. section 553 to temporarily 

prevent the operation of an order or part thereof during a particular period of time 

specified in the rule.
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Sweet goods means the broad variety of sweet and rich grain-based foods 

made with sweet dough, often but not always filled or topped with nuts, icing, 

glaze, jam, or jelly and may contain creamy fillings. Sweet goods includes, but is 

not limited to, cakes, cookies, snack cakes, brownies, breakfast pastries, 

doughnuts, muffins, filled bars, and the like.

Terminate means to issue a rule under 5 U.S.C. section 553 to cancel 

permanently the operation of an order or part thereof beginning on a date specified 

in the rule.

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.

Wheat Flour means the commodity prepared by grinding and bolting 

cleaned wheat, including, but not limited to, hard red winter, hard red spring, soft 

red winter, and white raw wheat, but excluding durum wheat and red durum wheat,

which is used to make grain foods.

Wheat Flour Foods Promotion, Research, and Information Board

§ 12XX.40 Establishment and membership.

(a) There is hereby established a Wheat Flour Foods Promotion, Research, and

Information Board, hereinafter called the Board, to administer the terms and 

provisions of this Order. The Board shall be composed of bakers and millers and 

shall be composed of no more than ten (10) members appointed by the Secretary 

from nominations for each of the two (2) categories of members as provided in § 

12XX.40(b) below.

(b) The Board shall be composed of 10 members and shall be established as 

follows:

(1) Two (2) miller members.

(2) Eight (8) baker members. 

(c) Adjustment of membership based on pro-rata contribution. At least once every 

five years upon implementation of the Order, but no more frequently than once 

every three years, the Board will review the dollar value of assessments, based on 

the Board’s records, remitted under the Order from millers and bakers. If 

warranted, the Board will recommend to the Secretary that the membership on the 

Board be altered to reflect a more equitable representation between millers and 

bakers based on the pro-rata contribution of total assessments remitted under the 

Order from each of the two categories.

(d) For consideration of Board composition, to the extent practicable, the miller 

members should be from different states, and no more than two (2) baker 

members should be from the same state.
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(e) Adjustments made pursuant to 12XX.40(c) above shall not increase the total 

number (10) of Board members. The adjustments to the Board membership shall

be submitted to the Secretary by Board recommendation and be implemented by 

the Secretary through rulemaking.

§ 12XX.41 Nominations. 

All nominations authorized under this Section shall be made in the following 

manner:

(a) All national organizations representing miller interests, as defined in § 

12XX.43(a) and (b), will have the opportunity to participate in a nomination caucus 

and will submit as a group a single slate of nominations to the Secretary for the 

available miller membership position(s) and at least one alternate position for each

miller membership position(s) on the Board. If agreement is not reached among 

such national organizations with respect to a single slate of nominations, each 

such national organization may submit a single slate of nominations and alternates 

for any position(s) on which there is no agreement. Individual millers who have 

also paid assessments to the Board in the most recent fiscal period may submit 

nominations. For the initial Board, persons that meet the definition of millers as 

defined in § 12XX.10 will certify their qualification through documentation 

requested by the Secretary, and upon approval of such qualification by the 

Secretary may submit nominations. The Secretary shall also appoint one alternate 

for each miller member.

(b) All national organizations representing baker interests, as defined in § 

12XX.43(c) and (d), will have the opportunity to participate in a nomination caucus 

and will submit as a group a single slate of nominations to the Secretary for the 

available baker membership position(s) and at least one alternate position for each 

baker membership position(s) on the Board. If agreement is not reached among 

such national organizations with respect to a single slate of nominations, each 

such national organization may submit a single slate of nominations and alternates 

for any position on which there is no agreement. Individual bakers who have paid 

assessments to the Board in the most recent fiscal period may also submit 

nominations. For the initial Board, persons who meet the definition of bakers as 

defined in § 12XX.10 will certify their qualification through documentation 

requested by the Secretary, and upon approval of such qualification by the 

Secretary, may submit nominations. The Secretary shall also appoint one 

alternate for each baker member.

§ 12XX.42 Nominee’s Agreement to Serve.

Any miller or baker nominated to serve on the Board shall file with the Secretary at 

the time of the nomination a written agreement to: 

(a) Serve on the Board if appointed; 

(b) Disclose any relationship with any grain foods promotion entity or with any 

organization that has or is being considered for a contractual relationship with the 

Board; and 
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(c) Withdraw from participation in deliberations, decision-making, or voting on 

matters that concern the relationship disclosed under 12XX.42(b) of this section.

§ 12XX.43 Certification of Nominating Organizations.

(a) To be certified as a qualified national organization representing miller interests, 

an organization must meet the following criteria, as evidenced by a report 

submitted by the organization to the Secretary:

(1) The organization's voting membership must be comprised primarily of 

millers;

(2) The organization must represent millers milling grain into wheat flour to 

be baked to produce grain foods in at least 15 states;

(3) The organization must have a history of stability and permanency and 

have been in existence for more than one year;

(4) The organization must have as a primary purpose promoting millers' 

economic welfare;

(5) The organization must derive a significant portion of its operating funds 

from millers; and

(6) The organization must demonstrate it is willing and able to further the 

Act's purposes.

(b) Any miller organization found eligible by the Secretary under this section shall 

be certified by the Secretary, and the Secretary’s determination as to eligibility 

shall be final. 

(c) To be certified as a qualified national organization representing baker interests, 

an organization must meet the following criteria, as evidenced by a report 

submitted by the organization to the Secretary:

(1) The organization's voting membership must be comprised primarily of 

bakers;

(2) The organization must represent bakers producing grain foods in at 

least 15 states;

(3) The organization has a history of stability and permanency and has 

been in existence for more than one year;

(4) The organization must have as a primary purpose promoting bakers' 

economic welfare;

(5) The organization must derive a significant portion of its operating funds 

from bakers; and
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(6) The organization must demonstrate it is willing and able to further the 

Act's purposes.

(d) Any baker organization found eligible by the Secretary under this section shall 

be certified by the Secretary, and the Secretary’s determination as to eligibility 

shall be final. 

(e) All nominations must be submitted to the Secretary at least ninety (90) days

before the new Board term begins. At least two (2) names must be submitted to 

the Secretary, including at least one (1) name as the preferred nominee and at 

least one (1) name as the preferred alternate for each position to be filled.

§ 12XX.44 Appointments

From the nominations made pursuant to § 12XX.41, the Secretary shall appoint 

the representatives of the Board on the basis of representation provided in § 

12XX.40.

§ 12XX.45 Term of office. 

(a) With the exception of the initial Board, each Board member shall serve for a 

term of three (3) years. 

(b) Each term of office shall begin and end on dates determined by the Board. 

(c) With the exception of the initial Board, no member may serve more than two 

consecutive three-year terms. 

(d) Board members shall continue to serve until their successors have qualified, 

are appointed by the Secretary, and have accepted the position. For the initial 

Board, the terms of the Board members shall be staggered for two (2), three (3)

and four (4) years. Members serving the initial terms of all durations will be 

eligible to serve a single term of three (3) years after their 2, 3, or 4 year term. 

Alternates who are appointed to serve the remainder of a term are eligible to serve 

two (2) additional three-year terms. A member or alternate may serve not more 

than two (2) consecutive terms.

§ 12XX.46 Removal.

If the Secretary determines that any person appointed under this part fails or 

refuses to perform his or her duties properly or engages in act of dishonesty or 

willful misconduct, the Secretary shall remove the person from office. A person 

appointed or certified under this part or any employee of the Board may be 

removed by the Secretary if the Secretary determines that the person’s continued 

service would be a detriment to the purposes of the Act. 

§ 12XX.47 Vacancies

(a) If a member resigns, is removed from office, or in the event of death of any 

member or if any member of the Board ceases to qualify as a member of the 

category of members from which the member was appointed to the Board as 

defined under this Part, such position shall be filled by the alternate for such 

position for the remainder of the member’s term, subject to § 12XX.47(d).
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(b) If, as determined by the Board, a representative of the Board consistently 

refuses to perform the duties of a Board representative, or if a representative of 

the Board engages in acts of dishonesty or willful misconduct, the Board may 

recommend to the Secretary that the representative be removed from office. If the 

Secretary finds the recommendation of the Board shows adequate cause, the 

Secretary shall remove such representative from office.

(c) If an alternate position becomes vacant, nominations to fill the vacancy will be 

conducted using the nomination process set forth in this Order or the Board may 

recommend to the Secretary that he or she appoint a successor from the most 

recent list of nominations for the position. 

(d) A vacancy will not be required to be filled if the unexpired term is less than six 

(6) months.

§ 12XX.48 Procedure. 

(a) At a Board meeting, it will be considered a quorum when a majority of the 

voting members are present. Each voting member of the Board will be entitled to 

one vote on any matter put to the Board, and the motion will carry if supported by 

a simple majority of the total votes of the Board representatives present at the 

meeting. 

(b) At the start of each fiscal period, the Board will select a chairperson and vice 

chairperson and other officers as appropriate who will conduct meetings 

throughout that fiscal period. The chairperson shall only vote in the event of ties.

(c) All Board members, the Secretary or Secretary’s designee, and industry will be 

notified at least thirty (30) days’ in advance of all Board and committee meetings, 

unless an emergency meeting is declared.

(d) The Board may form committees and subcommittees as necessary. It will be 

considered a quorum at a committee meeting when a simple majority of those 

assigned to the committee are present. Committees may also consist of 

individuals other than Board members, and such individuals may participate and 

have such rights and responsibilities 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 noticed and convened meeting and, when in the 

opinion of the chairperson of the Board such action is considered necessary, the 

Board may take action if supported by one vote more than half of the members, by 

mail, telephone, electronic mail, facsimile or any other means of communication. In 

that event, all members must be notified and provided the opportunity to vote. Any 

action so taken shall have the same force and effect as though such action had 

been taken at a properly convened meeting of the Board. All votes shall be 

recorded in Board minutes. 
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(f) There shall be no voting by proxy. If a Board member is unable to attend a 

meeting, the alternate for the position shall be informed and may attend in such 

Board member’s stead.

(g) The organization of the Board and the procedures for the conducting of 

meetings of the Board shall be in accordance with its bylaws, which shall be 

established by the Board and approved by the Secretary. 

(h) Meetings of the Board and committees may be conducted by electronic 

communications, provided that each member and committee member, if such 

committee member is not a member of the Board, is given prior notice of the 

meeting and has the opportunity to be present either physically or by electronic 

connection.

 

§ 12XX.49 Compensation and reimbursement. 

The members of the Board when acting as members, shall serve without 

compensation but shall be reimbursed for reasonable travel expenses, as 

approved by the Board, incurred by them in the performance of their duties as 

Board members. 

§ 12XX.50 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. The committee and subcommittee may include

individuals other than Board members as the Board deems necessary and 

appropriate.

(d) To employ and/or contract with persons, other than Board members, as the 

Board considers necessary to assist the Board in carrying out its duties and to 

determine the compensation and specify the duties of such persons;

(e) To develop and carry out generic promotion, research, and information 

activities relating to grain foods;

(f) To develop and administer 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, plans or 

projects of research, information, and promotion of grain foods. The payment of 

costs for such activities shall be from funds collected pursuant to this Order. Each 

contract or agreement shall provide that:
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(1) The contractor or agreeing party shall develop and submit to the Board 

a proposed program, plan or project together with a budget or budgets that 

shall show the estimated cost to be incurred for such program, plan or 

project; 

(2) The contractor or agreeing party shall keep accurate records of all its 

transactions and make periodic reports to the Board of activities conducted, 

submit accounting for funds received and expended, and make such other 

reports as the Secretary or the Board may require; 

(3) The Secretary may audit the records of the contracting or agreeing party 

periodically; and 

(4) Any subcontractor who enters into a contract with a Board contractor 

and who receives or otherwise uses funds allocated by the Board shall be 

subject to the same provisions as the contractor. 

(g) To prepare and submit for approval of the Secretary before the beginning of 

each fiscal year, rates of assessments and an annual budget of the anticipated 

expenses to be incurred in the administration of the Order, including the probable 

costs of each promotion, research, and information activity proposed to be 

developed or carried out by the Board in accordance with §12XX.52; 

(h) To borrow funds necessary for startup expenses of the Order during the first 

year of operation by the Board;

(i) To maintain such records and books and prepare and submit such reports and

records from time to time to the Secretary as the Secretary may prescribe 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; 

(j) To cause its books to be audited by an independent certified public accountant

in accordance with generally accepted auditing standards at the end of each fiscal

year and at such other times as the Secretary may request, and to submit a copy 

of such audit report directly to the Secretary; 

(k) To notify millers and bakers of all Board meetings through press releases or 

other means and to give the Secretary the same notice of meetings of the Board

(including committees, subcommittees, and the like) 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 to the Secretary; 

(l) To act as intermediary between the Secretary and any miller, baker or subbaker;
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(m) To furnish to the Secretary any information or records that the Secretary may 

request; 

(n) To investigate violations of the Act and the Order, conduct audits, and report 

the results of such investigations and audits to the Secretary for appropriate action 

to enforce the provisions of the Act and the Order.

(o) To recommend to the Secretary such amendments to the Order as the Board 

considers appropriate;

(p) To work to achieve an effective, continuous, and coordinated program of 

promotion, research, information, and evaluation designed to strengthen and 

protect the grain foods industry's position in the marketplace; maintain and expand 

existing markets and uses for grain foods; and to carry out programs, plans and 

projects designed to provide maximum benefits to the grain foods industry;

(q) To invest assessments collected under this part in accordance with §12XX.56

and use earnings from invested assessments to pay for activities carried out 

pursuant to the Order;

(r) To pay the cost of activities with assessments collected under § 12XX.54 and 

earnings from invested assessments and other funds;

(s) To recommend changes to the assessments as provided in this part; 

(t) To appoint and convene, from time to time, working committees that may 

include millers and bakers or other members of the grain foods industry and the 

public to assist in the development of research, promotion, advertising, and 

information programs for grain foods;

(u) To periodically prepare and make public and to make available to millers and 

bakers reports of program activities and, at least once each fiscal period, to make 

public an accounting of funds received and expended; and

§ 12XX.51 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 any 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; and

(c) Any advertising, including promotion, research, and information activities 

authorized to be carried out under the Order that may be false, misleading,

or disparaging to another agricultural commodity.
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Expenses and Assessments

§ 12XX.52 Budget and expenses.

(a) At least sixty (60) calendar days prior to the beginning of each fiscal year, and 

as may be necessary thereafter, the Board shall prepare and submit to the 

Department for approval a budget for the fiscal year covering its anticipated 

expenses and disbursements in administering this subpart. The budget for 

research, promotion or information may not be implemented prior to approval by 

the Secretary. Each such budget shall include:

(1) A statement of objectives and strategy for each program, plan, or 

project;

(2) A summary of anticipated revenue, with comparative data for at least 

one preceding year (except for the initial budget);

(3) A summary of proposed expenditures for each program, plan or project; 

and

(4) Staff and administrative expense breakdowns, with comparative data for 

at least one preceding year (except for the initial budget).

(b) Each budget shall provide adequate funds to defray its proposed expenditures 

and to provide for a reserve as set forth in this Order.

(c) Subject to this section, any amendment or addition to an approved budget must 

be approved by the Secretary, including shifting funds from one program, plan or 

project to another. Shifts of funds that do not cause an increase in the Board's 

approved budget and that are consistent with governing bylaws need not have 

prior approval by the Secretary.

(d) The Board is authorized to incur such expenses, including provision for a 

reserve, as the Secretary finds are reasonable and likely to be incurred by the 

Board, for its maintenance and functioning, and to enable it to exercise its powers 

and perform its duties in accordance with the provisions of this subpart. Such 

expenses shall be paid from funds received by the Board.

(e) With approval of the Secretary, the Board may borrow money for the payment 

of startup expenses, subject to the same fiscal, budget and audit controls as other 

funds of the Board. Any funds borrowed shall be expended only for startup costs 

and capital outlays and are limited to the first year of operation by the Board.

(f) The Board may accept voluntary contributions and is encouraged to seek other 

appropriate funding sources to carry out activities authorized by the Order. Such 

funds must be identified on the Board’s annual operating budget. Such 

contributions shall only be used to pay expenses incurred in the conduct of 

programs, plans, and projects approved by the Secretary and shall be free from 

any encumbrance by the donor and the Board shall retain complete control of their 
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use. The Board may receive funds from outside sources (i.e. Federal or State 

grants) with approval of the Secretary, for specific authorized projects.

(g) 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.

(h) For fiscal years beginning three (3) years after the date of establishment of the 

Board, the Board may not expend for administration, maintenance, and the 

functioning of the Board and amount that is greater than 15% percent of the 

assessment and other income received by and available of the Board for the fiscal 

year. For purposes of this limitation, reimbursements to the Secretary shall not be 

considered administrative costs.

(i) 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 two (2) fiscal years’ budget of 

expenses. Subject to approval by the Secretary, such reserve funds may be used 

to defray any expenses authorized under this subpart.

§ 12XX.53 Financial statements.

(a) The Board shall prepare and submit financial statements to the Secretary on a 

quarterly basis or at any other time as requested by the Secretary. Each such 

financial statement shall include, but not be limited to, a balance sheet, income 

statement, investments, 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 Department within forty-five 

(45) calendar days after the end of the time period to which it applies.

(c) The Board shall submit to the Department an annual financial statement within 

ninety (90) calendar days after the end of the fiscal year to which it applies.

§ 12XX.54 Assessments.

(a) The Board’s programs and expenses shall be paid from assessments on 

millers and bakers, other income of the Board, and other funds available to the 

Board including those collected pursuant to §12XX.62.

(b) Each miller shall pay an assessment to the Board, either directly, upon receipt 

of an invoice from the Board for sales to sub-bakers, or through a baker for sales 

to such baker, at a rate of 2.4 cents per 100 pounds or “CWT” of wheat flour sold 

for the purpose of producing grain foods. 

(c) Each baker shall pay an assessment directly to the Board at a rate of 13.6 

cents per CWT of wheat flour purchased from a miller for the purpose of producing 

grain foods and 8.2 cents per CWT of grain foods purchased from a sub-baker by 

the baker for the baker to market. 
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(d) The assessment rate will be reviewed and may be modified with the approval 

of the Secretary, after the first referendum is conducted pursuant to this subpart.

The assessment rate applicable to both categories may be raised or lowered no 

more than 10% per year. Prior to the change in assessment rate, the Department 

will provide notice by publishing in the Federal Register any proposed changes 

with interested parties allowed to comment. The assessment rate for bakers shall 

not exceed 18.0 cents per CWT of wheat flour purchased to produce grain foods

which it markets and 10.0 cents per CWT of grain foods which it purchased from a 

sub-baker to market. The assessment rate for millers shall not exceed 4.0 cents 

per CWT of wheat flour sold to produce grain foods, unless both a majority of 

millers and bakers approve an increase above such levels of assessment through 

a referendum conducted pursuant to this subpart. 

(e) Bakers shall be responsible for collecting from millers either directly or 

indirectly through sub-bakers the information described in § 12XX.70. Millers will 

remit their assessments directly to the baker, unless the miller sells to a sub-baker, 

in which case the miller will pay directly to the Board upon receipt of an invoice 

from the Board. The Board will use the information collected by the baker to 

invoice millers directly for payment of the assessments they owe on wheat flour 

sold to sub-bakers. Sub-bakers are not assessed parties under this Order.

(f) Bakers shall remit to the Board their assessments and the reports due under § 

12XX.70 no later than sixty (60) calendar days of the month following the end of 

each fiscal quarter. Millers shall remit to the Board their assessments and the

reports due under § 12XX.70 not later than sixty (60) calendar days following 

receipt of the invoice from the Board.

(g) A late payment charge and interest shall be imposed on any miller or baker 

who fails to pay the assessments. The late payment charge shall be a one-time 

fee of ten percent (10%) of the total assessment due. 

(h) In addition to the late payment charge, a 1 1⁄2 percent (1.5%) per month interest

rate will be applied. Interest will continue to accrue monthly until the outstanding 

balance is paid in full.

(i) Persons failing to remit total assessments due in a timely manner may also be 

subject to actions under federal debt collection procedures or others means as 

recommended by the board to the Secretary.

(j) The Board may authorize other organizations to collect assessments on its 

behalf with the approval of the Secretary. 

§ 12XX.55 Exemptions and exemption procedures.

(a) Any miller who sells less than 750,000 CWT of wheat flour annually to bakers 

or sub-bakers for the purpose of producing grain products shall be exempt from 

the payment of assessments. Such miller may apply to the Board, on a form 

provided by the Board, for a certificate of exemption. Such miller shall certify that 

it sold less than 750,000 CWT of wheat flour for the fiscal year in which the 

exemption is claimed for the purpose of producing grain foods. 
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(b) Any baker who buys less than 750,000 CWT total of wheat flour annually for 

the purpose of producing grain foods shall be exempt from the payment of 

assessments. Such 750,000 CWT total of wheat flour is calculated by adding (i) 

the CWT of wheat flour purchased directly from millers and (ii) sixty percent (60%) 

of finished grain foods products as measured in ounces purchased from subbakers for the bakers to market. Such baker may apply to the Board, on a form 

provided by the Board, for a certificate of exemption. Such baker shall certify that, 

for the fiscal year in which the exemption is claimed, such baker purchased less 

than 750,000 CWT total of wheat flour, calculated by adding (x) the CWT of wheat 

flour purchased directly from millers and (y) sixty percent (60%) of finished grain 

foods products as measured in ounces purchased from sub-bakers for the bakers 

to market.

(c) Millers who sell wheat flour to a baker to be used to produce grain foods or to a 

sub-baker to produce grain foods to be marketed by a baker, and where such 

baker is exempt from assessment under the provisions of § 12XX.55, shall be 

exempt from assessment on that portion of the wheat flour sold to the exempt 

baker or to the sub-baker producing grain foods for the exempt baker. 

(d) Upon receipt of an application, the Board shall determine whether an 

exemption may be granted. The Board then will issue, if deemed appropriate, a 

certificate of exemption to each person who is eligible to receive one.

(e) Any person who desires an exemption from assessments for a subsequent 

fiscal year shall reapply to the Board, on a form provided by the Board, for a 

certificate of exemption.

(f) The Board may require persons receiving an exemption from assessments to 

provide to the Board reports on the disposition of exempt grain foods.

(g) A miller or baker who operates under an approved National Organic Program 

(7 CFR part 205) (NOP) organic handling system plan may be exempt from the 

payment of assessments under this part, provided that:

(1) The miller or baker maintains a valid certificate of organic operation as 

issued under the Organic Foods Production Act of 1990 (7 U.S.C. 6501–

6522) (OFPA) and the NOP regulations issued under OFPA (7 CFR part 

205);

(2) Only agricultural products certified as ‘‘organic’’ (as defined in the NOP) 

are eligible for exemption;

(3) The exemption shall apply to all certified ‘‘organic’’ (as defined in the 

NOP) grain foods whether the grain foods subject to the exemption is 

processed by a person that also processes conventional or nonorganic grain 

foods as that for which the exemption is claimed; and
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(4) The miller or baker so exempted shall continue to be obligated to pay 

assessments under this part that are associated with any grain foods which 

do not qualify for an exemption under this section.

(h) To apply for organic exemption, an eligible miller or baker shall submit a 

request to the Board on an Organic Exemption Request Form (Form AMS–15) at 

any time during the year initially, and annually thereafter on or before the start of 

the Board’s fiscal year, for as long as the miller or baker continues to be eligible for 

the exemption.

(i) A miller or baker request for organic exemption shall include following 

information:

(1) The applicant’s full name, company name, address, telephone and fax 

numbers, and email address;

(2) Certification that the applicant maintains a valid certificate of organic

operation issued under the OFPA and the NOP;

(3) Certification that the applicant processes organic products eligible to be 

labeled ‘‘organic’’ under the NOP;

(4) An attached copy of the applicant’s certificate of organic operation issued 

by a USDA-accredited certifying agent under the OFPA and the NOP;

(5) Certification, as evidenced by signature and date, that all information 

provided by the applicant is true; and

(6) Such other information as may be required by the Board, with the 

approval of the Secretary.

(j) If a miller or baker complies with the requirements of this section, the Board will 

grant an assessment exemption and issue a Certificate of Exemption to the miller 

or baker within thirty (30) calendar days from the date of submission. If the 

application is not approved, the Board will notify the applicant of the reason(s) for 

disapproval within thirty (30) calendar days from the date of submission.

(k) The exemption will apply immediately following the issuance of a Certificate of 

Exemption.

§ 12XX.56 Investment of funds.

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 part 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;
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(3) Interest bearing accounts or certificates of deposit of financial 

institutions that are members of the Federal Reserve System; 

(4) Obligations fully guaranteed as to principal interest by the United States; 

or

(5) Other investments as authorized by the Secretary.

Promotion, Research, and Information

§ 12XX.60 Programs, plans, and projects.

(a) The Board shall develop and submit to the Secretary for approval programs, 

plans, or projects authorized by this subpart. Such programs, plans, or projects 

shall provide for promotion, research, information, and other activities, including 

consumer and industry information designed to:

(1) Establish, issue, effectuate, and conduct the administration of 

appropriate programs for promotion, research and information, including 

producer and consumer information, with respect to grain foods; and

(2) Establish and conduct research with respect to the image, desirability, 

use, marketability, quality or production of grain foods, to the end that the 

marketing and use of grain foods may be encouraged, expanded, improved 

or made more acceptable and to advance the image, desirability or quality 

of grain foods.

(b) No program, plan or project shall be implemented prior to its approval by the 

Secretary. Once a program, plan, or project is so approved, the Board shall take 

appropriate steps to implement it.

(c) The Board shall evaluate each program, plan, and project authorized under this 

subpart to ensure that such program, plan or project contributes to an effective

and coordinated program of promotion, research, and information. The Board 

must submit the evaluations to the Secretary. If the Board finds that a program, 

plan or project does not further the purposes of the Act, then the Board shall 

terminate such program, plan or project.

§ 12XX.61 Independent evaluation.

The Board shall, at least once every five (5) years, authorize and fund, from funds 

otherwise available to the Board, an independent evaluation of the effectiveness of 

the Order and the 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. 

§ 12XX.62 Patents, copyrights, trademarks, information, publications, and 

product formulations.

(a) Any patents, copyrights, trademarks, information, publications and product 

formulations developed through the use of funds received by the Board under this 
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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. 

(b) Notwithstanding the provisions of paragraph (a), if patents, copyrights,

trademarks, information, publications and product formulations are developed 

through the use of funds remitted to the Board under this subpart and funds 

contributed by another organization or person, ownership and related rights to 

such patents, copyrights, inventions, or publications shall be determined by 

agreement between the Board and the party contributing funds towards the 

development of such patent, copyright, trademark, information, publication and 

product formulations, subject to approval by the Secretary.

(c) Upon termination of this subpart, §12XX.83 shall apply to determine disposition 

of all such property. 

Reports, Books, and Records

§ 12XX.70 Reports.

(a) Each baker subject to this subpart will be required to provide to the Board, 

accompanying the assessment remittance, the following information covering the 

fiscal quarter for which assessments are being remitted, in addition to such other 

information as the Board, with the approval of the Secretary, may require:

(1) For wheat flour purchased directly from millers:

(i) CWT of wheat flour purchased directly from millers used to 

produce grain foods on which assessments are being remitted;

(ii) CWT of wheat flour purchased directly from millers used to 

produced grain foods which is exempt from assessment under the organic 

exemption set forth in § 12XX.55(g); and

(iii) The name(s) of the miller(s) from which the baker purchased 

wheat flour for the purchases enumerated in (i) and (ii) of this section above. 

(2) For finished grain foods purchased from sub-bakers:

(i) CWT of grain foods purchased from sub-bakers on which 

assessments are being remitted;

(ii) CWT of grain foods purchased from sub-bakers which is certified 

organic and therefore exempt from assessment; and

(iii) The name(s) of the miller(s) and CWT of wheat flour purchased by 

the sub-baker from the miller for the sub-baker to produce the grain foods under (i) 

and (ii) above.

(b) In addition to the information required above, the Board may request such 

other information from bakers and millers as it may periodically require to ensure 

compliance with the provisions of this subpart.
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§ 12XX.71 Books and records.

Each miller and baker, including millers and bakers exempt from the payment of 

assessments under the provisions of this subpart, shall:

(a) maintain records sufficient to ensure compliance with the order and 

regulations;

(b) submit to the board established under the order any information required 

by the board to carry out its responsibilities under the order; and

(c) make the records described in (a) above available, during normal 

business hours, for inspection by employees or agents of the Board or the 

Department, including any records necessary to verify information required 

under (b) above. Such records shall be retained for at least three (3) years 

beyond the fiscal period of their applicability.

§ 12XX.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, millers or bakers. Only 

those persons having a specific need for such information solely 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 at 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

§ 12XX.80 Right of the Secretary. 

All fiscal matters, programs, plans, contracts, or projects, rules or regulations, 

reports, or other actions proposed and prepared by the Board shall be submitted 

to the Secretary for approval. 

§ 12XX.81 Referenda.
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(a) For the purpose of ascertaining whether the persons subject to this Order favor 

the issuance, continuation, suspension, or termination of this Order, the Secretary 

shall conduct a referendum among persons subject to assessments under 

§12XX.54 who, during a representative period determined by the Secretary, have 

engaged in the production of grain food.

(b) The Order shall not become effective unless the Order is approved in an initial 

referendum, as specified in 12XX.81(d).

(c) Subsequent referenda. The Secretary shall conduct subsequent referenda:

(1) Not later than every seven (7) years after the Order becomes effective, 

and every seven (7) years thereafter, the Secretary shall hold a referendum 

to determine whether millers and bakers favor the continuation of the Order. 

The Order shall continue if it is favored by as specified in 12XX.81(d);

(2) At the request of the Board established by this Order;

(3) At the request of ten percent (10%) or more of the number of persons 

eligible to vote in a referendum set forth under the Order; or

(4) At any time as determined by the Secretary.

(d) Approval in a referendum shall be established by a majority of persons voting 

and also representing a majority of the volume of wheat flour, during the 

representative period established by the Secretary.

(e) The Board shall reimburse the Secretary for any expenses incurred by the 

Secretary to conduct referenda.

(f) A referendum conducted under this section with respect to this part shall be 

conducted in the manner determined by the Secretary to be appropriate. 

§ 12XX.82 Suspension and 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 purposes of the Act, or if the Secretary determines 

that this subpart or a provision thereof is not favored by persons voting in a 

referendum conducted pursuant to the Act. 

(b) The Secretary shall suspend or terminate this subpart at the end of the fiscal 

year whenever the Secretary determines that its suspension or termination is

favored by (i) a majority of bakers and millers and (ii) bakers representing at least 

a majority of the volume of grain foods, voting in the referendum who, during a 

representative period determined by the Secretary, have been engaged in the 

production of grain foods as a miller or a baker.

(c) If, as a result of a referendum the Secretary determines that this subpart is not 

approved, the Secretary shall: 
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(1) Not later than one hundred and eighty (180) calendar days after making 

the determination, suspend or terminate, as the case may be, the collection 

of assessments under this order; and 

(2) As soon as practical, suspend or terminate, as the case may be, 

activities under this subpart in an orderly manner. 

§ 12XX.83 Proceedings after termination. 

(a) Upon the termination of this subpart, the Board shall recommend to the 

Secretary not more than three of its members, including at least one member each 

representing millers and bakers, 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 person’s 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 or assets 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 domestic grain foods organizations, should the Secretary 

identify such organizations, in the interest of continuing grain foods promotion, 

research and information programs. 

§ 12XX.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: 
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(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; or 

(c) Affect or impair any rights or remedies of the United States, or of the 

Secretary or of any other persons, with respect to any such violation. 

§ 12XX.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.

§ 12XX.86 Separability. 

If any provision of this subpart is declared invalid or the applicability of it 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. 

§ 12XX.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.

§ 12XX.88 OMB control number.

The control numbers assigned to the information collection requirements in this 

part 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 XXXXXXXX (Board nominee background statement) and OMB control number XXXXXXXX.