69094 Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 

IMPORT ASSESSMENT TABLE— 

Continued 

[Raw cotton fiber] 

HTS No. Conv. 

fact. Cents/kg 

6302100008 .............. 1.1073 1.4024 

6302100015 .............. 1.1073 1.4024 

6302213010 .............. 1.1073 1.4024 

6302213020 .............. 1.1073 1.4024 

6302213030 .............. 1.1073 1.4024 

6302213040 .............. 1.1073 1.4024 

6302213050 .............. 1.1073 1.4024 

6302215010 .............. 0.7751 0.9817 

6302215020 .............. 0.7751 0.9817 

6302215030 .............. 0.7751 0.9817 

6302215040 .............. 0.7751 0.9817 

6302215050 .............. 0.7751 0.9817 

6302217010 .............. 1.1073 1.4024 

6302217020 .............. 1.1073 1.4024 

6302217030 .............. 1.1073 1.4024 

6302217040 .............. 1.1073 1.4024 

6302217050 .............. 1.1073 1.4024 

6302219010 .............. 0.7751 0.9817 

6302219020 .............. 0.7751 0.9817 

6302219030 .............. 0.7751 0.9817 

6302219040 .............. 0.7751 0.9817 

6302219050 .............. 0.7751 0.9817 

6302221010 .............. 0.5537 0.7012 

6302221020 .............. 0.3876 0.4909 

6302221030 .............. 0.5537 0.7012 

6302221040 .............. 0.3876 0.4909 

6302221050 .............. 0.3876 0.4909 

6302221060 .............. 0.3876 0.4909 

6302222010 .............. 0.3876 0.4909 

6302222020 .............. 0.3876 0.4909 

6302222030 .............. 0.3876 0.4909 

6302290020 .............. 0.2215 0.2805 

6302313010 .............. 1.1073 1.4024 

6302313020 .............. 1.1073 1.4024 

6302313030 .............. 1.1073 1.4024 

6302313040 .............. 1.1073 1.4024 

6302313050 .............. 1.1073 1.4024 

6302315010 .............. 0.7751 0.9817 

6302315020 .............. 0.7751 0.9817 

6302315030 .............. 0.7751 0.9817 

6302315040 .............. 0.7751 0.9817 

6302315050 .............. 0.7751 0.9817 

6302317010 .............. 1.1073 1.4024 

6302317020 .............. 1.1073 1.4024 

6302317030 .............. 1.1073 1.4024 

6302317040 .............. 1.1073 1.4024 

6302317050 .............. 1.1073 1.4024 

6302319010 .............. 0.7751 0.9817 

6302319020 .............. 0.7751 0.9817 

6302319030 .............. 0.7751 0.9817 

6302319040 .............. 0.7751 0.9817 

6302319050 .............. 0.7751 0.9817 

6302321010 .............. 0.5537 0.7012 

6302321020 .............. 0.3876 0.4909 

6302321030 .............. 0.5537 0.7012 

6302321040 .............. 0.3876 0.4909 

6302321050 .............. 0.3876 0.4909 

6302321060 .............. 0.3876 0.4909 

6302322010 .............. 0.5537 0.7012 

6302322020 .............. 0.3876 0.4909 

6302322030 .............. 0.5537 0.7012 

6302322040 .............. 0.3876 0.4909 

6302322050 .............. 0.3876 0.4909 

6302322060 .............. 0.3876 0.4909 

6302390030 .............. 0.2215 0.2805 

6302402010 .............. 0.9412 1.1921 

6302511000 .............. 0.5537 0.7012 

6302512000 .............. 0.8305 1.0518 

6302513000 .............. 0.5537 0.7012 

IMPORT ASSESSMENT TABLE— 

Continued 

[Raw cotton fiber] 

HTS No. Conv. 

fact. Cents/kg 

6302514000 .............. 0.7751 0.9817 

6302593020 .............. 0.5537 0.7012 

6302600010 .............. 1.1073 1.4024 

6302600020 .............. 0.9966 1.2622 

6302600030 .............. 0.9966 1.2622 

6302910005 .............. 0.9966 1.2622 

6302910015 .............. 1.1073 1.4024 

6302910025 .............. 0.9966 1.2622 

6302910035 .............. 0.9966 1.2622 

6302910045 .............. 0.9966 1.2622 

6302910050 .............. 0.9966 1.2622 

6302910060 .............. 0.9966 1.2622 

6302931000 .............. 0.4429 0.5610 

6302932000 .............. 0.4429 0.5610 

6302992000 .............. 0.2215 0.2805 

6303191100 .............. 0.8859 1.1220 

6303910010 .............. 0.6090 0.7713 

6303910020 .............. 0.6090 0.7713 

6303921000 .............. 0.2768 0.3506 

6303922010 .............. 0.2768 0.3506 

6303922030 .............. 0.2768 0.3506 

6303922050 .............. 0.2768 0.3506 

6303990010 .............. 0.2768 0.3506 

6304111000 .............. 0.9966 1.2622 

6304113000 .............. 0.1107 0.1402 

6304190500 .............. 0.9966 1.2622 

6304191000 .............. 1.1073 1.4024 

6304191500 .............. 0.3876 0.4909 

6304192000 .............. 0.3876 0.4909 

6304193060 .............. 0.2215 0.2805 

6304910020 .............. 0.8859 1.1220 

6304910070 .............. 0.2215 0.2805 

6304920000 .............. 0.8859 1.1220 

6304996040 .............. 0.2215 0.2805 

6505901515 .............. 1.1189 1.4170 

6505901525 .............. 0.5594 0.7085 

6505901540 .............. 1.1189 1.4170 

6505902030 .............. 0.9412 1.1921 

6505902060 .............. 0.9412 1.1921 

6505902545 .............. 0.5537 0.7012 

6507000000 .............. 0.3986 0.5049 

9404901000 .............. 0.2104 0.2665 

9404908020 .............. 0.9966 1.2622 

9404908040 .............. 0.9966 1.2622 

9404908505 .............. 0.6644 0.8415 

9404908536 .............. 0.0997 0.1262 

9404909505 .............. 0.6644 0.8415 

9404909570 .............. 0.2658 0.3366 

* * * * * 

Authority: 7 U.S.C. 2101–2118. 

Dated: November 1, 2011. 

David R. Shipman, 

Acting Administrator. 

[FR Doc. 2011–28795 Filed 11–7–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1214 

[Doc. No. AMS–FV–10–0008–FR–1A] 

RIN 0581–AD00 

Christmas Tree Promotion, Research, 

and Information Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes an 

industry-funded promotion, research, 

and information program for fresh cut 

Christmas trees. The Christmas Tree 

Promotion, Research, and Information 

Order (Order) is authorized under the 

Commodity Promotion, Research, and 

Information Act of 1996 (1996 Act). The 

Order will establish a national 

Christmas Tree Promotion Board 

(Board) comprised of 11 producers and 

one importer. Under the Order, 

producers and importers of fresh cut 

Christmas trees will pay an initial 

assessment of fifteen cents per 

Christmas tree. Producers and importers 

that produce or import less than 500 

Christmas trees annually will be exempt 

from the assessment. 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. 

DATES: Effective November 9, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Patricia A. Petrella, Marketing 

Specialist, Research and Promotion 

Division, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue SW., Room 1406, Stop 0244, 

Washington, DC 20250–0244; telephone: 

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

2896; or email: 

Patricia.Petrella@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This 

Order is issued pursuant to the 

Commodity Promotion, Research, and 

Information Act of 1996 (1996 Act) 

(7 U.S.C. 7411–7425). 

As part of this rulemaking process, a 

proposed rule was published in the 

Federal Register on November 8, 2010 

(75 FR 68512). That rule provided for a 

60-day comment period which ended on 

February 7, 2011. Five hundred 

comments were received. As requested 

by a member of Congress and several 

North Carolina producers, the comment 

period was reopened for 15 days (76 FR 

9695, February 22, 2011). That comment 


tkelley on DSK3SPTVN1PROD with RULES
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period ended on March 9, 2011. An 

additional 65 comments were received. 

All comments are addressed later in this 

rule. 

Executive Order 12866 

This final 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 final 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 final rule has been reviewed 

under Executive Order 13132, 

Federalism. 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 rule establishes an industryfunded promotion, research, and 

information program for fresh cut 

Christmas trees. The Christmas Tree 

Promotion, Research, and Information 

Order (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 program. Under the Order, 

producers and importers of fresh cut 

Christmas trees will pay an initial 

assessment of $0.15 cents per tree, 

which would be paid to the Christmas 

Tree Promotion Board (Board). This 

Board will be responsible for 

administration and operation of the 

Order. Producers and importers that 

produce or import less than 500 

Christmas trees annually will be exempt 

from the assessment. The 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 collection of assessments 

begin to determine if Christmas tree 

producers and importers favor the 

continuation of this program. A final 

rule on the referendum procedures will 

be published in the Federal Register at 

a later time. The rule also announces the 

Agricultural Marketing Service’s (AMS) 

approval of new Christmas tree 

information collection requirements by 

the OMB for the operation of the Order. 

Authority in 1996 Act 

The 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 fresh cut 

Christmas trees. The Order will 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 


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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, Columbia 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 suffered 

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 of a Program 

Pursuant to section 513 of the 1996 

Act, sections 1214.1 through 1214.30 of 

the Order define certain terms that will 

be used throughout the Order, such as 

Christmas trees, importer and producer. 

Several of the terms are common to all 

research and promotion programs 

authorized under the 1996 Act while 

other terms are specific to the Order. 

Sections 1214.47 of the Order will 

detail the establishment and 

membership of the Christmas Tree 

Promotion Board, nominations and 

appointments, the term of office, 

removal and vacancies, procedure, 

reimbursement and attendance, powers 

and duties, and prohibited activities. 

Sections 1214.50 through 1214.56 of 

the Order will detail requirements 

regarding the Board’s budget and 

expenses, financial statements, 

assessments, and exemption from 

assessments. 

The Board’s programs and expenses 

will be funded through assessments on 

producers, importers, donations from 

any person including those not subject 

to assessments, other income, and other 

funds available to the Board. The Order 

will provide for an initial assessment 

rate of $0.15 per Christmas tree cut and 

sold domestically 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 will 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. 

Importers who import 500 Christmas 

trees or more would be required to pay 

assessments to the Board, if not 

collected by Customs. 

Importer assessments will be 

collected through Customs. The Order 

will specify a list of numbers of the 

Harmonized Tariff Schedule of the 

United States that will identify 

Christmas trees subject to assessments. 

The Order will 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 will be 

prescribed in the Order’s regulations 

issued by the Secretary. 

Sections 1214.60 through 1214.62 of 

the Order will detail requirements 

regarding promotion, research and 

information projects authorized under 

the Order. 

Sections 1214.70 through 1214.72 

specify the reporting and recordkeeping 

requirements under the Order as well as 

requirements regarding confidentiality 

of information. 

Section 1214.81(a)(1) of the Order 

specifies that the program will be 

implemented and a referendum 

conducted three years after assessments 

first begin under the Order. The Order 

will not continue unless it is approved 

by a majority of those persons voting in 

the referendum for approval. 

Section 1214.81(b) of the Order 

specifies criteria for subsequent 

referenda. Under the Order, a 

referendum will be held to ascertain 

whether the program should continue, 

be amended, or be terminated. 

Section 1214.80 and sections 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 program 

authorized under the 1996 Act. 

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 this rule on small entities. 

Accordingly, AMS has prepared this 

final regulatory flexibility analysis. 

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. 


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Federal Register / Vol. 76, No. 216 / Tuesday, November 8, 2011 / Rules and Regulations 69097 

Under these criteria, the majority of 

the producers that will be affected by 

this Order will be considered small 

entities, while most importers will not. 

Producers and importers who cut and 

sell or imported less than 500 Christmas 

trees annually will be exempt from the 

assessment. Organic producers and 

importers would also be exempt from 

assessments. The number of entities 

assessed under the program will be 

approximately 3,263. Estimated revenue 

is expected to be approximately $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 

harvested Christmas trees in the United 

States. Approximately 25 percent of the 

producers or 3,100 Christmas tree 

producers will be subject to the 

assessment based on the exemption of 

those producing less than 500 trees will 

be exempt from assessments. 

Approximately 95 percent of the 

producers subject to the assessment 

qualified under the definition for small 

business owners. According to the Task 

Force the average price for 6 to 7 foot 

Douglas and Noble fir trees is $11.00 

and $18.00, respectively. 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 

harvested 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 are subject to the 

assessment rate under the Order. 

This rule establishes an industryfunded research, promotion, and 

information program for fresh cut 

Christmas trees. The program will be 

financed by an assessment on Christmas 

tree producers and importers and will 

be administered by a board of industry 

members selected by the Secretary. The 

initial assessment rate will be $0.15 per 

Christmas tree cut and sold or imported 

to the United States and could be 

increased to $0.20 per Christmas tree. 

Entities that cut and sell or import less 

than 500 Christmas trees will be 

exempt. The purpose of the program 

will be to strengthen the position of 

Christmas trees in the marketplace, and 

maintain and expand markets for 

Christmas trees. A referendum will 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 will 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 

Order on affected entities, Christmas 

tree producers and importers will be 

required to pay assessments to the 

Board. As previously mentioned, the 

initial assessment rate will be $0.15 per 

Christmas tree cut and sold 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 Order is expected to 

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 experiences, these 

programs only worked in the short term; 

until monies were depleted. 

This action will impose an 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 will also 

submit a background statement 

outlining their qualifications to serve on 

the Board. Producers and importers will 

have the opportunity to cast a ballot and 

vote for candidates to serve on the 

Board. Producer and importer nominees 

to the Board will 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 will report regarding 

their sales/imports that will accompany 

their assessments paid to the Board. 

Producers and importers who will 

qualify as 100 percent organic under the 

NOP could submit a request to the 

Board for an exemption from 

assessments. 

Finally, producers and importer who 

wanted to participate in a referendum to 

vote on whether the Order should 

continue will have to complete a ballot 

for submission to the Secretary. These 

forms were approved by OMB under 

OMB Control No. 0581–0267 and 0581– 

0268. 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 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), the reporting and 

recordkeeping provisions generated by 

this rule have been preapproved by the 

Office of Management and Budget 

(OMB). 

Title: Research and Promotion 

Background Information. 

OMB Number for background form 

AD–755: (approved under OMB No. 

0505–0001). 

Expiration Date of Approval: 

7/31/2012. 

Title: Christmas Tree Promotion, 

Research, and Information Program 

(Order). 

OMB Numbers: 0581–0268. 

Expiration Date of Approval: 

12/31/2013. 

Type of Request: Approval of a 

preapproved collection. 

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 will be financed by an 

assessment on Christmas tree producers 

and importers and will be administered 

by a board of industry members selected 

by the Secretary. The program will 

provide for an exemption for producers 

and importers that cut and sell or 

import less than 500 Christmas trees 

during the year. A referendum will be 


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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 will 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 will 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 will have the opportunity to 

submit a ‘‘Nomination Ballot’’ to the 

Board where they will vote for 

candidates to serve on the Board. 

Nominees will 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 cut and sell 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 will accompany their 

assessments paid to the Board and 

report the quantity of Christmas trees 

cut and sold or imported during the 

applicable period, the quantity for 

which assessments were paid, and the 

port of entry (for imports). Importer 

assessments will be collected by 

Customs. If Customs collects the 

assessment and the importer does not 

reach the assessable threshold, the 

Board will refund such assessments no 

later than 60 calendar days after receipt 

from the Board. Customs will remit the 

funds to the Board along with this 

information. Finally, producers and 

importers who will 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 will 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 will 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 final rule on 

referendum procedures which will be 

published in the Federal Register at a 

later time. 

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 

sold. 

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 domestically 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 record keeper 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. 

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. 


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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 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 program, 

producers and importers will be 

required to pay assessments and file 

reports with and submit assessments to 

the Board (importers through Customs). 

While the Order will impose certain 

recordkeeping requirements on 

producers and importers, information 

required under the 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 will 

provide information to the Board 

(12,255 producers and 200 importers). 

The estimated cost of providing the 

information to the Board by respondents 

will 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 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 forms will 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 will be simple, easy to 

understand, and place as small a burden 

as possible on the person required to file 

the information. 

Collecting information quarterly will 

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. 

Analysis of Comments 

The previous proposed rule 

concerning this action published in the 

Federal Register on November 8, 2010, 

provided for a 60-day comment period 

which ended on February 7, 2011. The 

comment period was reopened for 15 

days (76 FR 9695, February 22, 2011), as 

requested by a member of Congress and 

several North Carolina producers. That 

comment period ended on March 9, 

2011. A total of 565 comments were 

received during the two comment 

periods. Of the 565 comments received, 

19 were from U.S. State or regional 

organizations representing Christmas 

tree producers. Two of these 

organizations representing Texas and 

Vermont were in opposition to the 

proposal, while the others supported the 

proposal. Three regional producer 

organizations from Canada submitted 

comments in favor of the proposal. In 

addition, two State Universities and one 

State Department of Agriculture 

submitted comments in favor of 

Christmas tree program. 

Of the 565 comments submitted, 398 

were in favor of the proposal, 147 were 

in opposition, nine were duplicates, six 

were neither for or against, four 

requested an extension of the comment 

period, and one had no comment. 

Comments were received from 

interested parties in 35 different States 

in the United States with the majority of 

those comments from North Carolina, 

Oregon, Michigan, and Wisconsin. Also, 

comments were received from interested 

parties in four Canadian provinces and 

the United Kingdom. 

General Comments in Support 

The majority of the comments that 

supported the Order suggested that the 

pooling of resources was a significant 

benefit of a national mandatory 

Christmas tree promotion program. 

Several commenters mentioned the 

need to promote the environmental and 

green benefits of Christmas trees and 

how providing education to the public 

of these aspects will result in the 

possible increase in sales. Many 

commented that they have seen the 

successes of other promotional 

programs and how beneficial it was to 

that industry. Commenters suggested 

promoting Christmas tree traditions of 

choosing a Christmas tree as a family 

experience. 

Some commenters stated that there 

should not be a 500 Christmas tree 

threshold for payment of assessments. 

These commenters suggested that all 

Christmas tree producers should pay the 

assessment and share in the cost of 

promotion. 

Section 516(a)(1) of the 1996 Act 

provides authority for the Secretary to 

exempt from an order any de minimis 

quantity of an agricultural commodity 

otherwise covered by the order. 

However, the 1996 Act does not define 

the term de minimis and USDA is not 

limited to using the definition of de 

minimis as specified in another law or 

agreement. The de minimis quantity is 

defined for a particular program and 

industry. The Task Force reviewed 

various options for the exemption and 

determined that 500 Christmas trees 

would be appropriate because such a 

level would still provide the Board with 

resources to have a program that could 

be successful. USDA agrees that this 

exemption level is appropriate and 

reasonable. 

Comments in Support With 

Modifications 

There were 11 comments in support 

of the Order with modifications. 

An association that includes all of the 

members of the Task Force and a 

national association promoting 

Christmas trees supported the proposal 

in general with some suggested 

modifications. 

The first five modifications suggested 

changes to the Order language that are 

not adopted in this final rule. The first 

modification was to allow 10 percent of 

the assessments paid under this 

program by producers that are members 

of State/multi-State associations to be 

directed to the State/multi-State 

associations to carry out local programs 

without competing to raise additional 

funds. This was originally proposed to 

USDA by the proponents as a way to 

foster better cooperation with 

associations, however it was not 

included in the proposed Order by 

USDA. 

USDA believes that with a mandatory 

requirement to set aside a specific 

percent of the funds collected under the 


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program for State/multi-State 

associations, there may not be adequate 

funds remaining to achieve the Board’s 

goals of promoting for the entire 

Christmas tree industry as this program 

expects to raise only 2 million dollars in 

assessments. Including this language in 

the order provisions does not prevent 

the Board from funding projects with 

State or multi-State organizations that 

they determine could benefit the entire 

Christmas tree industry. Therefore, no 

changes are being made to the Order 

language to reflect these comments. 

Another suggested modification 

would change section 1214.46(g) to 

allow the Board to contract with 

companies or organizations for their 

staffing needs. Adding this authority to 

allow the Board to contract with 

companies or organizations would 

provide more flexibility in meeting its 

needs for staffing. Such authority 

already exists in the proposed Order 

and permits such contracting under 

section 1214.46(o) and therefore, no 

changes are being made to the Order 

language to reflect these comments. 

The proponents requested elimination 

of the organic exemption. This change 

was also requested by other 

commenters. Under authority provided 

by 7 U.S.C., the Order exempts 

producers who operate under an 

approved National Organic Program 

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

produce only products that are eligible 

to be labeled as 100 percent organic 

under the NOP, and are not a split 

operation, from paying assessments. 

Thus, 100 percent organic Christmas 

trees would be exempt from assessment 

under the Order. Therefore, no changes 

are being made to the Order language to 

reflect these comments. 

The fourth modification would 

provide clarifying language in section 

1214.50(c) as provided in the preamble 

of the proposed rule. The commenters 

wanted this section clarified as stated in 

the preamble of the proposed Order in 

regard to shifting of funds from one 

program, plan, or project to another. The 

recently modified Guidelines for AMS 

Oversight of Commodity Research and 

Promotion Programs require approval by 

AMS of shifts in program funds from 

one major area to another. Therefore, no 

changes are being made to the Order 

language to reflect these comments. 

The fifth and last change to the Order 

concerns the preamble of the proposed 

Order which states that 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. The 

comment indicated that in section 

1214.41 nominees must domestically 

produce or import more than 500 

Christmas trees during the most recent 

fiscal year. That is an eligibility 

requirement for Board members, but 

does not preclude members from being 

employees of companies that may be 

producers or importers assessed under 

this order. Therefore, the preamble (75 

FR 68516) and Order language correctly 

specify the eligibility requirements for 

Board members. Therefore, no changes 

are being made to the Order language to 

reflect these comments. 

The proponents also suggested two 

modifications that could be adopted by 

the Board through informal rulemaking, 

and therefore require no changes to the 

Order language. The first modification 

would be to provide for Certificates of 

Exemptions to be issued every five years 

instead of annually. The proponents 

indicated that production of individual 

farms do not vary greatly from year to 

year because of the nature of the 

Christmas trees crop. It normally takes 

an average of 4 to 10 years to produce 

a marketable Christmas tree. The 

proponents indicated that about 9,000 

producers could be eligible for an 

exemption. In addition, the proponents 

indicated that exemption forms could 

require a producer to acknowledge that 

if a producer’s situation changes it 

would their responsibility to inform the 

Board. Accordingly, no changes are 

made as a result of this suggestion. 

The next modification would increase 

administrative costs from 10 percent, as 

proposed, to 15 percent as allowable 

under the Act. The commenter 

requested this increase because the 

start-up costs are likely to be higher 

than operating costs in later years with 

the need to educate producers about the 

program. In addition, the commenter 

believes a strong compliance element 

will be important to collecting 

assessments and assuring sustainability 

of the program. USDA is of the view if 

indeed there is concern in the industry 

that the administrative cost cap be 

increased to 15 percent, then as 

authorized by the 1996 Act, upon 

recommendation of the Board such a 

change could be accomplished though 

informal rulemaking. Therefore, no 

change to Order language is made as a 

result of this suggestion. 

The proponents suggested six other 

modifications that would require 

changes to the Order language. The first 

change will add the refund procedure to 

the Order language as described in the 

preamble. The procedure would state 

that producers and importers that 

produced or imported 500 Christmas 

trees or less and did not apply for an 

exemption shall receive a refund from 

the Board within 30 calendar days after 

the end of the fiscal period. This 

procedure was outlined in the preamble 

of the proposed Order but not in the 

Order language. Therefore, section 

1214.53(a)(7) was added to the Order 

language to clarify the procedure 

described in the preamble. 

The second change would provide 

that for the initial crop year’s budget 

which could be largely administrative 

that repayment of such expenses would 

not be considered an administrative 

expense in subsequent years. The Act 

provides that for fiscal years beginning 

3 or more years after the date of the 

establishment of the Board, the Board 

may not expend for administration, 

maintenance, and functioning of the 

Board in a fiscal year an amount that 

exceeds 15 percent of the assessment 

and other income received by the Board. 

The proposed Order contains 10 percent 

as the limit. This language, therefore, 

permits the Board to expend more funds 

in the first three years of startup of the 

Order for administration, maintenance 

and functioning of the Board. This 

recommendation is reasonable and the 

appropriate Order language will be 

added to the section reflect this change. 

Another change would delete 

erroneous section numbers from the 

table of contents of the Order. The table 

of contents for the Order included 

sections 1214.55 Refunds and 1214.56 

Procedures for obtaining a refund. 

Provision for these sections is in section 

1214.53; therefore, the reference to these 

section numbers is removed from the 

table of contents. 

The fourth change would provide 

clarification in section 1214.52(e) 

regarding the assessments due date. The 

commenters indicated that the wording 

in section 1214.52(e) could be construed 

as saying that assessments would not be 

due until the crop year following the 

sale of Christmas trees, or more than 14 

months later. This is not the intent of 

the language. For the purpose of this 

program, crop year is defined as August 

1 through July 31, accordingly, 

producers or importers that 

domestically produced or imported over 

500 Christmas trees are to pay their 

assessments no later than February 15 of 

the crop year in which they are 

produced or imported. Therefore, 

section 1214.52(e) has been revised to 

clarify this change. 

Another change would correct an 

erroneous section number in section 

1214.62. In section 1214.62, section 

1214.73 is erroneously referenced. The 

reference section number should be 

section 1214.83. 

The last change would correct an 

erroneous sentence in the Order 

language regarding the time producers 


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and importers could receive refunds if 

the delayed referendum fails. The 

preamble of the proposed rule specified 

a procedure that producers and 

importers shall notify the Board within 

30 days after the announcement of the 

referendum (that it has failed) of their 

demand to receive a refund. The Order 

language in section 1214.54(d) specifies 

that any producer or importer 

requesting 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 preamble language is 

correct. Therefore, the Order language in 

section 1214.54(d) has been corrected to 

be consistent with this language. 

Finally, one modification was 

suggested that would clarify language in 

the preamble. There is a phrase in the 

preamble of the proposed Order (75 FR 

68516) that indicates the Board is to 

report its activities to manufacturers for 

the U.S. market. This language was not 

correct and should not have appeared in 

the preamble of the proposed Order. 

Comments in Opposition 

There were 21 comments in 

opposition to the proposal that 

suggested key points in the areas of 

assessments, exemptions, promotion, 

referenda, reporting, and other issues. 

Based on our evaluation of these 

comments, no changes will be made the 

Order. These comments are discussed 

below. 

Assessments 

A commenter expressed concern that 

the government should assess or tax 

imports of artificial trees instead of 

taxing or assessing domestically 

produced Christmas trees. Research and 

promotion programs are self help 

programs that promote an agricultural 

commodity. The Christmas tree industry 

decided to propose under the authority 

under the 1996 Act, a program to 

promote domestic and imported fresh 

cut Christmas trees. 

The commenter was also concerned 

about assessing Christmas trees that are 

given to charity or trees lost to disease. 

If Christmas trees are donated to charity 

or lost to disease and therefore not sold 

into the marketplace, they will not be 

assessed under the Order. 

Exemptions 

A commenter also stated that not 

assessing producers or importers that 

produce or import less than 500 

Christmas trees is the way for the 

proponents to get the program passed in 

a referendum. The commenter also 

stated that the initial exemption for 

Christmas tree producers was 2500 

Christmas trees and the amount in the 

proposed Order is 500 Christmas trees. 

The Task Force reviewed various 

options for the exemption and 

determined that 500 Christmas trees 

would be appropriate because such a 

level would still provide the Board with 

resources to have a program that could 

be successful. USDA concurs with this 

exemption level because this level 

would exempt small operations that 

would otherwise be burdened by the 

assessment. Therefore, an exemption for 

producers and importers of less than 

500 trees is authorized under the 

program and consistent with the Act’s 

provisions. 

The commenter questioned how the 

500 Christmas tree exemptions would 

be applied. Under the Order, producers 

and importers of fewer than 500 

Christmas trees would not be assessed 

under this Order. Producers and 

importers of 500 or more Christmas 

trees will be assessed on the total 

production number of Christmas trees 

produced or imported. 

Promotion 

A commenter also stated that the Task 

Force cited an increase in sales when a 

similar marketing program was in 

existence. The commenter stated that 

this is merely a correlation, and no 

further evidence is provided 

establishing that the marketing program 

caused the increase in sales. Other 

commenters also stated that the benefits 

would not outweigh the cost of the 

program. 

The Task Force provided that the 

main reason for the marketing program’s 

demise was that it was voluntary in 

nature. Under the proposed Order, the 

assessments to fund the program would 

be mandatory, therefore, providing 

consistent funding by stakeholders. In 

addition, several comments in favor of 

the proposed Order supported the 

consistent funding which would 

provide the industry with a workable 

program to increase sales. Furthermore, 

a third party five-year evaluation is 

required of all research and promotion 

programs to determine the benefits to 

their industries under section 515(h) of 

the 1996 Act. These evaluations are 

available from the Boards and are 

posted on the AMS Web site. The 

industry may terminate the program if 

the first evaluation does not show a 

benefit to the Christmas tree industry. 

A commenter also stated that if USDA 

promulgates this rule they should solicit 

data from other sources, develop a 

definitive plan for how to boost 

Christmas tree sales, and make a 

projection for the increase in fresh-cut 

Christmas tree sales and a cost benefit 

analysis. The Act provides authority for 

the Secretary to appoint a Board 

consisting of industry members. The Act 

states that such a Board must develop a 

plan under USDA oversight to promote 

Christmas trees. USDA approves the 

Board’s annual budget and marketing 

plan. In addition, the Board must 

conduct a third party program 

evaluation every five years to evaluate 

the effectiveness of the program’s 

activities. All these documents are 

discussed at Board meetings, are public 

information and available on the 

Board’s Web site. The program 

evaluation is also available on AMS’s 

Web site. These documents provide the 

road map for the Boards operations and 

assist the industry in determining if the 

program is effective. 

Another issue some commenters 

raised was how much of the funds will 

be spent on administrative costs, USDA 

management, research and other 

projects. The Act authorizes that up to 

15 percent of the assessments collected 

could be used for administrative 

expenses. However, the proponent 

group decided to limit the 

administrative expenses to 10 percent of 

the funds collected. USDA costs are 

based on the time spent by the USDA on 

oversight of the program. The majority 

of the funds are used for research and 

promotion of the commodity. 

Several of the comments addressed 

the issue of promotion proposed under 

the Order. Some Christmas tree 

producers stated their opposition to 

perceived government intervention in 

their Christmas tree operations. They 

also stated that they preferred to do 

their own promotion and did not have 

any problems selling all of their trees, 

thus they did not see any benefit in the 

proposed program. Additionally, one 

commenter stated their belief that the 

program was illegal stating that the 

government can’t promote private 

individuals’ Christmas trees. 

The 1996 Act provides the authority 

for agricultural industries to develop 

programs for research and promotion. 

These programs are initiated by 

members of the industry. USDA 

provides oversight of these programs 

and their activities. However, industry 

Boards that manage these programs 

develop their own budgets and 

marketing plans and conduct strategic 

planning for the programs. Although 

these programs are mandatory in nature, 

they do not preclude individuals from 

promoting their own commodity. 

Another opposition comment stated 

the belief that Christmas trees were a 


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differentiated product and not an 

agricultural commodity and therefore, 

could not be promoted generically 

under this program. The 1996 Act states 

that the term agricultural commodity 

means, among other things, the products 

of forestry and other commodities raised 

or produced in farms. USDA does not 

agree with this comment and believes 

Christmas trees are an agricultural 

commodity and can be promoted under 

the Act authority. 

The commenter also stated their belief 

that ‘‘choose and cut’’ producers who 

provide trees to a distinct market may 

not realize the benefits of such a 

program because generic promotions 

would not attract customers to their 

operations. Various other commenters 

also stated that the government should 

not compel an industry with a variety of 

interests to speak with one voice when 

many are not in agreement. 

This Board will consider the views 

and concerns of every segment of the 

industry and provide a marketing plan 

that benefits the whole Christmas tree 

industry. Producers in all sectors have 

diversified to provide different types of 

activities to increase sales and promote 

their product. A Christmas tree generic 

promotion program will not hinder any 

producer from continuing this type of 

activity. A generic promotion program 

can work in conjunction with other 

marketing activities that individual 

producers and importers already have 

developed or want to develop. 

The commenter also suggested that 

the type of promotion the Board pursues 

may not be agreed upon by such 

commenter and that a one size fits all 

advertising campaign blurs distinctions 

among products in their industry. 

Additional commenters stated that the 

program should cover research but not 

promotion efforts. Research and 

promotion boards represent all sectors 

of the industry and the members will 

bring different backgrounds and 

expertise to the Board when developing 

marketing strategies. In addition, all 

meetings are open to the public. The 

Board would determine the kinds of 

activities conducted under the program 

based on those authorized under the 

Act. No changes have been made to 

reflect these comments. 

The same commenter questioned 

whether the program will insure that 

large stores will water and properly care 

for Christmas trees to maintain quality. 

Many research and promotion programs 

include an educational component to 

those that handle the product. The 

Board may decide that one of the needs 

of the industry is to provide 

information, education and training on 

the handling of Christmas trees to assure 

quality of the product to the consumer. 

Referenda 

A commenter questioned the criteria 

to determine the referendum vote. Other 

commenters did not agree with having 

a delayed referendum or having one 

vote per entity without regard to the 

volume produced or imported. Section 

518 of the Act provides for a referendum 

to be conducted either before the 

program is in place or three years after 

assessments first begin under the order. 

The proponent group chose the delayed 

referendum option. The Act also 

provides for three options to the vote: 

By a majority of those persons voting, by 

persons voting for approval who 

represent a majority of the volume of the 

agricultural commodity, or by a majority 

of those persons voting for approval 

who also represent a majority of the 

volume of the agricultural commodity. 

The proponent group recommended 

counting by vote in order to attempt to 

ensure that small businesses have the 

same vote as large firms. Accordingly, 

the Order will be approved in a 

referendum if a majority of producers 

and importers voting in the referendum 

vote for approval. 

Another commenter expressed the 

opinion that such voting was unfair. 

The commenter stated that one farm one 

vote does not adequately represent the 

producers that would be funding the 

program. The commenter also stated 

that the assessment should be on 

seedling nurseries since there is no true 

first handler. In addition, the 

commenter stated that there is no 

control on increasing the assessment. 

The Act provides three methods for 

determining the vote in referendum. 

The proponents chose a majority of 

those persons voting as the voting 

method. The proponents also chose to 

assess producers and importers since 

these will directly benefit from the 

program. Further, the Order provides 

that the assessment can only be 

increased or decreased by 2 cents during 

the fiscal period and subject to 

rulemaking by the USDA; and it cannot 

exceed 20 cents or drop below 10 cents 

per fiscal period. In order to make any 

changes in the assessment rate, the 

Board would have to make that 

recommendation to USDA and the 

USDA will request comments for the 

industry before implementing any 

change in the assessment rate. No 

changes have been to the Order to 

reflect these concerns. 

Reporting 

Another issue raised by commenters 

concerns the reporting burden under the 

Order. A commenter stated that the 

proposed program involves too much 

paperwork and that forms should be 

web-based to allow easy access. The 

commenter stated concern that 

Christmas tree producers were already 

reporting information to the other 

Federal agencies. The commenter was 

also concerned that the Board would be 

counting stumps. Goals under this 

program are to minimize reporting 

burden and eliminate duplication as 

much as possible. The Board could 

coordinate with other agencies to help 

insure there are no duplicative efforts. 

The Board also may opt to provide the 

required forms electronically in order to 

further reduce the reporting burden to 

producers and importers. 

Another commenter was concerned 

that the reporting requirements would 

require producers to furnish customer 

information to the Board. The 

information required under the program 

does not contain producer or importer 

customer information. Furthermore, 

pursuant to section 515 of the 1996 Act, 

any information collected under the 

program is kept confidential. 

Another commenter stated concern 

about how difficult it may be to 

terminate such a program once 

implemented. This program requires 

that a referendum be conducted 3 years 

after implementation and every 7 years 

thereafter to determine if producers and 

importers support continuation of the 

program. The industry may also request 

a referendum if 10 percent of those 

covered under the program request it. 

The Secretary can also suspend or 

terminate an order or a provision of an 

order if the Secretary finds that an order 

or a provision obstructs or does not tend 

to effectuate the purposes of the Act. 

Other Issues 

Some commenters raised 

constitutionality concerns. One 

commenter raised concerns about a 

perceived unequal burden of taxation. 

The commenter suggested that the 

exemption provision could affect 

producers that produce 500 trees or less 

because this creates unequal taxation 

treatment of Christmas tree producers. 

However, the assessment provided for 

in this type of program is not a tax nor 

does it yield revenue for the Federal 

government. These producer and 

importers funds raised by producers and 

importers are for the benefit of 

producers and importers. 

The commenter also stated that some 

Texas producers were not in favor of the 

proposed Order, that Texas is a 

sovereign State, and therefore Texas 

Christmas tree producers should not be 

included in the Order. The 1996 Act 


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provides that programs under the Act 

would be applicable to agricultural 

commodities produced in the United 

States, which is defined as collectively 

the 50 States, the District of Columbia, 

the Commonwealth of Puerto Rico and 

the territories and possessions of the 

United States. 

Another commenter in opposition 

raised concerns that the proposed Order 

may violate the Establishment Clause. 

The commenter stated that government 

speech cannot advocate religion or 

religious symbols. 

USDA considers Christmas trees to be 

an agricultural commodity which is 

reported as such in various USDA crop 

reports and statistical data reports (e.g. 

2007 Census of Agriculture, National 

Agricultural Statistics Service). The Act 

in section 512 provides for the 

establishment of generic promotion, 

research and information activities for 

agricultural commodities, including 

Christmas trees. 

Another commenter in opposition 

concluded that the rule would fall 

outside the purpose of the 1996 Act by 

favoring one domestic industryChristmas tree farming-to the detriment 

of another domestic industry-artificial 

tree manufacturing. The 1996 Act was 

developed to provide agricultural 

industries with a way to develop and 

expand markets of agricultural 

commodities. Promoting fresh cut 

Christmas trees is within the scope of 

the 1996 Act. 

Another commenter stated that the 

proposed rule should be withdrawn as 

it was an inappropriate use of 

government power citing free markets, 

limited government, and individual 

freedom. The Proposed program was 

presented to the Department by an 

industry wide group of producers and 

importers who requested that such an 

industry-funded program be 

implemented. USDA has concluded that 

a research and promotion program for 

fresh cut Christmas trees is within the 

scope of its authority under the 1996 

Act, and therefore is establishing this 

industry supported program. 

Another comment in opposition 

stated concern that the Board makeup 

unfairly represents big business by its 

geographic areas and trees produced. 

USDA believes that the geographical 

representation proposed by the 

proponent group fairly divides the U.S. 

production and imports of Christmas 

trees. It is USDA policy that the Board 

consider for nomination, the diversity of 

the population served and the 

knowledge, skills, and abilities of the 

members to serve a diverse population, 

size of the operations, methods of 

production and distribution, and other 

distinguishing factors to ensure that the 

Board represents the diverse interest of 

persons responsible for paying 

assessments, and others in the 

marketing chain. USDA also makes sure 

that the geographical distribution of 

members closely reflects the 

distribution of the production. 

After consideration of all relevant 

materials presented, including the 

proposal and comments received, the 

USDA has determined that this Order is 

consistent with and will effectuate the 

purposes of the 1996 Act. 

It is found that good cause exist for 

not postponing the effective date of this 

rule until 30 days after publication in 

the Federal Register (5 U.S.C. 553) 

because given that the collection and 

remittance of assessments begin as soon 

as possible, the initial Board should be 

appointed expeditiously in order to 

carry out the purposes of the Order. 

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, Title 7, Chapter XI of the 

Code of Federal Regulations is 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. 

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. 

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. 


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§ 1214.5 Crop year. 

Crop year means the period August 1 

through July 31. 

§ 1214.6 Customs or CBP. 

Customs or CBP 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. 

§ 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, DC, 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, 


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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 will 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 will 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. 

(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. 


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§ 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 an 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 

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 


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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) For fiscal years beginning 3 or more 

years after the date of the establishment 

of the Board, the Board may not expend 

for administration, maintenance, and 

functioning of the Board in a fiscal year 

an amount that exceeds 10 percent of 

the assessment and other income 

received by the Board. 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 

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 will 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 in which they are 

produced or imported. 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. 


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§ 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 

provided 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 

provided 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) Producers and importers who did 

not apply to the Board for an exemption 

and domestically produced or imported 

less than 500 Christmas trees during the 

fiscal period shall receive a refund from 

the Board for the applicable assessments 

within 30 calendar days after the end of 

the fiscal year. Board staff shall 

determine the assessments paid and 

refund the amount due to the producers 

and importers accordingly. 

(8) 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 

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 number of the United 

States classification valid for 1 year 

from the date of issue. This 

alphanumeric number should be 

entered by the importer on the Customs 

entry documentation. Any line item 

entry of 100 percent organic Christmas 

trees bearing this alphanumeric number 

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 30 days after the 

announcement of the referendum results 

of their request for a refund of the 


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assessments that they paid. The 

producers and importer requesting a 

refund 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, § 1214.83 

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 

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 

amendment, 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: 


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(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: 

(i) 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 

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 0581–0267 and 

0581–0268. 

Subpart B—[Reserved] 

Dated: November 1, 2011. 

David R. Shipman, 

Acting Administrator. 

[FR Doc. 2011–28798 Filed 11–7–11; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1214 

[Document No. AMS–FV–10–0008–FR] 

RIN 0581–AD00 

Christmas Tree Promotion, Research, 

and Information Order; Referendum 

Procedures 

AGENCY: Agricultural Marketing Service, 

Agriculture, USDA. 

ACTION: Final rule. 

SUMMARY: This final rule establishes 

procedures for conducting a referendum 

to determine whether the continuation 


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