Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Order

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1208

[FV-94-708FR]

RIN: 0581-AB20

Fresh Cut Flowers and Fresh Cut Greens Promotion and Information

Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Agriculture (Department) is issuing the

Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Order

(Order). The Order establishes a national industry-funded promotion and

information program for fresh cut flowers and fresh cut greens (cut

flowers and greens). The Order requires handlers to pay an assessment

based on their gross sales of cut flowers and greens, regardless of the

country of origin, to the National PromoFlor Council (Council).

Composed of floral industry representatives, who are wholesalers,

producers, importers, and retailers, the Council will use the

assessments collected to conduct a generic promotion and information

program to maintain, expand, and develop markets for cut flowers and

greens.

EFFECTIVE DATE: December 29, 1994.

FOR FURTHER INFORMATION CONTACT: Arthur Pease, Research and Promotion

Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, Room

2535-S, Washington, DC 20090-6456, telephone (202) 720-6930.

SUPPLEMENTARY INFORMATION: This final Order is issued under the Fresh

Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993

[Pub. L. 103-190] approved December 14, 1993, hereinafter referred to

as the Act.

Prior documents in this proceeding:

Proposed Rule--Fresh Cut Flowers and Fresh Cut Greens Promotion and

Information Order published June 28, 1994, (59 FR 33400).

This final rule has been issued in conformance with Executive Order

12866 and the Office of Management and Budget has determined that it is

a ``significant regulatory action''.

This rule has been reviewed under Executive Order 12778, Civil

Justice Reform. It is not intended to have retroactive effect. This

rule does not preempt any State or local laws, regulations, or

policies, unless they present an irreconcilable conflict with this

rule.

The Act provides that administrative proceedings must be exhausted

before parties may file suit in court. Under Sec. 8 of the Act, after

an order is implemented, a person subject to the order may file a

petition with the Secretary stating that the order or any provision of

the order, or any obligation imposed in connection with the order, is

not in accordance with law and requesting a modification of the order

or an exemption from the order. The petitioner is afforded the

opportunity for a hearing on the petition. After such hearing, the

Secretary will make a ruling on the petition. The Act provides that the

district courts of the United States in any district in which a person

who is a petitioner resides or carries on business are vested with

jurisdiction to review the Secretary's ruling on the petition, if a

complaint for that purpose is filed within 20 days after the date of

the entry of the ruling.

Regulatory Flexibility Act

Pursuant to requirements set forth in the Regulatory Flexibility

Act (RFA), the Administrator of the Agricultural Marketing Service

(AMS) has considered the economic impact of this final action on small

entities.

The purpose of the RFA is to fit regulatory actions to the scale of

business subject to such actions in order that small businesses will

not be unduly or disproportionately burdened.

Only those wholesale handlers, retail distribution centers,

producers, and importers who have annual sales of $750,000 or more of

cut flowers and greens and sell those products to exempt handlers,

retailers, or consumers are considered to be qualified handlers and

assessed under the order. There are approximately 900 wholesalers, 150

importers, and 200 domestic producers who are qualified handlers.

The majority of these qualified handlers are classified as small

businesses. As defined by the Small Business Administration [13 CFR

121.601] small agricultural service firms, which includes the qualified

handlers who are required to pay assessments under the order, have been

defined as those having annual receipts of less than $5 million.

Statistics reported by the National Agricultural Statistics Service

show that 1993 sales at wholesale of domestic cut flowers and greens

total approximately $535 million while the value of imports during 1993

was approximately $382 million. The leading States in the United States

producing cut flowers and greens, by wholesale value, are California,

which produces approximately 60 percent of the domestic crop, followed

by Florida, Colorado, Washington, New York, Hawaii, and Pennsylvania.

Major countries exporting cut flowers and greens into the United

States, by value, are Columbia, which accounts for approximately 60

percent, followed by The Netherlands, Mexico, and Costa Rica.

During the first three years the order is in effect, the rate of

assessment may not exceed 0.5 percent of the gross sales of cut flowers

and greens. After the order has been in effect for three years, the

assessment rate may be increased or decreased by no more that 0.25

percent each year when recommended by two-thirds of the members of the

Council and approved by the Secretary. However, at no time may the

assessment rate exceed 1.0 percent of gross sales of cut flowers and

greens. Notice and comment rulemaking will be required to change the

assessment rate.

Although the maximum assessment collection is expected to total

about $10 million annually, the economic impact of a 1.0 percent or

less assessment on each qualified handler will not be significant.

While the proposed order imposes certain recordkeeping requirements

on qualified handlers, information required under the order can be

compiled from records currently maintained. Thus, any added burden

resulting from increased recordkeeping is not expected to be

significant when compared to the benefits that will accrue to such

businesses. The order's provisions have been carefully reviewed, and

every effort has been made to minimize any unnecessary recordkeeping

costs or requirements.

Although the order imposes some additional costs and requirements

on qualified handlers, it is anticipated that the program under the

order will help to increase the demand for cut flowers and greens.

Therefore, any additional costs are expected to be offset by the

benefits derived from expanded markets and sales benefiting all

segments of the floral industry. Accordingly, the Administrator of the

AMS has determined that the provisions of the order will not have a

significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1980 [44 U.S.C.

Chapter 35] the forms, reporting, and recordkeeping requirements

included in this action were submitted for approval to the Office of

Management and Budget (OMB) and assigned OMB No. 0581-0168, except for

Council member nominee information sheets that were previously assigned

OMB No. 0505-0001. On the effective date of the program, the

information collection burden will be combined with the other AMS

research and promotion programs included under assigned OMB No. 0581-

0093. Information collection requirements that are included in this

action are:

(1) A periodic report by each qualified handler who handles cut

flowers and greens. The estimated maximum number of respondents is

1,250, each submitting an average of 12 responses per year, with an

estimated average reporting burden of 10 minutes per response.

(2) An application requesting postponement of assessment payments.

The estimated maximum number of respondents is 25, each submitting an

average of 4 responses per year, with an estimated average reporting

burden of 20 minutes per response.

(3) A refund application form for persons who desire a refund of

their assessments. The estimated maximum number of respondents is 210,

each submitting 1 response prior to the initial referendum, or an

annual average of 70 respondents, with an estimated average reporting

burden of 15 minutes per response.

(4) An exemption application for wholesale handlers, retail

distribution centers, producers, and importers of cut flowers and

greens with gross annual sales under $750,000 and will be exempt from

assessments and recordkeeping requirements. The estimated number of

respondents for this form is 500, each submitting one response per

year, with an estimated average burden of 15 minutes per response.

(5) A referendum ballot to be used to determine whether qualified

handlers favor continuance of the order. The estimated number of

respondents completing this ballot will be 1,250, each submitting one

response approximately every 3 years, or an annual average of 417

respondents, with an estimated average reporting burden of 15 minutes

per response.

(6) A nominee background statement form for Council member and

alternate member nominees. The estimated number of respondents for this

form is 50 for the initial nominations to the Council and approximately

17 respondents annually thereafter. Each respondent will submit one

response per year, with an estimated average reporting burden of 30

minutes per response.

(7) A requirement to maintain records sufficient to verify reports

submitted under the order. The estimated maximum number of

recordkeepers necessary to comply with this requirement is 1,750 each

of whom will have an estimated annual burden of 15 minutes.

Background

The Act provides for the establishment by the Secretary of

Agriculture (Secretary), of a national cut flowers and greens promotion

and consumer information program which would be funded by assessments

levied on qualified handlers not to exceed 1 percent of their gross

sales of cut flowers and greens.

The Act authorized the submission of proposals for a cut flowers

and greens promotion and consumer information order by industry

organizations or any other interested person affected by the Act. As

required by the Act, the order provides for the establishment of a

National PromoFlor Council. The Council is to be composed of 25 voting

members: 14 members representing qualified wholesale handlers of

domestic and imported cut flowers and greens; 3 members representing

producers who are qualified handlers of cut flowers and greens; 3

members representing importers who are qualified handlers of cut

flowers and greens; 3 members representing traditional retailers of cut

flowers and greens; and 2 members representing persons who produce cut

flowers and greens. Each member shall have an alternate.

The Department issued a news release on February 17, 1994,

requesting proposals for an initial order or portions of an initial

order.

In response to that news release an entire proposed order was

submitted by the PromoFlor Organizing Group, Inc. (POG). POG, an

industry group that was created and sponsored by 68 floral industry

organizations and more than 700 floral businesses developed a proposal

for the promotion and consumer information order for cut flowers and

greens. Once the Order is issued, POG will cease to exist except for

the period of time it takes for it to serve as the initial election

committee to assist in the nomination of members and alternates to the

initial Council. After the Council is appointed, the Council will be

the election committee.

The Department published POG's proposed order as Proposal I. The

Department modified POG's proposed text (1) to make it consistent with

the Act and other similar national research and promotion programs

supervised by the Department, (2) to simplify the language and format

of some provisions, and (3) to add certain sections necessary for

proper administration of the Order by the Department.

In addition to the proposal from POG, the Department published

proposals addressing the nomination of the Council's retailer members

and defining ``traditional retailer'' and ``traditional retail florist

organization'', submitted by Florists' Transworld Delivery Association

(FTD) (Proposal II) and the Produce Marketing Association (PMA)

(Proposal III). All three proposals were published in the June 28,

1994, issue of the Federal Register (59 FR 33400).

Interested persons were invited to submit comments on the proposals

until August 29, 1994. Fifty-eight comments were received during the

comment period. One comment was received after the comment period.

There were two comments opposing the Order, one submitted by a

retail florist who, among other objections, opposed it on the basis of

government interference in private business. The other comment in

opposition to the proposed Order was filed by the Office of Chief

Counsel for Advocacy of the U.S. Small Business Administration (OCCA)

which raised a number of issues including the constitutionality of the

Order.

Of the 58 comments received, four expressed the opinion that the

phrase ``traditional retail florist'' be restricted only to those

independently owned retail florists whose major business is selling cut

flowers and greens to consumers. In contrast, the proposed definition

of ``traditional retailer'' submitted by PMA (Proposal III) included

all retailers whose primary business is the sale of floral products

including those who have a specific department dedicated to the sale of

such products. These four commenters also wanted to exclude from

Council membership, those marketers of cut flowers and greens who sell

floral items through supermarkets and department stores. In the same

vein, FTD argued that there should be a distinction between traditional

retail florists and other retail florists. It is FTD's position that

the traditional retail florists, should be small independent ``mom and

pop'' shops selling to consumers. The organization also stated that it

is the largest organization representing this segment of the floral

industry with 23,000 members, and as a cooperative, it should have a

permanent position on the Council. FTD further argued that other types

of retailers such as mass marketers and non-traditional retailers are

not as attuned to consumers and marketing programs as the retail

florists represented by FTD.

Thirty-one comments expressed concern that too limited an

interpretation of the term ``traditional retail florist'' would

preclude a large segment of the floral industry from being represented

on the Council. In the United States, the so-called mass-marketers such

as supermarkets and other large merchandizing operations, represent

about 50 percent of the volume of flowers and greens sold and about 33

percent of the total dollar value of floral sales. These commenters

contend that the term ``traditional retail florist'' should be very

broad and should include any retailer whose primary business is the

sale of floral products, including cut flowers and greens, or has a

specific department dedicated to the sale of floral products including

cut flowers and greens.

A total of thirty-six comments including PMA opposed the proposal

that FTD or any other wire service or organization be assigned a

permenant position representing retailers on the Council. The

commenters expressed views that retailers should not have to be

affiliated with a particular wire service affiliation or specific

organization but could contribute significantly to the floral

industry's promotional efforts and should be eligible to serve on the

Council. The commenters included floral organizations and businesses,

representing all segments of the floral industry from many different

areas of the country.

After considering all of the comments received on the issues of

Council representation and the proper definition of ``traditional

retail florist'', it is determined that the term should be broadly

defined as proposed by PMA, and that the membership on the Council

should include as wide a spectrum as possible representing the retail

segment of the floral industry. The FTD proposal allotting one of the

Council member positions to FTD is not adopted. The Act already

requires that one position on the Council be represented by AFMC.

Having two of the three retailer positions on the Council allocated to

specific associations would significantly limit the representation by

other floral industry retail segments. However, this does not mean that

a FTD nominee could not be appointed to the Council by the Secretary.

Proposal III published in the June 28, 1994, issue of the Federal

Register is accepted and incorporated into the Order because it affords

a large cross-section of retailers an opportunity to serve on the

Council.

Another comment made by FTD was that the uniform factor of 1.43 was

not high enough because it went further back in the channel of

distribution than the wholesalers selling to small retail florists.

This factor was recommended by the industry for those distribution

centers making non-sale transfers of fresh cut flowers and greens to

retail outlets and represents the markup on a sale from wholesaler to

retailer. This is equivalent to the same step in the marketing

distribution process that the traditional retailer described by FTD

uses when purchasing fresh cut flowers and greens from a wholesaler.

The sources used by wholesalers or distribution centers to acquire

fresh cut flowers and greens or the prices they pay should be

equivalent, because both would be expected to have the same access to

floral suppliers. Consequently, there are no actual differences as to

where in the marketing process assessments are levied.

OCCA commented that in its view the Order is unconstitutional. We

disagree with this view. In addition, OCCA urged the Agricultural

Marketing Service (AMS) to perform a regulatory flexibility analysis.

AMS had already made the determination that a regulatory flexibility

analysis is not appropriate for a program of this nature and its

relatively small economic impact.

OCCA also contended that the cost associated with recordkeeping and

the calculation of assessments due would be greater than AMS assumes.

The Department does not anticipate a significant increase in costs and

paperwork burden to those covered by the program because all of the

records required to be maintained under the Order are based on sales of

product or calculations based on the acquisition cost of product. These

types of records are normally kept by all businesses in the floral

industry, especially by wholesale handlers with annual sales of

$750,000 or more, and the calculation of assessments is a one step

procedure using such readily available records. Further, the industry

was provided 60 days to comment on all aspects of the proposed Order,

including the potential burden of calculating and paying assessments

and paperwork, and no individual, who would be a qualified handler

under the Order, expressed a concern in this area.

OCCA further contended that AMS failed to take into account the

impact of the Order on small retail florists. As OCCA correctly stated,

retail florists are not assessed under the Order. However, it was

OCCA's position that wholesalers would pass on the assessment costs in

terms of higher prices. There is sufficient competition within the

wholesale floral industry with approximately 900 wholesale handlers,

150 importers, and 200 domestic producers who are considered to be

qualified handlers (those having annual sales of $750,000 or more) plus

an undetermined number of suppliers who are smaller than the qualified

handlers and who sell to the retail florists. Thus, we do not feel that

a one-half of one percent assessment at the wholesale level would

result in higher prices.

OCCA also expressed concern with having POG serve as the initial

election committee, arguing that this would place too much power in the

hands of one segment of the industry. The POG represents a substantial

majority of the qualified handlers who would be paying assessments

under the program. This organization also has the knowledge and respect

of the floral industry necessary to perform this important function.

Balloting for nominees will be conducted by an independent certified

public accounting firm to ensure that the nominations are conducted in

an impartial manner. We believe that there is no reason to be concerned

by POG's role in the nominations process. As a matter of fact the

nomination process will be more efficient and less costly to the

industry if it is conducted as proposed.

OCCA also recommended that FTD and PMA each be allocated a seat on

the Council. The Act requires that one position be assigned to the

American Floral Marketing Association. As we have already stated, it is

the Department's view that the retailer positions on the Council should

be open to as wide a retailer representation as possible so that no

segment of the retail floral industry is discriminated against. It

would be difficult to determine which organization has the most retail

members, and this action would further preclude other retailers, who

may not be members of the largest organization, from serving on the

Council. Therefore, the Order provision concerning these nominations

will remain as proposed.

OCCA also commented on the need for referendum procedures. We are

aware that such procedures are needed and will promulgate those

procedures in advance of the referendum which is to be held no later

than 3 years after the Order is issued.

OCCA questions the Act giving the Secretary of Agriculture

(Secretary), and more specifically the AMS which administers these

programs, latitude in determining whether the order tends to effectuate

the policy of the Act. However, this is consistent with the statutory

scheme.

PMA also, recommended that nominations be limited to national

organizations. We are in agreement with this recommendation. The

acceptance of nominations only from national retail florists

organizations was already included in Sec. 1208.32(b) of the proposed

Order which is retained in the final Order. In addition, the definition

of ``traditional retail florists organization'' is accepted as proposed

in Proposal III, and that definition requires nationwide membership.

Further, PMA is in favor of keeping the two retailer seats that were

not designated for AFMC open to as large a segment of the floral

industry as possible. The provisions of this Order are also in

agreement with this recommendation.

Fifteen comments did not address any specific issues or proposals

but indicated general support for the Order and the program.

POG, which proposed an entire order for fresh cut flowers and

greens that was published in the June 28, 1994, issue of the Federal

Register as Proposal I, submitted a comment recommending that several

changes be made in the final Order.

In Sec. 1208.10 of the proposed Order, POG believes that the

definition of the term `` gross sales price'' needs further

clarification. The definition in the proposal contained the phrase

``total amount of the transaction in a sale of fresh cut flowers and

greens.'' Because there are numerous different methods used by

wholesalers, importers, and producers in pricing cut flowers and greens

in the industry, POG believes that further clarification is necessary

so that qualified handlers will not be confused when calculating

assessments due. Some qualified handlers invoice such charges as

boxing, sleeving, cooling, and delivery separately while others include

such charges in the price of the cut flowers and greens. Therefore, POG

contends that an equitable basis for determining what constitutes the

gross sales price, needs to be further explained in the Order to ensure

that all qualified handlers are aware of the basis for calculating

assessments. The Department accepts a change in the definition of

``gross sales price'' in Sec. 1208.10 which includes other charges that

are normally associated with the pricing of cut flowers and greens but

placed the methodology for determining variations under the assessment

provisions in Sec. 1208.50.

Minor clarification changes of the wording in Secs. 1208.16(a),

1208.18, 1208.18(a), and 1208.31(c) were accepted and incorporated in

the Order.

POG recommended an amendment to Sec. 1208.31(h) which would change

the time period for conducting the nomination process from 90 days to

120 days before the terms of office begins and which would have

appointments made at least 30 days before the terms of office begin.

This recommendation is not adopted. The nomination process can begin at

any time, and the appointment process may or may not take the full 90

days. Incorporating the recommended change would restrict any

flexibility the Secretary has in the appointment process. Further, all

nominees submitted for appointment normally have prepared themselves

for assuming their member roles when accepting the nomination.

POG also recommended a change in Sec. 1208.34(b) to eliminate the

exception that a person serving an initial term of office of two years

could only serve one additional 3-year term of office. This change

recommended by POG is denied on the basis that the Department believes

that for the sake of clarity it is necessary to specify that those

persons serving initial two-year terms of office are eligible to serve

one additional term of office on the Council.

Changes in Secs. 1208.34(c) and (d) recommended by POG that the

wording describing when the terms of office begin for the initial

members of the Council be better clarified. Wording recommended by POG

for clarification of the provisions is accepted and incorporated in the

Order.

POG's recommended change in Sec. 1208.36(b) that would change the

word ``cast'' to ``voting'' is unnecessary, and thus not adopted.

The change POG recommended in Sec. 1208.42(b), which would add

another term ``postharvest physiology'' to the list of authorized

research projects, is accepted and incorporated into the Order.

POG's comment on removing all of the references in Sec. 1208.50(a)

to the various subparagraphs in Sec. 1208.16 and just referring to the

section is accepted and incorporated into the Order, because the

proposal language is repetitious and unnecessary.

POG's comments on Secs. 1208.50(b), 1208.54(a), 1208.70(c), and

1208.82 are for wording changes that would clarify the intent but not

the meaning of the sections. These wording changes are accepted and

incorporated into the Order.

POG asked that Sec. 1208.80 regarding a requirement that all

substantive actions proposed by the Council be submitted to the

Secretary should be deleted. POG argues that since all financial

matters, programs, and projects require approval by the Secretary,

there is no need to further require that the Secretary approve all

substantive Council actions. POG'S request is not adopted because the

section merely reflects the fact that the Secretary has oversight

responsibility over the program. Thus, it is reasonable to expect that

in order to properly carry out such responsibility the Secretary should

have the authority to approve the Council's actions.

The Professional Allied Florists Association of Metropolitan

Detroit submitted a comment requesting that a portion of the assessment

collected by the Council be distributed to local organizations for

local promotion. The Act does not authorize such disbursements, but any

promotion initiated by the Council will certainly compliment any local

promotions and should help increase the consumption of cut flowers and

greens.

One comment was received from an individual but did not address any

issues concerning the proposed Order. Another comment was received

after the close of the comment period. These comments have been

included in the rulemaking record.

The American Institute of Certified Public Accountants (AICPA)

submitted a comment concerning Sec. 1208.55 of the Order which deals

with the postponement of assessments. The AICPA stated that the

requirement that an independent certified public accountant express an

opinion that a handler is insolvent or that a handler will be unable to

continue to operate if required to pay the assessment when due is not

possible under professional accounting standards. We concur with the

AICPA's that procedures need to be developed whereby a handler would be

required to have an independent accountant perform an agreed upon

procedure under applicable professional standards after a postponement

is requested. Procedures for the actual processing of postponement

requests will be developed after the Order becomes effective and a

Council is appointed. AICPA also commented that in Sec. 1208.70(c) of

the Order, the phrase ``books and records'' should be replaced by

``financial statements'' because these documents are what auditors

audit. This comment is accepted with modification in that the term

``financial records and documents'' will be used, and the section is

changed accordingly.

Other minor conforming changes made in this final rule include the

requirement in Sec. 1208.31(f) that ballots for voting for nominees be

distributed only to persons assessed. This is changed because the Act

does not require that producers voting for the at-large producer member

nominees (east and west of the Mississippi River) necessarily have to

be producers who pay assessments.

After consideration of all relevant material presented, including

the initial proposals, comments received, and other available

information, it is found that the Order and all the terms and

conditions thereof, tends to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined that good

cause exists for not postponing the effective date of this action until

30 days after publication in the Federal Register because a lengthy

period is required to nominate and appoint the Council, the

administrative agency provided for in the Order, before it can start to

function. The floral industry has requested that the program become

operational as soon as possible so that assessments can collected

shortly after the beginning of the 1995 calendar year, which is the

floral industry's largest sales period, and so that promotional and

other activities can be in place as soon as possible. Before the

program can begin, it will be necessary for the Council to recommend a

budget of anticipated expenses to the Department for review,

modification, or approval. Also, it will be necessary for the Council

to hire a staff and establish an office to carry out the needed

administrative functions. Further, interested persons were afforded a

60-day comment period, and no useful purpose would be served in

delaying the effective date. Therefore, this final rule is effective on

the date of publication in the Federal Register.

List of Subjects in 7 CFR Part 1208

Administrative practice and procedure, Advertising, Consumer

information, Marketing agreements, Cut flowers, Cut greens, Promotion,

Reporting and recordkeeping requirements.

For the reasons set forth in the preamble title 7 of the Code of

Federal Regulations is hereby amended by adding a new Part 1208 to read

as follows:

PART 1208--FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

Subpart A--Fresh Cut Flowers and Fresh Cut Greens Promotion and

Information Order

Definitions

Sec.

1208.1 Act

1208.2 Consumer information

1208.3 Council

1208.4 Cut flowers

1208.5 Cut greens

1208.6 Cut flowers and greens

1208.7 Department

1208.8 Exempt handler

1208.9 Fiscal year

1208.10 Gross sales price

1208.11 Order

1208.12 Part and subpart

1208.13 Person

1208.14 Promotion

1208.15 Producer that is a qualified handler

1208.16 Qualified handler

1208.17 Research

1208.18 Retailer

1208.19 Secretary

1208.20 Substantial portion

1208.21 State

1208.22 Traditional retailer

1208.23 Traditional retail florist organization

1208.24 United States

Establishment of the Council

1208.30 Establishment and membership of the Council

1208.31 Election and appointment of members and alternates other

than retailers

1208.32 Designation and appointment of retailer members and

alternates

1208.33 Failure to nominate

1208.34 Terms of office and compensation

1208.35 Vacancies

1208.36 Procedure

1208.37 Executive committee

Activities of the Council

1208.40 Duties of the Council

1208.41 Budgets and expenses

1208.42 Plans, projects, budgets, and contracts

1208.43 Other contracts and agreements

Assessments

1208.50 Assessments

1208.51 Influencing governmental action

1208.52 Charges for late payments

1208.53 Adjustment of accounts

1208.54 Refunds of assessments and escrow account

1208.55 Postponement of collections

1208.56 Determinations

Suspension or Termination

1208.60 Suspension and termination

1208.61 Proceedings after termination

1208.62 Effect of termination or amendment

Reports, Books, and Records

1208.70 Books, records, reports, cost control, and audits of the

Council

1208.71 Reports, books, and records of persons subject to this

subpart

1208.72 Confidential treatment

Miscellaneous

1208.80 Right of the Secretary

1208.81 Personal liability

1208.82 Patents, copyrights, inventions, publications, and product

formulations

1208.83 Amendments

1208.84 Separability

1208.85 OMB control numbers

Authority: The Fresh Cut Flowers and Fresh Cut Greens Promotion

and Information Act of 1993, 7 U.S.C. 6801 et seq.

Definitions

Sec. 1208.1 Act.

Act means the Fresh Cut Flowers and Fresh Cut Greens Promotion and

Information Act of 1993, Pub. L. 103-190, 7 U.S.C. Secs. 6801 et seq.,

and any amendments thereto.

Sec. 1208.2 Consumer information.

Consumer information means any action or program that provides

information to consumers and other persons on appropriate uses for cut

flowers and greens under varied circumstances, or on the care and

handling of cut flowers and greens.

Sec. 1208.3 Council.

Council means the Fresh Cut Flowers and Fresh Cut Greens Promotion

Council established pursuant to Sec. 1208.30 of this subpart and which

shall be referred to as the National PromoFlor Council.

Sec. 1208.4 Cut flowers.

Cut flowers include all flowers cut from growing plants that are

used as fresh-cut flowers and that are produced under cover or in field

operations, but not including foliage plants, floral supplies, or

flowering plants.

Sec. 1208.5 Cut greens.

Cut greens include all cultivated or noncultivated decorative

foliage cut from growing plants that are used as fresh-cut decorative

foliage (except Christmas trees) and that are produced under cover or

in field operations, but not including foliage plants, floral supplies,

or flowering plants.

Sec. 1208.6 Cut flowers and greens.

The term cut flowers and greens means either cut flowers or cut

greens, even though the cut flowers or cut greens are sold as separate

commodities by a person in the floral marketing system, or cut flowers

and cut greens collectively when both commodities are sold by a person

in the floral marketing system.

Sec. 1208.7 Department.

Department means the United States Department of Agriculture.

Sec. 1208.8 Exempt handler.

Exempt handler means a person who would otherwise be considered to

be a qualified handler except that the person's annual sales of cut

flowers and greens to retailers and other exempt handlers is less than

$750,000.

Sec. 1208.9 Fiscal year.

Fiscal year means a 12-month period recommended by the Council and

approved by the Secretary.

Sec. 1208.10 Gross sales price.

Gross sales price means the total amount of the transaction in a

sale of cut flowers and greens from a handler to a retailer or exempt

handler including but not limited to charges such as containers, pre-

cooling, packing, sleeving, delivery, freight, shipping, or other

charges necessary to the protection and preservation of the cut flowers

and greens.

Sec. 1208.11 Order.

Order means this subpart.

Sec. 1208.12 Part and subpart.

Part means the Fresh Cut Flowers and Fresh Cut Greens Promotion and

Information Order and all rules and regulations issued pursuant to the

Act. The order itself shall be a subpart of such part.

Sec. 1208.13 Person.

Person means any individual, group of individuals, firm,

partnership, corporation, joint stock company, association, society,

cooperative, or other legal entity.

Sec. 1208.14 Promotion.

Promotion means any action determined by the Secretary to advance

the image, desirability, or marketability of cut flowers and greens,

including paid advertising.

Sec. 1208.15 Producer that is a qualified handler.

Producer that is a qualified handler means an entity that is

engaged: In the domestic production, for sale in commerce, of cut

flowers and greens and that owns or shares in the ownership and risk of

loss of the cut flowers and greens; or as a first processor of

noncultivated greens, in receiving the greens from a person who gathers

the greens for handling; and is subject to assessments as a qualified

handler under the order.

Sec. 1208.16 Qualified handler.

Qualified handler means a person operating in the cut flowers and

greens marketing system that sells domestic or imported cut flowers and

greens to retailers and exempt handlers and whose annual sales of cut

flowers and greens to retailers and exempt handlers are $750,000 or

more. The term does not include a person who only physically transports

or delivers cut flowers and greens. However, the term does include, but

is not limited to, the following entities when they have the requisite

volume of sales of cut flowers and greens as provided in Secs. 1208.50

and 1208.57:

(a) A qualified wholesale handler--a person in business as a floral

wholesale jobber (i.e., a person who conducts a commission or other

wholesale business in buying and selling cut flowers and greens) or as

a floral supplier (i.e., a person engaged in acquiring cut flowers and

greens to be manufactured into floral articles or otherwise processed

for resale) if the annual value of the qualified wholesale handlers

sale of cut flowers and greens to retailers and exempt handlers is

$750,000 or more;

(b) A manufacturer of bouquets for sale to retailers if the cut

flowers and greens used in such articles are a substantial portion of

the value of the manufactured floral articles;

(c) A manufacturer of floral articles (other than bouquets) for

sale to retailers if the cut flowers and greens used in such articles

are a substantial portion of the value of the manufactured floral

articles;

(d) An auction house that clears the sale of cut flowers and greens

to retailers and exempt handlers through a central clearinghouse;

(e) A distribution center that is owned or controlled by a retailer

if the predominant retail business activity of the retailer is floral

sales. In addition to sales, non-sale transfers of cut flowers and

greens by the distribution center to retail outlets, shall be counted

for the purpose of applying the $750,000 minimum volume rule to the

center and the value of such transfers shall be determined as provided

in Secs. 1208.50 and 1208.57;

(f) An importer that is a qualified handler--a person whose

principal activity is the importation of cut flowers and greens into

the United States (either directly or as an agent, broker, or consignee

of any person or nation that produces or handles cut flowers and greens

outside of the United States for sale in the United States) and who

sells such cut flowers and greens to retailers and exempt handlers or

directly to consumers, if the annual combined value of such sales

determined as provided in Secs. 1208.50 and 1208.57 totals $750,000 or

more;

(g) A producer that is a qualified handler, e.g., a person who

produces cut flowers and greens and who sells such cut flowers and

greens directly to retailers or consumers if the annual combined value

of such sales determined as provided in Secs. 1208.50 and 1208.57

totals $750,000 or more.

Sec. 1208.17 Research.

Research means market research and studies limited to the support

of advertising, market development, and other promotion efforts and

consumer information efforts relating to cut flowers and greens,

including educational activities.

Sec. 1208.18 Retailer.

Retailer means a person who sells cut flowers and greens to

consumers. The term includes:

(a) All retail outlets that sell cut flowers and greens to

consumers including retail florists, supermarkets, and other mass

market retail outlets that sell such cut flowers or greens, except

distribution centers defined in Sec. 1208.16(e) (i.e., centers that are

owned or controlled by a retailer if the predominant retail business

activity of the retailer is floral sales and whose sales and non-sale

transfers of cut flowers and greens to retail outlets total $750,000 or

more, determined as provided in this subpart) even though such centers

may also make direct sales to consumers.

(b) Distribution centers owned or controlled by a retailer (or

distribution centers owned or controlled cooperatively by a group of

such retailers) when the predominant business activity of the retailer

or retailers is not the sale of cut flowers and greens to consumers;

and

(c) Distribution centers independently owned but operated primarily

to provide food products to retail stores.

Sec. 1208.19 Secretary.

Secretary means the Secretary of Agriculture of the United States

or any officer or employee of the Department to whom authority has

heretofore been delegated, or to whom authority may hereafter be

delegated, to act in the Secretary's stead.

Sec. 1208.20 Substantial portion.

Substantial portion means that portion of the total value of

manufactured floral articles that represents the value of the cut

flowers and greens in such articles (expressed as a percentage factor)

which the Council, with the approval of the Secretary, finds to be

great enough to cause such articles to be classed as cut flowers and

greens under this subpart.

Sec. 1208.21 State.

State means each of the several States of the United States, the

District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth

of the Northern Mariana Islands, the United States Virgin Islands,

Guam, American Samoa, the Republic of the Marshall Islands, the

Federated States of Micronesia, and the Republic of Palau (until such

time as the Compact of Free Association is ratified).

Sec. 1208.22 Traditional retailer.

Traditional retailer means any retailer, as defined in

Sec. 1208.18, whose primary business is the sale of floral products,

including fresh cut flowers and cut greens, or who has a specific

department dedicated to the sale of floral products, including fresh

cut flowers and cut greens.

Sec. 1208.23 Traditional retail florist organization.

Traditional florist organization means membership organizations of

traditional retailers with activities and membership which are

nationwide in scope.

Sec. 1208.24 United States.

United States means the States collectively.

Establishment of the Council

Sec. 1208.30 Establishment and membership of the Council.

(a) A Fresh Cut Flowers and Fresh Cut Greens Promotion Council

which shall be named the National PromoFlor Council is hereby

established to administer the terms and provisions of this subpart. The

Council shall consist of 25 members nominated by the floral industry

and appointed by the Secretary, as provided in this subpart, each of

whom shall have an alternate nominated and appointed in the same manner

as members of the Council are nominated and appointed.

(b) The membership of the Council shall be divided as follows:

(1) 14 members and their alternates shall represent qualified

wholesale handlers of domestic or imported cut flowers and greens;

(2) Three members and their alternates shall represent producers

that are qualified handlers of cut flowers and greens;

(3) Three members and their alternates shall represent importers

that are qualified handlers of cut flowers and greens;

(4) Three members and their alternates shall represent traditional

retailers of cut flowers and greens;

(5) One member and alternate shall represent persons who produce

cut flowers and greens in locations east of the Mississippi River; and

(6) One member and alternate shall represent persons who produce

cut flowers and greens in locations west of the Mississippi River.

Sec. 1208.31 Election and appointment of members and alternates other

than retailers.

(a) PromoFlor Organizing Group, Inc., an industry organizing

committee, is designated as an election committee for the purpose of

receiving the names of individuals who are engaged in the industry and

who are prepared to serve as members (other than retailer members) of

the Council or as alternates if elected as nominees and if selected by

the Secretary for such positions.

(b) The election committee shall, within five (5) days of the

issuance of this subpart and with the assistance of the Secretary,

request the submission of names of candidates for nominees from those

segments of the industry for which nominees must be selected by an

election process. These segments are: qualified wholesale handlers;

importers who are qualified handlers; producers of cut flowers and

greens who are qualified handlers; and producers of cut flowers and

greens without regard to whether they are qualified handlers.

Notification of the industry of the selection process by the election

committee shall be by a news release to industry publications and where

appropriate, newspapers of general circulation. In order to be assured

of a place on the slate of candidates, the names of candidates must be

received by the election committee not later than fifteen (15) days

after the date of the first such news release.

(c) Names of candidates shall be sought for the following seats on

the Council:

(1) 14 members and their respective alternates to represent

qualified wholesale handlers of domestic or imported cut flowers and

greens. Two such members and their respective alternates to represent

the United States at large and two such members and their respective

alternates to represent each of the following regions:

Region 1 (Pacific): Alaska, California, Hawaii, Oregon, Washington,

the Commonwealth of the Northern Mariana Islands, Guam, the Federated

States of Micronesia, American Samoa, the Republic of the Marshall

Islands, and the Republic of Palau.

Region 2 (Inter-Mountain): Arizona, Arkansas, Colorado, Idaho,

Kansas, Louisiana, Montana, Nebraska, Nevada, New Mexico, North Dakota,

Oklahoma, South Dakota, Texas, Utah, and Wyoming.

Region 3 (North Central): Illinois, Indiana, Iowa, Michigan,

Minnesota, Missouri, and Wisconsin.

Region 4 (Northeast): Connecticut, Maine, Massachusetts, New

Hampshire, New Jersey, New York, Rhode Island, and Vermont.

Region 5 (Mid-Atlantic): Delaware, District of Columbia, Kentucky,

Maryland, Ohio, Pennsylvania, Virginia, and West Virginia.

Region 6 (Southeast): Alabama, Florida, Georgia, Mississippi, North

Carolina, Puerto Rico, South Carolina, Tennessee, and the United States

Virgin Islands.

(2) Three at-large members and their alternates to represent

importers that are qualified handlers of cut flowers and greens.

(3) Three members and their alternates to represent producers of

cut flowers and greens that are qualified handlers of cut flowers and

greens. There shall be one such member and alternate from each of the

following production areas:

Production Area 1: California.

Production Area 2: Alaska, Arizona, Arkansas, Colorado, Hawaii,

Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota,

Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota,

Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wisconsin, and

Wyoming.

Production Area 3: Alabama, Connecticut, Delaware, Florida,

Georgia, Kentucky, Maine, Maryland, Massachusetts, Mississippi, New

Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania,

Rhode Island, South Carolina, Tennessee, Vermont, Virginia, and West

Virginia.

(4) Two members and their respective alternates to represent

persons who produce cut flowers and greens in locations east and west

of the Mississippi River, respectively. There shall be one such member

and alternate from the east, and one such member and alternate from the

west.

(d) Names of candidates for nominees may be submitted by state,

regional (either regions within a state or regions that include more

than one state as appropriate), or national industry organizations,

provided that the organization has members engaged in the appropriate

segment of the industry and from the region or production area if

applicable, or by petition. The names of candidates submitted by an

industry organization shall be accompanied by statements showing the

role of the organization in the industry and general information about

the membership it represents. No industry organization may submit more

than two names of candidates for each seat on the Council. The names of

candidates submitted by petition shall be accompanied by petitions in

support of such candidate, signed by not less than ten (10) persons

engaged in the appropriate segment of the industry and from the region

or production area, if applicable, that the candidate will represent if

ultimately selected by the Secretary. Submission of names of all

candidates, whether by organizations or by petition, must include a

certification by the candidate that the candidate is within the segment

of the industry and the region or production area for which the

candidate is nominated and, if elected as a nominee and if subsequently

appointed by the Secretary, the candidate is willing to serve as a

member or alternate member on the Council.

(e) The names of candidates so submitted shall be reviewed and

organized by the election committee for the preparation of slates of

candidates. Separate slates for each segment and region of the industry

shall be prepared as appropriate. There must be at least four

candidates for each position on the Council for which nominees must be

selected by election. No candidate may seek nomination for more than

one seat on the Council. In a case where a candidate is nominated more

than once, the election committee will decide which place on the ballot

the candidate's name will appear. If insufficient candidates have been

proposed for any seat, the election committee shall select additional

candidates as required. The slates shall be prepared not later than 5

days after the date for receiving names of candidates by the election

committee.

(f) After all candidates have been listed on the slates of

candidates, the slates shall be supplied to an independent certified

public accounting (CPA) firm contracted by the election committee. The

ballots shall be printed and distributed by the CPA firm by U.S. mail,

or other means selected by the election committee, not later than 15

days after the slates of candidates are received from the election

committee. To the maximum extent practicable, ballots will be

distributed to all persons who are eligible to vote for candidates

under this subpart in the segment of the industry, the region, or in

the United States as a whole, as applicable, to which the ballot

pertains. Ballots that are not returned to the CPA firm within 20 days

shall be declared invalid. The votes for each candidate on the ballots

shall be tallied by the CPA firm at the end of the voting period and

the results furnished to the election committee. The election committee

shall issue a news release setting forth the names of the candidates

and the number of votes received by each candidate within 5 days after

the voting period has ended. Those candidates on each of the ballots

who rank first, second, third, and fourth in the number of votes

received for each seat on the Council shall be declared the nominees

for each such seat.

(g) The names of those declared the nominees for each of the seats

on the Council representing the various segments of the industry and

the designated regions or production areas, where applicable, shall be

submitted to the Secretary in order of rank with the number of votes

received by each such nominee shown after the nominee's name and with

the recommendation that the nominee with the most votes for each of

such seats be declared the member of the Council and the nominee with

the next greatest number of votes for each of such seats be declared

the alternate member. The Secretary shall then appoint from the

nominees so provided the members and their alternates for each of such

seats on the Council.

(h) Subsequent elections of nominees and appointment of members and

alternates as terms expire shall be conducted by the Council or the

Council staff in the manner similar to that described above except that

the Council shall act as the election committee for which provision is

made in this section. The nomination and election process shall be

completed at least 90 days before the beginning of each nominee's term

of office.

(i) The Council shall periodically review the cut flower and greens

market in the United States for changes in the geographic distribution

of importing, producing, and marketing facilities and shall, if

appropriate, recommend changes in the regions and production areas

described in this section to the Secretary for approval.

Sec. 1208.32 Designation and appointment of retailer members and

alternates.

(a) Four nominations for one of the traditional retailer members of

the Council and that member's alternate shall be received from the

American Floral Marketing Council (AFMC) or a successor entity.

(b) Four nominations for each of two members of the Council and

their alternates shall be received from national traditional retail

florist organizations other than the AFMC. In order to be eligible to

submit nominations for members and alternates to serve on the Council,

such organizations must certify that their activities and membership

are nationwide in scope. No more than four nominations for each seat

may be submitted by each organization.

(c) The Secretary shall choose from among the names submitted by

the AFMC the names of the member and alternate who shall fill the seat

on the Council representing the AFMC. The Secretary shall choose from

among the names submitted by national traditional retail florist

organizations other than the AFMC the two members and their alternates

who shall fill the other two seats on the Council representing

traditional retailers.

Sec. 1208.33 Failure to nominate.

If any group of qualified wholesale handlers, producers that are

qualified handlers, importers that are qualified handlers, persons who

produce cut flowers and greens, or traditional retailers fails to

nominate individuals for appointments as members or alternates of the

Council, the Secretary may appoint individual(s) from the appropriate

segment(s), region(s), or area(s) of the industry to fill the vacancy

or vacancies. The failure of any nominee to promptly indicate the

nominee's willingness to serve in such manner as may be prescribed by

the Secretary shall be treated as a failure to nominate.

Sec. 1208.34 Term of office and compensation.

(a) The term of office for each member or alternate member of the

Council shall be three years. As provided in the Act, the initial

appointments on the Council shall be as follows: nine of the member

appointments shall be for two-year terms, eight of the appointments

shall be for three-year terms, and eight of the appointments shall be

for four-year terms. Alternate members shall have the same terms of

office as their respective members. The term of office on the initial

Council shall be apportioned as follows:

(1) One of the two qualified wholesale handler members representing

each of Regions 1, 2, 4, and 5 shall serve two-year terms of office;

one of the two qualified wholesale handler members representing each of

Regions 3, 4, and 6 shall serve three-year terms of office; and one of

the two qualified wholesale handler members representing each of

Regions 1, 2, 3, 5, and 6 shall serve four-year terms of office.

(2) The two qualified wholesale handler members representing the

United States at large shall serve terms of office of two years and

three years respectively.

(3) The members representing producers that are qualified handlers

from Production Areas 1 and 2 shall serve three-year terms of office,

and the member representing producers that are qualified handlers from

Production Area 3 shall serve a four-year term of office.

(4) The three members representing importers that are qualified

handlers shall serve terms of office of two, three, and four years

respectively.

(5) The members representing producers that produce cut flowers and

greens east and west of the Mississippi River shall each serve two-year

terms of office.

(6) The member representing retailers nominated by the AFMC shall

serve a two-year term of office. The two members representing retailers

not nominated by the AFMC shall serve three-year and four-year terms of

office respectively.

(b) No member of the Council may serve more than two consecutive

terms of three years, except that any member serving an initial term of

four years or two years may serve an additional term of three years.

(c) The term of office for the initial Council shall begin

immediately following appointment by the Secretary. Should the term of

office of the initial Council begin before January 1, 1995, the time

between appointment and January 1, 1995, shall not count towards the

initial term of office. Should the term of office of the initial

Council begin later than January 1, 1995, all time until the following

January will count as a full year toward the terms of office set out in

this section. In subsequent years, the term of office shall begin on

January 1 or such other period which may be recommended by the Council

and approved by the Secretary.

(d) Members of the Council shall serve without compensation, but

each member or alternate member acting in place of a member shall be

reimbursed for the expenses incurred in performing duties as a member

of the Council.

Sec. 1208.35 Vacancies.

(a) Should any Council member position become vacant, the alternate

of that member shall automatically assume the position of said member.

Candidates for the vacant alternate member position which resulted from

the alternate filling the vacant member position shall be nominated in

the manner specified in Secs. 1208.31 and 1208.32. Provided, That a

vacancy will not be required to be filled if the unexpired term is less

than six months.

(b) Should the positions of both a member and such member's

alternate become vacant, Candidates to serve the unexpired terms of

office for such member and alternate shall be nominated in the manner

specified in Secs. 1208.31 and 1208.32. Provided, That a vacancy will

not be required to be filled if the unexpired term is less than six

months.

(c) If a member of the Council consistently refuses to perform the

duties of a member of the Council, if a member of the Council fails to

submit reports and remit assessments required under this part, or if a

member of the Council is known to be engaged in acts of dishonesty or

willful misconduct, the Council may recommend to the Secretary that the

member be removed from office. If the Secretary finds that the

recommendation of the Council shows adequate cause, the Secretary shall

remove such member from office. Further, without recommendation of the

Council, a member may be removed by the Secretary upon a showing of

adequate cause, if the Secretary determines that the person's continued

service would be detrimental to the achievement of the purposes of the

Act.

Sec. 1208.36 Procedure.

(a) Thirteen (13) Council members, including alternates acting in

place of members of the Council, shall constitute a quorum: Provided,

That such alternates shall serve only when the member is absent from a

meeting or is disqualified. Any action of the Council shall require the

concurring votes of a majority of those present and voting. At

assembled meetings, all votes shall be cast in person.

(b) In lieu of voting at an assembled meeting, and, when in the

opinion of the chairperson of the Council such action is considered

necessary, or for matters of an emergency nature when there is not

enough time to call an assembled meeting, the Council may act upon a

majority of concurring votes of its members cast by mail, telegraph,

telephone, facsimile, or by other means of communication: Provided,

That each member or alternate acting for a member receives an accurate,

full, and substantially identical explanation of each proposition.

Telephone votes shall be promptly confirmed in writing. All votes shall

be recorded in the Council minutes.

Sec. 1208.37 Executive committee.

(a) The Council is authorized to appoint an executive committee of

not more than nine persons from among its members. Initially, the

executive committee shall be composed of the following:

(1) Four members representing qualified wholesale handlers;

(2) Two members representing producers that are qualified handlers;

(3) Two members representing importers that are qualified handlers;

and

(4) One member representing traditional retailers.

(b) After the initial appointments, each appointment to the

executive committee shall be made so as to ensure that the committee

reflects, to the maximum extent practicable, the membership composition

of the Council as a whole.

(c) Each initial appointment to the executive committee shall be

for a term of two years. After the initial appointments, each

appointment to the executive committee shall be for a term of one year.

(d) The Council may delegate to the executive committee the

authority of the Council under this subpart to hire and manage staff

and conduct the routine business of the Council consistent with such

policies as are determined by the Council.

Activities of the Council

Sec. 1208.40 Duties of the Council.

The Council shall have the following duties, in addition to the

duties specified in other sections of this subpart:

(a) Administer this subpart in accordance with the terms and

provisions of this subpart;

(b) Make rules and regulations to effectuate the terms and

provisions of this subpart;

(c) Appoint members of the Council to serve on the executive

committee, as provided in Sec. 1208.37;

(d) Employ such persons as the Council determines are necessary,

and set the compensation and define the duties of the persons;

(e) Develop budgets for the implementation of this subpart and

submit the budgets to the Secretary for approval, and propose and

develop (or receive and evaluate), approve, and submit to the Secretary

for approval plans and projects for cut flowers and greens promotion,

consumer information, or related research;

(f) Implement plans and projects for cut flowers and greens

promotion, consumer information, or related research, or contract or

enter into agreements with appropriate persons to implement the plans

and projects and pay the costs of the implementation of contracts and

agreements with funds received under this subpart;

(g) Keep minutes, books, and records which clearly reflect all of

the acts and transactions of the Council. Minutes of all meetings shall

be promptly provided to the Secretary;

(h) Evaluate ongoing and completed plans and projects for cut

flowers and greens promotion, consumer information, or related

research;

(i) Receive, investigate, and report to the Secretary complaints of

violations of this subpart and direct that the staff of the Council

periodically review the list of importers of cut flowers and greens

provided by the Customs Service to determine whether persons on the

list are subject to this subpart;

(j) Recommend to the Secretary amendments to this subpart;

(k) Invest, pending disbursement under a plan or project, funds

collected through assessments only in: Obligations of the United States

or any agency of the United States, general obligations of any State or

any political subdivision of a State, any interest-bearing account or

certificate of deposit of a bank that is a member of the Federal

Reserve System, or obligations fully guaranteed as to principal and

interest by the United States. Income from any such invested funds may

be used only for a purpose for which the invested funds may be used.

(l) Prepare and submit to the Secretary such reports as may be

prescribed for appropriate accounting with respect to the receipt and

disbursement of funds entrusted to the Council monthly, or at such

times as prescribed by the Secretary. Monthly financial statements

shall be submitted to the Department and shall include at least:

(1) A balance sheet, and

(2) An expense budget comparison showing expenditures during the

month, year-to-date expenditures, and an unexpended budget. Upon

request, a summary of checks issued by the Council is to be made

available. Reports shall be submitted within 30 days after the end of

each month.

(m) To cause the books of the Council to be audited by an

independent certified public accountant at the end of each fiscal

period, and at such other times as the Council or the Secretary may

deem necessary. The report of each audit shall show the receipt and

expenditure of funds collected pursuant to this part, and shall be

submitted to the Secretary.

(n) To give the Secretary the same notification, written or oral,

as provided to Council members concerning all conference calls and

meetings, including executive, advisory, subcommittee, and other

meetings related to Council matters, and to grant the Secretary access

to all such calls and meetings;

(o) To follow the Department's equal opportunity/civil rights

policies; and

(p) Provide the Secretary such information as the Secretary may

require.

Sec. 1208.41 Budgets and expenses

(a) The Council shall promptly adopt and forward to the Secretary

for approval its determination of the beginning and ending dates of an

annual fiscal period to be used by the Council for budgeting and

accounting purposes.

(b) The Council shall submit annual budgets of its anticipated

expenses and disbursement in the administration of this subpart,

including the projected costs for the promotion of cut flowers and

greens, consumer information, and related research plans and projects

to the Secretary for approval. The first budget, which shall be

submitted promptly after the effective date of this subpart, shall

cover such period as may remain before the beginning of the next fiscal

year. If such fiscal period is 90 days or less, the first budget shall

cover such period, as well as the next fiscal year. Thereafter, the

Council shall submit budgets for each succeeding fiscal year not less

than 30 days before the beginning of such fiscal year.

(c) The Council is authorized to incur such expenses (including

provision for a reasonable reserve for operating contingencies) as the

Secretary finds are reasonable and likely to be incurred by the Council

for its maintenance and functioning and to enable it to exercise its

powers and perform its duties in accordance with this subpart. Expenses

authorized in this paragraph shall be paid from assessments collected

pursuant to Sec. 1208.50, or other funds available to the Council.

(d) The Council shall reimburse the Secretary, from assessments

collected pursuant to Sec. 1208.50, or from other funds available to

the Council, for administrative costs incurred by the Department to

carry out its responsibilities pursuant to this subpart after December

29, 1994.

(e) The Council shall establish an interest-bearing escrow account

with a bank that is a member of the Federal Reserve System and shall

deposit in such account an amount equal to the percentage determined by

the Council to be held in reserve for the payment of refunds pursuant

to Sec. 1208.54.

(f) The Council may, with the approval of the Secretary, borrow

money for the payment of administrative expenses, subject to the same

fiscal, budget, and audit controls as other funds of the Council.

Sec. 1208.42 Plans, projects, budgets, and contracts.

The Council shall develop and implement plans and projects for the

promotion of, and the dissemination of information about, cut flowers

and greens, as well as for research related to cut flowers and greens

in accordance with the following:

(a) The Council shall develop, or contract for the development of,

plans and projects for advertising, sales promotion, other promotion,

and for dissemination of consumer information, with respect to cut

flowers and greens, and may disburse such funds as necessary for these

purposes after such plans or projects have been submitted to, and

approved by, the Secretary. Any such plan or project shall be directed

toward increasing the general demand for cut flowers and greens and

shall not make reference to a private brand or trade name, point of

origin, or source of supply, except that the Council may offer such

plans and projects of the Council for use by commercial parties such as

local, regional, State, or national floral industry organizations, and

then only under terms and conditions prescribed by the Council and

approved by the Secretary. No plan or project may make use of unfair or

deceptive acts or practices with respect to quality or value.

(b) The Council shall develop, or contract for the development of,

plans and projects for research on the development of both established

and new markets for cut flowers and greens and for research with

respect to postharvest physiology, distribution, sale, marketing, use,

and promotion of cut flowers and greens, as well as the dissemination

of consumer information concerning cut flowers and greens. The Council

is authorized to develop, or contract for the development of, such

plans and projects for other research with respect to the marketing,

promotion, and dissemination of information about cut flowers and

greens as it finds appropriate. The Council may disburse such funds as

necessary for these purposes after such plans or projects have been

submitted to, and approved by, the Secretary.

(c) The Council shall submit to the Secretary, for approval before

implementation, any contracts for development of plans and projects, as

well as such plans and projects as may be developed by or approved by

the Council for advertising, promotion, dissemination of information,

and research. All such submissions to the Secretary shall be

accompanied by a proposed budget showing the estimated expense to be

incurred and the availability of revenue from which such expense may be

paid. On approval of any such submission, the Council may proceed with

the contract, plan or project and incur the expenses necessary to carry

it out. Contracts or agreements to be submitted to the Secretary and

entered into if approved by the Secretary shall, among such other

matters as may be required, provide that:

(1) The contracting or agreeing party shall develop and submit to

the Council a plan or project, together with a budget that includes the

estimated costs to be incurred for the plan or project;

(2) The plan or project shall become effective on the approval of

the Secretary; and

(3) The contracting or agreeing party shall:

(i) Keep accurate records of all of the transactions of the party;

(ii) Account for funds received and expenses;

(iii) Make periodic reports to the Council of activities conducted;

and

(iv) Make such other reports as the Council or the Secretary may

require.

(d) The Council, from time to time, may seek advice from and

consult with experts from the production, import, wholesale, and retail

segments of the cut flowers and greens industry to assist in the

development of promotion, consumer information, and related research

plans and projects. For these purposes, the Council may appoint special

committees composed of persons other than Council members. A committee

so appointed may not provide advice or recommendations to a

representative of an agency, or an officer, of the Federal Government,

and shall consult directly with the Council.

Sec. 1208.43 Other contracts and agreements.

The Council may enter into contracts or agreements for

administrative services, including contracts of employment, as may be

required to conduct its business in accordance with such fiscal period

budgets as may have been approved by the Secretary. To the extent

appropriate to the contract involved, contracts entered into by the

Council under the authority of this section shall contain provisions

comparable to those described in Sec. 1208.42(c).

Assessments

Sec. 1208.50 Assessments.

(a) Each qualified handler, as defined in Sec. 1208.16, shall pay

to the Council an assessment in an amount determined in accordance with

this subpart, on each sale of cut flowers and greens to a retailer or

an exempt handler (as defined in Sec. 1208.8) and on each non-sale

transfer of cut flowers and greens to a retailer by a qualified handler

that is a distribution center; as well as each direct sale of cut

flowers and greens to a consumer by a producer that is a qualified

handler, or by an importer that is a qualified handler. Such

assessments shall be remitted by each qualified handler to the Council

or its agent within 60 days after the end of the month in which the

sale or non-sale transfer subject to assessment under this subpart took

place. Such assessments shall be paid at the following rates:

(1) During the first three years after December 29, 1994.

(i) Except as provided in paragraph (a)(1)(ii) of this section, the

rate shall be one-half of 1 (0.5) percent of the gross sales price of

the cut flowers and greens sold;

(ii) In the case of non-sale transfers to a retailer by a qualified

handler that is a distribution center and in the case of direct sales

by importers or producers, the rate shall be one-half of 1 (0.5)

percent of the amount of each transaction's valuation for assessment as

provided in paragraph (b);

(2) After the first three years from December 29, 1994, the uniform

assessment rate may be increased or decreased annually by not more than

one-quarter of 1 (0.25) percent of the gross sales price of a product

sold; or in the case of other transactions the amount of such

transactions, except that the assessment rate may not exceed 1 percent

of the gross sales price or the transaction amount. Changes in the rate

of assessment may only be made if such changes are adopted by a two-

thirds majority vote of the Council and approved by the Secretary

(after public notice and opportunity for comment as provided in the

Act) as being necessary to carry out the objectives of the Act. Any

such change so approved by the Secretary may be put into effect without

a referendum but shall be announced not less than 30 days prior to the

beginning of a fiscal year.

(b) Each non-sale transfer of cut flowers and greens to a retailer

from a qualified handler that is a distribution center shall be treated

as a sale of cut flowers and greens to a retailer and shall be

assessable. Each direct sale of cut flowers and greens to a consumer by

a producer who is a qualified handler or an importer who is a qualified

handler shall be assessable. These transactions shall be determined to

have the following valuations for assessment purposes:

(1) In the case of a non-sale transfer of cut flowers and greens

from a distribution center that is a qualified handler and each direct

sale of cut flowers and greens to a consumer by an importer that is a

qualified handler, the amount of the valuation of the cut flowers and

greens for assessment purposes shall be the price paid by the

distribution center or importer to acquire the cut flowers and greens,

and determined by multiplying the acquisition price by a uniform factor

of 1.43 to represent the markup of a wholesale handler on a sale to a

retailer. (2) In the case of a direct sale to a consumer by a producer

who is a qualified handler, the valuation of the cut flowers and greens

for assessment purposes shall be equal to an amount determined by

multiplying the price paid by the consumer by a uniform factor of 0.50

to represent the cost of producing the article and the markup of a

wholesale handler on a sale to a retailer.

(3) The Council may consider and adopt changes in the uniform

factors specified in paragraphs (b) (1) and (2) of this section. Any

such change shall not become effective until it has been adopted by a

majority vote of the Council and approved by the Secretary after public

notice and opportunity to comment on such change as provided in the

Act. Changes so adopted and approved shall become effective at the

beginning of the next fiscal year.

(c) The collection of assessments shall commence on or after a date

established by the Secretary, and shall continue until terminated by

the Secretary. If the Council is not constituted on the date the first

assessments are to be remitted, the Secretary shall have the authority

to receive assessments on behalf of the Council and may hold such

assessments in an interest bearing account until the Council is

constituted, and the funds may be transferred to the Council.

(d) Assessments shall be determined on the basis of the gross sales

price. The Council, with the approval of the Secretary, may make

uniform adjustments in determining the gross sales price when such

adjustments reflect changes in trade practices or ensure equitable

treatment of all qualified handlers paying assessments.

(e) No assessments may be levied on any sale of cut flowers and

greens for export from the United States. The Council is authorized to

establish procedures for the verification of exports.

(f) In general, assessment funds (less refunds, if any) shall be

used:

(1) For payment of costs incurred in implementing and administering

this subpart;

(2) To provide for a reasonable reserve to be maintained from

assessments to be available for contingencies; and

(3) To cover the administrative costs incurred by the Secretary in

implementing and administering this Act.

Sec. 1208.51 Influencing governmental action.

No funds collected by the Council shall in any manner be used for

the purpose of influencing legislation or government action or policy,

except to develop and recommend to the Secretary amendments to this

subpart.

Sec. 1208.52 Charges for late payments.

Any assessment due the Council pursuant to Sec. 1208.50 that is not

paid on time shall be increased 1.5 percent each month it remains

unpaid beginning with the day following the date such assessment was

due. If not paid in full, any remaining amount due, which shall include

any unpaid charges previously made pursuant to this section, shall be

increased at the same rate on the corresponding day of each month

thereafter until paid. For the purpose of this section, any assessment

that was determined at a date later than prescribed by this subpart

because of a failure to submit a report when due shall be considered to

have been payable by the date it would have been due if the report had

been filed when due. The timeliness of a payment to the Council shall

be based on the applicable postmark date or the date actually received

by the Council, whichever is earlier.

Sec. 1208.53 Adjustment of accounts.

Whenever the Council or the Secretary determines through an audit

of a person's reports, records, books, or accounts or through some

other means that additional money is due the Council or that money is

due such person from the Council, such person shall be notified of the

amount due. The person shall then remit any amount due the Council by

the next date for remitting assessments. Overpayments shall be credited

to the account of the person remitting the overpayment and shall be

applied against amounts due in succeeding months.

Sec. 1208.54 Refunds of assessments and escrow account.

(a) Any qualified handler may demand and receive from the escrow

account, subject to the limitation on such payments provided in

paragraph (c), a one-time refund of any assessments paid by or on

behalf of the handler if the handler requests the refund before the

initial referendum on this subpart is held and this subpart is rejected

by the voters when it is submitted to the referendum. Such a refund

will be paid only if all of the following conditions are met:

(1) The handler has paid the assessments sought to be refunded and

has submitted proof of such payment;

(2) The handler does not support the program established under this

subpart and so states in the handler's demand for a refund;

(3) The handler's demand for a refund is made on a form specified

by the Council and filed not less than 10 days prior to the date when

the initial referendum, conducted pursuant to Sec. 1208.60(a) to

ascertain whether this subpart shall remain in effect, is scheduled to

begin; and

(4) This subpart is not approved by a simple majority of the votes

cast by qualified handlers in the initial referendum.

(b) The Council shall establish an escrow account to be used for

assessment refunds, as needed, and shall place into the account an

amount equal to 10 percent of the total amount of assessments collected

during the period beginning on December 29, 1994 and ending on the date

the results of the initial referendum are issued and the initial

referendum is completed.

(c) If the amount in the escrow account is not sufficient to refund

the total amount of assessments demanded by all qualified handlers

determined eligible for refunds and this subpart is not approved in the

referendum, the Council shall prorate the amount of all such refunds

among all eligible qualified handlers that demand the refund. If there

is any amount in excess of the amount needed to pay refunds and

expenses, it shall be returned pro rata to those who paid assessments.

If this subpart is approved in the referendum, there shall be no

refunds made, and all funds in the escrow account shall be returned to

the Council for use by the Council in accordance with the other

provisions of this subpart.

Sec. 1208.55 Postponement of collections.

(a) The Council may grant a postponement of the payment of an

assessment under this subpart for any qualified handler that

establishes that it is financially unable to make the payment. In order

that a qualified handler that is financially unable to pay an

assessment may have the opportunity to petition the Council to postpone

payment of such an assessment, as provided in the Act, the Council

shall develop forms and procedures for this purpose as expeditiously as

possible and submit them to the Secretary for approval and issuance

after notice and an opportunity for public comment thereon. Such

procedures shall, among other things, require that the handler

demonstrate the handler's inability to pay through the submission of an

opinion prepared by an independent certified public accountant (at the

handler's expense) and any other documentation specified therein to the

effect that the handler is insolvent or will be unable to continue to

operate if the handler is required to pay the assessment when due.

(b) The procedures for obtaining a postponement of payment to be

developed by the Council for submission to the Secretary shall also

include provisions with respect to the period of postponement, the

conditions of payment that may be imposed and the basis, if any, on

which further extensions of the time for payment will be granted so as

to appropriately reflect the demonstrated needs of the qualified

handler.

Sec. 1208.56 Determinations.

(a) The Council is authorized to make the determinations required

by this subpart as to the status of persons as qualified handlers and

exempt handlers including determinations of the status of persons as

qualified wholesale handlers, distribution centers that are qualified

handlers, producers that are qualified handlers, importers that are

qualified handlers, as well as such other determinations of status and

facts as may be required for the effective administration of this

subpart. Based on such determinations, the Council from time to time

shall publish lists of exempt handlers who are not required to pay

assessments, and lists of qualified handlers who are required to pay

assessments under this subpart.

(b) For the purpose of applying the $750,000 annual sales

limitation to a specific person in order to determine the status of the

person as a qualified handler or an exempt handler or to a specific

facility in order to determine the status of the facility as an

eligible separate facility for the purpose of referenda, the Council is

authorized to determine the annual sales volume of a person or

facility.

(c) Any such determination shall be based on the sales of cut

flowers and greens by the person or facility during the most recently-

completed calendar year, except that in the case of a new business or

other operation for which complete data on sales during all or part of

the most recently-completed calendar year are not available to the

Council, the determination may be made using an alternative time period

or other alternative procedures as the Council may find appropriate. In

making such determinations, the Council is authorized to make

attributions in accordance with paragraphs (c) (1) through (4) of this

section and for the purpose of determining the annual sales volume of a

person or a separate facility of a person, sales attributable to a

person shall include:

(1) In the case of an individual, sales attributable to the spouse,

children, grandchildren, parents, and grandparents of the person;

(2) In the case of a partnership or member of a partnership, sales

attributable to the partnership and other partners of the partnership;

(3) In the case of an individual or a partnership, sales

attributable to any corporation or other entity in which the individual

or partnership owns more than 50 percent of the stock or (if the entity

is not a corporation) that the individual or partnership controls; and

(4) In the case of a corporation, sales attributable to any

corporate subsidiary or other corporation or entity in which the

corporation owns more than 50 percent of the stock or (if the entity is

not a corporation) that the corporation controls.

(d) The Council is also authorized to attribute any stock ownership

interest as may be required to carry out this subpart. In doing so a

stock ownership interest in the entity that is owned by the spouse,

children, grandchildren, parents, grandparents, or partners of an

individual, or by a partnership in which a person is a partner, or by a

corporation more than 50 percent of the stock of which is owned by a

person, shall be treated as owned by the individual or person.

(e) For the purpose of this subpart, the Council, with the approval

of the Secretary, may require a person who sells cut flowers and greens

to retailers to submit reports to the Council on annual sales by the

person and on stock ownership.

Suspension or Termination

Sec. 1208.60 Suspension and termination.

If the Secretary finds that this subpart, or any provision of this

subpart, obstructs or does not tend to effectuate the policy of the

Act, the Secretary shall terminate or suspend the operation of this

subpart or the provision of this subpart under such terms as the

Secretary determines are appropriate. Such termination or suspension

shall not be considered an order within the meaning of such term in the

Act.

Sec. 1208.61 Proceedings after termination.

(a) Upon the termination of this subpart, the Council shall

recommend not more than five of its members to the Secretary to serve

as trustees for the purpose of liquidating the assets of the Council.

Such persons, upon designation by the Secretary, shall become trustees

of all the funds and property owned, in the possession of, or under the

control of the Council, including any claims unpaid or property not

delivered, or any other claim existing at the time of such termination.

(b) The trustees shall:

(1) Continue in such capacity until discharged by the Secretary;

(2) Carry out the obligations of the Council under any contract or

agreement entered into by it under this subpart;

(3) Make refunds from the escrow account to those persons who

applied for refunds of assessments paid and who are eligible to receive

such refunds. Such refunds shall be made within 30 days after the

referendum results are issued.

(4) From time to time account for all receipts and disbursements,

and deliver all property on hand, together with all books and records

of the Council and of the trustees, to such persons as the Secretary

may direct; and

(5) Upon the request of the Secretary, execute such assignments or

other instruments necessary or appropriate to vest in such persons full

title and right to all of the funds, property, and claims vested in the

Council or the trustees under this subpart.

(c) Any person to whom funds, property, or claims have been

transferred or delivered under this subpart shall be subject to the

same obligations imposed upon the Council 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

used, to the extent practicable, in the interest of continuing one or

more of the promotion, research, consumer information, or industry

information programs, plans, or projects authorized under this subpart.

Sec. 1208.62 Effect of termination or amendment.

Unless otherwise expressly provided by the Secretary, the

termination of this subpart or of any regulation or rule issued under

this subpart, or the issuance of any amendment to such provisions,

shall not:

(a) Affect or waive any right, duty, obligation, or liability that

shall have arisen or may hereafter arise in connection with any

provision of this subpart or any such regulation or rule;

(b) Release or extinguish any violation of this subpart or any such

regulation or rule; or

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

the Secretary, or any person with respect to any such violation.

Reports, Books, and Records

Sec. 1208.70 Books, records, reports, cost control, and audits of the

Council.

(a) The Council shall maintain the books and records that the

Secretary may require to account for the receipt and disbursement of

all funds entrusted to the Council in accordance with the provisions of

this subpart, and shall prepare and submit to the Secretary, from time

to time as prescribed by the Secretary, all reports that the Secretary

may require.

(b) The Council shall, as soon as practicable after December 29,

1994 and after consultation with the Secretary and other appropriate

persons, implement a system of cost controls based on normally accepted

business practices that will ensure that the annual budgets of the

Council include only amounts for administrative expenses that cover the

minimum administrative activities and personnel needed to properly

administer and enforce this subpart, and conduct, supervise, and

evaluate plans and projects under this subpart.

(c) The Council shall cause the books and records of the Council to

be audited by an independent certified public accountant at the end of

each fiscal year. All audits must be performed in accordance with

either standards issued by the American Institute of Certified Public

Accountants or by the General Accounting Office. A report of each audit

shall be submitted to the Secretary.

Sec. 1208.71 Reports, books, and records of persons subject to this

subpart.

(a) Each qualified handler shall prepare and file reports

containing such information as may be required by the Council with the

approval of the Secretary. Such information shall include:

(1) Data showing the volume of sales and non-sale transfers of cut

flowers and greens made during the reporting period;

(2) The amount of the assessment on such sales or non-sale

transfers; and

(3) Any other data that may be required by the Council with the

approval of the Secretary.

(b) Each person subject to this subpart shall maintain and make

available for inspection by agents of the Council and the Secretary

such books and records as are determined by the Council with the

approval of the Secretary, as necessary to carry out the provisions of

this subpart and the regulations issued hereunder, including such

records as are necessary to verify any reports required. Such records

shall be retained for at least two years beyond the fiscal period of

their applicability.

Sec. 1208.72 Confidential treatment.

(a) Information obtained from books, records, or reports required

to be maintained or filed under the Act and this subpart shall be kept

confidential by all persons, including agents and former agents of the

Council, all officers and employees and all former officers and

employees of the Department, and by all officers and employees and all

former officers and employees of contracting agencies having access to

such information, and shall not be available to Council members. Only

those persons having a specific need for such information to

effectively administer the provisions of this subpart shall have access

to such information. In addition, only such information so furnished or

acquired as the Secretary deems relevant shall be disclosed by them,

and then only in a suit or administrative hearing brought at the

discretion, or upon 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 paragraph shall be deemed to prohibit:

(1) The issuance of general statements, based upon the reports, of

the number of persons subject to this subpart or statistical data

collected from such reports, which statements do not identify the

information furnished by any such persons, and

(2) The publication, by direction of the Secretary, of the name of

any individual, group of individuals, partnership, corporation,

association, cooperative, or other entity that has been adjudged to

have violated this subpart, together with a statement of the particular

provisions of the subpart so violated.

(b) No information on how a person voted in a referendum conducted

under the Act shall be made public.

Miscellaneous

Sec. 1208.80 Right of the Secretary.

All fiscal matters, programs or projects, by-laws, rules or

regulations, reports, or other substantive actions proposed and

prepared by the Council shall be submitted to the Secretary for

approval.

Sec. 1208.81 Personal Liability.

No member or employee of the Council shall be held personally

responsible, either individually or jointly, in any way whatsoever, to

any person for errors in judgement, mistakes, or other acts of either

commission or omission of such member or employee under this subpart,

except for acts of dishonesty or willful misconduct.

Sec. 1208.82 Patents, copyrights, inventions, publications, and

product formulations.

Any patents, copyrights, inventions, publications, or product

formulations developed through the use of funds received by the Council

under this subpart shall be the property of the United States

Government as represented by the Council and shall, along with any

rents, royalties, residual payments, or other income from the rental,

sale, leasing, franchising, or other uses of such patents, copyrights,

inventions, publications, or product formulations, inure to the benefit

of the Council. Upon termination of this subpart, Sec. 1208.61 shall

apply to determine disposition of all such property.

Sec. 1208.83 Amendments.

Amendments to this subpart may be proposed, from time to time, by

the Council or by any interested person affected by the provisions of

the Act, including the Secretary.

Sec. 1208.84 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.

Sec. 1208.85 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 1980, Public Law 96-511, is OMB number 0581-

0096, except Council member nominee information sheets are assigned OMB

number 0505-0001.

Dated: December 23, 1994.

Patricia Jensen,

Acting Assistant Secretary, Marketing and Regulatory Programs.

[FR Doc. 94-32066 Filed 12-28-94; 8:45 am]

BILLING CODE 3410-02-P