Popcorn Promotion, Research, and Consumer Information Order

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1215

[FV-96-706FR]

Popcorn Promotion, Research, and Consumer Information Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This document establishes a Popcorn Promotion, Research, and

Consumer Information Order (Order) under the Popcorn Promotion,

Research, and Consumer Information Act of 1996. Under the Order,

processors will pay an assessment rate of 5 cents per hundredweight of

popcorn to the Popcorn Board (Board). Composed of popcorn processors,

the Board will use the assessments collected to conduct a generic

program of promotion, research, and consumer information to maintain

and expand markets for popcorn. The U.S. Department (Department) of

Agriculture conducted a referendum among eligible popcorn processors to

determine whether they favor the implementation of the Order. The Order

was approved by a majority of those voting in the referendum with such

majority, processing more than 50 percent of the popcorn processed by

all those voting in the referendum.

EFFECTIVE DATE: September 1, 1997.

ADDRESSES: Stacey L. Bryson, Research and Promotion Branch, Fruit and

Vegetable Division, AMS, USDA, P.O. Box 96456, Room 2535-S, Washington,

DC 20090-6456.

FOR FURTHER INFORMATION CONTACT: Stacey L. Bryson at the above address

or telephone (888) 720-9917 (toll free) or (202) 720-6930.

SUPPLEMENTARY INFORMATION: Prior documents in this proceeding: Proposed

Rule published in the September 30, 1996, issue of the Federal Register

(61 FR 51046); Proposed Rule and Referendum Order published in the

March 21, 1997, issue of the Federal Register (62 FR 13551).

This final rule is issued under the Popcorn Promotion, Research,

and Consumer Information Act (7 U.S.C. 7481-7491), hereinafter referred

to as the Act.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil

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

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

policies, unless they present an irreconcilable conflict with this

rule. Further, Sec. 580 of the Act states that nothing in the popcorn

statute preempts or supersedes any other program relating to popcorn

promotion organized and operated under the laws of the United States or

any State.

The Act provides that administrative proceedings must be exhausted

before parties may file suit in court. Under Sec. 577 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.

Executive Order 12866 and Regulatory Flexibility Act

This rule has been determined not significant for purposes of

Executive Order 12866 and therefore has not been reviewed by the Office

of Management and Budget.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et

seq.), the Agency has examined the impact of the proposed rule on small

entities.

Legislation to create a generic program of promotion and research

for popcorn became effective on April 4, 1996. Congress found that this

program is vital to the welfare of popcorn processors and persons

concerned with marketing, using, and producing popcorn for the market,

as well as to the agricultural economy of the United States.

This program is intended to develop and finance an effective and

coordinated program of promotion, research, and consumer information to

maintain and expand the markets for popcorn. The program was initiated

by the popcorn industry, which approved the program in a referendum in

advance of its implementation, and industry members will serve on the

Board that will administer the program under the Department's

supervision. In addition, any person subject to the program may file

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

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

order or an exemption from the order. Administrative proceedings were

discussed earlier in this rule.

In this program, processors will submit assessments and reports to

the Board. In addition, exempt processors will be required to file an

exemption application. While the Order will impose certain

recordkeeping requirements on processors, information required under

the Order could be compiled from records currently maintained. The

forms require the minimum information necessary to effectively carry

out the requirements of the program, and their use is necessary to

fulfill the intent of the Act. The estimated cost in providing

information to the Board by the estimated 67 respondents will be $40.32

per respondent annually.

The Department will oversee program operations and, the Secretary

may conduct referenda at the request of the Board or a representative

group of processors to determine whether the popcorn industry supports

continuation of the program.

There are approximately 35 processors who will pay the assessments,

out of an industry of 67 processors in total.

Small agricultural service firms, which will include processors who

will be covered under the Order, have been defined by the Small

Business Administration [13 CFR 121.607] as those whose annual receipts

are less than $5 million.

Almost 50 percent of the industry will be exempt from the program.

Those processors marketing 4 million pounds of popcorn or less annually

will be exempt from the Order. It is also estimated that only 2 of the

35 eligible processors will be classified as small entities. Those

processors marketing more than 4 million pounds of popcorn annually

represent the majority of the tonnage processed each year.

The Department will seek ways to minimize the burden of complying

with the program for the small businesses that will be affected by it.

A compliance guide will be issued for the small businesses that will

pay assessments as well as those that will be exempt. In addition, the

Department will work with the Popcorn Board to ensure, to the extent

practicable, that the procedures implemented represent the least

burdensome alternatives while meeting the needs of the program.

It was estimated that there were 35 popcorn processors who were

eligible to vote in the referendum. An average of 15 minutes was needed

for each voter to

[[Page 39387]]

read the voting instructions and complete the referendum ballot. The

total burden on the total number of voters was 2.9 hours.

The information collection requirements under the Order require the

minimum information necessary to effectively carry out the requirement

of the program, and their use is necessary to fulfill the intent of the

Act. The monthly collection of information coincides with normal

business practices and can be supplied without data processing

equipment or outside technical expertise. In addition, there are no

additional training requirements for individuals filling out reports

and remitting assessments to the Board. The estimated cost in providing

information to the Board by the estimated 67 respondents will be $19.28

per respondent annually. This total has been estimated by multiplying

129.15 (total burden hours requested) by $10.00 per hour, a sum deemed

to be reasonable if the respondents were compensated for their time.

According to the Popcorn Institute (Institute), a trade association

consisting of popcorn processors representing the industry, annual

sales of popcorn were 77.240 million pounds less in 1994 than they were

in 1993, when sales totaled approximately 1.156 billion pounds.

The peak period for popcorn sales for home consumption is the fall.

Sales remain constant throughout the winter months and taper off during

the spring and summer.

Almost all of the popcorn consumed throughout the world is grown in

the United States, and Americans consume more popcorn than the citizens

of any other country. Popcorn is grown in 19 states. According to the

latest Census on Agriculture, the top five major popcorn-producing

states in 1992 were, in descending order, Indiana (23 percent),

Illinois (19 percent), Nebraska (18 percent), Ohio (10 percent), and

Missouri (7 percent). This is the most recent official information on

popcorn production released by the U.S. government.

U.S. exports of popcorn totaled nearly 290 million pounds in 1995,

with a value of $64.7 million. According to the Snack Food Association,

retail sales of popcorn in the United States totaled $1.469 billion in

1994.

The popcorn Order authorizes an initial assessment on processors of

5 cents per hundredweight. The Order provides that the rate of

assessment may be raised or lowered as recommended by the Board and

approved by the Secretary, but shall not exceed 8 cents per

hundredweight in any fiscal year. At the maximum rate of assessment, it

is estimated that $800,000 will be collected under the program. The

promotion Board will be composed of processors, who will be

knowledgeable of the impact of any proposed assessment on processors,

and other small entities prior to recommending any change of the

assessment rate to the Secretary.

This Order is necessary to accomplish the statutory objectives, to

strengthen the position of the popcorn industry in the marketplace, and

to maintain and expand domestic and foreign markets and uses for

popcorn.

Over the past several years, the popcorn industry pursued several

limited efforts to promote the sales and consumption of popcorn. These

were financed primarily through voluntary contributions of some, but

not all, popcorn processors. Under the limited and voluntary program,

the resources available were not adequate to address the issues facing

the industry from a national perspective and did not allow the industry

to work collectively in an industry-wide manner.

The Order provides the industry with the opportunity to

collectively address issues in areas such as nutrition and quality,

which individual processors could not effectively accomplish due to

lack of resources.

The industry considered pursuing a marketing order; however,

industry believes that popcorn is not a commodity covered under the

existing marketing order statute. Furthermore, the marketing order

system did not lend itself to addressing the issues that the promotion

legislation clearly addresses, for example, establishing the definition

of a processor.

In order to conduct the Regulatory Flexibility Analysis regarding

the impact of this Order on small entities, the proposed rule that was

published in the Federal Register on September 30, 1996 (61 FR 51046)

invited comments concerning the potential effects of the proposed

Order. No specific comments were received concerning the impact of the

proposed order on small entities except that a comment from the Popcorn

Institute did note that the order will be very beneficial to popcorn

processors, especially small processors who will not otherwise be able

to afford a nationwide comprehensive program.

Paperwork Reduction Act

In accordance with the Office of Management and Budget (OMB)

regulations (5 CFR Part 1320) which implement the Paperwork Reduction

Act of 1995 [44 U.S.C. Chapter 35], the information collection and

recordkeeping requirements that will be imposed by this Order were

approved by OMB on December 16, 1996.

Title: National Research, Promotion, and Consumer Information

Programs.

OMB Number: 0581-0093.

Expiration Date of Approval: October 31, 1997.

Type of Request: Revision of a currently approved information

collection for research and promotion programs.

Abstract: The information collection requirements in this request

are essential to carry out the intent of the Act.

While the Order will impose certain recordkeeping requirements on

processors, information required under the Order could be compiled from

records currently maintained. 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 will impose some additional costs and

requirements, it is anticipated that the program under the Order will

help to increase the demand and expand markets for popcorn. Therefore,

any additional costs should be offset by the benefits derived from

expanded markets and sales benefiting all segments of the popcorn

industry.

The forms require the minimum information necessary to effectively

carry out the requirements of the program, and their use is necessary

to fulfill the intent of the Act. Such information can be supplied

without data processing equipment or outside technical expertise. In

addition, there are no additional training requirements for individuals

filling out reports and remitting assessments to the promotion Board.

The forms will be simple, easy to understand, and place as small a

burden as possible on the person required to file the information.

Collecting information less frequently will hinder the Board from

effectively carrying out the provisions of its program. Collecting

information monthly coincides with normal business practices. Requiring

reports less frequently than monthly will impose additional

recordkeeping requirements by requiring information from several months

to be consolidated prior to filling out the form rather than just

copying end-of-month figures already available on to the forms. The

timing and frequency of collecting information is intended to meet the

needs of the industry while minimizing the amount of work necessary to

fill out the required reports. In addition, the information to be

included on these forms is not available from other sources because

such information relates

[[Page 39388]]

specifically to individual processors who are subject to or exempted

from the provisions of the Act. Therefore, there is no practical method

for collecting the required information without the use of these forms.

The estimated cost in providing information to the Board by the

estimated 67 respondents will be $19.28 per respondent annually. This

total has been estimated by multiplying 129.15 (total burden hours

requested) by $10.00 per hour, a sum deemed to be reasonable if the

respondents were compensated for their time.

A comment concerning the proposed Order's information collection

requirements as published on September 30, 1996, in the Federal

Register (61 FR 51046) was addressed in the proposed rule published in

the Federal Register on March 21, 1997, (62 FR 13551).

Information collection requirements that are included in this rule

include:

(1) A periodic report by each person who processes popcorn.

Estimate of Burden: Public reporting burden for this collection of

information is estimated to average .5 hours per each processor

reporting on popcorn processed.

Respondents: Processors.

Estimated Number of Respondents: 35.

Estimated Number of Responses per Respondent: 4.

Estimated Total Annual Burden on Respondents: 70 hours.

(2) An exemption application for processor of popcorn processing 4

million pounds or less a year.

Estimate of Burden: Public reporting burden for this collection of

information is estimated to average .25 hours per response for each

exempt processor.

Respondents: Exempt processors.

Estimated Number of Respondents: 32.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 8 hours.

(3) A referendum ballot to be used to determine whether processors

covered by the Order favor implementation or continuance of the Order.

Estimate of Burden: Public reporting burden for this collection of

information is estimated to average .25 hours per response for each

processor.

Respondents: Processors.

Estimated Number of Respondents: 35.

Estimated Number of Responses per Respondent: 1 every 3 years.

Estimated Total Annual Burden on Respondents: 2.9 hours.

(4) Nominations.

Estimate of Burden: Public reporting burden for this collection of

information is estimated to average .5 hours per response.

Respondents: Processors.

Estimated number of Respondents: 35.

Estimated Number of Responses per Respondent: 1 every 3 years

(.33).

Estimated Total Annual Burden on Respondents: 5.75 hours.

(5) Nominations background statement.

Estimate of Burden: Public reporting burden for this collection of

information is estimated to average .5 hours per response.

Respondents: Processors.

Estimated number of Respondents: 18 for initial Board and 6

annually thereafter.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 9 hours for initial

Board and 3 hours annually thereafter.

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

submitted under the Order.

Estimate of Burden: Public recordkeeping burden for keeping this

information is estimated to average .5 hours per recordkeeper

maintaining such records.

Recordkeepers: Processors.

Estimated number of Recordkeepers: 67.

Estimated Total Recordkeeping Hours: 33.5 hours.

Background

The Act authorizes the Secretary of Agriculture (Secretary) to

establish a popcorn promotion, research, and consumer information

program. The program will be funded by an assessment on processors not

to exceed 8 cents per hundredweight of popcorn.

Assessments will be used to pay for: promotion, research, and

consumer information; administration, maintenance, and functioning of

the Board; and expenses incurred by the Secretary in implementing and

administering the Order, including referendum costs.

Consistent with the Act, processors will be required to maintain

records regarding the collection, payment, or remittance of the

assessments. All information obtained through processor reports will be

kept confidential.

Assessments will be collected in a manner prescribed by the Board.

The collection of assessments will commence on all popcorn processed in

the United States on or after the date established by the Secretary,

and will continue until terminated by the Secretary.

The Act requires the Secretary to conduct a referendum during the

60-day period preceding the proposed Order's effective date. Popcorn

processors of more than 4 million pounds annually are eligible to vote

in the referendum to determine whether they favor the proposed Order's

implementation. The proposed Order must be approved by a majority of

eligible processors voting in the referendum, and processors favoring

approval must process more than 50 percent of the total volume of

popcorn processed by persons voting in the referendum. Subsequent

referenda will be conducted not earlier than three years after the

effective date of the proposed Order at the request of the Board or a

representative group of processors covered by the proposed Order.

The Act provided for the submission of proposals for a popcorn

promotion, research, and consumer information order by industry

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

stated earlier, the Act requires that the proposed Order provide for

the establishment of the Board. The Board will be composed of nine

members. Each member will serve a three-year term of office.

The Department issued a news release on May 22, 1996, requesting

proposals for an initial Order or portions of an initial Order.

An entire proposed Order was submitted by the Institute. The

Department slightly modified the Institute's proposed Order and

published it on September 30, 1996, in the Federal Register (61 FR

51046). Comments were to be received by November 29, 1996. Six comments

concerning the proposed rulemaking were received. These comments were

addressed in the proposed rule which was published in the Federal

Register (62 FR 13533) on March 21, 1997.

Also on March 21, the Department published a referendum order

directing that the initial referendum be conducted from April 15 to 30,

1997.

The Order is summarized as follows:

Sections 1215.1 through 1215.20 of the proposed Order define

certain terms, such as popcorn, processor, and process, which are used

in the proposed Order.

Sections 1215.21 through 1215.30 include provisions relating to the

establishment and membership of the Board; nominations and appointment;

terms of office; vacancies; removal; procedure; compensation and

reimbursement; powers; and duties of the Board. The Board will be the

body organized to administer the Order through the implementation of

[[Page 39389]]

programs, plans, projects, budgets, and contracts to promote and

disseminate information about popcorn, under the supervision of the

Secretary. Further, the Board will be authorized to incur expenses

necessary for the performance of its duties and to set a reserve fund.

Sections 1215.40 through 1215.41 and 1215.50 provide information on

these activities.

Sections 1215.51 through 1215.53 will authorize the collection of

assessments, specify who pays them and how, and specifies individuals

who will be exempt from paying the assessment. In addition, it will

prohibit use of funds to influence government policy or action.

Except as otherwise provided by the Board and approved by the

Secretary, the rate of assessment will be 5 cents per hundredweight of

popcorn.

The assessment section also outlines the procedures to be followed

by processors for remitting assessments and authorize a interest charge

for unpaid or late assessments.

Sections 1215.60 thorough 1215.62 concern reporting and

recordkeeping requirements for persons subject to the Order and protect

the confidentiality of information obtained from such books, records,

or reports.

Sections 1215.60 through 1215.63 describe the rights of the

Secretary, authorize the Secretary to suspend or terminate the Order

when deemed appropriate, and prescribe proceedings after suspension or

termination.

Sections 1215.64 through 1215.77 include the provisions involving

personal liability of Board members and employees; handling of patents,

copyrights, inventions, and others; amendments to the Order; and

separability of Order provisions.

General Findings

The Department conducted a referendum among popcorn processors from

April 15 through 30, 1997, to determine whether the Order will become

effective. The representative period for establishing voter eligibility

was from January 1, through December 31, 1996. Only processors who

processed over 4 million pounds of popcorn during this period were

eligible to vote.

It is determined that a majority of those who voted favored the

implementation of the Order and that those voters favoring

implementation represented a majority of processors voting in the

referendum, which majority, annually processed more than 50 percent of

the popcorn processed annually by all those voting in the referendum.

After consideration of all relevant material presented, including the

initial proposal, comments received, and the referendum results, it is

found that the Order effectuates the declared policy of the Act.

List of Subjects in 7 CFR Part 1215

Administrative practice and procedure, Advertising, Consumer

information, Marketing agreements, Popcorn, Promotion, Reporting and

recordkeeping requirements.

For the reasons set forth in the preamble, Title 7, chapter XI of

the Code of Federal Regulations is amended as follows:

1. Part 1215 is added to read as follows:

PART 1215--POPCORN PROMOTION, RESEARCH, AND CONSUMER INFORMATION

Subpart A--Popcorn Promotion, Research, and Consumer Information Order

Definitions

Sec.

1215.1 Act.

1215.2 Board.

1215.3 Board member.

1215.4 Commerce.

1215.5 Consumer information.

1215.6 Department.

1215.7 Fiscal year.

1215.8 Industry Information.

1215.9 Marketing.

1215.10 Part and subpart.

1215.11 Person.

1215.12 Popcorn.

1215.13 Process.

1215.14 Processor.

1215.15 Programs, plans, and projects.

1215.16 Promotion.

1215.17 Research.

1215.18 Secretary.

1215.19 State.

1215.20 United States.

Popcorn Board

1215.21 Establishment and membership.

1215.22 Nominations and appointment.

1215.23 Acceptance.

1215.24 Term of office.

1215.25 Vacancies.

1215.26 Removal.

1215.27 Procedure.

1215.28 Compensation and reimbursement.

1215.29 Powers.

1215.30 Duties.

Promotion, Research, Consumer Information, and Industry information

1215.40 Programs, plans, and projects.

1215.41 Contracts.

Expenses and Assessments

1215.50 Budget and expenses.

1215.51 Assessments.

1215.52 Exemption from assessment.

1215.53 Influencing governmental action.

Reports, Books, and Records

1215.60 Reports.

1215.61 Books and records.

1215.62 Confidential treatment.

Miscellaneous

1215.70 Right of the Secretary.

1215.71 Suspension or termination.

1215.72 Proceedings after termination.

1215.73 Effect of termination or amendment.

1215.74 Personal liability.

1215.75 Patents, copyrights, inventions, publications, and product

formulations.

1215.76 Amendments.

1215.77 Separability.

Subpart B--Rules and Regulations Definitions

1215.100 Terms defined.

Exemption Procedures

1215.300 Exemption procedures.

Miscellaneous

1215.400 OMB control numbers.

Authority: 7 U.S.C. 7481-7491.

Subpart A--Popcorn Promotion, Research, and Consumer Information

Order

Definitions

Sec. 1215.1 Act.

Act means the Popcorn Promotion, Research, and Consumer Information

Act of 1995, Subtitle E of Title V of the Federal Agriculture

Improvement and Reform Act of 1996, Pub. L. 104-127, 7 U.S.C. 7481-

7491, and any amendments thereto.

Sec. 1215.2 Board.

Board means the Popcorn Board established under section 575(b) of

the Act.

Sec. 1215.3 Board member.

Board member means an officer or employee of a processor appointed

by the Secretary to serve on the Popcorn Board as a representative of

that processor.

Sec. 1215.4 Commerce.

Commerce means interstate, foreign, or intrastate commerce.

Sec. 1215.5 Consumer information.

Consumer information means information and programs that will

assist consumers and other persons in making evaluations and decisions

regarding the purchasing, preparing, and use of popcorn.

Sec. 1215.6 Department.

Department means the United States Department of Agriculture.

Sec. 1215.7 Fiscal year.

Fiscal year means the 12-month period from January 1 through

December 31 each year, or such other period as recommended by the Board

and approved by the Secretary.

[[Page 39390]]

Sec. 1215.8 Industry information.

Industry information means information and programs that will lead

to the development of new markets, new marketing strategies, or

increased efficiency for the popcorn industry, or activities to enhance

the image of the popcorn industry.

Sec. 1215.9 Marketing.

Marketing means the sale or other disposition of unpopped popcorn

for human consumption in a channel of commerce but shall not include

sales or disposition to or between processors.

Sec. 1215.10 Part and subpart.

Part means the Popcorn Promotion, Research, and Consumer

Information Order and all rules and regulations and supplemental orders

issued thereunder, and the term subpart means the Popcorn Promotion,

Research, and Consumer Information Order.

Sec. 1215.11 Person.

Person means any individual, group of individuals, partnership,

corporation, association, cooperative, or any other legal entity.

Sec. 1215.12 Popcorn.

Popcorn means unpopped popcorn (Zea Mays L) that is commercially

grown, processed in the United States by shelling, cleaning, or drying,

and introduced into a channel of commerce.

Sec. 1215.13 Process.

Process means to shell, clean, dry, and prepare popcorn for the

market, but does not include packaging popcorn for the market without

also engaging in another activity described in this paragraph.

Sec. 1215.14 Processor.

Processor means a person engaged in the preparation of unpopped

popcorn for the market who owns or who shares the ownership and risk of

loss of such popcorn and who processes and distributes over 4 million

pounds of popcorn in the market per year.

Sec. 1215.15 Programs, plans, and projects.

Programs, plans, and projects means promotion, research, consumer

information, and industry information plans, studies, projects, or

programs conducted pursuant to this part.

Sec. 1215.16 Promotion.

Promotion means any action, including paid advertising, to enhance

the image or desirability of popcorn.

Sec. 1215.17 Research.

Research means any type of study to advance the image,

desirability, marketability, production, product development, quality,

or nutritional value of popcorn.

Sec. 1215.18 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. 1215.19 State.

State means each of the 50 States and the District of Columbia.

Sec. 1215.20 United States.

United States means all of the States.

Popcorn Board

Sec. 1215.21 Establishment and membership.

(a) There is hereby established a Popcorn Board of nine members.

The number of members on the Board may be changed by regulation:

Provided, That the Board consist of not fewer than four members and not

more than nine members. The Board shall be composed of popcorn

processors appointed by the Secretary under Sec. 1215.24.

(b) For purposes of nominating and appointing processors to the

Board, the Secretary shall, to the extent practicable, take into

account the geographic distribution of popcorn production.

(c) No more than one officer or employee of a processor may serve

as a Board member at the same time.

Sec. 1215.22 Nominations and appointment.

(a) All nominations for appointments to the Board established under

Sec. 1215.21 shall be made as follows:

(1) As soon as practicable after the effective date of this

subpart, nominations for appointment to the initial Board shall be

obtained from processors by the Secretary. In any subsequent year in

which an appointment to the Board is to be made, nominations for

positions for which the term will expire at the end of that year shall

be obtained from processors at least six months prior to the expiration

of terms.

(2) Except for initial Board members, whose nomination process will

be initiated by the Secretary, the Board shall issue a call for

nominations in each year for which an appointment to the Board is to be

made. The call shall include, at a minimum, the following information:

(i) A list of the vacancies for which nominees may be submitted and

qualifications for nomination; and

(ii) The date by which the names of nominees shall be submitted to

the Secretary for consideration to be in compliance with paragraph (a)

of this section.

(3)(i) Nominations for each position shall be made by processors.

Notice shall be publicized to all processors.

(ii) All processors may participate in submitting nominations.

(4) Two nominees must be submitted for each vacancy. If processors

fail to nominate a sufficient number of nominees, additional nominees

shall be obtained in a manner prescribed by the Secretary.

(b) The Secretary shall appoint the members of the Board from

nominations made in accordance with paragraph (a).

(1) The Secretary may reject any nominee submitted. If there is an

insufficient number of nominees from whom to appoint members to the

Board as a result of the Secretary's rejecting such nominees,

additional nominees shall be submitted to the Secretary in a manner

prescribed by the Secretary.

(2) Whenever processors cannot agree on nominees for a position on

the Board under the preceding provisions of this section, or whenever

they fail to nominate individuals for appointment to the Board, the

Secretary may appoint members in such a manner as the Secretary

determines appropriate.

(3) If a processor nominates more than one officer or employee,

only one may be appointed to the Board by the Secretary.

Sec. 1215.23 Acceptance.

Each individual nominated for membership of the Board shall qualify

by filing a written acceptance with the Secretary at the time of

nomination.

Sec. 1215.24 Term of office.

(a) The members of the Board shall serve for terms of three years,

except that members appointed to the initial Board shall serve, to the

extent practicable, proportionately for terms of two, three, and four

years.

(b)(1) Except with respect to terms of office of the initial Board,

the term of office for each Board member shall begin on the date the

member is seated at the Board's annual meeting or such other date that

may be approved by the Secretary.

(2) The term of office for the initial Board member shall begin

immediately following the appointment by the Secretary.

(c) Board members shall serve during the term of office for which

they are appointed and have qualified, and until their successors are

appointed and have qualified.

(d) No Board member may serve more than two consecutive three-year

terms,

[[Page 39391]]

except as provided in Sec. 1215.25(d). Initial members serving two- or

four-year terms may serve one successive three-year term.

Sec. 1215.25 Vacancies.

(a) To fill any vacancy occasioned by the death, removal,

resignation, or disqualification of any member of the Board, the

Secretary may appoint a successor from the most recent nominations

submitted for positions on the Board or the Secretary may obtain

nominees to fill such vacancy in such a manner as the Secretary deems

appropriate.

(b) Each such successor appointment shall be for the remainder of

the term vacated.

(c) A vacancy will not be required to be filled if the unexpired

term is less than six months.

(d) If an unexpired term is less than 1.5 years, serving the term

shall not prevent the appointee from serving two successive three-year

terms.

(e) A Board member shall be disqualified from serving on the Board

if such individual ceases to be affiliated with the processor the

member represents.

Sec. 1215.26 Removal.

If a member of the Board consistently refuses to perform the duties

of a member of the Board, or if a member of the Board is known to be

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

recommend to the Secretary that the member be removed from office.

Further, without recommendation of the Board, a member may be removed

by the Secretary upon showing of adequate cause, including the failure

by a member to submit reports or remit assessments required under this

part, if the Secretary determines that such member's continued service

will be detrimental to the achievement of the purposes of the Act.

Sec. 1215.27 Procedure.

(a) At a properly convened meeting of the Board, a majority of the

members shall constitute a quorum.

(b) Each member of the Board will be entitled to one vote on any

matter put to the Board, and the motion will carry if supported by a

simple majority of those voting. At assembled meetings of the Board,

all votes will be cast in person.

(c) In lieu of voting at a properly convened meeting and, when in

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

necessary, the Board may take action upon the concurring votes by a

majority of its members by mail, telephone, facsimile, or any other

means of communication. If appropriate, any such action shall be

confirmed promptly in writing. In that event, all members must be given

prior notice and provided the opportunity to vote. Any action so taken

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

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

recorded in Board minutes.

(d) Meetings of the Board may be conducted by electronic

communications, provided that each member is given prior notice of the

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

electronic connection.

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

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

shall be established by the Board and approved by the Secretary.

Sec. 1215.28 Compensation and reimbursement.

The members of the Board shall serve without compensation but shall

be reimbursed for necessary and reasonable expenses incurred by such

members in the performance of their responsibilities under this

subpart.

Sec. 1215.29 Powers.

The Board shall have the following powers:

(a) To administer the Order in accordance with its terms and

provisions;

(b) To make rules and regulations to effectuate the terms and

provisions of the Order;

(c) To select committees and subcommittees of Board members,

including an executive committee, and to adopt such bylaws and other

rules for the conduct of its business as it may deem advisable;

(d) To appoint or employ such individuals as it may deem necessary,

define the duties, and determine the compensation of such individuals;

(e) To disseminate information to processors or industry

organizations through programs or by direct contact using the public

postal system or other systems;

(f) To propose, receive, evaluate and approve budgets, plans and

projects of popcorn promotion, research, consumer information and

industry information, as well as to contract with the approval of the

Secretary with appropriate persons to implement plans and projects.

(g) To receive, investigate, and report to the Secretary for action

any complaints of violations of the Order;

(h) To recommend to the Secretary amendments to the order;

(i) To accept or receive voluntary contributions;

(j) To invest, pending disbursement pursuant to a program, plan or

project, funds collected through assessments authorized under this Act

provided for in Sec. 1215.51, and any other funds received by the Board

in, and only in, obligations of the United States or any agency

thereof, in general obligations of any State or any political

subdivision thereof, in any interest bearing account or certificate of

deposit or a bank that is a member of the Federal Reserve System, or in

obligations fully guaranteed as to principal and interest by the United

States.

(k) With the approval of the Secretary, to enter into contracts or

agreements with national, regional, or State popcorn processor

organizations, or other organizations or entities, for the development

and conduct of programs, plans or projects authorized under

Sec. 1215.40 and for the payment of the cost of such programs with

assessments received pursuant to this subpart; and

(1) Such other powers as may be approved by the Secretary.

Sec. 1215.30 Duties.

The Board shall have the following duties:

(a) To meet not less than annually, and to organize and select from

among its members a chairperson and such other officers as may be

necessary;

(b) To evaluate or develop, and submit to the Secretary for

approval, promotion, research, consumer information, and industry

information programs, plans or projects;

(c) To prepare for each fiscal year, and submit to the Secretary

for approval at least 60 days prior to the beginning of each fiscal

year, a budget of its anticipated expenses and disbursements in the

administration of this subpart, as provided in Sec. 1215.50;

(d) To maintain such books and records, which shall be available to

the Secretary for inspection and audit, and to prepare and submit such

reports from time to time to the Secretary, as the Secretary may

prescribe, and to make appropriate accounting with respect to the

receipt and disbursement of all funds entrusted to it;

(e) To prepare and make public, at least annually, a report of its

activities carried out, and an accounting for funds received and

expended;

(f) To cause its financial statements to be prepared in conformity

with generally accepted accounting principles and to be audited by an

independent certified public accountant

[[Page 39392]]

in accordance with generally accepted auditing standards at least once

each fiscal year and at such other times as the Secretary may request,

and submit a copy of each such audit to the Secretary;

(g) To give the Secretary the same notice of meetings of the Board

as is given to members in order that the Secretary, or a representative

of the Secretary, may attend such meetings;

(h) To submit to the Secretary such information as may be requested

pursuant to this subpart;

(i) To keep minutes, books and records that clearly reflect all the

acts and transactions of the Board. Minutes of each Board meeting shall

be promptly reported to the Secretary;

(j) To act as intermediary between the Secretary and any processor;

(k) To investigate violations of the Act, order, and regulations

issued under the order, conduct audits, and report the results of such

investigations and audits to the Secretary for appropriate action to

enforce the provisions of the Act, order, and regulations; and

(l) To work to achieve an effective, continuous, and coordinated

program of promotion, research, consumer information, and industry

information designed to strengthen the popcorn industry's position in

the marketplace, maintain and expand existing markets and uses for

popcorn, develop new markets and uses for popcorn, and to carry out

programs, plans, and projects designed to provide maximum benefits to

the popcorn industry.

Promotion, Research, Consumer Information, and Industry Information

Sec. 1215.40 Programs, plans, and projects.

(a) The Board shall receive and evaluate, or on its own initiative

develop, and submit to the Secretary for approval any program, plan or

project authorized under this subpart. Such programs, plans or projects

shall provide for:

(1) The establishment, issuance, effectuation, and administration

of appropriate programs for promotion, research, consumer information,

and industry information with respect to popcorn; and

(2) The establishment and conduct of research with respect to the

sale, distribution, marketing, and use of popcorn, and the creation of

new uses thereof, to the end that the marketing and use of popcorn may

be encouraged, expanded, improved, or made more acceptable.

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

approval by the Secretary. Once a program, plan, or project is so

approved, the Board may take appropriate steps to implement it.

(c) Each program, plan, or project implemented under this subpart

shall be reviewed or evaluated periodically by the Board to ensure that

it contributes to an effective program of promotion, research, consumer

information, or industry information. If it is found by the Board that

any such program, plan, or project does not contribute to an effective

program of promotion, research, consumer information, or industry

information, then the Board shall terminate such program, plan, or

project.

(d) In carrying out any program, plan, or project, no reference to

a brand name, trade name, or State or regional identification of any

popcorn will be made. In addition, no program, plan, or project shall

make use of unfair or deceptive acts or practices with respect to the

quality, value, or use of any competing product.

Sec. 1215.41 Contracts.

The Board shall not contract with any processor for the purpose of

promotion or research. The Board may lease physical facilities from a

processor for such promotion or research, if such an arrangement is

determined to be cost effective by the Board and approved by the

Secretary. Any contract or agreement shall provide that:

(a) The contractor or agreeing party shall develop and submit to

the Board a program, plan or project together with a budget or budgets

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

plan, or project;

(b) Any such program, plan, or project shall become effective upon

approval by the Secretary;

(c) The contracting or agreeing party shall keep accurate records

of all of its transactions and make periodic reports to the Board of

activities conducted, submit accountings for funds received and

expended, and make such other reports as the Secretary or the Board may

require; and the Secretary may audit the records of the contracting or

agreeing party periodically; and

(d) Any subcontractor who enters into a contract with a Board

contractor and who receives or otherwise uses funds allocated by the

Board shall be subject to the same provisions as the contractor.

Expenses and Assessments

Sec. 1215.50 Budget and expenses.

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

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

to the Secretary a budget for the fiscal year covering its anticipated

expenses and disbursements in administering this subpart.

(b) Each budget shall include:

(1) A rate of assessment for such fiscal year calculated, subject

to Sec. 1215.51(b), to provide adequate funds to defray its proposed

expenditures and to provide for a reserve as set forth in paragraph (g)

of this section;

(2) A statement of the objectives and strategy for each program,

plan, or project;

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

least one preceding year;

(4) A summary of proposed expenditures for each program, plan, or

project; and

(5) Staff and administrative expense breakdowns, with comparative

data for at least one preceding year.

(c) In budgeting plans and projects of promotion, research,

consumer information, and industry information, the Board shall expend

assessment and contribution funds on:

(1) Plans and projects for popcorn marketed in the United States or

Canada in proportion to the amount of assessments projected to be

collected on domestically marketed popcorn (including Canada); and

(2) Plans and projects for exported popcorn in proportion to the

amount of assessments projected to be collected on exported popcorn

(excluding Canada).

(d) The Board is authorized to incur such reasonable expenses,

including provision for a reasonable reserve, as the Secretary finds

are reasonable and likely to be incurred by the Board for its

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

and perform its duties in accordance with the provisions of this

subpart. Such expenses shall be paid from funds received by the Board.

(e) The Board may accept voluntary contributions, but these shall

only be used to pay expenses incurred in the conduct of programs,

plans, and projects approved by the Secretary. Such contributions shall

be free from any encumbrances by the donor and the Board shall retain

complete control of their use. The Board may also receive funds

provided through the Foreign Agricultural Service of the United States

Department of Agriculture for foreign marketing activities.

(f) As stated in section 75(f)(4)(A)(ii) of the Act, the Board

shall reimburse the Secretary, from funds received by the Board, for

costs incurred by the Secretary in implementing and administering this

subpart: Provided, That the costs incurred by the Secretary to be

reimbursed by the Board, excluding legal costs to defend and enforce

the order, shall not exceed 15

[[Page 39393]]

percent of the projected annual revenues of the Board.

(g) The Board may establish an operating monetary reserve and may

carry over to subsequent fiscal periods excess funds in any reserve so

established, except that the funds in this reserve shall not exceed

approximately one fiscal year's expenses. Such reserve funds may be

used to defray any expenses authorized under this subpart.

(h) With the approval of the Secretary, the Board may borrow money

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

budget, and audit controls as other funds of the Board during its first

year of operation only.

Sec. 1215.51 Assessments.

(a) Any processor marketing popcorn in the United States or for

export shall pay an assessment on such popcorn at the time of

introduction to market at a rate as established in Sec. 1215.51(c) and

shall remit such assessment to the Board in such form and manner as

prescribed by the Board.

(b) Any person marketing popcorn of that person's own production to

consumers in the United States either directly or through retail or

wholesale outlets, shall remit to the Board an assessment on such

popcorn at the rate set forth in paragraph Sec. 1215.51(c), and in such

form and manner as prescribed by the Board.

(c) Except as otherwise provided, the rate of assessment shall be 5

cents per hundredweight of popcorn. The rate of assessment may be

raised or lowered as recommended by the Board and approved by the

Secretary, but shall not exceed 8 cents per hundredweight in any fiscal

year.

(d) The collection of assessments under this section shall commence

on all popcorn processed in the United States on or after the date

established by the Secretary, and shall continue until terminated by

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

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

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

assessments until the Board is constituted, then remit such assessments

to the Board.

(e) Each person responsible for remitting assessments under

paragraphs (a) and (b) of this section shall remit the amounts due from

assessments to the Board on a quarterly basis no later than the last

day of the month following the last month in the previous quarter in

which the popcorn was marketed, in such manner as prescribed by the

Board.

(f) The Board shall impose a late payment charge on any person who

fails to remit to the Board the total amount for which the person is

liable on or before the payment due date established under this

section. The amount of the late payment charge shall be prescribed in

rules and regulations as approved by the Secretary.

(g) The Board shall impose an additional charge on any person

subject to a late payment charge, in the form of interest on the

outstanding portion of any amount for which the person is liable. The

rate of interest shall be prescribed in rules and regulations as

approved by the Secretary.

(h) In addition, persons failing to remit total assessments due in

a timely manner may also be subject to penalties and actions under

federal debt collection procedures as set forth in 7 CFR 3.1 through

3.36.

(i) Any assessment that is determined to be owing at a date later

than the payment due established under this section, due to a person's

failure to submit a report to the Board by the payment due date, shall

be considered to have been payable on the payment due date. Under such

a situation, paragraphs (f), (g), and (h) of this section shall be

applicable.

(j) The Board, with the approval of the Secretary, may enter into

agreements authorizing other organizations or entities to collect

assessments on its behalf. Any such organization or entity shall be

required to maintain the confidentiality of such information as is

required by the Board for collection purposes. Any reimbursement by the

Board for such services shall be based on reasonable charges for

services rendered.

(k) The Board is hereby authorized to accept advance payment of

assessments for the fiscal year by any person, that shall be credited

toward any amount for which such person may become liable. The Board

shall not be obligated to pay interest on any advance payment.

Sec. 1215.52 Exemption from assessment.

(a) Persons that process and distribute 4 million pounds or less of

popcorn annually, based on the previous year, shall be exempted from

assessment.

(b) To claim such exemption, such persons shall apply to the Board,

in the form and manner prescribed in the rules and regulations.

Sec. 1215.53 Influencing governmental action.

No funds received by the Board under this subpart shall in any

manner be used for the purpose of influencing legislation or

governmental policy or action, except to develop and recommend to the

Secretary amendments to this subpart.

Reports, Books, and Records

Sec. 1215.60 Reports.

(a) Each processor marketing popcorn directly to consumers, and

each processor responsible for the remittance of assessments under

Sec. 1215.51, shall be required to report quarterly to the Board, on a

form provided by the Board, such information as may be required under

this subpart or any rule and regulations issued thereunder. Such

information shall be subject to Sec. 1215.62 and include, but not be

limited to, the following:

(1) The processor's name, address, telephone number, and Social

Security Number or Employer Identification Number;

(2) The date of report, which is also the date of payment to the

Board;

(3) The period covered by the report;

(4) The number of pounds of popcorn marketed or in any other manner

are subject to the collection of assessments;

(5) The amount of assessments remitted;

(6) The basis, if necessary, to show why the remittance is less

than the number of pounds of popcorn divided by 100 and multiplied by

the applicable assessment rate; and

(7) The amount of assessments remitted on exports (not including

Canada).

(b) The words ``final report'' shall be shown on the last report at

the end of each fiscal year.

Sec. 1215.61 Books and records.

Each person who is subject to this subpart shall maintain and make

available for inspection by the Board or the Secretary such books and

records as are deemed necessary by the Board, with the approval of the

Secretary, to carry out the provisions of this subpart and any rules

and regulations issued hereunder, including such books and records as

are necessary to verify any reports required. Such books and records

shall be retained for at least two years beyond the fiscal year of

their applicability.

Sec. 1215.62 Confidential treatment.

(a) All information obtained from books, records, or reports under

the Act, this subpart, and the rule and regulations issued thereunder

shall be kept confidential by all persons, including all employees,

agents, and former employees and agents of the Board; all officers,

employees, agents, and former officers, employees, and agents of the

Department; and all officers, employees, agents, and former officers,

employees, and agents of contracting and subcontracting agencies

[[Page 39394]]

or agreeing parties having access to such information. Such information

shall not be available to Board members or processors. Only those

persons having a specific need for such information to administer

effectively the provisions of this part shall have access to such

information. Only such information so obtained as the Secretary deems

relevant shall be disclosed by them, and then only in a suit or

administrative hearing brought at the direction, or on the request, of

the Secretary, or to which the Secretary or any officer of the United

States is a party, and involving this part.

(b) No information obtained under the authority of this part may be

made available to any agency or officer of the Federal Government for

any purpose other than the implementation of the Act and any

investigatory or enforcement action necessary for the implementation of

the Act.

(c) Nothing in paragraph (a) of this section may be deemed to

prohibit:

(1) The issuance of general statements based upon the reports of

the number of persons subject to this part or statistical data

collected therefrom, which statements do not identify the information

furnished by any person;

(2) The publication, by direction of the Secretary, of the name of

any person who has violated this part, together with a statement of the

particular provisions of this part violated by such person.

(d) Any person who knowingly violated the provisions of this

section, on conviction, shall be subject to a fine of not more than

$1,000 or to imprisonment for not more than 1 year, or both, or if the

person is an officer, employee, or agent of the Board or the

Department, that person shall be removed from office or terminated from

employment as applicable.

Miscellaneous

Sec. 1215.70 Right of the Secretary.

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

or regulations, reports, or other substantive actions proposed and

prepared by the Board shall be submitted to the Secretary for approval.

Sec. 1215.71 Suspension or termination.

(a) Whenever the Secretary finds that this subpart or any provision

thereof obstructs or does not tend to effectuate the declared policy of

the Act, the Secretary shall terminate or suspend the operation of this

subpart or such provision thereof.

(b) The Secretary may conduct additional referenda to determine

whether processors favor termination or suspension of this subpart

three years after the effective date, on the request of a

representative group comprising 30 percent or more of the number of

processors who have been engaged in processing during a representative

period as determined by the Secretary.

(c) Whenever the Secretary determines that suspension or

termination of this subpart is favored by two-thirds or more of the

popcorn processors voting in a referendum under paragraph (b) of this

section who, during a representative period determined by the

Secretary, have been engaged in the processing, the Secretary shall:

(1) Suspend or terminate, as appropriate, collection of assessments

within six months after making such determination; and

(2) Suspend or terminate, as appropriate, all activities under this

subpart in an orderly manner as soon as practicable.

(d) Referenda conducted under this subsection shall be conducted in

such manner as the Secretary may prescribe.

Sec. 1215.72 Proceedings after termination.

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

not more than five of its members to the Secretary to serve as trustees

for the purpose of liquidating the affairs of the Board. Such persons,

upon designation by the Secretary, shall become trustees of all the

funds and property owned, in the possession of, or under the control of

the Board, 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 Board under any contract or

agreement entered into by it under this subpart;

(3) From time to time account for all receipts and disbursements,

and deliver all property on hand, together with all books and records

of the Board and of the trustees, to such persons as the Secretary may

direct; and

(4) Upon the request of the Secretary, execute such assignments or

other instruments necessary or appropriate to vest in such other

persons full title and right to all of the funds, property, and claims

vested in the Board 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 Board and upon the trustees.

(d) Any residual funds not required to defray the necessary

expenses of liquidation shall be turned over to the Secretary to be

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. 1215.73 Effect of termination or amendment.

Unless otherwise expressly provided by the Secretary, the

termination of this subpart or of any rule and regulation 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 rules or regulations;

(b) Release or extinguish any violation of this subpart or any such

rules or regulations; or

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

the Secretary, or any person with respect to any such violation.

Sec. 1215.74 Personal liability.

No member or employee of the Board shall be held personally

responsible, either individually or jointly, in any way whatsoever, to

any person for errors in judgment, 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. 1215.75 Patents, copyrights, inventions, publications, and

product formulations.

Any patents, copyrights, inventions, publications, or product

formulations developed through the use of funds received by the Board

under this subpart shall be the property of the United States

Government as represented by the Board 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 Board and be considered income subject to the same fiscal,

budget, and audit controls as other funds of the Board. Upon

termination of this subpart, Sec. 1215.72 shall apply to determine

disposition of all such property.

Sec. 1215.76 Amendments.

Amendments to this subpart may be proposed, from time to time, by

the Board or by any interested persons affected by the provisions of

the Act, including the Secretary.

[[Page 39395]]

Sec. 1215.77 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.

Subpart B--Rules and Regulations

Sec. 1215.100 Terms defined.

Unless otherwise defined in this subpart, the definitions of terms

used in this subpart shall have the same meaning as the definitions in

Subpart A--Popcorn Promotion, Research, and Consumer Information Order

of this part.

Exemption Procedures

Sec. 1215.300 Exemption procedures.

(a) Any processor who markets 4 million pounds or less of popcorn

annually and who desires to claim an exemption from assessments during

a fiscal year as provided in Sec. 1214.52 of this part shall apply to

the Board, on a form provided by the Board, for a certificate of

exemption. Such processor shall certify that the processor's marketing

of popcorn during the previous fiscal year was 4 million pounds or

less.

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

whether an exemption may be granted. The Board then will issue, if

deemed appropriate, a certificate of exemption to each person that is

eligible to receive one.

(c) Any person who desires to renew the exemption from assessments

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

provided by the Board, for a certificate of exemption.

(d) The Board may require persons receiving an exemption from

assessments to provide to the Board reports on the disposition of

exempt popcorn.

Miscellaneous

Sec. 1215.400 OMB control numbers.

The control number assigned to the information collection

requirements by the Office of Management and Budget pursuant to the

Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB control

number 0581-0093, except for the Promotion Board nominee background

statement form which is assigned OMB control number 0505-0001.

Dated: July 16, 1997.

Lon Hatamiya,

Administrator, Agricultural Marketing Service.

[FR Doc. 97-19150 Filed 7-21-97; 8:45 am]

BILLING CODE 3410-02-P