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[Federal Register: January 21, 2005 (Volume 70, Number 13)]
[Proposed Rules]
[Page 3150-3155]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov]
DEPARTMENT OF AGRICULTURE
Foreign Agricultural Service
7 CFR Part 1530
RIN 0551-AA65
The Sugar Re-Export Program, the Sugar-Containing Products Re-
Export Program, and the Polyhydric Alcohol Program
AGENCY: Foreign
Agricultural
Service (FAS), USDA.
ACTION: Proposed rule.
SUMMARY: This proposed rule would
implement Chapter 17 of the Harmonized Tariff Schedule of the United States (HTS),
Additional U.S. Note 6, which authorizes entry of raw cane sugar under
subheading 1701.11.20 of the HTS for the production of polyhydric alcohols,
except polyhydric alcohols for use as a substitute for sugar in human food
consumption, or to be refined and re-exported in refined form or in
sugar-containing products, or to be substituted for domestically
produced raw cane sugar that has been or will be exported. The proposed rule
would totally revise the current regulation at 7 CFR part 1530, effective
February 12, 1999.
DATES: Comments should be received on or before March 22, 2005 to be
assured of consideration.
ADDRESSES: Comments should be sent to the Director, Import Policies and
Programs Division, Foreign Agricultural
Service, U.S. Department of Agriculture, 1400 Independence
Avenue, SW., Stop 1021, Washington, DC 20250-1021. All comments received will be
available for public
inspection in room 5531.
FOR FURTHER INFORMATION CONTACT: Ron Lord, Acting Director, Import
Policies and Programs Division, Foreign Agricultural
Service, 1400 Independence Avenue, SW., STOP 1021, by e-mail at
Ronald.Lord@usda.gov, telephone at
202-720-2916, or fax at 202-720-0876.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
The rule has been determined to be significant under E.O.
12866 and has been reviewed by the Office of Management and Budget.
Regulatory Flexibility Act
The Regulatory Flexibility Act ensures that regulatory and
information requirements are tailored to the size and nature of small
businesses, small organizations, and small governmental jurisdictions.
This rule will have a significant favorable economic impact on small businesses
participating in the program. Participation is voluntary. Direct and indirect
costs are likely to be very small as a percentage of revenue and in terms of
absolute costs. The regulatory requirements affect large and small businesses
equally. The program's benefits should significantly improve the price
competitiveness of exporters of sugar and sugar-containing products, and lower
the cost of producing
polyhydric alcohols.
Executive Order 12988
This rule has been reviewed under Executive Order 12988. The
provisions of this rule would not have preemptive effect with respect to any
State or local laws, regulations, or policies which conflict
with such provision or which otherwise impede their full implementation. The
rule would not have retroactive effect. Before any judicial action may be
brought regarding this rule, all administrative
remedies must be exhausted.
National Environmental Policy Act
The Administrator has determined that this action will not
have a significant effect on the quality of the human environment. Therefore,
neither an Environmental Assessment nor an Environmental Impact Statement is
necessary for this rule.
Unfunded Mandates Reform Act (Pub. L. 104-4)
Public Law 104-4 requires consultation with State and local
officials and Indian tribal governments. This rule does not impose an unfunded
mandate or any other requirement on State, local, or tribal governments.
Accordingly, these programs are not subject to the provisions of the Unfunded
Mandates Reform Act.
Executive Order 12630
This Order requires careful evaluation of governmental
actions that interfere with constitutionally protected property rights. This
rule would not interfere with any property rights and, therefore, does not need
to be evaluated on the basis of the criteria outlined in Executive Order 12630.
Government Paperwork Elimination Act
FAS is committed to compliance with the Government Paperwork
Elimination Act, which requires Government agencies, in general, to provide the
public the option of submitting information or transacting business
electronically to the maximum extent possible.
Background
The proposed rule at 7 CFR 1530 would revise the current
regulation in effect since February 12, 1999, to improve program administration
and reflect changes in the sugar sector. The Refined Sugar Re-export Program,
the Sugar-containing Products Re-export Program, and the Polyhydric Alcohol
Program permit licensed participants to purchase sugar on the world market for
either export or use in the production of certain polyhydric alcohols. The raw
equivalent of the program sugar exported or used may be replaced by raw cane
sugar imported under HTS subheading 1701.11.20.
The programs administered under 7 CFR 1530 were established
in 1982 when U.S. raw sugar imports were brought under import quota restriction.
The programs were intended to assist the U.S. cane sugar refining industry to
remain competitive in world markets and maintain refining volume in light of a
shrinking domestic market. The regulations governing these programs were
revised, consolidated, and reissued on February 12, 1999. The reissued rule
required documentation
agreements between FAS and licensees to facilitate program administration and
oversight. Presently, 4 refiners, over 200 manufacturers, and 17 polyhydric
alcohol producers are licensed to participate in the programs under this part.
Recent developments, including consolidation in the refining
industry and the re-imposition of domestic marketing allotments, have altered
trading conditions applicable to sugar. On May 1, 2003, FAS published in the
Federal Register (68 FR 23230) an Advance Notice of Proposed Rulemaking (ANPR)
seeking public comments on a number of issues related to the administration of
the sugar re-export programs. By incorporating changes that received favorable
public comment, the proposed rule would:
--Prohibit refiners from claiming program credits for exports of domestically
produced sugar that has not been reported to the Farm Service
Agency as having been marketed during periods when marketing allotments are in
effect. This prohibition would prevent the circumvention of domestic marketing
allotments.
--Allow the transfer of export credits between refined sugar re-export licenses.
This would allow a refiner that has not exported program sugar to purchase
credits from a refiner that has, in order to import raw cane sugar.
--Allow polyhydric alcohol producers to purchase sugar to their specifications
from refiners, without regard to polarity. The current regulation limits
polyhydric producers to the purchase of sugar having
a polarity of 99.5 degrees or more, which is higher than necessary for the
production of some polyhydric alcohols.
--Allow holders of refined sugar re-export licenses to hold sugar-containing
product re-export licenses. Multiple licenses would not increase the refiner's
overall license limit of credits and charges.
--Allow third-party exports. License holders, however, would be required to
pre-register third-party exporters on their licenses and provide for the
third-party export transactions in their documentation
agreements.
--Allow toll refining. Licensed manufacturers of sugar-containing products would
be allowed to buy raw cane sugar on the world market and pay a licensed refiner
to enter it into the United States and refine it to contract specifications.
In addition, the proposed rule would create a new class of
licenses for entities that produce ingredients from sugar for the food industry.
The license would be issued under the refined sugar re-export program and would
allow the purchase of program sugar from refiners. Such ingredients could be
sold only to holders of sugar-containing product re-export licenses. Holders of
the new license would neither be able to import raw cane sugar nor export
program sugar or sugar-containing
products for program credits. This new class of license would be called a
``Class B Refined Sugar Re-export Program license'' to differentiate it from the
regular refiner's license which is called a ``Class A Refined Sugar Re-export
Program license.''
The proposed rule would require licensees to provide
independent laboratory verification of the sugar content of products transferred
and/or exported upon request of the Licensing Authority.
The Department invites comments on all aspects of the
proposed rule including those described above.
List of Subjects in 7 CFR Part 1530
Polyhydric alcohol, Raw and refined sugar, Re-exports.
Proposed Rule
Accordingly, for the reasons described in the preamble, 7 CFR
part 1530--the Refined Sugar Re-export Program, the Sugar-containing Products
Re-export Program, and the Polyhydric Alcohol Program, is proposed to be revised
to read as follows:
PART 1530--THE REFINED SUGAR RE-EXPORT PROGRAM, THE SUGAR-CONTAINING PRODUCTS
RE-EXPORT PROGRAM, AND THE POLYHYDRIC ALCOHOL PROGRAM
Sec.
1530.100 General statement.
1530.101 Definitions.
1530.102 Nature of the license.
1530.103 Persons eligible to apply for licenses.
1530.104 License application procedures and the documentation agreement.
1530.105 Terms and conditions governing program transactions.
1530.106 Bonding requirements.
1530.107 Reporting to FAS.
1530.108 Records, certification, and documentation.
1530.109 Enforcement and penalties.
1530.110 Appeals of Licensing Authority's determinations.
1530.111 Non-punitive actions resulting in revocation, consolidation, and
surrender of licenses.
1530.112 Waivers.
1530.113 Implementation.
1530.114 Paperwork Reduction Act assigned number.
Authority: Additional U.S. note 6 to chapter 17 of the
Harmonized Tariff Schedule of the United States (19 U.S.C. 1202); 19 U.S.C.
3314; Proc. 6641, 58 FR 66867, 3 CFR, 1994 Comp., p. 172; Proc. 6763, 60 FR
1007, 3 CFR, 1995 Comp., p. 146.
Sec. 1530.100 General statement.
This part provides regulations for the Refined Sugar
Re-export Program, the Sugar-containing Products Re-Export Program, and the
Polyhydric Alcohol Program. These provisions authorize FAS to license refiners
to enter raw cane sugar under the HTS subheading 1701.11.20 unrestricted by the
quantitative limit established for the raw sugar tariff-rate quota or the
requirements of certificates for quota eligibility provided for in 15 CFR part
2011, as long as an equivalent quantity of sugar regulated by the program is
either exported or used in the production of certain polyhydric alcohols. Stocks
of sugar blocked by domestic marketing allotments are disqualified from
participation in the programs of this part. All refined sugar (whether derived
from sugar beets or sugarcane) marketed in the United States may qualify as
program sugar.
Sec. 1530.101 Definitions.
Affiliated persons means two or more persons where one or
more of said persons directly or indirectly controls or has the power to direct
or limit the business decisions of the other(s) regarding program transactions
under this part.
Bond or letter of credit means an insurance agreement
pledging surety for the entry of raw sugar or the transfer of program sugar.
Certain polyhydric alcohols means any polyhydric alcohol,
except polyhydric alcohol produced by distillation or polyhydric alcohol used as
a substitute for sugar as a sweetener in human food.
Co-packer means a person who owns and operates a facility
within the U.S. Customs Territory that adds value to a manufacturer's product or
produces a product for export by a manufacturer using the manufacturer's program
sugar.
Date of entry means the date raw sugar enters the U.S.
Customs Territory.
Date of export means the date program sugar is exported from
the U.S. Customs Territory, or if exported to a restricted foreign
trade zone, the date shown on the U.S. Customs Service form
designating the product as restricted for export.
Date of transfer means the date that program sugar is
transferred from one licensee to another licensee.
Day means calendar day. When the day for complying with an
obligation under this part falls on a weekend or Federal holiday, the obligation
may be completed on the next business day.
Documentation agreement means a signed and notarized letter
from a licensee specifying documents that the licensee shall obtain and maintain
on file before said licensee requests from FAS a license balance update.
Enter or entry means importation into the U.S. Customs
Territory, or withdrawal from warehouse for consumption, as those terms are used
by the U.S. Customs Service.
Export means the conveyance (shipment) of a product to a
country outside the U.S. Customs Territory, or to a restricted foreign
trade zone.
Ingredient producer means a person who owns and operates a
facility within the U.S. Customs Territory that uses program sugar to make
specified ingredients.
Licensing Authority means a person designated by the Deputy
Administrator, International Trade Policy, Foreign
Agricultural Service, USDA.
Manufacturer means a person who makes, or orders others to
make, sugar-containing products within the U.S. Customs Territory.
Notice of Transfer means a document recording the transfer of
a quantity of program sugar from one licensee to another licensee that is dated
and signed by both parties.
Person means any individual, partnership, corporation,
association, estate, trust, or any other business enterprise or legal entity.
Polyhydric alcohol producer means a person who owns and
operates a facility within the U.S. Customs Territory that produces (other than
by distillation) polyhydric alcohols, other than polyhydric alcohols for use as
a substitute for sugar in human food consumption.
Program sugar means sugar that has been charged or credited
to the license of a program participant in conformity with the provisions of
this part.
Program transaction means an appropriate entry, transfer,
use, or export of program sugar.
Refiner means any person who owns and operates a facility in
the U.S. Customs Territory that refines raw cane sugar through affination or
defecation, clarification, and further purification by absorption or
crystallization.
Sugar-containing product means any product, other than those
normally marketed by refiners, that is produced using program sugar, or to which
program sugar has been added as an ingredient.
Specified ingredient means any product, other than those
normally marketed by refiners, that is produced using program sugar and sold
exclusively to manufacturers per their contract specifications.
Third-party exporter means a person who purchases and exports
program sugar or sugar-containing products from a licensed refiner or
manufacturer.
Transfer means the transfer of program sugar from one license
to another license subject to a Notice of Transfer.
Unique number means a number established by a licensee for
the purpose of tracking each program transaction and for identifying the
specific file maintained by the licensee containing all supporting documentation
for the program transaction.
Sec. 1530.102 Nature of the
license.
(a) A license issued by the Licensing Authority allows a
person to participate in the programs under this part according to the terms and
conditions of the license.
(b) The license authorizes a special account at FAS for
monitoring imports, transfers and exports, and in the case of polyhydric alcohol
producers, usage. FAS adds to the account balance ``charges'' for imports
(entries) and transfers received from other licensees and subtracts from the
balance ``credits'' for exports and transfers to other licensees, and in the
case of polyhydric alcohol producers, usage.
(c) A Class A license under the Refined Sugar Re-export
Program permits the holder to:
(1) Enter raw cane sugar under subheading 1701.11.20 of the
HTS;
(2) Transfer program sugar;
(3) Receive transfers of program sugar; and
(4) Export program sugar.
(d) A Class B license under the Refined Sugar Re-export
Program permits the holder to:
(1) Receive transfers of program sugar; and
(2) Transfer specified ingredients to holders of
Sugar-containing Products Re-export Program licenses.
(e) A license under the Sugar-containing Products Re-export
Program permits the holder to:
(1) Receive transfers of program sugar from holders of Class
A licenses and specified ingredients from holders of Class B licenses described
in paragraphs (c) and (d) of this section;
(2) Export an equivalent quantity of program sugar as an
ingredient in sugar-containing products; and
(3) Import raw cane sugar and take delivery of an equivalent
quantity of program sugar by Notice of Transfer under the terms of a toll
refining contract with a licensed refiner. Imports must be charged
to the refiner's license.
(f) A license under the Polyhydric Alcohol Program permits
the holder to:
(1) Receive transfers of program sugar; and
(2) Use an equivalent quantity of program sugar in the
production of certain polyhydric alcohols.
Sec. 1530.103 Persons eligible to
apply for licenses.
(a) Any refiner may apply for a Class A license to
participate in the Refined Sugar Re-export Program.
(b) Any ingredient producer may apply for a Class B license
to participate in the Refined Sugar Re-export Program.
(c) Any manufacturer may apply for a license to participate
in the Sugar-containing Products Re-export Program.
(d) Any polyhydric alcohol producer may apply for a license
to participate in the Polyhydric Alcohol Program.
(e) No one person, nor any two or more affiliated persons,
may apply for or hold more than one license of any kind under this part.
(f) Notwithstanding paragraph (e) of this section, any person
holding a Class A Refined Sugar Re-export Program license may hold one or more
licenses under paragraph (c) of this section, as long as the combined license
balance limit for all licenses held by that person does not exceed 50,000 metric
tons, raw value.
(g) The Licensing Authority may permit the holder of a
license to assign the use of the license to another person upon receiving a
written request from the holder accompanied by the written concurrence of the
person to whom the license will be assigned.
Sec. 1530.104 License application
procedures and the documentation agreement.
(a) A person may request a license by submitting a written
application to the Licensing Authority that includes:
(1) The applicant's name and address, and the name(s) and
address(es) of any affiliated person(s), who may use the license;
(2) The address where the applicant will maintain the records
required under Sec. 1530.108;
(3) The address(es) of the facility(ies), which will refine
program sugar, produce specified ingredients, manufacture sugar-containing
products, including those of any co-packer(s), or produce polyhydric alcohols;
(4) In the case of a product marketed by refiners or
ingredient producers, the polarity of the product and the formula proposed by
the refiner or ingredient producer for calculating the program sugar in the
product;
(5) In the case of a sugar-containing product, the percentage
of program sugar (100 degrees polarity) on a dry weight basis in the product;
(6) In the case of polyhydric alcohol, the quantity of
program sugar used to produce a certain volume of polyhydric alcohol; and
(7) A statement disclosing any associations or relationships
relevant for determining whether or not an affiliation exists between the
applicant and any other licensee under this part. The statement shall describe
any interlocking directorships, joint management structures, ownership
interests, and family connections that may exist with other licensees, and it
shall explain the use of any shared facilities, equipment, or employees. In the
case of a relevant association or relationship, the statement shall explain the
degree of control or influence that the other licensee(s) may have on the
business decisions of the applicant. If there are no such associations, the
application shall include the
following statement: ``No associations or relationships exist with other
licensees under the regulations at 7 CFR part 1530 that are relevant for making
a determination regarding affiliation.''
(b) The applicant shall propose a documentation agreement for
auditing program transactions. Charges and credits to the license balance will
be made only for transactions covered by the agreement. A representative list of
program transactions follows:
(1) Entry of raw cane sugar (refiners only);
(2) Transfer of program sugar or specified ingredients;
(3) Direct export of program sugar or sugar-containing
products to:
(i) Mexico;
(ii) Canada;
(iii) A restricted foreign trade zone;
(iv) U.S. military exchanges; or
(v) All other destinations.
(4) Third-party exports of program sugar or sugar-containing
products to:
(i) Mexico;
(ii) Canada;
(iii) A restricted foreign trade zone;
(iv) U.S. military exchanges; or
(v) All other destinations.
(5) Use of program sugar (polyhydric alcohol producers only).
(c) For each transaction that is proposed, the applicant
shall provide to the Licensing Authority sample documents corroborating the
transaction.
(1) Commercial documents are suitable for confirming the
sale, transit, and use of program sugar and sugar-containing products within the
U.S. Customs Territory.
(2) Official documents generated by the U.S., Canadian, or
Mexican governments are necessary to confirm the entry of raw cane sugar and the
export of program sugar and sugar-containing products.
(3) Signed Notices of Transfer confirm the transfer of
program sugar between license holders.
(4) Export transactions also require documenting the name(s)
of carrier(s) and vessel(s), the numbers of containers, and the contact
information of agents, consignees, and foreign purchasers.
(5) Exports of program sugar to Mexico shall be declared as
U.S. re-export program sugar upon entry into Mexico.
(d) The applicant shall register third-party exporters by
providing their names and contact information in the documentation agreement.
(e) The Licensing Authority shall inspect the sample
documents and notify the applicant if they are suitable for auditing transaction
reports submitted under Sec. 1530.107. If not, the Licensing Authority
will notify the applicant and suggest alternative documentation.
(f) Once the Licensing Authority and the applicant agree upon
a list of transactions and supporting documents, the applicant shall submit a
notarized letter confirming the agreement and certifying that
the documentation identified in the agreement will be kept on file, identifiable
by a unique number, and available for inspection pursuant to Sec.
1530.108, to support all charges and credits made pursuant to Sec.
1530.107.
(g) If any of the information required by this section
changes, the licensee shall promptly notify the Licensing Authority.
Sec. 1530.105 Terms and conditions
governing program transactions.
(a) All refining, production of specified ingredients,
manufacturing, and polyhydric alcohol production must be accomplished in the
U.S. Customs Territory and within time frames and quantity
limitations prescribed in this part. Sugar transferred, exported, or used as
program sugar does not need to be the same physical sugar produced by refining
raw sugar entered under subheading 1701.11.20 of the HTS.
(b) The holder of a Class A Refined Sugar Re-export Program
license:
(1) May enter raw sugar or receive program sugar in
anticipation of the export or transfer of an equivalent quantity of program
sugar not to exceed the value of the bond or letter of credit, which must be
established pursuant to Sec. 1530.106 of this part.
(2) May export or transfer program sugar prior to the date
that either an equivalent quantity of raw sugar is entered or that an equivalent
quantity of program sugar is received by transfer.
(3) May receive credits for exports of program sugar made by
a third-party exporter registered on the licensee's documentation agreement.
(4) May not carry a license balance for charges or credits of
program sugar exceeding 50,000 metric tons, raw value, at any time during the
year.
(5) Shall export or transfer, not later than 90 days after
entering a quantity of raw cane sugar under subheading 1701.11.20 of the HTS, an
equivalent quantity of program sugar, if the entry results in a
positive license balance.
(c) The holder of a Class B Refined Sugar Re-export Program
license:
(1) May only transfer program sugar prior to the date that an
equivalent quantity of program sugar is received.
(2) May not carry a license balance for credits of program
sugar exceeding 3,000 short tons, refined value, at any time during the year.
(d) A holder of a Sugar-containing Products Re-export Program
license:
(1) May receive a transfer of program sugar in anticipation
of the export of an equivalent quantity of program sugar in a sugar-containing
product not to exceed the value of the bond or letter of credit, which must be
established pursuant to Sec. 1530.106 of this part.
(2) May export program sugar in a sugar-containing product
prior to the date that an equivalent quantity of program sugar is received by
transfer.
(3) May receive credits for exports of program sugar in a
sugar-containing product made by a third-party exporter registered on the
licensee's documentation agreement.
(4) May not carry a license balance for charges or credits of
program sugar exceeding 10,000 short tons, refined value, at any time during the
year.
(5) Shall export, not later than 18 months from the date of
transfer of a quantity of program sugar, an equivalent quantity of program sugar
as an ingredient in a sugar-containing product, if the transfer results in a
positive license balance.
(e) A holder of a Polyhydric Alcohol Program license:
(1) May receive a transfer of program sugar in anticipation
of the use of an equivalent quantity of program sugar in the production of
certain polyhydric alcohols not to exceed the value of the bond or
letter of credit, which must be established pursuant to Sec. 1530.106 of
this part.
(2) May use program sugar in the production of certain
polyhydric alcohols prior to the date that an equivalent quantity of program
sugar is received by transfer.
(3) May not carry a license balance for charges or credits of
program sugar exceeding 10,000 short tons, refined value, at any time during the
year.
(4) Shall use, not later than 18 months from the date of
transfer of a quantity of program sugar, an equivalent quantity of program sugar
in the production of certain polyhydric alcohols, if the transfer results in a
positive license balance.
(f) The Licensing Authority may impose such conditions,
limitations or restrictions on program transactions at such time and in such
manner as the Licensing Authority determines to be necessary or appropriate to
prevent circumvention of the domestic sugar program.
Sec. 1530.106 Bonding
requirements.
(a) A program participant must establish a bond or a letter
of credit in favor of USDA prior to receiving program sugar in anticipation of
its export or transfer, or in the case of polyhydric
alcohol producers, its use. Such a condition exists whenever charges exceed
credits, resulting in a positive license balance.
(b) Only the licensee may be the principal on the bond or
letter of credit covering program sugar. The surety or sureties shall be among
those listed by the Secretary of the Treasury as acceptable on Federal bonds.
(c) The bond or letter of credit shall cover entries or
transfers made during the period of time specified in the bond (a term bond).
The obligation under the bond or letter of credit shall be made effective no
later than the date that the license balance becomes positive. If the bond is
allowed to expire while the license balance is positive, the licensee shall be
barred from entering or receiving transfers of program sugar until such time as
the bond is renewed, or the licensee reports to FAS credits sufficient to reduce
the license balance below zero.
(d) The amount of the bond or letter of credit shall be equal
to 15 cents per pound of program sugar for any positive balance up to the
maximum license limit establish by this part.
(e) If a licensee fails to qualify for credit to a license
within the specified time period of the date of export or use of corresponding
program sugar in an amount sufficient to offset the charge to the
license for that corresponding program sugar, payment shall be made to the U.S.
Treasury. The payment shall be equal to the difference between the Number 11
contract price and the Number 14 contract price (New York Board of Trade) in
effect on the last market day before the date of
entry of the sugar or the last market day before the end of the period during
which export or use was required, whichever difference is greater. The
difference shall be multiplied by the quantity of refined
sugar, converted to raw value, that should have been exported in compliance with
this part. If there was not a Number 11 or a Number 14 contract price for the
relevant market day, the Licensing Authority may estimate the relevant prices,
as he or she deems appropriate.
Sec. 1530.107 Reporting to FAS.
(a) All program transactions during the following calendar
quarters shall be reported to FAS on or before the date indicated in order for
the account balance to receive charges or credits:
(1) January-March: June 30.
(2) April-June: September 30.
(3) July-September: December 31.
(4) October-December: March 31.
(b) FAS shall provide licensees with reporting formats and
methods that allow for the use of suitable information technologies.
(c) Reports shall be identified by the name and license
number of the licensee and provide the following for all program transactions:
(1) A unique number for the transaction.
(2) The date of the transaction or use.
(3) The quantity transacted adjusted to a dry weight basis.
(i) Refiner quantities shall be adjusted to raw value.
(A) For entries of raw cane sugar, refiners shall provide the
initial and final polarization, and the final weight (when available).
(B) To adjust the raw value for sugar with a polarization of
less than 92 degrees, divide the total sugar content by 0.972 (polarization x
outturn weight/0.972).
(C) To adjust the raw value for sugar with polarization of 92
degrees or above, multiply the polarization times 0.0175, subtract 0.68, and
multiply the difference by the outturn weight (((polarization x 0.0175)-0.68) x
outturn weight).
(D) To determine the quantity of refined sugar that must be
transferred or exported to equal a corresponding quantity of entered raw sugar
charged to a license, divide the quantity of entered raw
sugar by 1.07 (raw quantity/1.07).
(ii) Ingredient producer, manufacturer, and polyhydric
alcohol producer quantities shall be adjusted to 100 degrees polarity.
(4) The license number of the recipient of a transfer.
(5) The country of origin, if an entry, and final
destination, if an export, using country codes designated by the Licensing
Authority.
(6) In the case of program sugar exports to Mexico, the
following signed statement: ``The customer has provided written certification
that the program sugar will be substantially transformed in Mexico, as defined
by General Note 12 of the HTS.''
(d) Licensees have an affirmative and continuing duty to
maintain the accuracy of the information contained in previously submitted
reports.
(1) Holders of Class A Refined Sugar Re-export Program
licenses or Sugar-containing Products Program Re-export licenses shall
immediately notify the Licensing Authority and request that previously claimed
credits be charged back upon discovery that exports were re-entered into the
U.S. Customs Territory without substantial transformation, falsely declared, or
made but did not satisfy regulatory requirements or the documentation agreement.
(2) Holders of Polyhydric Alcohol Program licenses shall
immediately notify the Licensing Authority and promptly request that previously
claimed credits be charged back upon discovery that the program sugar was not
used for the production of certain polyhydric alcohols.
(3) Charge backs shall be as of the date of the erroneously
claimed credit.
Sec. 1530.108 Records,
certification, and documentation.
(a) The licensee shall maintain the documentation established
in the documentation agreement for 5 years from the date of the program
transaction.
(b) The licensee shall request customers to provide annual
written certification as required by Sec. 1530.107(c)(6) and maintain the
documentation for 5 years.
(c) Upon request, the licensee shall make the records
described in the documentation agreement available for inspection and copying by
the Licensing Authority; the Compliance Review Staff, FAS; the Inspector
General, USDA; the U.S. Department of Justice; and/or any U.S. Government
regulatory or investigative office.
(d) The Licensing Authority may request licensees to provide,
at their expense, independent laboratory verification of the information
provided under Sec. 1530.104(a)(4) and (5) regarding the sugar content of
articles transferred and exported.
Sec. 1530.108 Records,
certification, and documentation.
(a) The licensee shall maintain the documentation established
in the documentation agreement for 5 years from the date of the program
transaction.
(b) The licensee shall request customers to provide annual
written certification as required by Sec. 1530.107(c)(6) and maintain the
documentation for 5 years.
(c) Upon request, the licensee shall make the records
described in the documentation agreement available for inspection and copying by
the Licensing Authority; the Compliance Review Staff, FAS; the Inspector
General, USDA; the U.S. Department of Justice; and/or any U.S. Government
regulatory or investigative office.
(d) The Licensing Authority may request licensees to provide,
at their expense, independent laboratory verification of the information
provided under Sec. 1530.104(a)(4) and (5) regarding the sugar content of
articles transferred and exported.
Sec. 1530.110 Appeals of Licensing
Authority's determinations.
(a) The licensee may appeal the Licensing Authority's
determination to revoke credits by filing a written notice of appeal, signed by
the licensee or the licensee's agent, with the Deputy Administrator,
International Trade Policy, FAS, or his or her designee. The decision on such an
appeal shall be made by the Deputy Administrator and will be governed by Sec.
3017.515 of this title. The appeal must be filed not later than 30 days after
the date of the Licensing Authority's determination, and shall contain the
licensee's written argument.
(b) The licensee may request an informal hearing. The Deputy
Administrator shall arrange a place and time for the hearing, except that it
shall be held within 30 days of the filing date of the notice
of appeal if the licensee so requests.
(c) The licensee may be represented by counsel, and shall
have full opportunity to present any relevant evidence, documentary, or
testimonial. The Deputy Administrator may permit other individuals to present
evidence at the hearing, and the licensee shall have an opportunity to question
those witnesses.
(d) The licensee may arrange and pay for a professional
reporter to provide a verbatim transcript of the hearing.
(e) The Deputy Administrator shall make the determination on
appeal, and may affirm, reverse, modify, or remand the Licensing Authority's
determination. The Deputy Administrator shall notify the
licensee in writing of the determination on appeal and of the basis thereof. The
determination on appeal exhausts the licensee's administrative remedies.
Sec. 1530.111 Non-punitive actions
resulting in revocation, consolidation, and surrender of licenses.
(a) The Licensing Authority may revoke a license held by an
ineligible party.
(b) The Licensing Authority may consolidate two or more
licenses upon determination that the persons holding the licenses are
affiliated.
(c) A licensee may surrender a license when the sum of all
credits is equal to or greater than the sum of all charges. The licensee may
request the Licensing Authority to transfer any outstanding credits to another
license holder.
Sec. 1530.112 Waivers.
Upon written application of the licensee or at the discretion
of the Licensing Authority, and for good cause, the Licensing Authority may
extend the period for transfer, export, or production; may
temporarily increase a maximum license limit for a period of up to 6 months to
facilitate a tolling arrangement; and/or may extend the period for submitting
regularly scheduled reports. The Licensing
Authority may specify additional requirements or procedures in place of the
requirements or procedures waived or modified.
Sec. 1530.113 Implementation.
Current licensees qualify under this rule which is effective
[effective date of final rule].
Sec. 1530.114 Paperwork Reduction
Act assigned number.
Licensees are not required to respond to requests for
information unless the form for collecting information displays the currently
valid Office of Management and Budget (OMB) control number 0551-0015. OMB has
approved the information collection requirements contained in this part
in accordance with 44 U.S.C. chapter 35.
Dated: January 12, 2005.
A. Ellen Terpstra,
Administrator, Foreign Agricultural
Service.
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