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shares from other reduced licenses the following quota year whether or not the quota share in the following year is below the basic annual allocation for that license.
(2) Notwithstanding the above, a licensee may, in a letter postmarked no later than October 1 of a quota year, voluntarily surrender without penalty that portion of a historical quota share for any article in Appendix 1 or Appendix 2 which he or she does not intend to use. Any temporary reduction of a historical quota share will be based on the percentage used of that portion of such quota share which was not surrendered before October 1 of the preceding quota year.
(e) Temporary reallocation of quota shares. (1) Notwithstanding any other provisions of this regulation, to the extent that, between June 1 and October 1, it appears from information submitted to the Licensing Authority or otherwise, that all or part of a quota share of a particular licensee for an article from a particular country of origin will not be entered during that quota year, the Licensing Authority may require such licensee to submit in writing within a specified 21 day period a statement as to the amount of the unused portion of such quota share which will be used during the remainder of such quota year. In addition, such licensee may be required to submit copies of contracts, purchase orders or any other documentary evidence of intent to import against the unused portion of such quota share. If the licensee fails to submit such statement (including documentary evidence, if requested) within the specified period, the Licensing Authority may conclude that the unused portion of the quota share in question will not be used during the remainder of said quota year. On the basis of said statement, or if no statement is submitted, the Licensing Authority may reallocate all or part of the unused portion of such quota share.
(2) To the extent that the quota shares or portions thereof are surrendered under $ 6.25(d)(3) (pertaining to nonhistorical and supplementary quota shares), $ 6.26(d)(2), (pertaining to historical quota shares), or paragraph (e)(1) of this section by licens
ees for articles during a quota year, the quota shares for other licensees will be increased for such year as follows:
(i) Reallocation will be made among applying licensees from such article from such country of origin on the basis of the amounts requested by the applicants, unless the aggregate of the amounts requested exceeds the portion of the quota available for reallocation, in which case each applicant will be granted an appropriate minimum amount and any excess will then be allocated on the basis of the respective amounts of such articles entered by such licensees from such country of origin during the previous two quota years. However, no applicant may receive more than the amount he or she requests.
(ii) If, after a surrendered quota share is reallocated among licensees who hold a nonreduced license for such quota and apply for a portion of the reallocation, unallocated quantities of the quota still remain, such quantities may be allocated to other non-affiliated and non-associated applicants who have historical, nonhistorical or supplementary eligibility for any quota under the regulation for the remainder of the quota year in question. Quota shares allocated to such other applicants under this provision will be made in equal amounts of not less than 2,500 pounds each; except in the case of quota items the quota amounts for which are less than 10,000 pounds, which quota items will be allocated in equal shares of not less than 250 pounds each; except that no applicant will receive more than the amount requested in his or her application.
(3) Application for a reallocated portion will not be valid unless made in accordance with $ 6.24 and postmarked during the period September 1-15 of the quota year in which reallocation is being considered.
(4) Any temporary reduction in a historical quota share (in accordance with paragraph (d) of this section) will be based on the percentage used of the portion of such quota share which was not surrendered for reallocation during the preceding quota year.
(v) “Postmark” means the postage cancellation mark applied by the U.S. Post Office showing the post office and date of mailing. This does not include metered postage affixed by the applicant or any other private entity.
(w) “Quota share" means that part of the annual quota of an article listed in Appendix 1 or Appendix 2 for which a person is eligible.
(x) “Quota year” means the 12month period beginning on January 1 of any given year.
(y) “Regulation" means the provisions contained in the Licensing Regulation of this subpart.
(z) “United States" means the Customs Territory of the United States, which is limited to the United States, District of Columbia and Puerto Rico. (Sec. 3, Pub. L. 80-897, 62 Stat. 1248, as amended (7 U.S.C. 624); Secs. 701, 703, Pub. L. 96-39, 93 Stat. 268, 272 (A.U.S.C. 1202 note); Part 3 of the appendix to the Tariff Schedules of the United States (19 U.S.C. 1202)) [44 FR 75596, Dec. 20, 1979, as amended at 45 FR 54302, Aug. 15, 1980; 46 FR 1660, Jan. 7, 1981)
Denmark, the Federal Republic of Germany, France, Greece, Ireland, Italy, Luxembourg, the Netherlands, and the United Kingdom, which for the purposes of this regulation shall be deemed as one country of origin.
(n) “Eligible applicant” means person applying for a license to enter an article who has established, to the satisfaction of the Licensing Authority, eligibility to enter such article, in accordance with $ 6.25.
(0) “Enter” means to make entry, or withdrawal from warehouse, for consumption by deposit with, and acceptance by, the appropriate Customs officer of the properly executed entry documents, including invoices, bills of lading and payment of estimated duties.
(p) “Entire dairy products business” means the total assets and operations of the foreign and domestic aspects of a business pertaining to articles subject to the provisions of this regulation.
(q) “Entrepreneurial use" means the processing or sale of the article entered pursuant to the license as a part of the ordinary conduct of business by a licensee who is managing and assuming the risk of such business. Such term does not include one who is functioning as a mere supplier of license.
(r) "Licensee" means any person to whom a license has been issued under the regulation.
(s) “Licensing Authority” means the Head, Import Licensing Group, Dairy, Livestock and Poultry Division, Foreign Agricultural Service, U.S. Department of Agriculture, or in his or her absence the Import Quota Specialist, or any other officer or employee of the Department designated in writing as the Acting Head.
(t) “Other countries” refers to countries sharing a common quota which are not listed as having separate quotas in part 3 of the appendix to the TO Schedules of the United States, and for the purposes of the regulation are deemed as one country of origin.
(u) “Person" includes any individual, firm, corporation, partnership, association, or other legal entity. It also includes any national government (other than the Government of the United States and any agency thereof).
8 6.22 Prohibitions and restrictions on im
porters. (a) No person may enter or cause to be entered any article listed in Appendix 1 or Appendix 2, except as provided in $ 6.23 or as authorized by a license issued pursuant to this regulation.
(b) A person to whom a license has been issued hereunder is not relieved from compliance with any requirement of this regulation or any other applicable laws and regulations.
8 6.23 Exceptions.
Licenses are not required for the entry of:
(a) Articles imported by or for the account of any agency of the U.S. Government.
(b) Articles with an aggregate value of not over $25 in any shipment, if imported as samples for taking orders, for the personal use of the importer, or for research.
(c) Articles imported for exhibition, display or sampling at a trade fair, or for research, if written approval of the Licensing Authority is obtained.
8 6.24 Application for license.
Applications to the Licensing Authority for the issuance of licenses to enter articles must be made in writing, addressed to the Head, Dairy and Import Group, Dairy, Livestock and Poultry Division, Foreign Agricultural Service, U.S. Department of Agriculture, Washington, D.C. 20250. Each letter of application must state the article (including the Part 3 TSUS Appendix classification number), the country of origin of the article, and, in the case of supplementary and nonhistorical licenses or licenses for portions allocated under paragraph (e) of $ 6.26, the size of each quota share desired. Unpostmarked applications will not be approved by the Licensing Authority.
$ 6.25 Eligibility.
(a) Historical Eligibility. (1) Historical eligibility for licenses to enter quota shares of articles subject to quotas in effect as of November 22, 1978, the adjusted quantities of which are shown in Appendix 1, has already been determined.
(2) Historical eligibility for licenses to enter quota shares of articles under Group V of Appendix 2, which prior to January 1, 1980 were not subject to quota, will be established upon submission by the importer of copies of broker's copies of official consumption entry or warehouse withdrawal for consumption records, Customs forms 7501 and 7505, showing the applicant as the importer of record or importer of account for entries made during the period July 1, 1978 through June 30, 1979 of cheese, cheese product or substitutes for cheese falling under TSUS Nos. 117.6035 (Swiss or Emmenthaler), 117.6055, 117.7550, 117.8550 (GruyereProcess), 117.7560, 117.8560 except soft-ripened cheese (Other cheese, NSPF, except soft-ripened cheese), and 117.7570 and 117.8570 (Other cheese, Lowfat). Copies of other than the broker's copy will only be accepted if it is established that, for reasons satisfactory to the Licensing Authority, the broker's copy is not available. The Licensing Authority may also require a copy of the invoice or other documentation showing that the importer was the owner of the article at
the time entry was made and substantiating the type or variety of cheese entered. Such invoices should accompany an application for Appendix 2 historical licenses for TSUS items 117.7560 and 117.8560. Further, eligibility for articles in Group V(c) from “Other Countries” in Appendix 2 may be established only by importers who hold no other historical license for any article under Appendix 1 or Appendix 2 as of January 7, 1981. Applications for historical license for TSUS Appendix Item 950.10D from “Other Countries” in Appendix 2 must be postmarked no later than February 11, 1981.
(3) Historical eligibility for license to enter a quota share of an article under Group II, III, or IV of Appendix 2 from a particular country of origin may be acquired only by persons eligible for a historical license to enter such article from such country of origin under Appendix 1.
(b) Nonhistorical eligibility. (1) Any person, who is not eligible under paragraph (a) of this section to receive a historical license to enter a particular article in Appendix 1 or Appendix 2, or has voluntarily surrendered such eligibility, who meets the requirements of this paragraph, will be eligible to obtain a nonhistorical license to enter a quota share of such article in Appendix 1.
(2) Nonhistorical eligibility for specific articles listed in Appendix 1 will be established upon submission of:
(i) A notarized certification sworn to by the applicant under penalty of perjury stating that: (A) Such person intends to be regularly engaged, during the period covered by the license(s) for which application is made, in the business of manufacturing within the United States or entering such articles for his or her own entrepreneurial use and for this purpose will maintain a bonafide business office within the United States and have a person, principal or resident agent upon whom service of judicial process may be made; (B) such person intends to use any article entered pursuant to a license obtained hereunder in actual commerce and, when required will submit proof demonstrating the use to which licenses and the articles entered pursuant thereto have been made; (C) such person is not a part of or an affiliate of the business of any other person eligible for a license for the article(s) for which application for license is made, and is not an associate of the business of such other person;
(ii) A list of the person(s) holding an ownership interest of 5 percent or more in the applying firm (if other than an individual) showing the percent of ownership held by each such person, and;
(iii) In addition, in the case of application for license(s) to enter any article(s) under Groups II through V (cheese), documentary evidence that such person has made at least two commercial entries of cheese or cheese products together totaling at least 10,000 pounds, as owner of the product and importer of record, or is listed in the most current issue of “Dairy Plants Surveyed and Approved for USDA Grading Service” and has manufactured in his or her own plant 100,000 pounds or more of cheese or cheese product within the United States, during the 12 month period ending August 1 of the year preceding that for which application for license is being made, including, when required, proof of payment in said person's own name for the said entered cheese or cheese products and corresponding duties.
(3) In determining whether persons or legal entities having no direct relation are, for purposes of this regulation, affiliated, the following rules of attribution apply:
(i) Members of a family: Unless established otherwise to the satisfaction of the Licensing Authority, an individual shall be considered as owning the stock other ownership interest owned, directly or indirectly, by or for (A) a spouse (other than a spouse legally separated from the individual under a decree of divorce or separate maintenance), and (B) children, grandchildren, parents, brothers and sisters.
(ii) Attribution from partnerships and estates: Stock or other ownership interest owned, directly or indirectly, by or for a partnership or estate shall be considered as owned proportionately by its partners of beneficiaries.
(iii) Attribution from trusts. (A) Stock or other ownership interest owned, directly or indirectly, by or for a trust (other than an employees' trust) shall be considered as owned by its beneficiaries in such trust.
(B) Stock or other ownership interest owned, directly or indirectly, by or for any portion of a trust of which a person is considered the owner under Subpart E of Part I of Subchapter J of the Internal Revenue Code (relating to grantors and others treated as substantial owners) shall be considered as being owned by such person.
(iv) Attribution from corporations. If five percent or more in value of the stock or other ownership interest in a corporation is owned, directly or indirectly, by or for any person, such person shall be considered as owning the stock or other interest owned, directly or indirectly, by or for such person.
(v) Attribution to partnerships and estates. Stock or other ownership interest owned, directly or indirectly, by or for a beneficiary of a trust (other than an employees' trust) shall be considered as owned by the trust, unless such beneficiary's interest in the trust is a remote contingent interest. For purposes of this clause, a contingent interest of a beneficiary in a trust shall be considered remote if, under the maximum exercise of discretion by the trustee in favor of such beneficiary, the value of such interest, computed actuarially, is five percent or less of the value of the trust property. Stock other ownership interest owned, directly or indirectly, by or for a person who is considered the owner of any portion of a trust under Subpart E of Part I of Subchapter J of the Internal Revenue Code (relating to grantors and others treated as substantial owners) shall be considered as owned by a trust.
(vi) Attribution to corporations. If five percent or more in value of the stock or other ownership interest of a corporation is owned, directly or indirectly, by or for any person, such corporation shall be considered as owning the stock or other ownership interest owned, directly or indirectly, by or for such person.
(vii) Options. If any person has an option to acquire stock or other ownership interest, such stock or other ownership shall be considered owned by such person. For purposes of this paragraph, an option to acquire such an option, and each one of a series of such options, shall be considered as an option to acquire such stock or ownership interest.
(viii) Operating Rules—(A) In general. Except as provided in paragraph (b)(3)(viii)(B) and (C) of this section, stock or other ownership interest constructively owned by a person by reason of the application of paragraph (b)(3) (i), (v), (vi), or (vii), shall for purposes of applying paragraph (b)(3) (i), (v), (vi), and (vii) be considered as actually owned by such person.
(B) Members of a family. Stock or other ownership interest constructively owned by an individual by reason of the application of paragraph (b)(3)(i) of this section shall not be considered as owned by him or her for purposes of again applying paragraph (b)(3)(i) of this section in order to make another the constructive owner of such stock or ownership interest.
(C) Partnerships, estates, trusts, and corporations. Stock or ownership interest constructively owned by a partnership, estate, trust or corporation by reason of the application of paragraph (b)(3) (v) and (vi) of this section shall not be considered as owned by it for purposes of again applying paragraph (b)(3) (ii), (iii) and (iv) of this section in order to make another the constructive owner of such stock or ownership of interest.
(D) Option rule in lieu of family rule. For purposes of this paragraph, if stock or other ownership interest may be considered as held by an individual under paragraph (b)(3) (i) or (vii) of this section, it shall be considered as held by him under paragraph (b)(3)(viii) of this section.
(4) Evidence and certification required to establish the nonhistorical eligibility of a person making application to receive a quota share for a given quota year shall not be approved by the Licensing Authority if postmarked before August 1 or later than November 1 of the year preceding the quota year for which the license to
import is requested, except as may otherwise be provided by notice published in the FEDERAL REGISTER.
(c) Supplementary licenses. (1) Supplementary license eligibility for specific articles listed in Appendix 2 will be established (i) by submission of documentary evidence acceptable to the Licensing Authority as required under paragraph (b) (2) and (4) of this section or; (ii) by application by a person having historical eligibility under paragraph (a) (2) and (3) of this section for the article from the country of origin for which such person is seeking supplementary license or (iii) by being endorsed in writing by the government of the supplying country as a preferred importer, with such endorsement being sent directly from the government of the supplying country through appropriate channels to the Licensing Authority and, beginning with the 1981 quota year, by meeting one or both of qualifications (c)(1) (i) and (ii) of this section. Endorsement by the government of a supplying country of a person who is known by the Licensing Authority to have at any time violated any provision of this or any other regulation or law of the United States applicable to international commerce will not be recognized by the Licensing Authority.
(2) Notwithstanding paragraph (b)(4) of this section, certification required to establish supplementary eligibility for license for TSUS Appendix item 950.10D from “Other Countries" for 1981 must be postmarked no earlier than January 22, 1981 and no later than February 11, 1981. Importers who have already submitted supplementary license certification during the application period which ended November 1, 1980, may simply request license for this article by submitting a letter without further documentation postmarked as required in this paragraph.
(d) Continuation of eligibility. (1) The historical eligibility of a person to receive a license for a quota share established under paragraph (a) of this section will be continued for subsequent quota years unless surrendered in accordance with paragraph (d)(4) of this section or suspended or revoked pursuant to $ 6.29: Provided, That, no