12 2 STA T .985PUBLIC LA W 11 0– 2 34—M A Y 22 , 2008 ‘ ‘ (H)NEW E NTRA NT S START I N GP R ODUC TION , REOPENING, OR AC Q UIRING AN E X ISTING F ACTOR Y WIT H PRODUCTION HISTORY .— ‘‘( i ) D EFINITION OF NEW ENTRANT.— ‘‘( I ) IN GENERA L .—I nth i s s ubpar a g raph, th e ter m ‘ne w entrant ’ means an in d i v idua l , co rpora - tion, or other entit y that— ‘‘(aa) does not have an allocation o f the beet sugar allotment under this part
‘‘(bb) is not affiliated with any other indi- vidual, corporation, or entity that has an allocation of beet sugar under this part (referred to in this clause as a ‘third party’); and ‘‘(cc) will process sugar beets produced by sugar beet growers under contract with the new entrant for the production of sugar at the new or re-opened factory that is the basis for the new entrant allocation. ‘‘(II) A FFILIATION.— F or purposes of subclause (I)(bb), a new entrant and a third party shall be considered to be affiliated if— ‘‘(aa) the third party has an ownership interest in the new entrant; ‘‘(bb) the new entrant and the third party have owners in common; ‘‘(cc) the third party has the ability to e x ercise control over the new entrant by organi z ational rights, contractual rights, or any other means; ‘‘(dd) the third party has a contractual relationship with the new entrant by which the new entrant will ma k e use of the facilities or assets of the third party; or ‘‘(ee) there are any other similar cir- cumstances by which the S ecretary determines that the new entrant and the third party are affiliated. ‘‘(ii) ALLOCATION FOR A NEW ENTRANT THAT HAS CONSTRUCTED A NEW FACTORY OR REOPENED A FACTORY THAT WAS NOT OPERATED SINCE B EFORE 19 9 8 .—If a new entrant constructs a new sugar beet processing factory, or ac q uires and reopens a sugar beet processing factory that last processed sugar beets prior to the 19 9 8 crop year and there is no allocation currently associated with the factory, the Secretary shall— ‘‘(I) assign an allocation for beet sugar to the new entrant that provides a fair and equitable distribution of the allocations for beet sugar so as to enable the new entrant to achieve a factory utilization rate comparable to the factory utiliza- tion rates of other similarly-situated processors; and ‘‘(II) reduce the allocations for beet sugar of all other processors on a pro rata basis to reflect the allocation to the new entrant.
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