[Federal Register Volume 60, Number 8 (Thursday, January 12, 1995)]
[Rules and Regulations]
[Pages 2873-2874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-727]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 / 
Rules and Regulations  
[[Page 2873]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 967

[Docket No. FV94-967-3FR]


Suspension of Marketing Order 967; Celery Grown in Florida

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Suspension order.

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SUMMARY: This rule suspends Federal Marketing Order No. 967 for celery 
grown in Florida, and rules and regulations implemented thereunder, 
through December 31, 1997. The suspension includes budget, assessment, 
and volume control rules which were previously established for the 
1994-95 marketing season. This rule is in response to a recommendation 
for suspension made by the Florida Celery Committee (committee), the 
agency responsible for local administration of the order. The 
committee's recommendation is based on the belief that loss of market 
share and a reduction in the number of producers and handlers has 
diminished the need for regulating Florida celery.

EFFECTIVE DATE: January 12, 1995, through December 31, 1997.

FOR FURTHER INFORMATION CONTACT: William G. Pimental, Southeast 
Marketing Field Office, P.O. Box 2276, Winter Haven, Florida 33883-
2276, telephone 813-299-4770, or Mark Slupek, Marketing Order 
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O. 
Box 96456, Room 2525-S, Washington, DC 20090-6456, telephone 202-205-
2830.

SUPPLEMENTARY INFORMATION: This action is issued under Marketing 
Agreement and Order No. 967, both as amended [7 CFR part 967], 
regulating the handling of celery grown in Florida, hereinafter 
referred to as the order. The marketing agreement and order are 
effective under the Agricultural Marketing Agreement Act of 1937, as 
amended [7 U.S.C. 601-674], hereinafter referred to as the Act. This 
suspension action is being taken under the provisions of section 
8c(16)(A) of the Act.
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This suspension order has been reviewed under Executive Order 
12778, Civil Justice Reform. The order suspends Marketing Order No. 967 
for celery grown in Florida, and rules and regulations implemented 
thereunder, through December 31, 1997. Administrative budget, 
assessment, and volume control rules which were previously established 
for the 1994-95 marketing season, which began August 1, 1994, also are 
suspended. This action will not preempt any State or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this action.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 608c(15)(A) of the 
Act, any handler subject to an order may file with the Secretary a 
petition stating that the order, 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 to be exempted 
therefrom. A handler is afforded the opportunity for a hearing on the 
petition. After the hearing the Secretary would rule on the petition. 
The Act provides that the district court of the United States in any 
district in which the handler is an inhabitant, or has a principal 
place of business, has jurisdiction in equity to review the Secretary's 
ruling on the petition, provided a bill in equity is filed not later 
than 20 days after date of the entry of the ruling.
    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA), the Administrator of the Agricultural Marketing 
Service (AMS) has considered the economic impact of this action on 
small entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. Marketing orders issued 
pursuant to the Act, and rules issued thereunder, are unique in that 
they are brought about through group action of essentially small 
entities acting on their own behalf. Thus, both statutes have small 
entity orientation and compatibility.
    There are six handlers of Florida celery who are subject to 
regulation under the marketing order and five celery producers within 
the production area. Small agricultural producers have been defined by 
the Small Business Administration [13 CFR 121.601] as those having 
annual receipts of less than $500,000. Small agricultural service firms 
are defined as those whose annual receipts are less than $5,000,000. 
The majority of these Florida celery handlers and producers may be 
classified as small entities.
    Marketing Order No. 967 has been in effect since 1965. The order 
provides for the establishment of grade, size, container and inspection 
requirements, as well as volume regulation. In addition, the order 
authorizes production research, marketing research, and development 
projects. It also provides for reporting and recordkeeping requirements 
on affected handlers. The production and marketing season runs from 
early November through late June.
    The committee held a teleconference on November 22, 1994, and 
unanimously recommended suspension of the marketing order through 
December 31, 1997. The committee's recommendation was based on the fact 
that the number of growers and handlers had declined to the lowest 
number in 20 years. Only five growers remain. There are six handlers. 
The suspension will eliminate the continued expense of administering 
the marketing order and will relieve the industry of assessments. With 
the economic conditions the industry is facing, this reduction in costs 
should be beneficial.
    The authority to implement grade, size, container and inspection 
requirements has not been used for years. The authorities that were 
being utilized were the provisions for research and development and 
volume regulation. However, the Committee believes that the program is 
no longer effectively helping market Florida celery. [[Page 2874]] 
    The volume control limitations placed on the quantity of Florida 
celery handled for fresh shipment have not restricted the quantity of 
Florida celery actually produced or shipped to fresh markets in recent 
years, because production and shipments have been less than the 
marketable quantities established. Thus, regulating volume has been 
inconsequential.
    The committee recommended suspension, not termination, of the 
marketing order to allow the industry an opportunity to recover. 
Florida's share of the domestic celery market has declined, but 
committee members remain optimistic that, in time, the Florida celery 
industry may regain its former position. If the industry should 
recover, the committee would like to maintain the option of 
reactivating the Federal marketing order.
    Under the suspension, the industry will be able to monitor the 
status of celery production in Florida for the next three marketing 
seasons. A meeting will be held prior to December 1997, to discuss the 
condition of the industry. At that time, a determination will be made 
to recommend reactivation, continuation of the suspension, or 
termination of the order. The recommendation would require the approval 
of the Secretary. If conditions improve enough to convince the industry 
that the order would be effective before the conclusion of the 
suspension period, a recommendation could be made to the Secretary to 
remove the suspension at that time.
    Therefore, based on the foregoing considerations, it is found that 
Federal Marketing Order No. 967, and the rules and regulations issued 
thereunder, do not tend to effectuate the declared policy of the Act. 
This action suspends, through December 31, 1997, the provisions of 
Federal Marketing Order No. 967 and the rules and regulations issued 
thereunder, including but not limited to, the:
    (1) Provisions of the order dealing with the establishment and 
responsibilities of the committee and the administration of the order;
    (2) Any rule or regulation, including a budget and assessment rule 
[59 FR 52411, October 18, 1994] and volume control regulations [59 FR 
49571, September 29, 1994] issued for the 1994-95 marketing season, and 
research and development projects;
    (3) Provisions of the order dealing with expenses and the 
collection of assessments; and
    (4) Information collection and reporting requirements (In 
compliance with the Paperwork Reduction Act of 1980 (44 U.S.C. chapter 
35), such requirements have been approved by the Office of Management 
and Budget and assigned OMB Control No. 0581-0145).
    During the suspension period, all committee members and their 
alternates will serve as trustees. The trustees will be responsible for 
overseeing the administrative affairs of the order. This includes 
completing the committee's unfinished business, ensuring termination of 
all outstanding agreements, contracts, and the payment of all 
obligations. The trustees will also be responsible for safeguarding 
program assets, and arranging for a financial audit to be conducted. 
All such actions by the trustees during the period of suspension are 
subject to the approval of the Secretary. Those designated as trustees 
are: Mr. Pat Ferlise, Chairperson, Mr. Thomas L. Brown, Vice-
Chairperson, Mr. L. E. Duff, Secretary/Treasurer, Mr. Tony Woodham, Mr. 
David L. Young, Mr. F. S. Duda, Mr. Charles E. Allison, Mr. Glenn R. 
Rogers, Mr. W. Rex Clonts, Sr., Mr. W. Rex Clonts, Jr., Mr. Felix 
Ferlise, Mr. Henry M. Daniels, Mr. Milton Ferlise, Mr. Dan Duda, Mr. 
Francis J. McCarthy, Mr. Walter Duda, Mr. Bill Grindstaff. The trustees 
shall continue in their capacity as long as they are eligible to serve 
as provided in Sec. 967.26 of the order, and until the order is 
reactivated or terminated, unless they are discharged by the Secretary.
    The remainder of the reserves, after immediate expenses are paid, 
will be held by the trustees to be used to cover unforeseen, 
outstanding expenses obligated by the committee. Such funds could also 
be used by the trustees to pay for necessary start-up costs should the 
order, at the determination of the Secretary, be reactivated. When a 
final determination is made regarding the order, any remaining funds 
will be used or disbursed in accordance with the appropriate order 
provisions.
    Based on the above, the Administrator of the AMS has determined 
that this action will not have a significant economic impact on a 
substantial number of small entities.
    It is also found and determined, upon good cause, that it is 
impracticable, unnecessary, and contrary to the public interest to give 
preliminary notice or to engage in further public procedure with 
respect to this action because: (1) This action relieves restrictions 
on handlers by suspending the requirements regulating the handling of 
celery pursuant to Marketing Order No. 967; (2) handlers are aware of 
this action, which was discussed and recommended at a meeting held by 
the committee: and (3) no useful purpose would be served by delaying 
the suspension of the marketing order.

List of Subjects in 7 CFR Part 967

    Marketing Agreements, Celery, Reporting and recordkeeping 
requirements.

    For the reasons set forth in the preamble, under the authority of 7 
U.S.C. 601-674, 7 CFR Part 967, is suspended effective January 12, 1995 
through December 31, 1997.

    Dated: January 6, 1995.

Patricia Jensen,

Acting Assistant Secretary, Marketing and Regulatory Programs.

[FR Doc. 95-727 Filed 1-11-95; 8:45 am]

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