[Federal Register Volume 61, Number 186 (Tuesday, September 24, 1996)]
[Rules and Regulations]
[Pages 49939-49952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-24505]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 61, No. 186 / Tuesday, September 24, 1996 /
Rules and Regulations
[[Page 49939]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 930
[Docket No. AO-370-A5; FV93-930-3]
Tart Cherries Grown in the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington, and Wisconsin; Order Regulating
Handling
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule establishes a Federal marketing agreement and
order which regulates the handling of tart cherries grown in the States
of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin. The order was favored by the required two-thirds majority of
producers voting in a referendum and was also favored by processors who
processed more than 50 percent of the commodity as required by the
Agricultural Marketing Agreement Act of 1937. In addition, the
marketing agreement was executed by the required number of handlers,
that is, handlers who handled more than 50 percent of the tart cherries
handled during the representative period. The marketing agreement and
order authorize volume, grade, size, and maturity regulations and
mandatory inspection. It also authorizes production, processing, and
marketing research and promotion projects, including paid advertising.
The objective of the order is to improve producer returns by
strengthening consumer demand through volume control and quality
assurance mechanisms. Agreement and order activities will be financed
by assessments levied on tart cherry handlers. The order was considered
at several public hearings conducted in 1993, 1994, and 1995. The
referendum was conducted by the Department of Agriculture by mail
ballot June 12 through July 10, 1996.
EFFECTIVE DATE: September 25, 1996.
FOR FURTHER INFORMATION CONTACT:
(1) R. Charles Martin or Kenneth G. Johnson, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, D.C. 20090-6456; telephone: (202)
720-2861, FAX: (202) 720-5698.
(2) Robert Curry, Northwest Marketing Field Office, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, 1220
S.W. Third Avenue, room 369, Portland, Oregon, 97204; telephone: (503)
326-2724, FAX: (503) 326-7440. Small businesses may request information
on compliance with this regulation by contacting: Jay Guerber,
Marketing Order Administration Branch, Fruit and Vegetable Division,
AMS, USDA, P.O. Box 96456, Room 2523-S, Washington, D.C. 20090-6456;
telephone: (202) 720-2491, Fax: (202) 720-5698.
SUPPLEMENTARY INFORMATION: Prior documents in this proceeding:
Notice of Hearing, issued on November 30, 1993, and published in
the Federal Register on November 30, and amended on December 23, 1993,
and January 31, 1994 [58 FR 63108, 58 FR 68065, and 59 FR 4259,
respectively]. The notice reopening the hearing was issued on December
5, 1994, and published in the Federal Register on December 8, 1994 [59
FR 63273]; Recommended Decision and Opportunity to File Written
Exceptions to the Proposed Marketing Agreement and Order, issued
November 20, 1995, and published in the Federal Register on November
29, 1995 (60 FR 61292). The reopening of the comment period to file
written exceptions to the proposed marketing agreement and order was
issued on December 27, 1995, and published in the Federal Register on
January 2, 1996 (61 FR 21). The Secretary's Decision was issued on May
22, 1996 and published in the Federal Register on May 29, 1996 (61 FR
26956).
Preliminary Statement
This administrative action is governed by the provisions of
sections 556 and 557 of Title 5 of the United States Code, and is
therefore excluded from the requirements of Executive Order 12866.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This action 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
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 of
Agriculture (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 request 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 his or her 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 the date of the entry of the ruling.
The proposed marketing agreement and order was formulated on the
record of a public hearing held December 15-17, 1993, in Grand Rapids,
Michigan; January 13, 1994, in Provo, Utah; February 15-17, 1994, in
Portland, Oregon; January 12-13, 1995, in Portland, Oregon; and January
18-19, 1995, in Grand Rapids, Michigan. These multiple hearing sessions
were held to consider a proposed marketing agreement and order
regulating the handling of tart cherries grown in the proposed
production area. The hearing was held pursuant to the provisions of the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the Act, and the applicable rules of
practice and procedure governing the formulation of marketing
agreements and marketing orders (7 CFR part 900). Approximately 40
witnesses, including tart cherry growers, handlers, and economists,
testified in support of the order. Growers and handlers mainly from the
States of Oregon and Washington testified in opposition to the proposed
order and asked to have Oregon and
[[Page 49940]]
Washington excluded from the proposed production area.
At the conclusion of the February 1994 hearing in Oregon, the
deadline for filing post-hearing briefs was set at April 29, 1994. The
deadline for filing post-hearing briefs was subsequently extended to
May 31, 1994. However, based on a review of the hearing evidence and
post hearing briefs, the Department of Agriculture (USDA) determined
that the hearing should be reopened to clarify certain aspects of the
proposal. USDA wanted to obtain additional information and
clarification concerning: (1) The States that should be regulated under
the order; (2) the economic impact of the proposed order on small and
large businesses; (3) whether the expected program benefits would
exceed costs, especially for growers, handlers and consumers; and (4)
how certain provisions would be implemented under the proposed
marketing order. The hearing was reopened and held January 12-13, 1995,
in Portland, Oregon, and January 18-19, 1995 in Grand Rapids, Michigan.
At the conclusion of the Michigan hearing, the deadline for filing
post-hearing briefs was set at March 17, 1995. Ten briefs were filed
following the first briefing period and seven briefs were filed
following the second briefing period.
The proponents testified that severely fluctuating tart cherry
prices are inherently harmful to growers and consumers. It was their
view that the proposed marketing order would improve grower returns by
strengthening consumer demand through volume control and quality
assurance mechanisms.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Administrator of the Agricultural Marketing Service (AMS)
on November 29, 1995, filed with the Hearing Clerk, U. S. Department of
Agriculture, a recommended decision with the opportunity for written
exceptions by December 29, 1995. Subsequently, the USDA received three
requests to provide more time to analyze the recommended decision and
prepare and file written comments. Based on these requests the USDA
reopened the comment period until January 16, 1996.
Upon the basis of evidence introduced at the hearing and the record
thereof, the Deputy Assistant Secretary, Marketing and Regulatory
Programs, on May 22, 1996, filed with the Hearing Clerk, U. S.
Department of Agriculture, a Secretary's Decision and Referendum Order,
directing that a referendum be conducted during the period June 12
through July 10, 1996, among producers and processors of tart cherries
to determine whether they favored issuance of the proposed marketing
order. In the referendum, the marketing order was favored by more than
two-thirds of the producers voting in the referendum and also by
producers of more than two-thirds of the production represented in the
referendum. The marketing order was also favored by processors who
processed 79.3 percent of the total volume of processed tart cherries
during the representative period. The marketing agreement was signed by
handlers who, during the representative period, handled 71 percent of
the volume of tart cherries handled during the representative period.
The referendum results and handler sign-up met the statutory
requirements on producer, processor and handler approval necessary to
issue the marketing order and agreement.
The terms of the order set forth in this document are the same as
those contained in the Secretary's Decision and Referendum Order, with
one exception. This document corrects an error that appeared in section
930.20(c) pertaining to the definition of District 2, Central Michigan.
That definition is revised to read that District 2 consists of that
area north of a line drawn along the northern boundary of Allegan
County, rather than north of a line drawn along the southern boundary
of Allegan County.
Small Business Consideration: In accordance with the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agricultural
Marketing Service considered the economic impact of this action on
small entities. The record indicates that there are approximately 75
handlers of tart cherries in the production area and 1,600 producers.
Small agricultural service firms have been defined by the Small
Business Administration (SBA) (13 CFR 121.601) as those whose annual
receipts are less than $5,000,000, and small agricultural producers are
defined as those having annual receipts of less than $500,000. The
majority of the handlers and producers of tart cherries may be
classified as small entities.
For practical purposes, there is no fresh market for tart cherries.
Processors dry, freeze, can, juice, or puree pitted tart cherries.
Market use averages are: 56 percent of the product becomes industrial
grade frozen cherries; 16 percent goes into consumer-size cans of pie
filling; 8 percent is used for commercial pie filling; 10 percent
becomes juice concentrate; 2 percent is dried; and 8 percent goes into
water packs.
Since 1971, there has been a marked transformation in the
processing industry's structure. Currently, 75 percent of the crop is
processed by farmer-owned cooperatives or grower-owned processing
facilities; whereas in 1971, a substantial volume was processed by
independent handlers. Processors, through their sales agents, market in
all U.S. markets and export to Europe and Asia. There are no discrete
regional markets where cherries from a particular district could have a
particular advantage, beyond nominal differences in transportation
costs, which can often be overcome by price discounting.
The record evidence shows that economic adversity has caused more
than 21 percent of Michigan's growers to withdraw from tart cherry
farming. There were 1,183 Michigan commercial growers in 1986, compared
to 933 in 1992. In 1992, Michigan growers had an average production of
238,000 pounds with 19 percent of those growers averaging 800,000
pounds, accounting for 66 percent of the total Michigan production. In
States other than Michigan, there has also been a general decline in
the number of commercial growers since 1986. There are fewer growers in
other States besides Michigan, but the number of bearing acres has
increased from 45,000 acres in 1986, to more than 50,000 acres in 1990.
Record evidence indicates that the demand for red tart cherries is
inelastic at high and low levels of production, and relatively elastic
in the middle range. At the extremes, during times of very low and very
high production, different factors become operational. In very short
crop years, such as 1991, there is limited but sufficient exclusive
demand for cherries that can cause processor prices to double and
grower prices to triple. In the event of large crops, there seems to be
no price low enough to expand sales beyond about 275 million pounds of
raw fruit in a single year.
Since 1982, annual sales have averaged 230 million pounds. Under
the order, total returns to growers could be increased by restricting
supplies of red tart cherries available for sale by handlers during
large crop years. Also, production characteristics of the tart cherry
industry provide an opportunity to increase growers' total earnings by
converting the excess production of large crop years into storable
products that could constitute reserve pools. These pools would be
liquidated in a year when the available supplies are short.
One of the main concerns addressed in the order is the short term
annual variation in supply which is attributable to climatic factors
that neither growers
[[Page 49941]]
nor processors can control, and which leads to chaotic marketing
conditions. Such climatic factors can result in highly unpredictable
annual crop sizes, causing gluts and shortages of tart cherries. When
gluts occur, large carryin inventories can decrease processor and
grower prices, regardless of the anticipated size of the oncoming
year's crop. Many sales are consummated with large buyers well before
the current crop year's supply and demand situation is clear (based on
what can best be described as ``Anticipated Supply'', i.e., the sum of
the carryin inventory and USDA crop forecast, available usually late in
June, weeks before the actual crop harvest.)
These large, unrestricted carryin inventories and crop estimates
can play a dominant role in setting the tone of the market in a given
year. The order is intended to lessen the impact of these inventories
and estimates by establishing an ``optimum supply,'' thereby reducing
price swings to growers and buyers, and ultimately resulting in a
stabilization and enhancement of the market.
The order would impose some reporting and record keeping
requirements on handlers. Handler testimony indicated that the expected
burden that would be imposed with respect to these requirements would
be negligible since most of the information that would be reported to
the Board is already compiled by handlers for other uses and is readily
available. Reporting and recordkeeping requirements issued under
comparable marketing order programs impose an average annual burden on
each regulated handler of about one hour. It is reasonable to expect
that a comparable burden would be imposed under this marketing order on
the estimated 75 handlers of tart cherries. With respect to growers,
they testified at the hearing that information required to be submitted
to the Board for grower diversion is already collected and available
from growers.
The purpose of the RFA is to fit regulatory and informational
requirements to the size and scale of the business entities in a manner
that is consistent with the objectives of the rule and applicable
statutes. The marketing order provisions have been carefully reviewed
and every effort has been made to eliminate any unnecessary costs or
requirements. As discussed in the RFA, Congress' intent, among other
objectives, was to direct agencies to identify the need for any
``special accommodation'' (e.g., exemption or relaxation) on regulated
small entities (i.e., handlers) because, in the past, some Federal
regulatory and reporting requirements imposed unnecessary and
disproportionately burdensome demands on small businesses. After
reviewing the record AMS determined that direct or indirect costs
imposed under the marketing order regulation would not be
proportionately greater on small handlers than on large handlers, or
conversely, that any projected order benefits would not be
proportionately smaller for small handlers than for large handlers.
The record evidence indicates that the order may impose some
additional costs and requirements on handlers, but those costs are
insignificant and are directly proportional to the sizes of the
regulated handlers. The evidence also indicates that, given the severe
economic conditions and unstable markets facing the majority of the
industry, the benefits to small (as well as large) handlers are likely
to be greater than would accrue under the alternatives to the order
herein, namely no marketing order, or an order without the combination
of volume controls and other order authorities. USDA has made extensive
efforts to notify, and include the input of, small entities and others
in the development phase and subsequent formal rulemaking proceeding.
All handlers, growers, and other interested persons were given an
opportunity to participate in this proceeding and submit testimony, not
once, but twice since the hearing was reopened to take additional
evidence. In addition, USDA mailed to all known growers and handlers
notification of the hearing dates and locations. Any regulations issued
under the order which would regulate the handling of tart cherries, and
which would impose volume, quality or other requirements on handlers,
would not occur without additional rulemaking. Such requirements would
have to be published in the Federal Register, giving all interested
persons full opportunity to participate in the rulemaking proceeding.
Any proposal would have to include economic and other considerations
under rulemaking procedures.
The record evidence indicates that the order would be instrumental
in providing expanding markets and sales, and raising and stabilizing
prices of tart cherries, primarily for the benefit of producers. The
evidence also indicates that handlers would benefit as well. While the
level of such benefits to handlers is difficult to quantify, it is also
clear the provisions of the order are designed to benefit small
entities. Small handlers and producers are more likely to be minimally
capitalized than large entities, and are less likely to survive without
the stability the order would provide.
Accordingly, based on the information discussed above, AMS has
determined that the issuance of this final rule will not have a
significant economic impact on a substantial number of small entities.
In compliance with Office of Management and Budget (OMB)
regulations (5 CFR Part 1320) which implement the Paperwork Reduction
Act of 1995 (Pub. L. 104-13), the information collection and
recordkeeping requirements that may be imposed by this order have been
approved by OMB and assigned OMB Number 0581-0177. Any requirements
imposed will be evaluated against the potential benefits to be derived
and it is expected that any added burden resulting from increased
recordkeeping will not be significant when compared to those
anticipated benefits.
Findings and Determinations
(a) Findings upon the basis of the hearing record. Pursuant to the
provisions of the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601 et seq.) and the applicable rules of practice and
procedure governing the formulation of marketing agreements and
marketing orders (7 CFR Part 900), a public hearing was held upon a
proposed marketing agreement and a proposed order, regulating the
handling of tart cherries grown in the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington, and Wisconsin.
Upon the basis of the evidence introduced at the hearing and the
record thereof, it is found that:
(1) The marketing agreement and order, and all of the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) The marketing agreement and order regulates the handling of
tart cherries grown in the production area in the same manner as, and
is applicable only to, persons in the respective classes of commercial
and industrial activity specified in the marketing agreement and order
upon which a hearing has been held;
(3) The marketing agreement and order is limited in its application
to the smallest regional production area which is practicable,
consistent with carrying out the declared policy of the Act, and the
issuance of several orders applicable to subdivisions of the production
area will not effectively carry out the declared policy of the Act;
(4) There are no differences in the production and marketing of
tart cherries grown in the production area
[[Page 49942]]
which make necessary different terms and provisions applicable to
different parts of such area; and
(5) All handling of tart cherries grown in the production area is
in the current of interstate or foreign commerce or directly burdens,
obstructs, or affects such commerce.
(b) Additional findings. It is necessary and in the public interest
to make this order effective not later than September 25, 1996.
A later effective date would unnecessarily delay the implementation
of the agreement and order and the collection of handler assessments
necessary to fund day-to-day program expenses and authorized research
and promotion activities. The Department and industry implementation
activities must begin promptly. These activities include, but are not
limited to, the nomination of members and alternate members of the
administrative board to locally administer the marketing order, the
selection of that board by the Secretary of Agriculture, and following
that, holding board meetings to select a management team, draft board
operating guidelines, consider a budget and assessment rate for the
1997 fiscal period, and make other recommendations consistent with
order authority. Some of the board recommendations will require
rulemaking by the Department to be implemented.
In view of the foregoing, it is hereby found and determined that
good cause exists for making this order effective September 25, 1996,
and that it would be contrary to the public interest to delay the
effective date of this order for 30 days after its publication in the
Federal Register (Sec. 553(d), Administrative Procedure Act; 5 U.S.C.
551-559).
(c) Determinations. It is hereby determined that:
(1) The ``Marketing Agreement Regulating the Handling of Tart
Cherries Grown in the States of Michigan, New York, Pennsylvania,
Oregon, Utah, Washington, and Wisconsin'' upon which the aforesaid
public hearing was held has been signed by handlers (excluding
cooperative associations of producers who are not engaged in
processing, distributing, or shipping tart cherries covered by the
order) who during the period July 1, 1995, through May 31, 1996,
handled not less than 50 percent of the volume of such tart cherries
covered by this order, and
(2) The issuance of this order is favored or approved by at least
two-thirds of the producers who participated in a referendum on the
question of its approval and who, during the period July 1, 1995,
through May 31, 1996 (which has been deemed to be a representative
period), have been engaged within the tart cherry production area in
the production of tart cherries for market, such producers having also
produced for market at least two-thirds of the volume of such commodity
represented in the referendum.
List of Subjects in 7 CFR Part 930
Marketing agreements, Tart cherries, Reporting and recordkeeping
requirements.
Order Relative to Handling of Tart Cherries Grown in the States of
Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and
Wisconsin
It is therefore ordered, that on and after the effective date
hereof, all handling of tart cherries grown in the States of Michigan,
New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, shall
be in conformity to, and in compliance with, the terms and conditions
of the said order, as follows:
The provisions of the marketing order include Secs. 930.1 through
930.91. The marketing agreement includes the provisions of the order
and three additional provisions, Sec. 930.97 Counterparts, Sec. 930.98
Additional parties, and Sec. 930.99 Order with marketing agreement.
These provisions are not published herein as part of the order.
The provisions of the marketing order are set forth in full herein.
Title 7, Chapter IX is amended by adding part 930 to read as
follows:
PART 930--TART CHERRIES GROWN IN THE STATES OF MICHIGAN, NEW YORK,
PENNSYLVANIA, OREGON, UTAH, WASHINGTON, AND WISCONSIN
Subpart--Order Regulating Handling
Definitions
Sec.
930.1 Act.
930.2 Board.
930.3 Cherries.
930.4 Crop year.
930.5 Department or USDA.
930.6 District.
930.7 Fiscal period.
930.8 Free market tonnage percentage cherries.
930.9 Grower.
930.10 Handle.
930.11 Handler.
930.12 Person.
930.13 Primary inventory reserve.
930.14 Production area.
930.15 Restricted percentage cherries.
930.16 Sales constituency.
930.17 Secondary inventory reserve.
930.18 Secretary.
Administrative Body
930.20 Establishment and membership.
930.21 Reestablishment
930.22 Term of office.
930.23 Nomination and election.
930.24 Appointment.
930.25 Failure to nominate.
930.26 Acceptance.
930.27 Vacancies.
930.28 Alternate members
930.29 Eligibility for membership on Cherry Industry Administrative
Board.
930.30 Powers.
930.31 Duties.
930.32 Procedure.
930.33 Expenses and compensation.
Expenses and Assessments
930.40 Expenses.
930.41 Assessments.
930.42 Accounting.
Quality Control
930.44 Quality Control.
Research, Market Development and Promotion
930.48 Research, Market Development and Promotion.
Regulations
930.50 Marketing policy.
930.51 Issuance of volume regulations.
930.52 Establishment of districts subject to volume regulations.
930.53 Modification, suspension, or termination of regulations.
930.54 Prohibition on the use or disposition of inventory reserve
cherries.
930.55 Primary inventory reserves.
930.56 Off-premise inventory reserve.
930.57 Secondary inventory reserve.
930.58 Grower diversion privilege.
930.59 Handler diversion privilege.
930.60 Equity holders.
930.61 Handler compensation.
930.62 Exemptions.
930.63 Deferment of restricted obligation.
Reports and Records
930.70 Reports.
930.71 Records.
930.72 Verification of reports and records.
930.73 Confidential information.
Miscellaneous Provisions
930.80 Compliance.
930.81 Right of the Secretary.
930.82 Effective time.
930.83 Termination.
930.84 Proceedings after termination.
930.85 Effect of termination or amendment.
930.86 Duration of immunities.
930.87 Agents.
930.88 Derogation.
930.89 Personal liability.
930.90 Separability.
930.91 Amendments.
Authority: 7 U.S.C. 601-674
[[Page 49943]]
Subpart--Order Regulating Handling
Definitions
Sec. 930.1 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as
amended, and as reenacted and amended by the Agricultural Marketing
Agreement Act of 1937, as amended (48 Stat. 31, as amended, 68 Stat.
906, 1047; 7 U.S.C. 601 et seq.).
Sec. 930.2 Board.
Board means the Cherry Industry Administrative Board established
pursuant to Sec. 930.20.
Sec. 930.3 Cherries.
Cherries means all tart/sour cherry varieties grown in the
production area classified botanically as Prunus cerasas, or hybrids of
Prunus cerasas by Prunus avium, or Prunus cerasas by Prunus fruticosa.
Sec. 930.4 Crop year.
Crop year means the 12-month period beginning on July 1 of any year
and ending on June 30 of the following year, or such other period as
the Board, with the approval of the Secretary, may establish.
Sec. 930.5 Department or USDA.
Department or USDA means the United States Department of
Agriculture.
Sec. 930.6 District.
District means one of the subdivisions of the production area
described in Sec. 930.20(c), or such other subdivisions as may be
established pursuant to Sec. 930.21, or any subdivision added pursuant
to Sec. 930.52.
Sec. 930.7 Fiscal period.
Fiscal period is synonymous with fiscal year and means the 12-month
period beginning on July 1 of any year and ending on June 30 of the
following year, or such other period as the Board, with the approval of
the Secretary, may establish: Provided, that the initial fiscal period
shall begin on the effective date of this part.
Sec. 930.8 Free market tonnage percentage cherries.
Free market tonnage percentage cherries means that proportion of
cherries handled in a crop year which are free to be marketed in normal
commercial outlets in that crop year under any volume regulation
established pursuant to Sec. 930.50 or Sec. 930.51 and, in the absence
of a restricted percentage being established for a crop year pursuant
to Sec. 930.50 or Sec. 930.51, means all cherries received by handlers
in that crop year.
Sec. 930.9 Grower.
Grower is synonymous with producer and means any person who
produces cherries to be marketed in canned, frozen, or other processed
form and who has a proprietary interest therein: Provided that, the
term grower shall not include a person who produces cherries to be
marketed exclusively for the fresh market in an unpitted condition.
Sec. 930.10 Handle.
Handle means the process to brine, can, concentrate, freeze,
dehydrate, pit, press or puree cherries, or in any other way convert
cherries commercially into a processed product, or divert cherries
pursuant to Sec. 930.59 or obtain grower diversion certificates issued
pursuant to Sec. 930.58, or otherwise place cherries into the current
of commerce within the production area or from the area to points
outside thereof: Provided, That the term handle shall not include:
(a) The brining, canning, concentrating, freezing, dehydration,
pitting, pressing or the converting, in any other way, of cherries into
a processed product for home use and not for resale.
(b) The transportation within the production area of cherries from
the orchard where grown to a processing facility located within such
area for preparation for market.
(c) The delivery of such cherries to such processing facility for
such preparation.
(d) The sale or transportation of cherries by a grower to a handler
of record within the production area.
(e) The sale of cherries in the fresh market in an unpitted
condition.
Sec. 930.11 Handler.
Handler means any person who first handles cherries or causes
cherries to be handled for his or her own account.
Sec. 930.12 Person.
Person means an individual, partnership, corporation, association,
or any other business unit.
Sec. 930.13 Primary inventory reserve.
Primary inventory reserve means that portion of handled cherries
that are placed into handlers' inventories in accordance with any
restricted percentage established pursuant to Sec. 930.50 or
Sec. 930.51.
Sec. 930.14 Production area.
Production area means the States of Michigan, New York,
Pennsylvania, Oregon, Utah, Washington and Wisconsin.
Sec. 930.15 Restricted percentage cherries.
Restricted percentage cherries means that proportion of cherries
handled in a crop year which must be either placed into handlers'
inventories in accordance with Sec. 930.55 or Sec. 930.57 or otherwise
diverted in accordance with Sec. 930.59 and thereby withheld from
marketing in normal commercial outlets under any volume regulation
established pursuant to Sec. 930.50 or Sec. 930.51.
Sec. 930.16 Sales constituency.
Sales constituency means a common marketing organization or
brokerage firm or individual representing a group of handlers or
growers.
Sec. 930.17 Secondary inventory reserve.
Secondary inventory reserve means any portion of handled cherries
voluntarily placed into inventory by a handler under Sec. 930.57.
Sec. 930.18 Secretary.
Secretary means the Secretary of Agriculture of the United States,
or any officer or employee of the U.S. Department of Agriculture to
whom authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in the Secretary's stead.
Administrative Body
Sec. 930.20 Establishment and membership.
(a) There is hereby established a Cherry Industry Administrative
Board (Board) consisting of 18 members. Seventeen of these members
shall be qualified growers and handlers selected pursuant to this part,
each of whom shall have an alternate having the same qualifications as
the member for whom the person is an alternate. The remaining member of
the Board shall be a public member who, along with his or her
alternate, shall be elected by the Board from the general public.
(b) District representation on the Board shall be as follows:
------------------------------------------------------------------------
Grower Handler
District members members
------------------------------------------------------------------------
1.................................................. 2 2
2.................................................. 1 2
3.................................................. 1 1
4.................................................. 1 1
5.................................................. 1 or 1
6.................................................. 1 or 1
7.................................................. 1 1
8.................................................. 1 or 1
9.................................................. 1 or 1
------------------------------------------------------------------------
(c) Upon the adoption of this part, the production area shall be
divided into the following described subdivisions for purposes of this
section:
District 1--Northern Michigan: that portion of the State of
Michigan which
[[Page 49944]]
is north of a line drawn along the northern boundary of Mason County
and extended east to Lake Huron.
District 2--Central Michigan: that portion of the State of Michigan
which is south of District 1 and north of a line drawn along the
northern boundary of Allegan County and extended east to Lake St.
Clair.
District 3--Southern Michigan: That portion of the State of
Michigan not included in Districts 1 and 2.
District 4--The State of New York.
District 5--The State of Oregon.
District 6--The State of Pennsylvania.
District 7--The State of Utah.
District 8--The State of Washington.
District 9--The State of Wisconsin.
(d) The ratio of grower to handler representation in District 2
shall alternate each time the term of a Board member from the
representative group having two seats expires. During the initial
period of the order, the ratio shall be as designated in paragraph (b)
of this section.
(e) Board members from Districts 5, 6, 8 and 9 may be either grower
or handler members and will be nominated and elected as outlined in
Sec. 930.23. If District 5, 6, 8, and/or 9 becomes subject to volume
regulation under Secs. 930.52(a), then the Board shall be reestablished
by the Secretary to provide such District(s) with at least one grower
and one handler seat on the Board and such seats shall be filled
according to the provisions of Sec. 930.23.
(f) In order to achieve a fair and balanced representation on the
Board, and to prevent any one sales constituency from gaining control
of the Board, not more than one board member may be from, or affiliated
with, a single sales constituency in those districts having more than
one seat on the Board. There is, however, no prohibition on the number
of Board members from differing districts that may be elected from a
single sales constituency which may have operations in more than one
district. However, as provided in Sec. 930.23, a handler or grower may
only nominate Board members and vote in one district.
(g) Subject to the approval of the Secretary, the Board shall at
its first meeting and annually thereafter elect from among any of its
members a chairperson and a vice-chairperson and may elect other
appropriate officers.
Sec. 930.21 Reestablishment.
Districts, subdivisions of districts, and the distribution of
representation among growers and handlers within a respective district
or subdivision thereof, or among the subdivision of districts, may be
reestablished by the Secretary, subject to the provisions of
Sec. 930.23, based upon recommendations by the Board. In recommending
any such changes, the Board shall consider:
(a) the relative importance of producing areas;
(b) relative production;
(c) the geographic locations of producing areas as they would
affect the efficiency of administration of this part;
(d) shifts in cherry production within the districts and the
production area;
(e) changes in the proportion and role of growers and handlers
within the districts; and (f) other relevant factors.
Sec. 930.22 Term of office.
The term of office of each member and alternate member of the Board
shall be for three fiscal years: Provided that, of the nine initial
members and alternates from the combination of Districts 1, 2 and 3,
one-third of such initial members and alternates shall serve only one
fiscal year, one-third of such members and alternates shall serve only
two fiscal years, one-third of such members and alternates shall serve
three fiscal years; and one-half of the initial members and alternates
from Districts 4 and 7 shall serve only one fiscal year, and one-half
of such initial members and alternates shall serve two fiscal years
(determination of which of the initial members and their alternates
shall serve for 1 fiscal year, 2 fiscal years, or 3 fiscal years, in
both instances, shall be by lot). Members and alternate members shall
serve in such capacity for the portion of the term of office for which
they are selected and have qualified until their respective successors
are selected, have qualified and are appointed. The consecutive terms
of office of grower, handler and public members and alternate members
shall be limited to two 3-year terms, excluding any initial term
lasting less than 3 years. The term of office of a member and alternate
member for the same seat shall be the same. If this part becomes
effective on a date such that the initial fiscal period is less than
six months in duration, then the tolling of time for purposes of this
subsection shall not begin until the beginning of the first 12-month
fiscal period.
Sec. 930.23 Nomination and election.
(a) Forms and ballots. Nomination and election of initial and
successor members and alternate members of the Board shall be conducted
through petition forms and election ballots distributed to all eligible
growers and handlers via the U.S. Postal Service or other means, as
determined by the Secretary. Similar petition forms and election
ballots shall be used for both members and alternate members and any
requirements for election of a member shall apply to the election of an
alternate.
(b) Nomination:
(1) In order for the name of a grower nominee to appear on an
election ballot, the nominee's name must be submitted with a petition
form, to be supplied by the Secretary or the Board, which, except in
District 8, contains at least five signatures of growers, other than
the nominee, from the nominee's district who are eligible to vote in
the referendum. Grower petition forms in District 8 must be signed by
only two growers, other than the nominee, from the nominee's district.
(2) In order for the name of a handler nominee to appear on an
election ballot, the nominee's name must be submitted with a petition
form, to be supplied by the Secretary or the Board, which contains the
signature of at least one handler, other than the nominee, from the
nominee's district who is eligible to vote in the referendum. The
requirement that the petition form be signed by a handler other than
the nominee shall not apply in any District where less than two
handlers are eligible to vote.
(3) Only growers, including duly authorized officers or employees
of growers, who are eligible to serve as grower members of the Board
shall participate in the nomination of grower members and alternate
grower members of the Board. No grower shall participate in the
submission of nominees in more than one district during any fiscal
period. If a grower produces cherries in more than one district, that
grower may select in which district he or she wishes to participate in
the nominations and election process and shall notify the Secretary or
the Board of such selection. A grower may not participate in the
nomination process in one district and the election process in a second
district in the same election cycle.
(4) Only handlers, including duly authorized officers or employees
of handlers, who are eligible to serve as handler members of the Board
shall participate in the nomination of handler members and alternate
handler members of the Board. No handler shall participate in the
selection of nominees in more than one district during any fiscal
period. If a handler handles cherries in more than one district, that
handler may select in which district he or she wishes to participate in
the nominations and election process and shall notify the Secretary or
the Board of such selection. A handler may not participate in the
nominations process in one district and the elections process
[[Page 49945]]
in a second district in the same election cycle. If a person is a
grower and a grower-handler only because some or all of his or her
cherries were custom packed, but he or she does not own or lease and
operate a processing facility, such person may vote only as a grower.
(5) In Districts 5, 6, 8 and 9, both growers and handlers may be
nominated for the district's Board seat. Grower and handler nominations
must follow the petition procedures outlined in paragraphs (b)(1) and
(b)(2) of this section.
(6) All eligible growers and handlers in all districts may submit
the names of the nominees for the public member and alternate public
member of the Board.
(7) After the appointment of the initial Board, the Secretary or
the Board shall announce at least 180 days in advance when a Board
member's term is expiring and shall solicit nominations for that
position in the manner described in this section. Nominations for such
position should be submitted to the Secretary or the Board not less
than 120 days prior to the expiration of such term.
(c) Election:
(1) After receiving nominations, the Secretary or the Board shall
distribute ballots via the U.S. Postal Service or other means, as
determined by the Secretary, to all eligible growers and handlers
containing the names of the nominees by district for the respective
seats on the Board, excluding the public voting member seat. The
ballots will clearly indicate that growers and handlers may only rank
or otherwise vote for nominees in their own district.
(2) Except as provided in paragraph (c)(4) of this section, only
growers, including duly authorized officers or employees of growers,
who are eligible to serve as grower members of the Board shall
participate in the election of grower members and alternate grower
members of the Board. No grower shall participate in the election of
Board members in more than one district during any fiscal period. If a
grower produces cherries in more than one district, the grower must
vote in the same district in which he or she chose to participate in
the nominations process under paragraph (b)(3) of this section.
However, if the grower did not participate in the nominations process,
he or she may select in which district he or she wishes to vote and
shall notify the Secretary or the Board of such selection.
(3) Except as provided in paragraph (c)(4) of this section, only
handlers, including duly authorized officers or employees of handlers,
who are eligible to serve as handler members of the Board shall
participate in the election of handler members and alternate handler
members of the Board. No handler shall participate in the election of
Board members in more than one district during any fiscal period. If a
handler does handle cherries in more than one district, he or she must
vote in the same district in which the handler elected to participate
in the nominations process under paragraph (b)(4) of this section.
However, if a handler did not participate in the nominations process,
that handler may select in which district he or she chooses to vote and
shall notify the Secretary or the Board of such selection. If a person
is a grower and a grower-handler only because some or all of his or her
cherries were custom packed, but he or she does not own or lease and
operate a processing facility, such person may vote only as a grower.
(4) In Districts 5, 6, 8 and 9, growers and handlers may vote for
either the grower or handler nominee(s) for the single seat allocated
to those districts.
(d) The members of the Board appointed by the Secretary pursuant to
Sec. 930.24 shall, at the first meeting and whenever necessary
thereafter, by at least a two-thirds vote of the entire Board, select
individuals to serve as the public member and alternate public member
of the Board from the list of nominees received from growers and
handlers pursuant to paragraph (b) of this section or from other
persons nominated by the Board. The persons selected shall be subject
to appointment by the Secretary under Sec. 930.24.
(e) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.24 Appointment.
The selection of nominees made pursuant to elections conducted
under Sec. 930.23(c) shall be submitted to the Secretary in a format
which indicates the nominees by district, with the nominee receiving
the highest number of votes at the top and the number of votes received
being clearly indicated. The Secretary shall appoint from those
nominees or from other qualified individuals, the grower and handler
members of the Board and an alternate for each such member on the basis
of the representation provided for in Sec. 930.20 or as provided for in
any reapportionment or reestablishment undertaken pursuant to
Sec. 930.21. The public member and alternate public member are
nominated by the Board pursuant to Sec. 930.23(d) and shall also be
subject to appointment by the Secretary. The Secretary shall appoint
from nominees by the Board or from other qualified individuals the
public member and the alternate public member.
Sec. 930.25 Failure to nominate.
If nominations are not made within the time and in the manner
prescribed in Sec. 930.23, the Secretary may, without regard to
nominations, select the members and alternate members of the Board on
the basis of the representation provided for in Sec. 930.20 or as
provided for in any reapportionment or reestablishment undertaken
pursuant to Sec. 930.21.
Sec. 930.26 Acceptance.
Each person to be appointed by the Secretary as a member or as an
alternate member of the Board shall, prior to such appointment, qualify
by advising the Secretary that he/she agrees to serve in the position
for which nominated for selection.
Sec. 930.27 Vacancies.
To fill any vacancy occasioned by the failure of any person
appointed as a member or as an alternate member of the Board to
qualify, or in the event of the death, removal, resignation, or
disqualification of any member or alternate member of the Board, a
successor for the unexpired term of such member or alternate member of
the Board shall be appointed by the Secretary from the most recent list
of nominations for the Board made by growers and handlers, from
nominations made by the Board, or from other qualified individuals. Any
nominations made by the Board to fill a vacancy must be received by the
Secretary within 90 days of the effective date of the vacancy. Board
members wishing to resign from the Board must do so in writing to the
Secretary.
Sec. 930.28 Alternate members.
An alternate member of the Board, during the absence of the member
for whom that member serves as an alternate, shall act in the place and
stead of such member and perform such other duties as assigned.
However, if a member is in attendance at a meeting of the Board, an
alternate member may not act in the place and stead of such member. In
the event of the death, removal, resignation, or disqualification of a
member, the alternate shall act for the member until a successor for
such member is appointed and has qualified.
Sec. 930.29 Eligibility for membership on Cherry Industry
Administrative Board.
(a) Each grower member and each grower alternate member of the
Board shall be a grower, or an officer or employee of a grower, in the
district for which nominated or appointed.
[[Page 49946]]
(b) Each handler member and each handler alternate member of the
Board shall be a handler, or an officer or employee of a handler, who
owns, or leases, and operates a cherry processing facility in the
district for which nominated or appointed.
(c) The public member and alternate public member of the Board
shall be prohibited from having any financial interest in the cherry
industry and shall possess such additional qualifications as may be
established by regulation.
Sec. 930.30 Powers.
The Board shall have the following powers:
(a) To administer this part in accordance with its terms and
provisions;
(b) To make rules and regulations to effectuate the terms and
provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints
of violations of this part; and
(d) To recommend to the Secretary amendments to this part.
Sec. 930.31 Duties.
The Board shall have, among others, the following duties:
(a) To select such officers, including a chairperson and vice-
chairperson, as may be necessary, and to define the duties of such
officers and the duties of the chairperson and the vice-chairperson;
(b) To employ or contract with such persons or agents as the Board
deems necessary and to determine the duties and compensation of such
persons or agents;
(c) To select such committees and subcommittees as may be
necessary;
(d) To adopt bylaws and to adopt such rules for the conduct of its
business as it may deem advisable;
(e) To submit to the Secretary a budget for each fiscal period,
prior to the beginning of such period, including a report explaining
the items appearing therein and a recommendation as to the rates of
assessments for such period;
(f) To keep minutes, books, and records which will reflect all of
the acts and transactions of the Board and which shall be subject to
examination by the Secretary;
(g) To prepare periodic statements of the financial operations of
the Board and to make copies of each statement available to growers and
handlers for examination at the office of the Board;
(h) To cause its financial statements to be audited by a certified
public accountant at least once each fiscal year and at such times as
the Secretary may request. Such audit shall include an examination of
the receipt of assessments and the disbursement of all funds. The Board
shall provide the Secretary with a copy of all audits and shall make
copies of such audits, after the removal of any confidential individual
grower or handler information that may be contained in them, available
to growers and handlers for examination at the offices of the Board;
(i) To act as intermediary between the Secretary and any grower or
handler with respect to the operations of this part;
(j) To investigate and assemble data on the growing, handling, and
marketing conditions with respect to cherries;
(k) To apprise the Secretary of all Board meetings in a timely
manner;
(l) To submit to the Secretary such available information as the
Secretary may request;
(m) To investigate compliance with the provisions of this part;
(n) To develop and submit an annual marketing policy for approval
by the Secretary containing the optimum supply of cherries for the crop
year established pursuant to Sec. 930.50 and recommending such
action(s) necessary to achieve such optimum supply;
(o) To implement volume regulations established under Sec. 930.50
and issued by the Secretary under Sec. 930.51, including the release of
any inventory reserves;
(p) To provide thorough communication to growers and handlers
regarding the activities of the Board and to respond to industry
inquiries about Board activities;
(q) To oversee the collection of assessments levied under this
part;
(r) To enter into contracts or agreements with such persons and
organizations as the Board may approve for the development and conduct
of activities, including research and promotion activities, authorized
under this part or for the provision of services required by this part
and for the payment of the cost thereof with funds collected through
assessments pursuant to Sec. 930.41 and income from such assessments.
Contracts or agreements for any plan or project shall provide that:
(1) The contractors shall develop and submit to the Board a plan or
project together with a budget(s) which shall show the estimated cost
to be incurred for such plan or project;
(2) Any contract or agreement for a plan or project and any plan or
project adopted by the Board shall only become effective upon approval
by the Secretary; and
(3) Every such contracting party shall keep accurate records of all
of its transactions and make periodic reports to the Board of
activities conducted and an accounting for funds received and expended,
and such other reports as the Secretary or the Board may require. The
Secretary or employees of the Board may audit periodically the records
of the contracting party;
(s) Pending disbursement consistent with its budget, to invest,
with the approval of the Secretary, and in accordance with applicable
Departmental policies, funds collected through assessments authorized
under Sec. 930.41 and income from such assessments;
(t) To establish standards or grade requirements for cherries for
frozen and canned cherry products, subject to the approval of the
Secretary;
(u) To borrow such funds, subject to the approval of the Secretary
and not to exceed the expected expenses of one fiscal year, as are
necessary for administering its responsibilities and obligations under
this part; and
(v) To establish, with the approval of the Secretary, such rules
and procedures relative to administration of this subpart as may be
consistent with the provisions contained in this subpart and as may be
necessary to accomplish the purposes of the Act and the efficient
administration of this subpart.
Sec. 930.32 Procedure.
(a) Twelve members of the Board, including alternates acting for
absent members, shall constitute a quorum. For any action of the Board
to pass, at least two-thirds of the entire Board must vote in support
of such action.
(b) The Board may provide through its own rules and regulations,
subject to approval by the Secretary, for simultaneous meetings of
groups of its members assembled at different locations and for votes to
be conducted by telephone or other means of communication. Votes so
cast shall be promptly confirmed in writing.
(c) All meetings of the Board are open to the public, although the
Board may hold portions of meetings in executive session for the
consideration of certain business. The Board will establish, with the
approval of the Secretary, a means of advanced notification of growers
and handlers of Board meetings.
Sec. 930.33 Expenses and compensation.
Except for the public member and alternate public member who shall
receive such compensation as the Board may establish and the Secretary
may approve, the members of the Board, and alternates when acting as
members,
[[Page 49947]]
shall serve without compensation but shall be reimbursed for necessary
and reasonable expenses, as approved by the Board, incurred by them in
the performance of their duties under this part. The Board at its
discretion may request the attendance of one or more alternates at any
or all meetings, notwithstanding the expected or actual presence of the
respective member(s), and may pay the expenses of such alternates.
Expenses and Assessments
Sec. 930.40 Expenses.
The Board is authorized to incur such expenses as the Secretary
finds are reasonable and likely to be incurred for its maintenance and
functioning and to enable it to exercise its powers and perform its
duties in accordance with the provisions of this part. The funds to
cover such expenses shall be acquired by the levying of assessments as
provided in Sec. 930.41.
Sec. 930.41 Assessments.
(a) An assessment may be levied upon handlers annually under this
part to cover the administrative costs of the Board, costs of
inspection, and any research, development and promotion activities
initiated by the Board under Sec. 930.48.
(b) Each part of an assessment intended to cover the costs of each
activity in paragraph (a) of this section, must be identified and
approved by the Board and the Secretary, and any notification or other
statement regarding assessments provided to handlers must contain such
information.
(c) As a pro rata share of the administrative, inspection,
research, development, and promotion expenses which the Secretary finds
reasonable and likely to be incurred by the Board during a fiscal
period, each handler shall pay to the Board assessments on all cherries
handled, as the handler thereof, during such period: Provided, a
handler shall be exempt from any assessment on the tonnage of handled
cherries that are diverted according to Sec. 930.59 which includes
cherries represented by grower diversion certificates issued pursuant
to Sec. 930.58(b) and acquired by handlers and those cherries devoted
to exempt uses under Sec. 930.62.
(d) The Secretary, after consideration of the recommendation of the
Board, shall fix the rate of assessment to be paid by each handler
during the fiscal period in an amount designed to secure sufficient
funds to cover the expenses which may be approved and incurred during
such period or subsequent period as provided in paragraph (c) of this
section. At any time during or after the fiscal period, the Secretary
may increase the rate of assessment in order to secure sufficient funds
to cover any later finding by the Secretary relative to the expenses
which may be incurred. Such increase shall be applied to all cherries
handled during the applicable fiscal period. In order to provide funds
for the administration of the provisions of this part during the first
part of a fiscal period before sufficient operating income is available
from assessments, the Board may accept the payment of assessments in
advance, and may borrow money for such purposes.
(e) Assessments not paid within a time prescribed by the Board may
be made subject to interest or late payment charges, or both. The
period of time, rate of interest, and late payment charge will be as
recommended by the Board and approved by the Secretary: Provided, That
when interest or late payment charges are in effect, they shall be
applied to all assessments not paid within the prescribed period of
time.
(f) Assessments will be calculated on the basis of pounds of
cherries handled: Provided, That the formula adopted by the Board and
approved by the Secretary for determining the rate of assessment will
compensate for differences in the number of pounds of cherries utilized
for various cherry products and the relative market values of such
cherry products.
(g) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.42 Accounting.
(a) If, at the end of a fiscal period, the assessments collected
are in excess of expenses incurred, the Board, with the approval of the
Secretary, may carry over all or any portion of such excess into
subsequent fiscal periods as a reserve. Such reserve funds may be used
to cover any expenses authorized by this part, and to cover necessary
expenses of liquidation in the event of termination of this part. If
any such excess is not retained in a reserve, it shall be refunded
proportionately to the handlers from whom the excess was collected.
Without an additional reserve level approved by the Secretary, the
amount held in reserve may not exceed approximately one year's
operational expenses. Upon termination of this part, any funds not
required to defray the necessary expenses of liquidation shall be
disposed of in such a manner as the Secretary may determine to be
appropriate: Provided, That to the extent practicable, such funds shall
be returned pro rata to the persons from whom such funds were
collected.
(b) All funds received by the Board pursuant to the provisions of
this part shall be used solely for the purpose specified in this part
and shall be accounted for in the manner provided in this part. The
Secretary may at any time require the Board and its members to account
for all receipts and disbursements.
Quality Control
Sec. 930.44 Quality Control.
(a) Quality standards. The Board may establish, with the approval
of the Secretary, such minimum quality and inspection requirements
applicable to cherries as will contribute to orderly marketing or be in
the public interest. If such requirements are adopted, no handler shall
process cherries into manufactured products or sell manufactured
products in the current of commerce unless such cherries and/or such
cherries used in the manufacture of products meet the applicable
requirements as evidenced by certification acceptable to the Board. The
Board, with the approval of the Secretary, may establish rules and
regulations necessary and incidental to the administration of this
section.
(b) Inspection and certification. Whenever the handling of any
cherries requires inspection pursuant to this part, each handler who
handles cherries shall cause such cherries to be inspected by the
appropriate division of USDA, and certified by it as meeting the
applicable requirements of such regulation: Provided, That inspection
and certification shall be required for cherries which previously have
been so inspected and certified only if such cherries have been
regraded, resorted, repackaged, or in any other way further prepared
for market. Promptly after inspection and certification, each such
handler shall submit, or cause to be submitted, to the Board a copy of
the certificate of inspection issued with respect to such cherries.
Research, Market Development and Promotion
Sec. 930.48 Research, market mevelopment and promotion.
The Board, with the approval of the Secretary, may establish or
provide for the establishment of production and processing research,
market research and development, and/or promotional activities,
including paid advertising, designed to assist, improve or promote the
efficient production and processing, marketing, distribution, and
consumption of cherries subject to this
[[Page 49948]]
part. The expense of such projects shall be paid from funds collected
pursuant to this part and the income from such funds.
Regulations
Sec. 930.50 Marketing policy.
(a) Optimum Supply. On or about July 1 of each crop year, the Board
shall hold a meeting to review sales data, inventory data, current crop
forecasts and market conditions in order to establish an optimum supply
level for the crop year. The optimum supply volume shall be calculated
as 100 percent of the average sales of the prior three years to which
shall be added a desirable carryout inventory not to exceed 20 million
pounds or such other amount as the Board, with the approval of the
Secretary may establish. This optimum supply volume shall be announced
by the Board in accordance with paragraph (h) of this section.
(b) Preliminary percentages. On or about July 1 of each crop year,
the Board shall establish a preliminary free market tonnage percentage
which shall be calculated as follows: From the optimum supply computed
in paragraph (a) of this section, the Board shall deduct the carryin
inventory to determine the tonnage requirements (adjusted to a raw
fruit equivalent) for the current crop year which will be subtracted by
the current year USDA crop forecast. If the resulting number is
positive, this would represent the estimated over-production which
would need to be the restricted percentage tonnage. This restricted
percentage tonnage would then be divided by the sum of the USDA crop
forecast for the regulated districts to obtain the percentages for the
regulated districts. The Board shall establish a preliminary restricted
percentage equal to the quotient, rounded to the nearest whole number,
with the compliment being the preliminary free tonnage percentage. If
subtracting the current crop year requirement, computed in the first
sentence from the current USDA crop forecast, results in a negative
number, the Board shall establish a preliminary free tonnage of 100
percent with a preliminary restricted percentage of zero. The Board
shall announce these preliminary percentages in accordance with
paragraph (h) of this section.
(c) Interim percentages. Between July 1 and September 15 of each
crop year, the Board may modify the preliminary free market tonnage and
restricted percentages to adjust to the actual pack occurring in the
industry. The Board shall announce any interim percentages in
accordance with paragraph (h) of this section.
(d) Final percentages. No later than September 15 of each crop
year, the Board shall review actual production during the current crop
year and make such adjustments as are necessary between free and
restricted tonnage to achieve the optimum supply and recommend such
final free market tonnage and restricted percentages to the Secretary
and announce them in accordance with paragraph (h) of this section. The
difference between any final free market tonnage percentage designated
by the Secretary and 100 percent shall be the final restricted
percentage. With its recommendation, the Board shall report on its
consideration of the factors in paragraph (e) of this section.
(e) Factors. When computing preliminary and interim percentages, or
determining final percentages for recommendation to the Secretary, the
Board shall give consideration to the following factors:
(1) The estimated total production of cherries;
(2) The estimated size of the crop to be handled;
(3) The expected general quality of such cherry production;
(4) The expected carryover as of July 1 of canned and frozen
cherries and other cherry products;
(5) The expected demand conditions for cherries in different market
segments;
(6) Supplies of competing commodities;
(7) An analysis of economic factors having a bearing on the
marketing of cherries;
(8) The estimated tonnage held by handlers in primary or secondary
inventory reserves; and
(9) Any estimated release of primary or secondary inventory reserve
cherries during the crop year.
(f) Modification. In the event the Board subsequently deems it
advisable to modify its marketing policy, because of national
emergency, crop failure, or other major change in economic conditions,
it shall hold a meeting for that purpose, and file a report thereof
with the Secretary within 5 days (exclusive of Saturdays, Sundays, and
holidays) after the holding of such meeting, which report shall show
the Board's recommended modification and the basis therefor.
(g) Reserve tonnage to sell as free tonnage. In addition, the Board
shall make available tonnage equivalent to an additional 10 percent, if
available, of the average sales of the prior 3 years for market
expansion. Handlers can determine if they need the additional tonnage
and inform the Board so that reserve cherries may be released to them.
Handlers not desiring the additional tonnage would not have it released
to them.
(h) Publicity. The Board shall promptly give reasonable publicity
to growers and handlers of each meeting to consider a marketing policy
or any modification thereof, and each such meeting shall be open to
them and to the public. Similar publicity shall be given to growers and
handlers of each marketing policy report or modification thereof, filed
with the Secretary and of the Secretary's action thereon. Copies of all
marketing policy reports shall be maintained in the office of the
Board, where they shall be made available for examination. The Board
shall notify handlers, and give reasonable publicity to growers, of its
computation of the optimum supply, preliminary percentages, and interim
percentages and shall notify handlers of the Secretary's action on
final percentages by registered or certified mail.
(i) Restricted Percentages. Restricted percentage requirements
established under paragraphs (b), (c) or (d) of this section may be
fulfilled by handlers by either establishing an inventory reserve in
accordance with Sec. 930.55 or Sec. 930.57 or by diversion of product
in accordance with Sec. 930.59. In years where required, the Board
shall establish a maximum percentage of the restricted quantity which
may be established as a primary inventory reserve such that the total
primary inventory reserve does not exceed 50 million pounds. Handlers
will be permitted to divert (at plant or with grower-diversion
certificates) as much of the restricted percentage requirement as they
deem appropriate, but may not establish a primary inventory reserve in
excess of the percentage established by the Board for restricted
cherries. In the event handlers wish to establish inventory reserve in
excess of this amount, they may do so, in which case it will be
classified as a secondary inventory reserve and will be regulated
accordingly.
(j) Inventory Reserve Release. In years when inventory reserve
cherries are available and when the expected availability of cherries
from the current crop plus expected carryin inventory does not fulfill
the optimum supply, the Board shall release not later than November 1st
of the current crop year such volume from the inventory reserve as will
satisfy the optimum supply.
(k) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
[[Page 49949]]
Sec. 930.51 Issuance of volume regulations.
(a) Whenever the Secretary finds, from the recommendation and
supporting information supplied by the Board, that to designate final
free market tonnage and restricted percentages for any cherries
acquired by handlers during the crop year will tend to effectuate the
declared policy of the Act, the Secretary shall designate such
percentages. Such regulation designating such percentage shall fix the
free market tonnage and restricted percentages, totaling 100 percent,
which shall be applied in accordance with this section, Sec. 930.55,
Sec. 930.57 and Sec. 930.59 to cherries grown in regulated districts,
as determined under Sec. 930.52, and handled during such fiscal period.
(b) The Board shall be informed immediately of any such regulation
issued by the Secretary, and the Board shall promptly give notice
thereof to handlers.
(c) That portion of a handler's cherries that are restricted
percentage cherries is the product of the restricted percentage imposed
under paragraph (a) of this section multiplied by the tonnage of
cherries, originating in a regulated district, handled, including those
diverted according to Sec. 930.59, by that handler in that fiscal year.
Therefore, while diverted cherries, including those represented by
grower diversion certificates, may be exempt from assessment under
Sec. 930.41, they must be counted when computing restricted percentage
requirements.
(d) The Board, with the approval of the Secretary, shall develop
rules and regulations which shall provide guidelines for handlers in
complying with any restricted tonnage requirements, including, but not
limited to, a grace period of at least 30 days to segregate and
appropriately document any tonnage they wish to place in the inventory
reserve and to assemble any applicable diversion certificates.
Sec. 930.52 Establishment of districts subject to volume regulations.
(a) Upon adoption of this part, the districts in which handlers
shall be subject to any volume regulations implemented in accordance
with this part shall be those districts in which the average annual
production of cherries over the prior three years has exceeded 15
million pounds. Handlers in districts not meeting the 15 million pound
requirement at the time of order promulgation shall become subject to
volume regulation implemented in accordance with this part in the crop
year that follows any three-year period in which the 15 million pound
average production requirement is exceeded in that district.
(b) Handlers in districts which are not subject to volume
regulation would only be so regulated to the extent that they handled
cherries which were grown in a district subject to regulation as
specified in paragraph (a) of this section. In such a case, the handler
must place in inventory reserve pursuant to Sec. 930.55 or Sec. 930.57
or divert pursuant to Sec. 930.59 the required restricted percentage of
the crop originating in the regulated district.
(c) Handlers in districts not meeting the production requirement
described in paragraph (a) of this section in a given year would not be
subject to volume regulation in the next crop year.
(d) Any district producing a crop which is less than 50 percent of
the average annual processed production in that district in the
previous five years would be exempt from any volume regulation if, in
that year, a restricted percentage is established.
(e) The Board, with the approval of the Secretary, may establish
rules and regulations necessary and incidental to the administration of
this section.
Sec. 930.53 Modification, suspension, or termination of regulations.
(a) In the event the Board at any time finds that, by reason of
changed conditions, any regulations issued pursuant to Secs. 930.44 or
930.51 should be modified, suspended, or terminated, it shall so
recommend to the Secretary.
(b) Whenever the Secretary finds, from the recommendations and
information submitted by the Board or from other available information,
that a regulation issued pursuant to Secs. 930.44 or 930.51 should be
modified, suspended or terminated with respect to any or all shipments
of cherries in order to effectuate the declared policy of the Act, the
Secretary shall modify, suspend, or terminate such regulation.
Sec. 930.54 Prohibition on the use or disposition of inventory
reserve cherries.
(a) Release of primary and secondary inventory reserve cherries.
Except as provided in Sec. 930.50 and paragraph (b) of this section,
cherries that are placed in inventory reserve pursuant to the
requirements of Sec. 930.50, Sec. 930.51, Sec. 930.55, or Sec. 930.57
shall not be used or disposed of by any handler or any other person:
Provided, That if the Board determines that the total available
supplies for use in normal commercial outlets do not at least equal the
amount, as estimated by the Board, needed to meet the demand in such
outlets, the Board shall recommend to the Secretary and provide such
justification that, during such period as may be recommended by the
Board and approved by the Secretary, a portion or all of the primary
and/or secondary inventory reserve cherries shall be released for such
use.
(b) Reserved.
Sec. 930.55 Primary inventory reserves.
(a) Whenever the Secretary has fixed the free market tonnage and
restricted percentages for any fiscal period, as provided for in
Sec. 930.51(a), each handler in a regulated district shall place in his
or her primary inventory reserve for such period, at such time, and in
such manner, as the Board may prescribe, or otherwise divert, according
to Sec. 930.59, a portion of the cherries acquired during such period.
(b) The form of the cherries, frozen, canned in any form, dried, or
concentrated juice, placed in the primary inventory reserve is at the
option of the handler. Except as may be limited by Sec. 930.50(i) or as
may be permitted pursuant to Sec. 930.59 and Sec. 930.62, such
inventory reserve portion shall be equal to the sum of the products
obtained by multiplying the weight or volume of the cherries in each
lot of cherries acquired during the fiscal period by the then effective
restricted percentage fixed by the Secretary: Provided, That in
converting cherries in each lot to the form chosen by the handler, the
inventory reserve obligations shall be adjusted in accordance with
uniform rules adopted by the Board in terms of raw fruit equivalent.
(c) Inventory reserve cherries shall meet such standards of grade,
quality, or condition as the Board, with the approval of the Secretary,
may establish. All such cherries shall be inspected by USDA. A
certificate of such inspection shall be issued which shall show, among
other things, the name and address of the handler, the number and type
of containers in the lot, the grade of the product, the location where
the lot is stored, identification marks (can codes or lot stamp), and a
certification that the cherries meet the prescribed standards. Promptly
after inspection and certification, each such handler shall submit, or
cause to be submitted, to the Board, at the place designated by the
Board, a copy of the certificate of inspection issued with respect to
such cherries.
(d) Handlers shall be compensated for inspection costs incurred on
cherries placed in the primary inventory reserve. All reporting of
cherries placed in, rotated in and out, or released from an inventory
reserve shall be in accordance with rules and procedures established
[[Page 49950]]
by the Board, with the approval of the Secretary. The Board could, with
the approval of the Secretary, also limit the number of inspections of
reserve cherries being rotated into inventory reserves for which the
Board would be financially liable.
(e) Except as provided in Sec. 930.54, handlers may not sell
inventory reserve cherries prior to their official release by the
Board. Handlers may rotate cherries in their inventory reserves with
prior notification to the Board. All cherries rotated into the
inventory reserve must meet the applicable inspection requirements.
Sec. 930.56 Off-premise inventory reserve.
Any handler may, upon notification to the Board, arrange to hold
inventory reserve, of his or her own production or which was purchased,
on the premises of another handler or in an approved commercial storage
facility in the same manner as though the inventory reserve were on the
handler's own premises.
Sec. 930.57 Secondary inventory reserve.
(a) In the event the inventory reserve established under
Sec. 930.55 of this part is at its maximum volume, and the Board has
announced, in accordance with Sec. 930.50, that volume regulation will
be necessary to maintain an orderly supply of quality cherries for the
market, handlers in a regulated district may elect to place in a
secondary inventory reserve all or a portion of the cherries the volume
regulation would otherwise require them to divert in accordance with
Sec. 930.59.
(b) Should any handler in a regulated district exercise his or her
right to establish a secondary inventory reserve under paragraph (a) of
this section, all costs of maintaining that reserve, as well as
inspection costs, will be the responsibility of the individual handler.
(c) The secondary inventory reserve shall be established in
accordance with Secs. 930.55 (b) and (c) and such other rules and
regulations which the Board, with the approval of the Secretary, may
establish.
(d) The Board shall retain control over the release of any cherries
from the secondary inventory reserve. No cherries may be released from
the secondary reserve until all cherries in any primary inventory
reserve established under Sec. 930.55 have been released. Any release
of the secondary inventory reserve shall be in accordance with the
annual marketing policy and with Sec. 930.54.
Sec. 930.58 Grower diversion privilege.
(a) In general. Any grower may voluntarily elect to divert, in
accordance with the provisions of this section, all or a portion of the
cherries which otherwise, upon delivery to a handler, would become
restricted percentage cherries. Upon such diversion and compliance with
the provisions of this section, the Board shall issue to the diverting
grower a grower diversion certificate which such grower may deliver to
a handler, as though there were actual harvested cherries.
(b) Eligible diversion. Grower diversion certificates shall be
issued to growers only if the cherries are diverted in accordance with
the following terms and conditions or such other terms and conditions
that the Board, with the approval of the Secretary, may establish.
Diversion may take such of the following forms which the Board, with
the approval of the Secretary, may designate: uses exempt under
Sec. 930.62; nonhuman food uses; or other uses, including diversion by
leaving such cherries unharvested.
(c) Application/mapping. The Board, with the approval of the
Secretary, shall develop rules and regulations providing for the
diversion of cherries by growers. Such regulations may include, among
other things:
(1) The form and content of applications and agreements relating to
the diversion, including provisions for supervision and compensation;
and
(2) Provisions for mapping areas in which cherries will be left
unharvested.
(d) Diversion certificate. If the Board approves the application it
shall so notify the applicant and conduct such supervision of the
applicant's diversion of cherries as may be necessary to assure that
the cherries have been diverted. After the diversion has been
accomplished, the Board shall issue to the diverting grower a diversion
certificate stating the weight of cherries diverted. Where diversion is
carried out by leaving the cherries unharvested, the Board shall
estimate the weight of cherries diverted on the basis of such uniform
rule prescribed in rules and regulations as the Board, with the
approval of the Secretary, may recommend to implement this section.
Sec. 930.59 Handler diversion privilege.
(a) In general. Handlers handling cherries harvested in a regulated
district may fulfill any restricted percentage requirement in full or
in part by voluntarily diverting cherries or cherry products in a
program approved by the Board, rather than placing cherries in an
inventory reserve. Upon such diversion and compliance with the
provisions of this section, the Board shall issue to the diverting
handler a handler diversion certificate which shall satisfy any
restricted percentage or diversion requirement to the extent of the
Board or Department inspected weight of the cherries diverted.
(b) Eligible diversion. Handler diversion certificates shall be
issued to handlers only if the cherries are diverted in accordance with
the following terms and conditions or such other terms and conditions
that the Board, with the approval of the Secretary, may establish. Such
diversion may take place in any of the following forms which the Board,
with the approval of the Secretary, may designate: uses exempt under
Sec. 930.62; contribution to a Board approved food bank or other
approved charitable organization; acquisition of grower diversion
certificates that have been issued in accordance with Sec. 930.58; or
other uses, including diversion by destruction of the cherries at the
handler's facilities: Provided, That diversion may not be accomplished
by converting cherries into juice or juice concentrate.
(c) Notification. The handler electing to divert cherries through
means specified in this section or other approved means (not including
uses exempt under Sec. 930.62), shall first notify the Board of such
election. Such notification shall describe in detail the manner in
which the handler proposes to divert cherries including, if the
diversion is to be by means of destruction of the cherries, a detailed
description of the means of destruction and ultimate disposition of the
cherries. It shall also contain an agreement that the proposed
diversion is to be carried out under the supervision of the Board and
that the cost of such supervision is to be paid by the handler. Uniform
fees for such supervision shall be established by the Board, pursuant
to rules and regulations approved by the Secretary.
(d) Application. The handler electing to divert cherries by
utilizing an exemption under Sec. 930.62 shall first apply to the Board
for approval of such diversion; no diversion should take place prior to
such approval. Such application shall describe in detail the uses to
which the diverted cherries will be put. It shall also contain an
agreement that the proposed diversion is to be carried out under the
supervision of the Board and that the cost of such supervision is to be
paid by the applicant. The Board shall notify the applicant of the
Board's approval or disapproval of the submitted application.
(e) Diversion certificate. The Board shall conduct such supervision
of the handler's diversion of cherries under paragraph (c) or under
paragraph (d) of
[[Page 49951]]
this section as may be necessary to assure that the cherries are
diverted. After the diversion has been accomplished, the Board shall
issue to the diverting handler a handler diversion certificate
indicating the weight of cherries which may be used to offset any
restricted percentage requirement.
Sec. 930.60 Equity holders.
(a) Inventory reserve ownership. The inventory reserve shall be the
sole responsibility of the handlers who place products into the
inventory reserve. A handler's equity in the primary inventory reserve
may be transferred to another person upon notification to the Board.
(b) Agreements with growers. Individual handlers are encouraged to
have written agreements with growers who deliver their cherries to the
handler as to how any restricted percentage cherries delivered to the
handler will be handled and what share, if any, the grower will have in
the eventual sale of any inventory reserve cherries.
(c) Rulemaking authority. The Board, with the approval of the
Secretary, may adopt rules and regulations necessary and incidental to
the administration of this section.
930.61 Handler compensation.
Each handler handling cherries from a regulated district that is
subject to volume regulations shall be compensated by the Board for
inspection relating to the primary inventory reserve as the Board may
deem to be appropriate. The Board, with the approval of the Secretary,
may establish such rules and regulations as are necessary and
incidental to the administration of this section.
Sec. 930.62 Exemptions.
The Board, with the approval of the Secretary, may exempt from the
provisions of Sec. 930.41, Sec. 940.44, Sec. 930.51, Sec. 930.53, and
Sec. 930.55 through Sec. 930.57 cherries: Diverted in accordance with
Sec. 930.59; used for new product and new market development; used for
experimental purposes or for any other use designated by the Board,
including cherries processed into products for markets for which less
than 5 percent of the preceding 5-year average production of cherries
were utilized. The Board, with the approval of the Secretary, shall
prescribe such rules, regulations, and safeguards as it may deem
necessary to ensure that cherries handled under the provisions of this
section are handled only as authorized.
Sec. 930.63 Deferment of restricted obligation.
(a) Bonding. The Board, with the approval of the Secretary, may
require handlers to secure bonds on deferred inventory reserve tonnage.
Handlers may, in order to comply with the requirements of Secs. 930.50
and 930.51 and regulations issued thereunder, secure bonds on
restricted percentage cherries to temporarily defer the date that
inventory reserve cherries must be held to any date requested by the
handler. This date shall be not later than 60 days prior to the end of
that crop year. Such deferment shall be conditioned upon the voluntary
execution and delivery by the handler to the Board of a written
undertaking within thirty (30) days after the Secretary announces the
final restricted percentage under Sec. 930.51. Such written undertaking
shall be secured by a bond or bonds with a surety or sureties
acceptable to the Board that on or prior to the acceptable deferred
date the handler will have fully satisfied the restricted percentage
amount required by Sec. 930.51.
(b) Rulemaking authority. The Board, with the approval of the
Secretary, may adopt rules and regulations necessary and incidental to
the administration of this section.
Reports and Records
Sec. 930.70 Reports.
(a) Weekly production, monthly sales, and inventory data. Each
handler shall, upon request of the Board, file promptly with the Board,
reports showing weekly production data; monthly sales and inventory
data; and such other information, including the volume of any cherries
placed in or released from a primary or secondary inventory reserve or
diverted, as the Board shall specify with respect to any cherries
handled by the handler. Such information may be provided to the Board
members in summary or aggregated form only without any reference to the
individual sources of the information.
(b) Other reports. Upon the request of the Board, with the approval
of the Secretary, each handler shall furnish to the Board such other
information with respect to the cherries acquired, handled, stored and
disposed of by such handler as may be necessary to enable the Board to
exercise its powers and perform its duties under this part.
(c) Protection of proprietary information. Under no circumstances
shall any information or reports be made available to the Board
members, or to any person designated by the Board or by the Secretary,
which will reveal the proprietary information of an individual handler.
Sec. 930.71 Records.
Each handler shall maintain such records of all cherries acquired,
handled, stored or sold, or otherwise disposed of as will substantiate
the required reports and as may be prescribed by the Board. All such
records shall be maintained for not less than two years after the
termination of the fiscal year in which the transactions occurred or
for such lesser period as the Board may direct with the approval of the
Secretary.
Sec. 930.72 Verification of reports and records.
For the purpose of assuring compliance and checking and verifying
the reports filed by handlers, the Secretary and the Board, through its
duly authorized agents, shall have access to any premises where
applicable records are maintained, where cherries are received, stored,
or handled, and, at any time during reasonable business hours, shall be
permitted to inspect such handlers premises and any and all records of
such handlers with respect to matters within the purview of this part.
Sec. 930.73 Confidential information.
All reports and records furnished or submitted by handlers to the
Board and its authorized agents which include data or information
constituting a trade secret or disclosing trade position, financial
condition, or business operations of the particular handler from whom
received, shall be received by and at all times kept in the custody and
under the control of one or more employees of the Board or its agent,
who shall disclose such information to no person other than the
Secretary.
Miscellaneous Provisions
Sec. 930.80 Compliance.
Except as provided in this part, no person may handle cherries, the
handling of which has been prohibited by the Secretary under this part,
and no person shall handle cherries except in conformity with the
provisions of this part and the regulations issued hereunder. No person
may handle any cherries for which a diversion certificate has been
issued other than as provided in Sec. 930.58(b) and Sec. 930.59(b).
Sec. 930.81 Right of the Secretary.
Members of the Board (including successors and alternates), and any
agents, employees, or representatives thereof, shall be subject to
removal or suspension by the Secretary at any time.
[[Page 49952]]
Each regulation, decision, determination, or other act of the Board
shall be subject to the Secretary's disapproval at any time. Upon such
disapproval, the disapproved action of the Board shall be deemed null
and void, except as to acts done in reliance thereon or in accordance
therewith prior to such disapproval by the Secretary.
Sec. 930.82 Effective time.
The provisions of this part, and of any amendment thereto, shall
become effective at such time as the Secretary may declare, and shall
continue in force until terminated, or suspended.
Sec. 930.83 Termination.
(a) The Secretary may, at any time, terminate any or all of the
provisions of this part by giving at least 1 day's notice by means of a
press notice or in any other manner in which the Secretary may
determine.
(b) The Secretary shall terminate or suspend the operation of any
or all of the provisions of this part whenever the Secretary finds that
such provisions do not tend to effectuate the declared policy of the
Act.
(c) The Secretary shall terminate the provisions of this part
whenever the Secretary finds by referendum or otherwise that such
termination is favored by a majority of the growers and processors:
Provided, That such majority has, during the current fiscal year,
produced or canned and frozen more than 50 percent of the volume of the
cherries which were produced or processed within the production area.
Such termination shall become effective on the last day of June
subsequent to the announcement thereof by the Secretary.
(d) The Secretary shall conduct a referendum within the month of
March of every sixth year after the effective date of this part to
ascertain whether continuation of this part is favored by the growers
and processors. The Secretary may terminate the provisions of this part
at the end of any fiscal period in which the Secretary has found that
continuance is not favored by a majority of growers and processors who,
during a representative period determined by the Secretary, have been
engaged in the production or processing of tart cherries in the
production area. Such termination shall be announced on or before the
end of the fiscal period.
(e) The provisions of this part shall, in any event, terminate
whenever the provisions of the Act authorizing them cease to be in
effect.
Sec. 930.84 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the then
functioning members of the Board shall, for the purpose of liquidating
the affairs of the Board, continue as trustees of all the funds and
property then in its possession, or under its control, including claims
for any funds unpaid or property not delivered at the time of such
termination.
(b) The said trustees shall:
(1) continue in such capacity until discharged by the Secretary;
(2) 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 person as the Secretary may
direct; and
(3) upon the request of the Secretary, execute such assignments or
other instruments necessary or appropriate to vest in such person full
title and right to all of the funds, property, and claims vested in the
Board or in the trustees pursuant to this part.
(c) Any person to whom funds, property, and claims have been
transferred or delivered, pursuant to this section, shall be subject to
the same obligations imposed upon the Board and upon the trustees.
Sec. 930.85 Effect of termination or amendment.
Unless otherwise expressly provided by the Secretary, the
termination of this part or of any regulation issued pursuant to this
part, or the issuance of any amendment to either thereof, shall not:
(a) Affect or waive any right, duty, obligation, or liability which
shall have risen or which may thereafter arise in connection with any
provision of this part or any regulation issued thereunder;
(b) Release or extinguish any violation of this part or any
regulation issued thereunder;
(c) Affect or impair any rights or remedies of the Secretary or any
other person with respect to any such violation.
Sec. 930.86 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person
by virtue of this part shall cease upon its termination, except with
respect to acts done under and during the existence of this part.
Sec. 930.87 Agents.
The Secretary may, by designation in writing, name any officer or
employee of the United States, or name any agency or division in the
U.S. Department of Agriculture, to act as the Secretary's agent or
representative in connection with any provisions of this part.
Sec. 930.88 Derogation.
Nothing contained in this part is, or shall be construed to be, in
derogation or in modification of the rights of the Secretary or of the
United States to exercise any powers granted by the Act or otherwise,
or, in accordance with such powers, to act in the premises whenever
such action is deemed advisable.
Sec. 930.89 Personal liability.
No member or alternate member of the Board and no employee or agent
of the Board shall be held personally responsible, either individually
or jointly with others, in any way whatsoever, to any person for errors
in judgment, mistakes, or other acts, either of commission or omission,
as such member, alternate member, employee, or agent, except for acts
of dishonesty, willful misconduct, or gross negligence.
Sec. 930.90 Separability.
If any provision of this part is declared invalid or the
applicability thereof to any person, circumstance, or thing is held
invalid, the validity of the remainder of this part or the
applicability thereof to any other person, circumstance, or thing shall
not be affected thereby.
Sec. 930.91 Amendments.
Amendments to this subpart may be proposed, from time to time, by
the Board or by the Secretary.
Dated: September 19, 1996.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 96-24505 Filed 9-23-96; 8:45 am]
BILLING CODE 3410-02-P