[Federal Register Volume 68, Number 7 (Friday, January 10, 2003)]
[Rules and Regulations]
[Pages 1364-1366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-453]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1208

[FV-02-710]


Fresh Cut Flowers and Fresh Cut Greens Promotion and Information 
Order; Termination

AGENCY: Agricultural Marketing Service, (USDA).

ACTION: Final rule; termination order.

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SUMMARY: This final rule terminates the Fresh Cut Flowers and Fresh Cut 
Greens Promotion and Information Order (Order) and its rules and 
regulations in their entirety. This action is necessary because the 
Order has not been in operation since 1997, and collection efforts 
under the Order have been exhausted. Therefore, there is no need to 
continue the program.

EFFECTIVE DATE: February 10, 2002.

FOR FURTHER INFORMATION CONTACT: Margaret B. Irby, Research and 
Promotion Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW., Stop 0244, Room 2535-S, Washington, DC 20250-
0244, telephone (202) 720-9915, fax (202) 205-2800, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION: This final rule is issued under the Fresh 
Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993 
[7 U.S.C. 6801-6814] (Act).
    The U.S. Department of Agriculture (USDA or the Department) is 
issuing this rule in conformance with Executive Order 12866.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final rule is not intended to have 
retroactive effect. This final rule will not preempt any state or local 
laws, regulations, or policies, unless they present an irreconcilable 
conflict with this termination order. The Act provides that 
administrative proceedings must be exhausted before parties may file 
suit in court.
    This final rule terminates the Order and its rules and regulations.
    The Act authorizes the creation of a generic program of promotion 
and information for fresh cut flowers and greens and became effective 
on December 14, 1993. The Order was issued on December 29, 1994, and 
the National PromoFlor Council (Council) was appointed to administer 
the Order under USDA supervision. The Order covered approximately 650 
wholesale handlers (qualified first handlers) of

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fresh cut flowers and greens with sales of $750,000 or more annually. 
In accordance with paragraph (h)(4) of Sec.  6804 of the Act and 
paragraph (e) of Sec.  1208.41 of the Order, the Council retained 10 
percent of the assessment funds collected in an interest-bearing escrow 
account.
    Paragraph (a)(1) of Sec.  6806 of the Act requires USDA to conduct 
a referendum not later than three years after the issuance of the Order 
to ascertain whether the Order should be continued. Paragraph (a)(2) of 
that section requires that the Order be approved by a simple majority 
of all votes cast in the referendum in order to continue. The 
referendum was conducted from June 2 through 20, 1997.
    In the referendum, only 42 percent of the voters voted to continue 
the program. Paragraph (d) of Sec.  6806 of the Act and Sec.  1208.60 
of the Order, provide that, if the Department determines that 
termination of the Order is favored by a majority of all votes cast in 
the referendum, the Department shall terminate the collection of 
assessments under the Order not later than 180 days after the 
referendum results are announced. Therefore, the Department published a 
termination order in the Federal Register on July 28, 1997 [62 FR 
40255], stating that termination of the Order was favored by a majority 
of the qualified handlers voting in the referendum and that the Order 
should therefore be terminated. The termination order eliminated the 
requirement for handlers to pay assessments as of July 29, 1997. The 
Act requires the Department to terminate activities under the Order as 
soon as practicable and in an orderly manner. The other provisions of 
the Order remained in effect in order to facilitate the collection of 
past-due assessments from 14 handlers.
    In addition, in accordance with Sec.  1208.61 of the Order, the 
Department appointed five members of the Council to serve as trustees 
for the purpose of liquidating the assets of the Council.
    Paragraph (h)(4) of Sec.  6804 of the Act provides that refunds of 
assessments shall be made out of the escrow account to those qualified 
handlers who apply for refunds prior to the conduct of the referendum 
and submitted satisfactory proof that they paid the assessment for 
which a refund is requested. If the amount in the escrow account is not 
sufficient to refund the total amount of assessments demanded, the 
amount of all such refunds shall be prorated among all eligible 
qualified handlers that demand the refunds. Section 1208.61 of the 
Order provides that refunds are to be made within 30 days of the date 
the results of the referendum are released by the Department. Due to 
the number of refund requests, handlers received refunds of about 12 
cents for each dollar in assessments paid to the Council. After the 
refunds were made and the Council's assets were liquidated, a final 
audit of the Council's books was conducted.
    As of July 29, 1997, 14 handlers owed a total of $433,483.50 in 
past-due assessments. To date, USDA has collected $283,130.00 in past-
due assessments, $38,932.98 in late fees, and $4,500.00 in civil 
penalties from these handlers pursuant to final decisions by the 
Secretary of Agriculture in 14 administrative proceedings brought by 
the Agricultural Marketing Service (AMS). In accordance with 
instructions from the trustees, the past-due assessments and late fees 
were distributed to three floral industry groups. In accordance with 
the Act, the civil penalties were forwarded to the U.S. Department of 
the Treasury.
    Collection efforts have been exhausted. Therefore, this action 
terminates all provisions of the Order and its rules and regulations.

Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), AMS has considered the economic impact of this action on 
small entities. Accordingly, AMS has prepared this final regulatory 
flexibility analysis.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened. The Order is unique in 
that it was brought about through group action of essentially small 
entities acting on their own behalf. Thus, both the Act and the RFA 
have small entity orientation and compatibility.
    The Order covered approximately 650 wholesale handlers (qualified 
handlers). Small agricultural service firms have been defined by the 
Small Business Administration [13 CFR 121.601] as those having annual 
receipts of less than $5 million dollars. A majority of the qualified 
handlers may be classified as small entities.
    This final rule terminates the Order covering fresh cut flowers and 
greens. Assessment obligations were terminated on July 29, 1997. The 
program has been inoperative since that time.
    The floral industry has been operating without a promotion program 
since assessments were terminated. Reestablishing the Order would mean 
additional cost to the industry stemming from assessments to operate 
the Order (the last assessment was 0.5 percent of the gross sales price 
of the cut flowers and greens sold), reports to the Council, and 
recordkeeping. By not reinstating the Order, the industry benefits from 
avoiding these costs. Because the industry has been operating without 
the Order for five years, termination of the Order will have no 
noticeable effect on either small or large operations.
    In accordance with the Paperwork Reduction Act of 1995 [44 U.S.C. 
Chapter 35], the information collection requirements under the Order 
were approved by the Office of Management and Budget (OMB) and assigned 
OMB Nos. 0581-0096 and 0505-0001. When assessment collections were 
terminated on July 29, 1997, these information collection requirements 
were also suspended. Now that the Order is being terminated, these 
requirements are eliminated.
    USDA has not identified any relevant federal rules that duplicate, 
overlap, or conflict with this final rule.

Termination Order

    Termination of the Order was favored by a majority of the qualified 
handlers voting in a referendum conducted in 1997. The Act requires 
that, upon such a determination by referendum, the Department shall 
terminate the Order. The Order has been inoperative for five years, and 
assessment collection efforts have been exhausted. In addition, the 
assets of the Council have been liquidated, and a final audit of the 
Council's books has been conducted.
    It is therefore ordered, that pursuant to section 6806 of the Act, 
the Order, and its rules and regulations [7 CFR Part 1208] are hereby 
terminated.
    It is also found and determined upon good cause that it is 
impracticable, unnecessary, and contrary to the public interest to give 
preliminary notice or to engage in further public procedure prior to 
putting this action into effect, and that good cause exists for not 
postponing the effective date of this action until 30 days after 
publication in the Federal Register because (1) termination of the 
Order was favored by a majority of qualified handlers voting in a 
referendum in 1997; (2) the Order has been inoperative for five years 
and assessment collection efforts have been exhausted; and (3) the 
assets of the Council have been liquidated and a final audit of the 
Council's books has been conducted.

List of Subjects in 7 CFR Part 1208

    Administrative practice and procedure, Advertising, Consumer 
information, Marketing agreements, Cut flowers, Cut greens, Promotion,

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Reporting and recordkeeping requirements.

PART 1208--[REMOVED]

    For the reasons set forth in the preamble, and under the authority 
of 7 U.S.C. 6802 et seq., 7 CFR part 1208 is removed.

    Dated: January 6, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-453 Filed 1-9-03; 8:45 am]
BILLING CODE 3410-02-P