DAR File No. 40367

Agriculture and Food, Marketing and Development

Rule R65-2

Utah Cherry Marketing Order

Notice of Proposed Rule

(Repeal)

DAR File No.: 40367
Filed: 04/29/2016 09:33:03 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The rule establishes a marketing order for sweet cherries. The industry has shrunk in Utah to no longer sustain a marketing order or board. As such, the remaining producers are now working with a national association to support their efforts and the local marketing order has become defunct.

Summary of the rule or change:

The proposed change is a complete repeal of the rule. There will no longer be a Marketing Order for Sweet Cherries when the rule takes effect.

State statutory or constitutional authorization for this rule:

• Subsection 4-2-2(1)(e)

Anticipated cost or savings to:

the state budget:

The repeal of this rule will disband the Sweet Cherry Marketing Board. As a result, the state will save on travel and per diem costs for the five-member board.

local governments:

Local governments have no role in the administration or enforcement of this rule. Local governments will not be affected by the repeal of this rule.

small businesses:

Cherry producers will no longer be obligated to pay $25 per ton for fresh cherries and $2 per ton for brine and frozen cherries.

persons other than small businesses, businesses, or local governmental entities:

Cherry producers will no longer be obligated to pay $25 per ton for fresh cherries and $2 per ton for brine and frozen cherries.

Compliance costs for affected persons:

This is a repeal of the rule. There will be no cost to the producers as they will no longer be bound by the marketing order. The repeal of this rule will actually lead to a savings for the small businesses, businesses, and the state.

Comments by the department head on the fiscal impact the rule may have on businesses:

The repeal of this rule does away with the Utah Cherry Marketing Order.

LuAnn Adams, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Agriculture and Food
Marketing and Development
350 N REDWOOD RD
SALT LAKE CITY, UT 84116-3034

Direct questions regarding this rule to:

• Kathleen Mathews at the above address, by phone at 801-538-7103, by FAX at 801-538-7126, or by Internet E-mail at kmathews@utah.gov
• Scott Ericson at the above address, by phone at 801-538-7102, by FAX at 801-538-7126, or by Internet E-mail at sericson@utah.gov
• Wayne Bradshaw at the above address, by phone at 801-538-7108, by FAX at , or by Internet E-mail at waynebradshaw@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/14/2016

This rule may become effective on:

06/21/2016

Authorized by:

LuAnn Adams, Commissioner

R65. Agriculture and Food, Marketing and Development.

[R65-2. Utah Cherry Marketing Order.

R65-2-1. Authority.

Promulgated under authority of Section 4-2-2(1)(e).

 

R65-2-2. Definitions of Terms.

A. "Commissioner" means the Commissioner of Agriculture and Food of the State of Utah.

B. "Person" means an individual, partnership, corporation, association, legal representative, or any organized group of individuals.

C. "Cherries" mean sweet cherries produced for the fresh, brine, and frozen markets.

D. "Producer" means any person in this State in the business of producing or causing to be produced cherries for the fresh, brine, or frozen markets, with at least one acre of trees in production, provided such producers shall not include producers who sell all the commodity direct to the consumer.

E. "Registered" producer means a producer who has indicated that he/she wants to be included in the marketing order voting process by registering to vote in the referendum. Registration forms may be mailed out with the ballots.

F. "Known" producer means a producer of a specific commodity who has been identified by the commodity group, her/himself, or a third party as being eligible to register to vote in a referendum affecting that specific commodity.

 

R65-2-3. Board.

A. A Board of Control is hereby established consisting of seven members, two of whom shall be handlers to carry out the provisions of the order.

B. The original members of the Board of Control shall be selected by the Commissioner from a list of names submitted by the industry.

C. Successors to original members may be appointed by the Commissioner from names submitted by the industry. Three grower members and one handler member shall be appointed for a term of four year in February of 1980. Two grower members and one handler member shall be appointed for four years in February of 1982.

D. No member of such Board shall receive a salary but each shall be entitled to his actual expenses incurred while engaged in performing his duties herein authorized in accordance with Sections 63A-3-106 and 63A-3-107.

E. The duties of the Board shall be administrative only and may include only the acts mentioned in this Marketing Order.

F. All decisions of the Board of Control shall be by majority vote.

G. No member of the Board, nor any employee of the Board, shall be deemed responsible individually in any way whatsoever to any producer, distributor, handler, processor, or any other person, for errors of judgment, mistakes, or other acts, either of commission or omission of principal, agent, person, or employee, except for his own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of the Board. The liability of the members of such Board shall be several and not joint, and no member shall be liable for the default of any other member.

 

R65-2-4. Provisions of the Order.

A. This order provides for:

1. Uniform grading of cherries for fresh, frozen, or brine markets, sold or offered for sale by producers or handlers. Such grading standards shall not be established below any minimum standards now prescribed by law for this state.

2. Advertising and sales promotion to create new or larger markets for cherries grown in Utah, provided that any such plan shall be directed towards increasing the sale of such commodity without any reference to a particular brand or trade name. Provided further, that no advertising or sales promotion program shall be authorized which shall make use of false or unwarranted claims in behalf of the product covered by this Order, or disparage the quality, value, sale or use of any other agricultural commodity to supply the market demands of consumers of such commodity.

3. Labeling, marking, or branding of cherries which does not conflict with any rules of the Commissioner or laws of the State of Utah.

4. The Board of Control to cooperate with any other state or federal agency whose activities may be deemed beneficial to the purposes of this Order.

B. Expenses - Assessments - Collections and Disbursement.

1. Each producer subject to this Order shall pay to the Board his or her pro rata share of such expenses as the Commissioner may find necessary to be incurred by the Board for the functioning of said Marketing Order. This assessment levied in the specified amount shall constitute a personal debt of every person so assessed and shall be due and payable when payment is called for thereby. The pro rata share of the expenses payable by a cooperative association of producers shall be computed on the basis of the quantity of the product covered by the Order which is distributed, sold, or shipped in commerce by such cooperative association of producers. The Board may maintain in its own name, or in the name of its members, a suit against any producer, subject to this Order, for the collection of such producer's pro rata share of expenses.

2. This assessment shall be set at $2 per ton for brine and frozen cherries and up to $25 per ton for fresh cherries. The discretionary assessment shall be set by the majority vote of the board, and approved by the Commissioner. The assessment is effective June 1, 1984.

3. The assessment of each producer shall be deducted from the producer's gross receipt of sweet cherries by the dealer or producer-handler. All proceeds from the deducted portion shall be paid annually to the Commission upon request of the Board.

4. The Board shall retain records of the receipt of the assessment which will be available for public inspection upon request.

5. The Board of Control is required to reimburse the Commissioner for any funds as are expended by the Commissioner in performing his duties, as provided in this Order. Such reimbursement to include only funds actually expended in connection with this Order.

6. The Board is authorized to incur such expenses as are necessary to carry out its functions subject to the approval of the Commissioner. The Board shall receive and disburse all funds received by it pursuant to Section R65-2-5. Any funds remaining at the end of any year over and above the necessary expenses of said Board of Control may be divided among all persons from whom such funds were collected, or, at the discretion of the Board, such amounts may be applied to the necessary expenses of the Board for the continuation of its program during the next succeeding year, and in such case the Board shall credit all persons from whom such funds were collected with their proper proportions thereof.

7. The Board shall retain records of the receipt of the assessment. These records shall be audited annually by an auditor approved by the Commissioner. Copies of the audit shall be available to any contributor upon request.

 

R65-2-5. Division of Funds.

Assessment made and monies collected under provisions of this order shall be divided into assessments and funds for

A. administrative purposes,

B. advertising purposes, and

C. research purposes. Such assessments and funds shall be used solely for the purposes for which they are collected; provided, that no funds be used for political or lobbying activities.

 

R65-2-6. Refund.

Any producer who wishes a refund of their assessments may receive such by notifying the Board in writing of their request by December 31 for cherries harvested in that harvest year.

 

R65-2-7. Complaints for Violation - Procedure.

Complaints for violation shall be handled by the responsible legal agencies and shall be enforced in the civil courts of the State.

 

R65-2-8. Termination of Order.

The Commissioner may terminate the Marketing Order at such time as he may determine there is no longer an industry need for such order. This order shall be reviewed or amended at least every five years by the industry, Subsection 4-2-2(3)(a). Once a year, a referendum vote may be called at the request of the producers through a petition of ten percent of the producers.

 

KEY: promotions

Date of Enactment or Last Substantive Amendment: May 1, 1996

Notice of Continuation: July 12, 2012

Authorizing, and Implemented or Interpreted Law: 4-2-2(1)(e)]