[Federal Register Volume 60, Number 8 (Thursday, January 12, 1995)]
[Rules and Regulations]
[Pages 2873-2874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-727]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
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Federal Register / Vol. 60, No. 8 / Thursday, January 12, 1995 /
Rules and Regulations
[[Page 2873]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 967
[Docket No. FV94-967-3FR]
Suspension of Marketing Order 967; Celery Grown in Florida
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Suspension order.
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SUMMARY: This rule suspends Federal Marketing Order No. 967 for celery
grown in Florida, and rules and regulations implemented thereunder,
through December 31, 1997. The suspension includes budget, assessment,
and volume control rules which were previously established for the
1994-95 marketing season. This rule is in response to a recommendation
for suspension made by the Florida Celery Committee (committee), the
agency responsible for local administration of the order. The
committee's recommendation is based on the belief that loss of market
share and a reduction in the number of producers and handlers has
diminished the need for regulating Florida celery.
EFFECTIVE DATE: January 12, 1995, through December 31, 1997.
FOR FURTHER INFORMATION CONTACT: William G. Pimental, Southeast
Marketing Field Office, P.O. Box 2276, Winter Haven, Florida 33883-
2276, telephone 813-299-4770, or Mark Slupek, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, Room 2525-S, Washington, DC 20090-6456, telephone 202-205-
2830.
SUPPLEMENTARY INFORMATION: This action is issued under Marketing
Agreement and Order No. 967, both as amended [7 CFR part 967],
regulating the handling of celery grown in Florida, hereinafter
referred to as the order. The marketing agreement and order are
effective under the Agricultural Marketing Agreement Act of 1937, as
amended [7 U.S.C. 601-674], hereinafter referred to as the Act. This
suspension action is being taken under the provisions of section
8c(16)(A) of the Act.
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This suspension order has been reviewed under Executive Order
12778, Civil Justice Reform. The order suspends Marketing Order No. 967
for celery grown in Florida, and rules and regulations implemented
thereunder, through December 31, 1997. Administrative budget,
assessment, and volume control rules which were previously established
for the 1994-95 marketing season, which began August 1, 1994, also are
suspended. This action will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this action.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and requesting a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has a principal
place of business, has jurisdiction in equity to review the Secretary's
ruling on the petition, provided a bill in equity is filed not later
than 20 days after date of the entry of the ruling.
Pursuant to the requirements set forth in the Regulatory
Flexibility Act (RFA), the Administrator of the Agricultural Marketing
Service (AMS) has considered the economic impact of this action on
small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are six handlers of Florida celery who are subject to
regulation under the marketing order and five celery producers within
the production area. Small agricultural producers have been defined by
the Small Business Administration [13 CFR 121.601] as those having
annual receipts of less than $500,000. Small agricultural service firms
are defined as those whose annual receipts are less than $5,000,000.
The majority of these Florida celery handlers and producers may be
classified as small entities.
Marketing Order No. 967 has been in effect since 1965. The order
provides for the establishment of grade, size, container and inspection
requirements, as well as volume regulation. In addition, the order
authorizes production research, marketing research, and development
projects. It also provides for reporting and recordkeeping requirements
on affected handlers. The production and marketing season runs from
early November through late June.
The committee held a teleconference on November 22, 1994, and
unanimously recommended suspension of the marketing order through
December 31, 1997. The committee's recommendation was based on the fact
that the number of growers and handlers had declined to the lowest
number in 20 years. Only five growers remain. There are six handlers.
The suspension will eliminate the continued expense of administering
the marketing order and will relieve the industry of assessments. With
the economic conditions the industry is facing, this reduction in costs
should be beneficial.
The authority to implement grade, size, container and inspection
requirements has not been used for years. The authorities that were
being utilized were the provisions for research and development and
volume regulation. However, the Committee believes that the program is
no longer effectively helping market Florida celery. [[Page 2874]]
The volume control limitations placed on the quantity of Florida
celery handled for fresh shipment have not restricted the quantity of
Florida celery actually produced or shipped to fresh markets in recent
years, because production and shipments have been less than the
marketable quantities established. Thus, regulating volume has been
inconsequential.
The committee recommended suspension, not termination, of the
marketing order to allow the industry an opportunity to recover.
Florida's share of the domestic celery market has declined, but
committee members remain optimistic that, in time, the Florida celery
industry may regain its former position. If the industry should
recover, the committee would like to maintain the option of
reactivating the Federal marketing order.
Under the suspension, the industry will be able to monitor the
status of celery production in Florida for the next three marketing
seasons. A meeting will be held prior to December 1997, to discuss the
condition of the industry. At that time, a determination will be made
to recommend reactivation, continuation of the suspension, or
termination of the order. The recommendation would require the approval
of the Secretary. If conditions improve enough to convince the industry
that the order would be effective before the conclusion of the
suspension period, a recommendation could be made to the Secretary to
remove the suspension at that time.
Therefore, based on the foregoing considerations, it is found that
Federal Marketing Order No. 967, and the rules and regulations issued
thereunder, do not tend to effectuate the declared policy of the Act.
This action suspends, through December 31, 1997, the provisions of
Federal Marketing Order No. 967 and the rules and regulations issued
thereunder, including but not limited to, the:
(1) Provisions of the order dealing with the establishment and
responsibilities of the committee and the administration of the order;
(2) Any rule or regulation, including a budget and assessment rule
[59 FR 52411, October 18, 1994] and volume control regulations [59 FR
49571, September 29, 1994] issued for the 1994-95 marketing season, and
research and development projects;
(3) Provisions of the order dealing with expenses and the
collection of assessments; and
(4) Information collection and reporting requirements (In
compliance with the Paperwork Reduction Act of 1980 (44 U.S.C. chapter
35), such requirements have been approved by the Office of Management
and Budget and assigned OMB Control No. 0581-0145).
During the suspension period, all committee members and their
alternates will serve as trustees. The trustees will be responsible for
overseeing the administrative affairs of the order. This includes
completing the committee's unfinished business, ensuring termination of
all outstanding agreements, contracts, and the payment of all
obligations. The trustees will also be responsible for safeguarding
program assets, and arranging for a financial audit to be conducted.
All such actions by the trustees during the period of suspension are
subject to the approval of the Secretary. Those designated as trustees
are: Mr. Pat Ferlise, Chairperson, Mr. Thomas L. Brown, Vice-
Chairperson, Mr. L. E. Duff, Secretary/Treasurer, Mr. Tony Woodham, Mr.
David L. Young, Mr. F. S. Duda, Mr. Charles E. Allison, Mr. Glenn R.
Rogers, Mr. W. Rex Clonts, Sr., Mr. W. Rex Clonts, Jr., Mr. Felix
Ferlise, Mr. Henry M. Daniels, Mr. Milton Ferlise, Mr. Dan Duda, Mr.
Francis J. McCarthy, Mr. Walter Duda, Mr. Bill Grindstaff. The trustees
shall continue in their capacity as long as they are eligible to serve
as provided in Sec. 967.26 of the order, and until the order is
reactivated or terminated, unless they are discharged by the Secretary.
The remainder of the reserves, after immediate expenses are paid,
will be held by the trustees to be used to cover unforeseen,
outstanding expenses obligated by the committee. Such funds could also
be used by the trustees to pay for necessary start-up costs should the
order, at the determination of the Secretary, be reactivated. When a
final determination is made regarding the order, any remaining funds
will be used or disbursed in accordance with the appropriate order
provisions.
Based on the above, the Administrator of the AMS has determined
that this action will not have a significant economic impact on a
substantial number of small entities.
It is also found and determined, upon good cause, that it is
impracticable, unnecessary, and contrary to the public interest to give
preliminary notice or to engage in further public procedure with
respect to this action because: (1) This action relieves restrictions
on handlers by suspending the requirements regulating the handling of
celery pursuant to Marketing Order No. 967; (2) handlers are aware of
this action, which was discussed and recommended at a meeting held by
the committee: and (3) no useful purpose would be served by delaying
the suspension of the marketing order.
List of Subjects in 7 CFR Part 967
Marketing Agreements, Celery, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, under the authority of 7
U.S.C. 601-674, 7 CFR Part 967, is suspended effective January 12, 1995
through December 31, 1997.
Dated: January 6, 1995.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-727 Filed 1-11-95; 8:45 am]
BILLING CODE 3410-02-P
