Referendum Order on Establishment of Pennsylvania Apple Program
[47 Pa.B. 1858]
[Saturday, April 1, 2017]
A referendum will be held for Pennsylvania apple producers to vote on whether to establish a new program pursuant to the Agricultural Commodities Marketing Act, 3 Pa.C.S. §§ 4501—4513, titled the Pennsylvania Apple Program.
The proposed Pennsylvania Apple Program Order which would establish and govern the operation of the program is published in its entirety as Appendix ''A'' to this document.
After a public hearing held on February 1, 2017 and in accordance with Section 4503 of the Agricultural Commodities Marketing Act, this office finds that the establishment of the program outlined in the attached proposed Pennsylvania Apple Program Order will tend to effectuate the purposes of the Agricultural Commodities Marketing Act.
I. Referendum Period: The referendum period shall be from April 3, 2017, until 4 p.m. on April 18, 2017. Completed ballots shall be mailed or hand-delivered to the Pennsylvania Department of Agriculture, Bureau of Market Development, Room 310, 2301 North Cameron Street, Harrisburg, Pennsylvania 17110-9408. Hand-delivered ballots must be received by 4 p.m. on April 18, 2017. Ballots that are mailed must be postmarked no later than April 18, 2017, and received no later than April 21, 2017.
II. Notice of Referendum: This referendum order and an official ballot shall be mailed no later than March 27, 2017, to all affected producers whose names appear on the list of Pennsylvania apple producers maintained in the Office of the Secretary of Agriculture. Additional copies of the same materials shall be made available at the Office of the Secretary of Agriculture.
III. Eligible Voters: The rules governing the eligibility of a producer for voting are as follows: The record date for determination of whether a producer is eligible to vote is March 27, 2017. Names of affected eligible producers shall be taken from the commodity apple list of producers maintained in the Office of the Secretary of Agriculture. An affected producer is a person who produces or grows, or causes to be produced or grown, apples in Pennsylvania for the purpose of sale and has 500 or more apple trees of all ages.
IV. Counting of Ballots: The ballots will be opened and counted by a Teller Committee appointed by the Secretary of Agriculture. The counting of the ballots will begin at 10 a.m., Monday, April 24, 2017, at the Pennsylvania Department of Agriculture, 2301 North Cameron Street, Harrisburg, Pennsylvania 17110. The Secretary will announce the results of the referendum within 30 days following the completion of the referendum period. The results will be published in the Pennsylvania Bulletin and the Harrisburg Patriot-News, and disseminated to the news media.
V. Reporting Irregularities: Any irregularities or disputes concerning the referendum procedures must be reported in written form to the Secretary of Agriculture not later than seven (7) calendar days from the end of the referendum period.
VI. Publication: This referendum order shall be published in the Pennsylvania Bulletin and the Harrisburg Patriot-News.
VII. Effective Date: The foregoing order shall be effective immediately.
RUSSELL C. REDDING,
Proposed Program Order
Pennsylvania Apple Program
Article I: Declaration
In accordance with requirements of the Agricultural Commodities Marketing Act, as amended, the Secretary of Agriculture finds that this program effectuates the purposes of said Act.
Article II: Definitions
Section A. Definitions: As used in this program, the following words and terms shall have the following meaning unless the context clearly indicates otherwise:
1. ''Act'' means the Act of March 24, 1998 (P.L. 217, No. 39) (3 Pa.C.S.A. § 4501 et seq.) known as the Agricultural Commodities Marketing Act.
2. ''Apples'' means all apples produced or grown in Pennsylvania for the purpose of sale by any producer as herein defined.
3. ''Commodity Board'' or ''Board'' consists of the Secretary plus those persons who are appointed by the Secretary from among producers whose commodities are subject to this program.
4. ''Department'' means the Department of Agriculture of the Commonwealth of Pennsylvania.
5. ''Fresh Market'' means all outlets other than processing.
6. ''Contract'' Any contract or agreement between the Commodity Board and a person for the performance of services relating to U.S. Apple Association membership obligations, research, consumer education, and administrative expense necessary for the accomplishment of those authorized activities.
7. ''Season'' means the period beginning July 1 of any year extending through June 30 of the following year.
8. ''Person'' means an individual, partnership, firm, corporation, association or any other business unit.
9. ''Processing'' means the operation of canning, dehydrating, preserving, freezing, grinding, crushing, slicing or in any way preserving or changing the form of apples, as herein defined, for marketing in any form other than as a whole apple for fresh consumption.
10. ''Producer'' means a person who produces or grows or causes to be produced or grown apples as herein defined.
11. ''Sales Agent'' A processor, a producer or a person who purchases, handles, receives, sells or contracts to sell apples originating from a producer. A producer may be a sales agent with respect to apples of his/her/its own production.
12. ''Secretary'' means the Secretary of Agriculture of the Commonwealth of Pennsylvania, or his/her designee.
Article III: Scope of Program
The area affected by this program shall be the Commonwealth of Pennsylvania. The program shall apply to all producers who have 500 or more apple trees of all ages.
Article IV: Commodity Board
Section A. Establishment and Members
The Commodity Board shall consist of seven (7) members, one of whom shall be the Secretary, or his/her designee, and shall have the primary decision making authority in the administration of this program, as provided in the Act.
Section B. Term of Office
1. The term of office of each appointed member shall be for three (3) years, beginning July 1 and ending June 30: Provided, that the terms of office of the initial appointed members of the Commodity Board shall be staggered as follows: two (2) members shall serve one (1) year terms; two (2) members shall serve two (2) year terms; and three (3) members shall serve three (3) year terms. All members appointed after those first appointed, shall serve three (3) year terms.
2. The Secretary, or his/her designee, will be a member of the Commodity Board, and the other six (6) members shall be appointed by the Secretary from among the affected producers. In making these appointments, the Secretary shall consider nominations submitted by the affected producers.
3. Successor members to fill the expired terms of members of the Commodity Board shall be appointed in the same manner as the initial members of the Commodity Board. Members shall serve in such capacities for the portion of the term of office for which they are appointed and until their respective successors are appointed and have qualified.
4. Any person appointed as a member of the Commodity Board shall be and remain a producer while a member of the Board and shall qualify by filing a written acceptance with the Secretary within fifteen (15) days of being notified.
5. To fill any vacancy occasioned by the failure of any person appointed as a member of the Commodity Board, a successor for the unexpired term of such member shall be appointed by the Secretary from among the affected producers.
6. Meetings of the Board will be held at least two (2) times a year.
Section C. Powers and Duties of the Board
The Commodity Board shall have the primary decision-making authority relative to contracts and other projects in furtherance of this program and includes the following powers and duties:
1. To determine all matters pertaining to this program.
2. To adopt written procedures for acquiring and disposing of property, and subject to these procedures, to acquire, own, use, hire, lease, operate and dispose of personal property, real property and interests in real property.
3. To make and enter into contracts and agreements, in accordance with the provisions of the law, which the Board deems necessary or incidental to the furtherance of the program or performance of duties and powers pursuant to the Act. The Board shall adopt written procurement procedures for all contracts.
4. To receive, account for and disburse all monies collected pursuant to this program, the Act and any applicable regulations.
5. To prepare a budget for the administration, operating costs and expenses of this program.
6. To receive and report to the Secretary complaints or violations of this program and to assist and cooperate with the Secretary in the enforcement thereof.
7. To establish committees or subcommittees to carry out assigned duties and functions, and to designate Board members and non-board members to serve on such committees and subcommittees.
8. To collect and gather information and data relevant to the proper administration of this program.
9. To charge fees and to assist the Secretary in the imposition of fees and the collection of fees and revenue pursuant to the Act.
10. To issue an annual report on the operation of this program.
11. To recommend amendments to this program and amendments to the Act and regulations issued pursuant thereto.
Section D. Expenses and Compensation
No member of the Board shall receive a salary, but each shall be entitled to actual expenses incurred while engaged in performing duties authorized herein. In addition, a per diem payment may be made to each Board Member or subcommittee member for each day in which a Board Member or subcommittee member is performing a duty necessary to the functions of the Board. The per diem payment shall not exceed the maximum sum allowable under the Act.
Article V: Powers and Duties of the Secretary
Subject to the provisions contained in the Act, the Secretary shall administer and enforce the provisions of the Act, and shall have and shall exercise all administrative powers necessary to effectuate the purposes of the Act, including the issuance of this program, the appointment of members to the Commodity Board and the providing of personnel, staff, legal counsel, and office facilities required for the administration and enforcement of this program.
Article VI: Purpose
This program is to provide funds to be used for, or to contract with any person, organization, or state or federal agency to, conduct, administer and execute plans and/or contracts for: (1) fulfillment of U.S. Apple membership obligations; (2) research regarding apples or apple products; (3) consumer education regarding apples or apple products; and (4) administrative activities necessary to those three authorized objectives and activities. U.S. Apple membership obligations shall be satisfied and maintained at the millage rate set for Pennsylvania by the U.S. Apple Association.
No program materials shall be approved, which shall make use of false or unwarranted claims. The Secretary and the Board may cooperate with any other state or Federal agency, or other organization whose activities may be deemed beneficial to the purpose of this Act.
Article VII: Budget, Rate of Assessment, Collection of Assessment, Disbursement of Funds
Section A. Budget and Assessment
1. A budget shall be prepared and established for each season and not later than July 1st, for the administration and enforcement of this program and for carrying out duly authorized programs and activities as herein provided.
2. The rate of assessment shall be five cents ($.05) per harvested bushel of apples sold for fresh market use and one cent ($.01) per harvested bushel of apples sold or accepted for processing. A producer may elect to pay the rate of ($.05) per harvested bushel of apples sold for all purposes.
3. A bushel shall be that amount defined as a bushel of apples by the United States Department of Agriculture, Federal Crop Insurance Corporation regulations.
4. No assessment shall be paid on apples grown and processed by a producer as an ingredient of an agricultural commodity sold by that same producer subject to another program established under the Agricultural Commodities Marketing Act.
Section B. Collection of Assessment/Charge
1. Each producer shall be responsible for payment of the proper charge upon the apples which he produces or causes to be produced, and sells or delivers for sale.
2. All producers shall make remittance and accounting of the proper charge to the Secretary or his/her designated fiscal agent. Such remittance and accounting shall be inclusive of all sales of apples through the end of the period.
3. Any delinquent producer may be assessed a penalty for late payments as established by regulation.
Section C. Disbursement of Funds
1. Disbursement of funds shall be made in the manner described in the Act and in any rules or any regulations promulgated by the Secretary to effectuate the provisions and intent thereof, and in accordance with the provisions of this program.
Article VIII: Effecting Program
This program, or any amendment thereto, shall not become effective unless and until the Secretary determines by a referendum whether the affected producers assent to the proposed action. The Secretary shall conduct the referendum among affected producers and the affected producers shall be deemed to have assented to the proposed program if, of those voting, not less than a majority by number and a majority by volume assent to the proposed program.
Article IX: Amending Program
The Secretary shall call for a referendum on amendments to the program within a reasonable period of time, upon the request of the Board or with written request of ten percent of the producers in a commodity group of over two thousand affected producers or fifteen percent of the producers in a commodity group of less than two thousand affected producers. In voting on an amendment to the program, the vote shall be only on the amendment, and shall not terminate the program.
Article X: Terminating Program
Subject to approval of the Board, the Secretary shall suspend or terminate this program or any provisions hereof whenever he finds that such provisions or program does not tend to effectuate the purpose of the Act within the standards and subject to the limitations and restrictions imposed in the Act; Provided that such termination or suspension shall not be effective until the expiration of the current season.
If the Secretary finds that the termination of the program is requested in writing, by more than thirty-three and one-third percent of the affected producers who produce for market more than fifty percent of the volume of agricultural commodities produced within the designated production area for market, the Secretary shall terminate or suspend for a specified period, the program or provisions thereof; provided that such termination shall be effective only if announced on or before the first day of July in any calendar year. If ten percent of the producers in a commodity group of over two thousand affected producers or fifteen percent of the producers in a commodity group of less than two thousand affected producers, request in writing, that a referendum be held on the question of terminating the program, the Secretary must announce and conduct a referendum within a reasonable period of time. The program shall be terminated if so voted by a majority of those voting.
Article XI: Program Reviewed
At intervals of no greater than five (5) years, the Secretary of Agriculture shall call a referendum to determine whether or not a majority of the apple producers voting still desire a Commodity Program.
Article XII: Interpretation
Applicable provisions of this program shall be interpreted consistent with the Act and the Act shall take precedence in the event of any conflict with this program.
Article XIII: Effective Date
This Program shall become effective 21 days from publication of the notice of issuance in accordance with Section 9 of the Act.
[Pa.B. Doc. No. 17-533. Filed for public inspection March 31, 2017, 9:00 a.m.]
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