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PA Bulletin, Doc. No. 12-806



Pennsylvania Apple Marketing Program

[42 Pa.B. 2385]
[Saturday, May 5, 2012]

2012 Order, As Amended

Article I: Declaration

 In accordance with requirements of the Agricultural Commodities Marketing Act of 1968, 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 marketing 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 Marketing 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 marketing program.

 4. ''Department'' means the Department of Agriculture of the Commonwealth of Pennsylvania.

 5. ''Fresh Market'' means all marketing outlets other than processing.

 6. ''Marketing Contract'' Any contract or agreement between the Commodity Marketing Board and a person for the performance of services relating to advertising, marketing, promotion, or research, or other objectives in furtherance of this marketing program.

 7. ''Marketing 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 receiving, grading, packing, canning, dehydrating, preserving, freezing, grinding, crushing or in any way preserving or changing the form of apples, as herein defined, for marketing in any form other than 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 own production.

 12. ''Secretary'' means the Secretary of Agriculture of the Commonwealth of Pennsylvania, or his designee.

Article III: Scope of Program

 The area affected by this marketing 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 Marketing Board

Section A. Establishment and Members

 The Commodity Marketing Board shall consist of ten (10) members, one of whom shall be the Secretary, or his designee, and shall have the primary decision making authority in the administration of this marketing 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 Marketing Board shall be staggered as follows: Three (3) members shall serve one (1) year, three (3) members shall serve two (2) years, and three (3) members shall serve for three (3) years. All members appointed subsequent to those first appointed, shall serve three (3) year terms.

 2. The Secretary, or his designee, will be a member of the Commodity Marketing Board, and the other nine (9) 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 Marketing Board shall be appointed in the same manner as the initial members of the Commodity Marketing 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 Marketing 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 Marketing Board, a successor for the unexpired term of such member shall be appointed by the Secretary from among the affected producers.

 6. The regular meetings of the Board will be held at least four (4) times a year.

Section C. Powers and Duties of the Board

 The Commodity Marketing Board shall have the primary decision-making authority relative to marketing contracts and other projects in furtherance of this marketing program and includes the following powers and duties:

 1. To determine all matters pertaining to this marketing program.

 2. To hire and employ personnel which the Board deems necessary for the proper administration of this marketing program and to fix the compensation and terms of employment of such personnel.

 3. 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.

 4. To make and enter into all contracts and agreements, in accordance with the provisions of the law, which the Board deems necessary or incidental to the furtherance of the marketing program or performance of duties and powers pursuant to the Act. The Board shall adopt written procurement procedures for all marketing contracts.

 5. To receive, account for and disburse all monies collected pursuant to this marketing program, the Act and any applicable regulations.

 6. To prepare a budget for the administration, operating costs and expenses of this marketing program.

 7. To receive and report to the Secretary complaints or violations of this marketing program and to assist and cooperate with the Secretary in the enforcement thereof.

 8. 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.

 9. To collect and gather information and data relevant to the proper administration of this marketing program.

 10. To charge fees and to assist the Secretary in the imposition of fees and the collection of fees and revenue pursuant to the Act.

 11. To issue an annual report on the operation of this marketing program.

 12. To recommend amendments to this marketing 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 marketing program, the appointment of members to the Commodity Marketing Board and the providing of personnel, staff, legal counsel, and office facilities required for the administration and enforcement of this marketing program.

Article VI: Purpose

 This marketing program is to provide funds to be used to contract with any person, organization, or state or federal agency, to prepare, issue, administer and enforce plans for promoting the sale of apples or apple products without reference to any particular firm's or individual's brand or trade name.

 No advertising or sales promotion program shall be approved, which shall make use of false or unwarranted claims or disparage the quality, value, sale or use of any other agricultural commodity. 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

 A budget shall be prepared and established for each marketing season and not later than July 1st, for the administration and enforcement of this marketing program and for carrying out duly authorized programs and activities of advertising and sales promotion as herein provided. The rate of assessment beginning with the 1996-97 marketing season shall be twelve cents ($.12) per bushel of apples sold for fresh market use and six cents ($.06) per hundred pounds of apples sold or accepted for processing. Beginning with the year 2000-01 marketing season and thereafter, the rate of assessment shall be fifteen cents ($.15) per bushel of apples sold for fresh market use and eight cents ($.08) per hundred pounds of apples sold or accepted for processing.

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 designated fiscal agent. Such quarterly 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 marketing program.

 2. Funds should generally be disbursed to include support for Fresh Market and Processed apple product sales.

Article VIII: Effecting Marketing Program

 This marketing program, or any amendment thereto, shall not become effective unless and until the Secretary determines by a referendum whether or not 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 Marketing Program

 The Secretary shall call for a referendum on amendments to the marketing 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 groupof less than two thousand affected producers. In voting on an amendment to the marketing program, the vote shall be only on the amendment, and shall not terminate the program.

Article X: Terminating Marketing Program

 Subject to approval of the Board, the Secretary shall suspend or terminate this marketing 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 marketing season.

 If the Secretary finds that the termination of the marketing 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: Marketing 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 Marketing Program.

Article XII: Interpretation

 Applicable provisions of this marketing program shall be interpreted consistent with the Act and the Act shall take precedence in the event of any conflict with this market 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. 12-806. Filed for public inspection May 4, 2012, 9:00 a.m.]

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