Utah Department of Administrative Services Division of Administrative Rules

Utah Administrative Code

The Utah Administrative Code is the body of all effective administrative rules as compiled and organized by the Division of Administrative Rules (Subsection 63G-3-102(5); see also Sections 63G-3-701 and 702).

NOTE: For a list of rules that have been made effective since September 1, 2014, please see the codification segue page.

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R65. Agriculture and Food, Marketing and Development.

Rule R65-5. Utah Red Tart and Sour Cherry Marketing Order.

As in effect on September 1, 2014

Table of Contents

R65-5-1. Authority.

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

R65-5-2. 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 all marketable Red Tart and Sour cherries produced and sold to manufacturers or consumers.

D. "Producer" means any person in this state in the business of producing or causing to be produced Red Tart or Sour cherries, that has a minimum of 300 trees or has received $500.00 or more from a processor for the previous year's production.

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. Only registered voting producers will be counted.

F. "Known" producers 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.

G. "Processor" means any person engaged in canning, freezing, dehydrating, fermenting, distilling, extracting, preserving, grinding, crushing, or in any other way preserving or changing the form of cherries for the purpose of marketing them.

H. "Board" means Red Tart and Sour Cherry Marketing Board.

R65-5-3. Board.

A. A Board is hereby established consisting of seven members, two of whom shall be processors 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. Three grower members and one processor member shall be appointed for a term of four years. Two grower members and one processor member shall be appointed for four years.

C. Successors to original members may be appointed by the Commissioner from names submitted by the industry.

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.

R65-5-4. Provisions of the Order.

A. This order shall provide for:

1. Uniform grading Red Tart and Sour cherries for fresh or frozen markets, sold or offered for sale by producers or processors. 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, marketing, 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 the Order.

B. Expenses-Assessments-Collections and Disbursement.

1. Each producer or processor subject to this Order shall pay to the Board his or her pro rata share (as approved by the Commissioner) of such expenses as the Board may find necessary to be incurred 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 or processors. The Board may maintain in its own name, or in the name of its members, a suit against any producer, or processor subject to this Order, for the collection of such producer's pro rata share of expenses.

2. This assessment shall be determined to be up to $10.00 per ton for Red Tart and Sour cherries. The discretionary assessment shall be set by majority vote of the board, as approved by the Commissioner. The assessment is effective May 1, 1983.

3. The assessment of each producer shall be deducted from the producer's gross receipt of Red Tart and Sour cherries by the producer-processor. All proceeds from the deducted portion shall be paid annually to the Board on or before October 1, for that crop year.

4. The Board shall retain records of the receipt of the assessment which will be available for public inspection upon request. The Board shall issue an annual financial statement to the Commissioner showing receipts and reimbursement. This statement shall be made available to any contributor upon request.

5. The Board is required to reimburse the Commissioner for any funds as are expended by him in performing his duties as provided in this Order. Such reimbursement shall 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- 5-5.

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.

R65-5-5. Division of Funds.

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

R65-5-6. 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.

R65-5-7. 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. Once a year, a referendum vote may be called at the request of the producers through a petition of ten percent of the registered producers.

KEY

promotions

Date of Enactment or Last Substantive Amendment

1989

Notice of Continuation

July 12, 2012

Authorizing, Implemented, or Interpreted Law

4-2-2(1)(e)


Additional Information

Contact

For questions regarding the content or application of rules under Title R65, please contact the promulgating agency (Agriculture and Food, Marketing and Development). A list of agencies with links to their homepages is available at http://www.utah.gov/government/agencylist.html or from http://www.rules.utah.gov/contact/agencycontacts.htm.