« PreviousContinue »
deemed to have waived oral argument and ducers, or organizations thereof, of milk or its the taking of testimony.
products, and which is bona fide engaged (g) Decision by Secretary. The Secretary in the collective processing or preparing for may grant or deny the application. Any ac- market or handling or marketing, in the curtion taken by the Secretary shall be in the rent of interstate or foreign commerce, of form of an order filed with the hearing clerk milk or its products; and shall contain a brief statement of the (i) The term “arbitrator” means any ofreasons for the action taken. The hearing ficer or employee of the Service designated clerk shall cause copies he order to be by the Administrator, pursuant to the act, served upon the parties.
to arbitrate a bona fide dispute with refer
ence to the terms and conditions of the sale $ 900.71 Hearing before Secretary. of milk or its products between a producer
The Secretary may act in the place and cooperative and purchasers, handlers, processtead of a presiding officer in any proceeding sors, or distributors of milk or its products; hereunder. When he so acts the hearing (j) The term “mediator” means any ofclerk shall transmit the record to the Secre- ficer or employee of the Service designated tary at the expiration of the period provided by the Administrator, pursuant to the act, for the filing of proposed findings of fact, to mediate a bona fide dispute with referconclusions and orders, and the Secretary ence to terms and conditions of the sale of shall thereupon, after due consideration of milk or its products between a producer cothe record, issue his final order in the pro- operative and purchasers, handlers, procesceeding: Provided, That he may issue a sors, or distributors of milk or its products; tentative order in which event the parties (k) The term "hearing clerk” means the shall be afforded an opportunity to file ex- hearing clerk, United States Department of ceptions before the issuance of the final Agriculture, Washington, D.C. order.
[25 F.R. 5907, June 28, 1960, as amended at 26
F.R. 7797, Aug. 22, 1961, 28 F.R. 579, Jan. 23, Subpart-Procedure Governing Meetings To Arbi
1963) trate and Mediate Disputes Relating to Sales of Milk or Its Products
$ 900.102 Filing of applications for AUTHORITY: $ $ 900.100 to 900.118 issued
mediation or arbitration. under sec. 3, 50 Stat. 248; 7 U.S.C. 671.
All applications for mediation or arbitra
tion, all submissions, and all corrrespondence $ 900.100 Words in the singular form.
regarding mediation or arbitration shall be Words in this subpart in the singular form addressed to the Secretary, attention of the shall be deemed to import the plural, and Division. vice versa, as the case may demand.
$ 900.103 Application for mediation. $ 900.101 Definitions.
An application for mediation by cooperaAs used in this subpart, the terms as de- tive shall be in writing and shall include the fined in the act shall apply with equal force following information: and effect. In addition, unless the context (a) Names in full of the parties to the otherwise requires:
dispute and their addresses; (a) The term "act” means section 3 of (b) Description of the cooperative organithe Agricultural Marketing Agreement Act zation and business, including copies of the of 1937, as amended (50 Stat. 248, as amend- articles of incorporation or association, byed; 7 U.S.C. 671);
laws, and membership contract; information (b) The term “Department" means the regarding the number of shares of outstandUnited States Department of Agriculture; ing stock and the approximate portion
(c) The term "Secretary" means the Sec- owned by active producers; a statement of retary of Agriculture of the United States, the function performed in connection with or any officer or employee of the Department the collective processing, preparing, hanto whom authority has heretofore been dele- dling, or marketing of milk or its products; gated, or to whom authority may hereafter and data relative to the distribution of membe delegated, to act in his stead;
bership by States, the distribution by States (d) The term “General Counsel” means of plant facilities for collecting, processing, the General Counsel of the Department; or disposing of milk or its products, and the
(e) The term “Administrator" means the business operations for the year last past, inAdministrator of the Consumer and Mar
cluding the total quantity of milk and its keting Service, with power to redelegate, or products handled by the applicant and the any officer or employee of the Department to
proportion of that quantity that was sold in whom authority has been delegated or may
States other than the States of production; hereafter be delegated to act in his stead. (f) The term "Service” means the Con
(c) Suggested time and place for meeting sumer and Marketing Service.
between parties and mediator. (g) The term “Division" means the Dairy Division of the Service.
$ 900.104 Inquiry by the Administrator. (h) The term "cooperative” means any
Upon receipt of an application for mediaassociation, incorporated or otherwise, which tion, the Administrator, through such offiis in good faith owned or controlled by pro- cers or employees of the Service as he may
designate, may make any inquiry which is deemed to be necessary or proper in order to determine whether a bona fide dispute exists. $ 900.105 Notification.
The Administrator, acting on behalf of the Secretary will notify the applicant as to whether he considers that mediation will effectuate the purpose of the act and as to whether he will mediate. $ 900.106 Assignment of mediator.
The Director of the Division shall assign a mediator, from the group designated by the Administrator, to act in such capacity. $ 900.107 Meetings.
All meetings held pursuant to $ $ 900.103 to 900.109 shall be held with and under the direction of the mediator. $ 900.108 Mediator's report.
The mediator, upon the completion of mediation proceedings, shall submit to the Administrator a complete report on such proceedings. 8 900.109 Mediation agreement.
An agreement arrived at by mediation shall not become effective until approved by the Secretary, and the Secretary will not approve an agreement if there is evidence of fraud, if there is a lack of evidence to support the agreement, or if the agreement provides for any unfair trade practice. $ 900.110 Application for arbitration.
An application for arbitration by a cooperative shall be in writing and shall contain the following information:
(a) Names in full of the parties to the dispute and their addresses;
(b) The same information required under $ 900.103(b);
(c) Concise statement of dispute to be submitted;
(d) Originals or certified copies of all contracts, if any, involved in the dispute, and of correspondence which has passed between the parties and of any other documents or information relied upon;
(e) Dates before which it is desired that the hearing shall be had and the award shall become effective;
(f) Suggested time and place for arbitration hearing.
The applicant shall send a copy of the application to each other party to the dispute. $ 900.111 Inquiry by the Administrator.
Upon receipt of an application for arbitration, the Administrator, through such officers or employees of the Service as he may designate, may make any inquiry deemed to be necessary or proper in order to determine whether a bona fide dispute exists, to assist the parties in reducing the dispute to welldefined issues, and to select an arbitrator who would be satisfactory to all parties.
& 900.112 Notification.
The Administrator, acting on behalf of the Secretary, within a reasonable time after the receipt of an application, will notify the applicant as to whether he will grant the application. $ 900.113 Submission.
Within a reasonable time after the receipt of the Administrator's consent to arbitrate, the parties to the dispute shall file with the Administrator a formal submission, which shall contain the following information:
(a) Names in full of the parties;
(b) Addresses of the parties to whom all notifications and communications concerning the arbitration shall be sent;
(c) Description of the organization and businesses of all parties to the dispute, including suficient information to show that the cooperative is a bona fide one, and that the parties are engaged in activities in the current of interstate or foreign commerce;
(d) Concise statement of the specific questions submitted and a brief outline of the contentions of each party to the dispute, and a statement as to the period of time during which the award shall be in effect, said period to be not less than thirty days from the effective date of the award;
(e) Name of arbitrator;
(f) Time and place of arbitration, including street address;
(g) Stipulation by the parties that they will produce any books, records, and correspondence required by the arbitrator as being necessary to a fair determination of the dispute;
(h) Agreement by the parties that they will consider the award as final and will comply therewith;
(1) Stipulation by the parties that arbitration is to take place under rules and regulations issued by the Secretary, and that any such rules and regulations pertaining to mediation and arbitration shall be considered a part of the submission;
(1) Stipulation that a stenographic report of the proceedings must be made.
The submission shall be signed by each party before a notary public, and when the signature is that of an agent of a corporation or cooperative association, the same shall be accompanied by evidence of the authority to sign.
A submission may be withdrawn at any time before the award, and any question held by the arbitrator to be a separable question may be withdrawn before award by agreement of all parties. When any question is so withdrawn, the parties shall file with the arbitrator the agreement on that question reached by the parties, showing all the details thereof, and the arbitrator shall include it in the record of the arbitration. $ 900.114 Designation of arbitrator.
The Administrator, after receiving the submission, will designate one or more persons. to act as arbitrator.
$ 900.115 Hearing.
the part of the arbitrator, or lack of evidence
to support the award, or if the award proThe arbitrator shall have full discretion to
vides for any unfair trade practice. conduct the hearing in such manner as will, in his opinion, enable him to ascertain all $ 900.118 Costs. the facts in the case. Parties to the dispute may appear in per
The parties jointly shall pay for the steno
graphic record. A copy of the record shall son or by duly accredited agents and may be
be furnished by the parties to the arbitrator represented by counsel. All relevant and material evidence may be
and shall be forwarded by him to the Admin
istrator, ultimately to be filed in the office presented. The arbitrator shall not be bound by the legal rules of evidence.
of the hearing clerk.
The arbitrator shall not receive compenThe arbitrator, in the presence of the par
sation for parties to the dispute. ties, may require the production of books and records for examination by himself, but
Subpart-Miscellaneous Regulations not for examination of confidential information by other parties to the dispute unless
AUTHORITY: $$ 900.200 to 900.211 issued the party producing the same consents to
under sec. 10, 48 Stat. 37, as amended; 7 its examination by the other parties to the
U.S.C. 610. dispute.
$ 900.200 Definitions. No evidence offered by one party shall be received except in the presence of all parties
As used in this subpart, the terms as deunless the parties so agree in a submission fined in the act shall apply with equal force specifying the nature of the evidence to be and effect. In addition, unless the context received.
otherwise requires: Final determination as to what will be (a) The term "act" means Public Act No. considered confidential information shall be 10, 73d Congress (48 Stat. 31), as amended made by the arbitrator.
and as reenacted and amended by the AgriThe arbitrator may request the opinions
cultural Marketing Agreement Act of 1937 of economists, marketing specialists, statisti
(50 Stat. 246, 7 U.S.C. 601), as amended; cians, lawyers, accountants, and other (b) The term “Department" means the experts.
United States Department of Agriculture; When more than two arbitrators are des- (c) The term "Secretary" means the Secignated to hear a dispute, and they disagree, retary of Agriculture of the United States, the award of the majority shall be the final or any officer or employee of the Departaward. If the arbitrators are evenly divided, ment to whom authority has heretofore there shall be no award.
been delegated, or to whom authority may A stenographic record of all the proceed- hereafter be delegated, to act in his stead; ings during an arbitration must be made.
(d) The term “General Counsel" means
the General Counsel of the Department; $ 900.116 Award.
(e) The term “Administrator" means the An award shall be made within ten days
Administrator of the Consumer and Marketafter the close of the hearing.
ing Service, with power to redelegate, or The award shall be in writing and shall any officer or employee of the Department cover only points of dispute raised in the to whom authority has been delegated or submission,
may hereafter be delegated to act in his The arbitrator, in making the award, may stead. use his own technical knowledge in addition (f) [Reserved] to the evidence submitted by the parties.
(g) The term "FEDERAL REGISTER” means The award shall state the period during the publication provided for by the act of which it shall be in effect, said period to be July 26, 1935 (49 Stat. 500), and acts supplenot less than thirty days from the effective mentary thereto and amendatory thereof; date thereof; and said period may be ex- (h) The term "marketing agreement" tended by agreement among the parties upon means any marketing agreement or any notification thereof to the Administrator, amendment thereto which may be entered unless or until the Administrator withdraws into pursuant to section 8b of the act; his approval.
(i) The term "marketing order” means The arbitrator shall sign the award in the any order or any amendment thereto which presence of a notary public, or, when more
may be issued pursuant to section 8c of the than one arbitrator is designated the arbi
act; trator shall sign in the presence of each
(1) The term "person" means any inother.
dividual, corporation, partnership, associaCopies of the award shall be delivered to
tion, or any other business unit; the parties by the Division.
(k) The term “official" means the Secre
tary, any officer, employee, or other person $ 900.117 Approval of award.
employed or appointed by the Department, The award shall not become effective until and any agency or agent appointed by the approved by the Secretary, and the Secretary Secretary to administer a marketing agreewill not approve an award if there is evidence ment or a marketing order, and any agent of fraud, or evidence of misconduct upon or employee of any such agency or agent;
of the Secretary, the United States, or the official who obtained it or to whom it was furnished, in any administrative hearing held pursuant to section 8c (15) (A) of the act or in any action, suit, or proceeding, civil or criminal, in which the Secretary or the United States or any such official is a party, and (1) which is instituted (i) for the purpose of enforcing or restraining the violation of any marketing agreement or marketing order, or (ii) for the purpose of collecting any penalty or forfeiture provided for in the act, or (iii) for the purpose of collecting any monies due under a marketing agreement or marketing order, or (2) in which the validity of any marketing agree-. ment or marketing order; or any provision of either, is challenged or involved.
(f) Such information may be furnished to the duly constituted authorities of any State, pursuant to a written agreement made under authority of section 10(i) of the act, to the extent that such information is relevant to transactions within the regulatory jurisdiction of such authorities. $ 900.211 Penalties.
Any official who shall have violated the provisions of $ 900.210 by wilfully divulging, disclosing, or making public any information acquired by or furnished to or in the possession or custody of such official pursuant to the provisions of a marketing agreement or marketing order shall be subject to a penalty of $100 for each offense. (The civil penalty provided in this section is prescribed under the authority contained in sec. 10(C) of the act (7 U.S.C. 610(c)); this provision is not intended to supersede the provision in sec. 8d (2) of the act (7 U.S.C. 6080(2)) for criminal liability and removal from office. Subpart-Procedure for Conduct of Referenda
To Determine Producer Approval of Milk Marketing Orders To Be Made Effective Pursuant to Agricultural Marketing Agreement Act of 1937, as Amended AUTHORITY: $$ 900.300 to 900.311 issued under secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
SOURCE: $ $ 900.300 to 900.311 appear at 30 F.R. 15412, Dec. 15, 1965, unless otherwise noted. $ 900.300 General.
Unless otherwise prescribed, the procedure contained in this subpart shall be applicable to each producer referendum conducted for the purpose of ascertaining whether the issuance by the Secretary of a milk marketing order is approved or favored, as required under the applicable provisions of the Agricultural Marketing Agreement Act of 1937, as amended (48 Stat. 31, as amended, 7 U.S.C. 601-674). The procedure in this subpart replaces the procedure for conducting similar referenda (15 F.R. 5177) issued August 7, 1950.
(1) The term "information” means and includes reports, books, accounts, records, and the facts and information contained therein and required to be furnished to or acquired by any official pursuant to the provisions of any marketing agreement or marketing order. 125 F.R. 5907, June 28, 1960, as amended at 26 F.R. 7796, Aug. 22, 1961, 28 F.R. 579, Jan. 23, 1963] $ 900.201 Investigation and disposition
of alleged violations. Whenever the Administrator has reason to believe that any handler has violated, or is violating, the provisions of any marketing order, he may institute such investigation and, after due notice to such handler, conduct such hearing in order to determine the facts as, in his opinion, are warranted. If, in the opinion of the Administrator and the General Counsel, the facts developed as a result of such investigation or hearing warrant such action, the General Counsel shall refer the matter to the Attorney General for appropriate action. $ 900.210 Disclosures of information.
All information in the possession of any official which relates to the business or property of any person, and which furnished by, or obtained from, such person pursuant to the provisions of any marketing agreement or marketing order, shall be kept confidential and shall not be disclosed, divulged, or made public, unless otherwise expressly provided in said marketing agreement or marketing order, or unless said person authorizes said official, in writing, to disclose such information, except that:
(a) Such information may be disclosed, divulged, or made public if it has been obtained from or furnished by a person who is not the person to whose business or property such information relates or an employee of such latter person, or if such information is otherwise required by law to be furnished to an official;
(b) Such information may be furnished to other officials for use in the regular course of their official duties;
(c) Such information may be combined and published in the form of general statistical studies or data in which the identity of the person furnishing such information or from whom it was obtained shall not be disclosed;
(d) Such information may be disclosed upon lawful demand made by the President or by either House of Congress or any committee thereof, or, if the Secretary determines that such disclosure is not contrary to the public interest, such information may be disclosed in response to a subpena by any court of competent jurisdiction.
(e) Such information may be offered in evidence (whether or not it has been obtained from or furnished by the person against whom it is offered) by or on behalf
$ 900.301 Definitions.
trator, such filing would not delay the con
duct of the referendum. As used in this subpart and in all supple
(b) Within a time fixed by the referenmentary instructions, forms, and documents,
dum agent, but not later than 5 days prior unless the context or subject matter other
to the final date for balloting, each cooperawise requires, the following terms shall have
tive association electing to vote shall, upon the following meanings:
the request of the referendum agent, furnish (a) Act. "Act” means Public Act. No. 10,
to him a certified list showing the name 73d Congress (48 Stat. 31), as amended and
and address of each producer for whom it as re-enacted and amended by the Agricul
claims the right to vote and the plant at tural Marketing Agreement Act of 1937 (50
which such person's milk was received durStat. 246), as amended.
ing the representative period. (b) Department, “Department” means the United States Department of Agriculture, $ 900.303 Conduct of referendum. (c) Secretary. “Secretary” means the Sec
The referendum shall be conducted by retary of Agriculture of the United States,
mail in the manner prescribed in this subor any officer or employee of the Department
part. The referendum agent may utilize such to whom authority has heretofore been dele
personnel or agencies of the Department as gated, or to whom authority may hereafter
are deemed necessary by the Administrator. be delegated, to act in his stead.
(d) Administrator. “Administrator" means $ 900.304. Who may vote. the Administrator of the Consumer and
(a) Each producer shall be entitled to only Marketing Service, with power to redelegate,
one vote and to cast one ballot in each referor any officer or employee of the Department
endum; and no person who may claim to be to whom authority has been delegated or
a producer shall be refused a ballot. Each may hereafter be delegated to act in his
producer casting more than one ballot with stead.
conflicting votes shall thereby invalidate all (e) Person. "Person" includes any individ
ballots cast by such producer in such referenual, partnership, corporation, association,
dum. Each ballot cast shall contain a certiand any other business unit.
fication by the person casting the ballot that (f) Order. “Order” means the marketing
he is a producer. order (including an amendatory order) with
(b) Except as provided in section 8c (5) respect to which the Secretary has directed
(B) of the act, as amended, any cooperative that a referendum be conducted.
association eligible under $ 900.302 may, if (g) Producer. “Producer” means any per
it elects to do so, vote and cast one ballot son who is a dairy farmer and who, during
for producers who are members of, stockthe representative period, met the require
holders in, or under contract with, such coments of the term “producer” as defined in
operative association. A cooperative associathe order had such order been in effect dur
tion shall submit with its ballot, a certified ing the representative period.
copy of the resolution authorizing the cast(h) Handler. "Handler” means any person
ing of the ballot. Each such cooperative aswho, during the representative period, met
sociation entitled to vote in a referendum the requirements of the term "handler" as
casting more than one ballot with conflictdefined in the order had such order been in
ing votes shall thereby invalidate all ballots effect during the representative period.
cast by such voter in such referendum. (i) Referendum agent. "Referendum
(c) Voting by proxy or agent, or in any agent” means the person designated by the
manner, except by the producer or cooperaSecretary to conduct the referendum.
tive association will not be permitted; how(3) Representative period. "Representative
ever, a producer which is other than an indiperiod” means the period designated by the
vidual may cast its ballot by a person who Secretary pursuant to section 8c of the act
is duly authorized and such ballot shall con(7 U.S.C. 608c).
tain a certification by such person that the (k) Cooperative association. “Cooperative
person on whose behalf the ballot is cast is association" means any association of producers that the administrator has found to
a producer. be qualified pursuant to section 608C(12) of $ 900.305 Duties of referendum agent.
The referendum agent shall also; $ 900.302 Associations eligible to vote.
(a) For purposes of mailing, prepare a
record of producers which will disclose the (a) Any association of producers, not pre- name of each such person, his address, the viously determined to be a cooperative asso
name of the handler who received the prociation may file an application for a deter
ducer's milk during the representative pemination as to whether it is a cooperative
riod, and the name of the cooperative assoassociation and thus eligible to vote in a
ciation, if any, which claims the right to referendum. Such application shall be filed
vote for the producer. Such record may be with the Administrator at least 60 days prior
compiled from readily available sources, into the holding of the referendum: Provided,
cluding the following: however, That the Administrator may permit
(1) Records of the Department; the filling of an application in less than 60
(2) Producer records supplied by han,
dlers; days when, in the opinion of the Adminis- (3) Health authority records; 66–018--72-3