« PreviousContinue »
$ 900.115. Hearing,
The arbitrator shall have full discretion to conduct the hearing in such manner as will, in his opinion, enable him to ascertain all the facts in the case.
Parties to the dispute may appear in person or by duly accredited agents and may be represented by counsel.
All relevant and material evidence may be presented. The arbitrator shall not be bound by the legal rules of evidence.
The arbitrator, in the presence of the parties, may require the production of books and records for examination by himself, but not for examination of confidential information by other parties to the dispute unless the party producing the same consents to its examination by the other parties to the dispute.
No evidence offered by one party shall be received except in the presence of all parties unless the parties so agree in a submission specifying the nature of the evidence to be received
Final determination as to what will be considered confidential information shall be made by the arbitrator.
The arbitrator may request the opinions of economists, marketing specialists, statisticians, lawyers, accountants, ; and other experts.
When more than two arbitrators are designated to hear a dispute, and they disagree, the award of the majority shall be the final award. If the arbitrators are evenly divided, there shall be no award.
A stenographic record of all the proceedings during an arbitration must be made. $ 900.116 Award,
An award shall be made within ten days after the close of the hearing.
The award shall be in writing and shall cover only points of dispute raised in the submission,
The arbitrator, in making the award, may use his own technical knowledge in addition to the evidence submitted by the parties.
The award shall state the period during which it shall be in effect, said period to be not less than thirty days from the effective date thereof; and said period may be extended by agreement among the parties upon notification thereof to the Administrator, unless or until the Administrator withdraws his approval.
The arbitrator shall sign the award in the presence of a notary public, or, when more than one arbitrator is designated the arbitrator shall sign in the presence of each other.
Copies of the award shall be delivered to the parties by the Division, $ 900.117 Approval of award.
The award shall not become effective until approved by the Secretary, and the Secretary will not approve an award if there is evidence of fraud, or evidence of misconduct upon
the part of the arbitrator, or lack of evidence to support the award, or if the award provides for any unfair trade practice. $ 900.118 Costs.
The parties jointly shall pay for the stenographic record. A copy of the record shall be furnished by the parties to the arbitrator and shall be forwarded by him to the Administrator, ultimately to be filled in the office of the hearing clerk.
The arbitrator shall not receive compensation for parties to the dispute.
Subpart-Miscellaneous Regulations AUTHORITY: $ $ 900.200 to 900.211 issued under sec. 10, 48 Stat. 37, as amended; 7 U.S.C. 610. $ 900.200 Definitions.
As used in this subpart, the terms as defined in the act shall apply with equal force and effect. In addition, unless the context otherwise requires:
(a) The term “act" means Public Act No. 10, 73d Congress (48 Stat. 31), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246, 7 U.S.C. 601), as amended;
(b) The term “Department” means the United States Department of Agriculture;
(c) The term "Secretary" means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead;
(d) The term "General Counsel” means the General Counsel of the Department;
(e) The term "Administrator" means the Administrator of the Consumer and Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or -may hereafter be delegated to act in his stead.
(g)The term "FEDERAL REGISTER" means the publication provided for by the act of July 26, 1935 (49 Stat. 500), and acts supplementary thereto and amendatory thereof;
(h) The term "marketing agreement” means any marketing agreement or any amendment thereto which may be entered into pursuant to section 8b of the act;
(i) The term "marketing order” means any order or any amendment thereto which may be issued pursuant to section 8c of the act;
(j) The term “person" means any individual; corporation, partnership, association, or any other business unit;
(k). The term "official” means the Secretary, any officer, employee, or other person employed or appointed by the Department, and any agency or agent appointed by the Secretary to administer a marketing agreement or a marketing order, and any agent or employee of any such agency or agent;
(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 oficial pursuant to the provisions of any marketing agreement or marketing order. [25 F.R, 5907, June 28, 1960, as amended at 26 F.R. 7796, Aug. 22, 1961, 28 F.R. 579, Jan. 23, 1963) 8 900.201 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
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 agreement 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(1) 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: $8 900.300 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.
$ 900.301 Definitions.
As used in this subpart and in all supplementary instructions, forms, and documents, unless the context or subject matter otherwise requires, the following terms shall have the following meanings:
(a) Act. “Act" means Public Act. No. 10, 73d Congress (48 Stat. 31), as amended and as re-enacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), as amended.
(b) Department. "Department” means the United States Department of Agriculture.
(c) Secretary. "Secretary" means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead.
(d) Administrator. "Administrator" means the Administrator of the Consumer and Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in his stead.
(e) Person. “Person" includes any individual, partnership, corporation, association, and any other business unit.
(f) Order. “Order" means the marketing order (including an amendatory order) with respect to which the Secretary has directed that a referendum be conducted.
(g) Producer. "Producer” means any person who is a dairy farmer and who, during the representative period, met the requirements of the term “producer” as defined in the order had such order been in effect during the representative period.
(h) Handler. “Handler” means any person who, during the representative period, met the requirements of the term "handler" as defined in the order had such order been in effect during the representative period.
(1) Referendum agent. “Referendum agent” means the person designated by the Secretary to conduct the referendum.
(1) Representative period. “Representative period” means the period designated by the Secretary pursuant to section 8c of the act (7 U.S.C. 608c).
(k) Cooperative association. “Cooperative association" means any association of producers that the administrator has found to be qualified pursuant to section 608C(12) of the act. $ 900.302 Associations eligible to vote.
(a) Any association of producers, not previously determined to be a cooperative association may file an application for a determination as to whether it is a cooperative association and thus eligible to vote in a referendum. Such application shall be filed with the Administrator at least 60 days prior to the holding of the referendum: Provided, however, That the Administrator may permit the filing of an application in less than 60 days when, in the opinion of the Adminis
trator, such filing would not delay the conduct of the referendum.
(b) within a time fixed by the referendum agent, but not later than 5 days prior to the final date for balloting, each cooperative association electing to vote shall, upon the request of the referendum agent, furnish to him a certified list showing the name and address of each producer for whom it claims the right to vote and the plant at which such person's milk was received during the representative period. $ 900.303 Conduct of referendum.
The referendum shall be conducted by mail in the manner prescribed in this subpart. The referendum agent may utilize such personnel or agencies of the Department as are deemed necessary by the Administrator. $ 900.304 Who may vote.
(a) Each producer shall be entitled to only one vote and to cast one ballot in each referendum; and no person who may claim to be a producer shall be refused a ballot. Each producer casting more than one ballot with conflicting votes shall thereby invalidate all ballots cast by such producer in such referendum. Each ballot cast shall contain a certification by the person casting the ballot that he is a producer.
(b) Except as provided in section 8c (5) (B) of the act, as amended, any cooperative association eligible under $ 900.302 may, if it elects to do so, vote and cast one ballot 'for producers who are members of, stockholders in, or under contract with, such cooperative association. A cooperative association shall submit with its ballot, a certified copy of the resolution authorizing the casting of the ballot. Each such cooperative association entitled to vote in a referendum casting more than one ballot with conflicting votes shall thereby invalidate all ballots cast by such voter in such referendum.
(c) Voting by proxy or agent, or in any manner, except by the producer or cooperative association will not be permitted; however, a producer which is other than an individual may cast its ballot by a person who is duly authorized and such ballot shall contain a certification by such person that the person on whose behalf the ballot is cast is a producer. $ 900.305 Duties of referendum agent.
The referendum agent shall also:
(a) For purposes of mailing, prepare a record of producers which will disclose the name of each such person, his address, the name of the handler who received the producer's milk during the representative period, and the name of the cooperative association, if any, which claims the right to vote for the producer. Such record may be compiled from readily available sources, including the following:
(1) Records of the Department;
(2) Producer records supplied by handlers;
(3) Health authority records;
(4) Certifications signed by dairy farmers who claim to be producers;
(5) Any other reliable sources of information which may be available to the referendum agent.
(b) Apply, as a guide, the following criteria in preparing a record of producers:
(1) When the order requires approval by an appropriate health authority before a person meets the definition of producer, only those persons having such approval and who otherwise meet the definition may be regarded as producers. When the definition of producer requires the shipment of milk to a handler or a plant as well as health authority approval, only those persons having such approval and whose milk was received by a handler or at a plant may be regarded as producers.
(2) When the order requires shipment to a handler or to a plant, without regard to health authority approval, a person may not be regarded as a producer, except as provided in subparagraph (6) of this paragraph, unless his name appears on the handler's producer records.
(3) In the case of a producer that is other than an individual, the business unit shall be regarded as the producer.
(4) No person may be included in the record more than once although he may operate more than one farm, hold more than one health authority approval, or appear on more than one handler's producer records.
(5) In the event the health authority records are not available, are inaccurate, or are incomplete, the appearance of the producer's name on a handler's records as an approved producer shall be prima facie evidence of health authority approval.
(6) In the event any handler refuses or fails to make his records available to the referendum agent, a certification signed by the producer shall be regarded by the referendum agent as prima facie evidence that such person is eligible to vote.
(c) Verify the information supplied by each cooperative association which wishes to vote on behalf of producers, as follows:
(1) Examine the records of the cooperative association for the purpose of ascertaining whether each producer claimed by the cooperative association is a member of, stockholder in, or under contract with the cooperative association.
(2) Identify the persons ascertained to be members of, stockholders in, or under contract with a cooperative association which wishes to vote on behalf of its producers with the names of producers which appear on the record compiled pursuant to pararaph (a) of this section.
(3) In determining whether a cooperative association may vote on behalf of a producer the following criteria shall be used:
(i) The cooperative association may vote for each producer who is a member of, stockholder in, or under contract with such cooperative association on the date of the order directing that the referendum be conducted.
(ii) The cooperative association may cast only one ballot for all such producers.
(111) Whenever more than one cooperative association claims the right to vote for a producer only the cooperative association which furnished evidence satisfactory to the referendum agent that such association was in fact marketing the milk of the producer on the date of the referendum order may vote for such producer. $ 900.306 Notice of the referendum.
(a) The referendum agent shall at least 5 days prior to the final date for balloting:
(1) Mail to each cooperative association which has elected to cast à ballot on behalf of its producers and to each of all other known producers, a notice of the referendum which will include instructions for completing the ballot, a statement as to the time within which the ballot must be mailed to, and received by, the referendum agent, a copy of the final decision, and a ballot containing a description of the terms and conditions of the order.
(2) Give public notice of the referendum:
(i) By furnishing press releases and other information to available media of public information (including but not limited to press, radio, and television facilities) serving the area, announcing the time within which ballots must be completed and mailed to and received by the referendum agent, eligibility requirements, where additional information may be procured, and other pertinent information; and
(11) By such other means as said agent may deem advisable. $ 900.307 Time for voting.
There shall be no voting except within the time specified by the referendum agent as stated in the notice of the referendum. $ 900.308 Tabulation of ballots.
(a) General. The referendum agent shall verify the information supplied with each ballot. If he ascertains that the person who cast the ballot was eligible to do so, that the ballot is complete and was mailed and received within the prescribed time, the ballot shall be eligible to be counted. If the referendum agent ascertains that the person who cast the ballot was not eligible to do so, or if the producer who cast the ballot was a member of, stockholder in, or under contract with a cooperative association which cast a valid ballot, or if the ballot is not completed or cast in accordance with instructions, or if the ballot was not mailed to or received by the referendum agent within the prescribed time, the ballot shall be marked "disqualified" with a notation on the ballot as to the reason for the disqualification. The total number of ballots cast, including the disqualified ballots, shall be ascertained. The number of eligible ballots cast approving and the number of eligible ballots cast disapproving the issuance of the order shall also be ascertained. The ballots marked "disqualified" shall not be considered as approving or disapproving the issuance of the order, and the persons who cast such ballots shall not be regarded as participating in the referendum.
(b) Individual-handler pool provisions. Whenever separate approval of the pooling provisions of the order is required by section 608C(5) (B) (1) of the act, any ballot which approves the issuance of the order and disapproves the pooling provisions, or approves the pooling provisions and disapproves the issuance of the order, shall be disqualified; and the referendum agent shall mark the ballot accordingly.
(c) Record of results of the referendum. The referendum agent shall notify the Administrator of the number of eligible ballots cast, the count of the votes, the number of disqualified ballots and the number of producers who were eligible to cast ballots. The referendum agent shall seal the ballots, including those marked "disqualified", the list of eligible voters and tabulation of ballots, and shall transmit to the Administrator a complete detalled report of all action taken in connection with the referendum together with all the ballots cast and all other information furnished to or compiled by the referendum agent.
(d) Announcement of the results of the referendum. Announcement of the results of the referendum will be made only at the direction of the Secretary. The referendum agent, or others who assist in the referendum, shall not disclose the results of the referendum or the total number of ballots cast. $ 900.309 Confidential information.
The ballots cast, the identity of any person who voted, or the manner in which any person voted and all information furnished to, compiled by, or in the possession of the referendum agent, shall be regarded as confidential $ 900.310 Supplementary instructions.
The Administrator is authorized to issue instructions and to prescribe forms and ballots, not inconsistent with the provisions of this subpart, to govern the conduct of referenda by referendum agents. $ 900.311
Submittals or requests. Interested persons may secure information or make submittals or requests to the Administrator with respect to the provisions contained in this subpart. Subpart Procedure for Determining the Qualifi
cation of Cooperative Milk Marketing Associations
AUTHORITY: $$ 900.350 to 900.357 issued under secs. 1-19, 48 Stat, 31, as amended; 7 U.S.C. 601-674.
SOURCE: $$ 900.350 to 900.357 appear at 32 FR. 9821, July 6, 1967, unloss otherwise noted.
$ 900.350 General statement.
Cooperative marketing associations apply for qualification by the Secretary under the Federal milk order program for certain privlleges and exemptions. These privileges and exemptions are expressed in the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246) as amended, and the milk marketing orders issued pursuant to its provisions. $ 900.351 Applications for qualification.
Any association of producers may apply for determinations as to whether it is a qualified cooperative association with authority to represent producers in order referendums; has authorization to collect payment from handlers for members' milk; and is rendering specified marketing services to producers. Applicant associations should supply information for these determinations, using as a guide Application Form DA-25. The application form may be obtained from the Dairy Division, Consumer and Marketing Service, United States Department of Agriculture, Washington, D.C. 20250. Determinations required of the Secretary of Agriculture, or the Administrator of the Consumer and Marketing Service, by delegation are made by the Director of the Dairy Division. Once issued they are valid until amended, suspended or terminated. 8 900.352 Confidential information.
The documents and other information submitted by an applicant association and otherwise obtained by investigation, examination of books, documents, papers, records, files and facilities, and in reports filed subsequent to initial determinations of qualification, shall be regarded as confidential and shall be governed by $ 900.210. $ 900.353 Qualification standards.
Statutory requirements for qualification of cooperative associations are provided in subsections (6) and (12) of section 608c of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.). The association must: (a) Be a cooperative marketing association of producers, qualified under the provisions of the Act of Congress of February 18, 1922, as amended, known as the “Capper-Volstead Act," (7 U.S.C. 291, 292); (b) have its entire organization and all of its activities under the control of its members; (c) have full authority in the sale of its members' milk; and (d) be engaged in making collective sales or marketing of milk or milk products for the producers thereof. Qualification for exemption from deductions for marketing service payments under specific marketing orders and payment for milk of members under specific orders shall be determined in accordance with the terms of the respective marketing orders. $ 900.354 Inspection and investigation.
The Secretary of Agriculture, or his duly authorized representative, shall have the right, at any time after an application is re