7 U.S.C. § 608c — Orders
submitted 93 years ago by ch. 25 to r/title-7-AGRICULTURE · 8,512 words · no verdicts yet
The Secretary of Agriculture must issue and may amend orders regulating certain handlers of specified agricultural commodities and their products in interstate or foreign commerce. The section sets the allowed commodities, procedures, permitted order terms, approval requirements, penalties, review, termination, amendments, milk pricing, and producer referenda.
(1) Issuance by Secretary. The Secretary of Agriculture must issue, and may periodically amend, orders for processors, producer associations, and others who handle the commodities or products listed in (2). This section calls these people “handlers”; this section does not otherwise define that term. The orders may regulate only handling that is in interstate or foreign commerce*, or that directly burdens, obstructs, or affects that commerce. The Secretary must complete informal rulemaking responding to administrative-committee recommendations as quickly as possible and, when practicable, within 45 days after receiving them. The Secretary may use informal rulemaking in the same crop year to create both a producer-allotment program and a handler-withholding program under the cranberry order, based on the Cranberry Marketing Committee’s recommendation and supporting economic analysis. The Committee must submit them by March 1 each year. The Secretary must set time limits for each Department of Agriculture office and agency to consider the recommendations.
(2) Commodities covered. Orders may apply only to the following: (A) milk; fruits, including filberts, almonds, pecans, and walnuts, subject to the stated exclusions for apples and fruit for canning or freezing; tobacco; vegetables, subject to the stated exclusions for canning, freezing, and processing*; hops; honeybees; and naval stores covered by the Naval Stores Act and its standards, including refined or partly refined oleoresin. The order may cover a regional or market classification of a commodity or product. It does not cover canned or frozen pears, grapefruit, cherries, apples, or cranberries, or naval-store or honeybee products, except as the text specifically includes them. An order for grapefruit for canning or freezing is effective only if the Secretary also finds that processors who canned or froze more than 50 percent of the commodity during a representative period approved or favored it. (B) An order may also cover another agricultural commodity, or a regional or market classification, not covered by (A), but not its products, including canned or frozen products. The listed exclusions include honey, cotton, rice, wheat, corn, grain sorghums, oats, barley, rye, sugarcane, sugarbeets, wool, mohair, livestock, soybeans, cottonseed, flaxseed, poultry except turkeys and poultry producing commercial eggs, fruit and vegetables for canning or freezing including potatoes* for those purposes, and apples. An order for cherries, apples, or cranberries for canning or freezing is effective only if processors who canned or froze more than 50 percent of the relevant commodity during a representative period approved or favored it. An order may not cover peanuts produced in more than one of the Virginia-Carolina, Southeast, and Southwest production areas. If the Secretary finds that the chapter’s “declared policy” (a term this section does not define) would be better achieved, commodities of the same general class and used for the same purposes may be combined as one commodity, and a portion devoted to a particular use may be treated as a separate commodity. All covered commodities and products count as specified commodities for (6) and (7).
(3) Notice and hearing. If the Secretary has reason to believe an order would advance the chapter’s declared policy for a listed commodity or product, the Secretary must give notice and an opportunity for a hearing on the proposed order.
(4) Finding and issuance. After that notice and hearing opportunity, the Secretary must issue the order if the hearing evidence supports a finding, stated in the order, that issuing it and all its terms and conditions would advance the chapter’s declared policy for the commodity, along with any other findings this section requires.
(5) Terms—milk and milk products. A milk order may contain one or more of the following terms, and, except as subsection (7) allows, no others. (A) It may classify milk by its form or use; set, or provide a method for setting, minimum prices for each class that every handler must pay producers or producer associations; and set payment times. Prices must be uniform for handlers, with adjustments only for customary volume, market, and production differences; milk grade or quality; and delivery location. For two years after this sentence takes effect, and afterward unless the order is amended, the Class I skim-milk price per hundredweight for the highest use class is the sum of the adjusted Class I differential in 7 C.F.R. § 1000.52 (or successor rule), the Class I-price adjustments in §§ 1005.51(b), 1006.51(b), and 1007.51(b) (or successor rules), the simple average of the advanced pricing factors in §§ 1000.50(q)(1) and (q)(2) (or successor rules), and $0.74, using the Class I skim-milk price provision in § 1000.50(b) (or successor rule).
(B) It may provide either: (i) uniform prices to all producers and associations delivering to the same handler, if—except for orders covering only milk products—at least three-fourths of qualifying producers, or producers representing at least three-fourths of the qualifying market volume, approve or favor that provision during the Secretary’s representative period, with that approval separate from other approval; or (ii) uniform prices to all producers and associations delivering to all handlers, regardless of the receiving handler’s use. In either case, adjustments may be made only for customary volume, market, and production differences, grade or quality, delivery location, and an equitable adjustment allocating the total milk value among producers and associations based on their marketings during a representative period. The text marks paragraph (e) as omitted. A further adjustment may allocate total milk value among producers based on the milk components in their marketings.
(C) It may provide a method for payments among handlers, including producer-handlers, so that each handler’s total payments equal the value of the milk bought at the prices fixed under (A).
(D) For milk bought from a producer who did not regularly sell milk for consumption in the covered area during the 30 days before the order took effect, it may require payment at the lowest-use-class price, with (B)’s adjustments, from the first regular delivery through the end of two full calendar months after the first day of the next calendar month.
(E) It may provide producers with market information, and verification of weights, samples, and tests of purchased milk, with appropriate deductions from producer payments, except where a qualified cooperative provides those services. It may also assure and secure handlers’ payment for milk.
(F) Nothing here prevents a qualified cooperative marketing association that collectively sells or markets milk for its producers from combining the net proceeds of all sales in all markets and use classes and distributing them under its producer contract. But it may not sell milk to a handler below the (A) price for that milk.
(G) A milk agreement or order may not prohibit or limit marketing in an area of milk or milk products produced in any United States production area.
(H) Omitted.
(I) It may establish research, development, advertising other than brand advertising, sales-promotion, educational, and other programs to improve or promote domestic milk marketing and consumption. Producers must finance them at the order’s stated method and rate on all producer milk. Contributions may be deducted when computing total pool value or other producer funds, in addition to (B) adjustments. The order may exempt milk, or give adjustments or credits, when State law requires an advertising or marketing-research checkoff. Funds go to a producer and cooperative agency in the form and under the operating methods stated in the order. The agency may spend them only for these purposes and may select, hire, and fund qualified people and organizations. It must account for the funds separately and use them only for the purposes collected. Programs may be local, national, or both, but not international. These provisions take effect only if producers approve them separately in the same manner as an order. They may be terminated separately under (16)(B), and their disapproval or termination does not disapprove or terminate the rest of the order. A producer whose milk marketing is assessed who opposes the programs may demand and receive a refund under the order’s conditions.
(J) Before uniform prices under (A) and payment adjustments under (C), the order may pay from all handlers’ milk payments to qualifying cooperatives and handlers receiving (C) adjustments for marketwide services, including supplying needed milk, handling or disposing of excess milk, handling unusually large amounts on particular days, and transporting milk to meet higher-use needs or provide an outlet for any use class.
(K) (i) Despite other law, milk from dairies owned or controlled by foreign persons and financed with tax-exempt bonds under 26 U.S.C. § 103 must be treated as other-source milk and allocated as milk received from producer-handlers when classifying producer milk under this chapter’s milk program. “Foreign person” has the meaning given in 7 U.S.C. § 3508(3); this section does not define it. (ii) The Secretary must issue regulations. (iii) This does not apply to a dairy that began operating before May 6, 1986.
(L) Handler payment adjustments under (A) need not match producer adjustments under (B) for the specified (A) and (B) adjustments.
(M) (i) A handler described in (ii) must follow all minimum and uniform price requirements of the applicable Federal milk order, at Federal class prices, if it distributes or sells packaged fluid milk in a marketing area of a State requiring minimum raw-milk prices. (ii) Except for (iv), this covers a Class I handler, including a producer-handler or producer acting as handler, that operates a plant within a Federal order area as bounded April 11, 2006; has those packaged-fluid sales or route dispositions in such a State area; and is not otherwise required by a Federal order or State regulated-pricing plan to pay minimum class prices for the raw milk used. (iii) For (ii)(III), the Secretary may treat the handler as obligated under a Federal order only if the plant is a fully regulated fluid-milk distributing plant. (iv) It does not apply to a nonpool plant as defined in the cited regulation as effective April 11, 2006; to a producer-handler during a month with less than 3,000,000 pounds of such dispositions and sales; or to a handler during a month when less than 25 percent of received fluid milk, excluding specified concentrated milk, is routed or transferred as packaged milk, or when less than 25 percent of those routes or transfers are in qualifying State marketing areas.
(N) A handler distributing Class I products in Order No. 131’s area is not exempt during a month from a Secretary-set minimum price if its own-farm Class I distribution during the preceding month exceeded 3,000,000 pounds.
(O) (M) and (N) do not otherwise change producer-handler treatment.
(6) Terms—other commodities. For commodities and products other than milk listed in (2), an order may contain one or more of these terms, and, except for (7), no others: (A) limit total quantities, or grades, sizes, or qualities, produced for marketing or transport in interstate or foreign commerce during stated periods; (B) allot what each handler may buy from or handle for producers, using a uniform rule based on representative prior sales, current available quantities, or both, so total purchases or handling are shared fairly; (C) allot what each handler may market or transport, based on current available quantities, representative prior shipments, or both, so the total is shared fairly; (D) determine and control the amount and extent of surplus and share its elimination or control burden fairly; (E) create reserve pools and distribute net sale returns fairly; and (F) require inspection of commodities produced and marketed during stated periods. (G) For hops, an order may also limit total hops or grades, types, or varieties handled in commerce; apportion the current year’s permitted hops among producers using available or estimated production, normal acreage production, representative yields, acreage age, abnormal conditions, or comparable acreage when data are missing; and allot to each handler no more than the hops apportioned to its producers, which is an allotment under 7 U.S.C. § 608a(5). (H) It may set or provide a method for setting container size, capacity, weight, dimensions, or packing for fresh or dried fruits, vegetables, or tree nuts, but may not conflict with the 1916 or 1928 Standard Containers Acts. (I) It may establish production, marketing research, development, and promotion projects, paid from order funds, to assist marketing, distribution, consumption, or efficient production. For the listed commodities, including specified nuts, fruits, vegetables, eggs, citrus, raisins, cranberries, and Florida-grown strawberries, projects may include any marketing promotion, including paid advertising; for the separately listed commodities they may credit a handler’s assessment with authorized direct promotion spending. Projects may address canned or frozen forms when that handling is regulated. A Federal project does not preclude, preempt, or supersede a State project covering the same commodity. (J) For pears for canning or freezing, if an order’s production area spans two or more States, the administering agency may recommend yearly grade, size, quality, maturity, and inspection rules for pears from a State only if most representatives from that State agree.
(7) Terms common to all orders. An order may: (A) prohibit unfair competition and unfair trade practices; (B) require handlers to sell a commodity or product, other than fluid milk or cream, only at prices they file as the order provides; (C) provide for a Secretary-selected agency and define only these powers: administer the order, make rules to carry it out, receive and report complaints, and recommend amendments. An agency member is not acting in an official capacity under 7 U.S.C. § 610(g) unless paid from United States funds. An agency for grapefruit-for-canning-or-freezing must include at least one processor representative; and (D) include provisions incidental to and consistent with (5)-(7) that are needed to carry out the order.
(8) Orders with a marketing agreement. Except under (9), an order cannot take effect until handlers, excluding specified nonprocessing cooperatives, handling at least 50 percent of the covered commodity volume produced or marketed in the defined area sign a matching marketing agreement. For California citrus, the threshold is 80 percent. The order also requires the Secretary to find producer approval or favor: at least two-thirds of producers, or producers representing at least two-thirds of volume, during the representative period; for California citrus, three-fourths.
(9) Orders with or without agreement. An order may take effect despite refusal or failure by handlers of more than 50 percent of covered volume to sign an agreement (80 percent for California citrus) if, after a hearing, the Secretary finds (A) that the refusal tends to prevent the chapter’s declared policy, and (B) the order is the only practical way to advance producers’ interests and is approved or favored by at least two-thirds of producers, or producers representing at least two-thirds of production or sales volume, with three-fourths required for California citrus.
(10) Manner and applicability. An order must regulate handling in the same manner as the heard marketing agreement and apply only to the same industrial or commercial classes. Neither an order nor agreement may prohibit, regulate, or restrict advertising of the commodity or product.
(11) Regional application. (A) An order covering all production or marketing areas may issue only if the Secretary finds separate regional orders would not carry out the declared policy effectively. (B) Except for milk, an order must cover the smallest practicable regional areas consistent with that policy. (C) Orders for the same commodity must, as practicable, use different terms for different areas when needed to recognize production and marketing differences. (D) No Nevada county or other political subdivision may be in a milk-order marketing area.
(12) Cooperative representation. When producer approval, disapproval, or termination is being determined, the Secretary must treat a bona fide producer cooperative’s decision as the decision of its members, stockholders, or contracted producers if it markets the commodity or provides services for or advances those producers’ interests.
(13) Retailer and producer exemptions. (A) A (9) order cannot apply to a person selling agricultural commodities or products at retail in that person’s retail capacity, except a milk or milk-products retailer. (B) No order under this chapter applies to a producer acting as a producer.
(14) Violations. (A) A handler, or its officer, director, agent, or employee, who violates an order may, on conviction, be fined $50 to $5,000 for each violation; each continuing day is separate. No penalty applies for violations between filing a good-faith (15) petition not for delay and notice of the Secretary’s ruling if the court so finds. (B) The Secretary may impose a civil penalty up to $1,000 per violation, with each day separate, under the same good-faith petition exception. The Secretary must first give notice and an on-the-record agency hearing. The penalty order is a final order reviewable in the proper district court, and its validity cannot be reviewed in a collection action.
(15) Petition and review. (A) A handler may file a written petition saying an order, provision, or related obligation is unlawful and asking for modification or exemption. The Secretary must give a hearing under approved regulations and then issue a ruling that is final if lawful. (B) The proper United States district court has equity jurisdiction if a bill is filed within 20 days. Process may be served on the Secretary by delivering the complaint. If unlawful, the court remands with directions to issue a lawful ruling or take required proceedings. The petition case does not block the United States or Secretary from seeking relief under 7 U.S.C. § 608a(6); a separate such proceeding abates after a final decree between the same parties about the same subject, except for a counterclaim.
(16) Termination. (A)(i) The Secretary must terminate or suspend an order or provision that obstructs or does not advance the declared policy. (ii) For a commodity without a Federal price-support program, the Secretary may terminate only after giving the specified House and Senate Agriculture Committees notice and reasons at least 60 days before termination. (B) The Secretary must terminate an agreement or order at the end of the current marketing period when a majority of qualifying producers favor termination and that majority produced more than 50 percent of the relevant production or sales volume. The termination must be announced by the deadline in the agreement or order. (C) Unless this subsection says otherwise, termination or suspension of an order, amendment, or provision is not itself an order under this section.
(17) Amendments. (A) The order rules in this section and 7 U.S.C. § 608d also apply to amendments. (B)(i) Within 60 days after enactment of this subparagraph, the Secretary must use informal rulemaking to issue supplemental practice rules for amendment rulemaking. (ii) They must cover proposal submissions, prehearing information sessions, written testimony and data requests, public participation deadlines, and electronic document standards. (iii) They take effect within 120 days after enactment, as the Secretary determines. (C)(i) Within 30 days after receiving a milk-order amendment-hearing proposal, the Secretary must issue either a notice with an action plan and expected hearing completion within 120 days; a request for additional information, followed by denial if it is not timely supplied; or a denial. (ii) A post-hearing brief may be filed within 60 days after the hearing. (iii) A recommended decision is due within 90 days after briefs are due. (iv) A final decision is due within 60 days after comments and exceptions are due. (D) The Secretary may assess the affected industry to supplement appropriations for service providers, such as court reporters, when needed to improve or speed rulemaking. (E) The Secretary may use 5 U.S.C. § 553 rulemaking to amend orders, except provisions directly affecting milk prices. (F) No duplicate milk-order hearing is required when the request arrives within 90 days after the prior amendment decision and the proposals are essentially the same, as the Secretary determines. (G) At a hearing adjusting make allowances under an order begun before September 30, 2012, the Secretary must determine relevant dairy producers’ average monthly feed and fuel prices, consider the newest available data, and consider those prices in deciding whether to adjust make allowances.
(18) Milk prices. Before setting or changing a milk or milk-product agreement or order term that fixes minimum producer or producer-association prices, the Secretary must ascertain parity prices. The section 602 prices Congress declared as policy must be adjusted for feed prices, available feed supplies, and other economic conditions affecting milk supply and demand in the area. If hearing evidence shows parity prices are unreasonable in light of those factors, the Secretary must set prices reflecting them, ensuring enough pure and wholesome milk and serving the public interest. Later, after notice and hearing, the Secretary must adjust prices when changed circumstances require.
(19) Producer referendum. To determine producer or processor approval required by this chapter, the Secretary may hold a referendum and must hold one for an order other than an amendatory order. The requirement is met when, of the total number of producers or processors, or the total volume of production, as the case may be, represented in the referendum, the percentage approving or favoring is at least the percentage required by that provision. The Secretary must describe the proposed order’s terms in the ballot, and the description cannot be used to attack the order’s legality. This does not limit cooperative representation under (12). For pears for canning or freezing, the Secretary must hold a referendum in every State proposed for coverage. Approval requires at least 66⅔ percent of represented producers or production volume; if pear producers in a State do not approve or favor the order, it cannot take effect there.
The Secretary of Agriculture shall, subject to the provisions of this section, issue, and from time to time amend, orders applicable to processors, associations of producers, and others engaged in the handling of any agricultural commodity or product thereof specified in subsection (2) of this section. Such persons are referred to in this chapter as “handlers”. Such orders shall regulate, in the manner hereinafter in this section provided, only such handling of such agricultural commodity, or product thereof, as is in the current of interstate or foreign commerce*, or which directly burdens, obstructs, or affects, interstate or foreign commerce in such commodity or product thereof. In carrying out this section, the Secretary shall complete all informal rulemaking actions necessary to respond to recommendations submitted by administrative committees for such orders as expeditiously as possible, but not more than 45 days (to the extent practicable) after submission of the committee recommendations. The Secretary is authorized to implement a producer allotment program and a handler withholding program under the cranberry marketing order in the same crop year through informal rulemaking based on a recommendation and supporting economic analysis submitted by the Cranberry Marketing Committee. Such recommendation and analysis shall be submitted by the Committee no later than March 1 of each year. The Secretary shall establish time frames for each office and agency within the Department of Agriculture to consider the committee recommendations.
Orders issued pursuant to this section shall be applicable only to (A) the following agricultural commodities and the products thereof (except canned or frozen pears, grapefruit, cherries, apples, or cranberries, the products of naval stores, and the products of honeybees), or to any regional, or market classification of any such commodity or product: Milk, fruits (including filberts, almonds, pecans and walnuts but not including apples, other than apples produced in the States of Washington, Oregon, Idaho, New York, Michigan, Maryland, New Jersey, Indiana, California, Maine, Vermont, New Hampshire, Rhode Island, Massachusetts, Connecticut, Colorado, Utah, New Mexico, Illinois, and Ohio, and not including fruits for canning or freezing other than pears, olives, grapefruit, cherries, caneberries (including raspberries, blackberries, and loganberries), cranberries, and apples produced in the States named above except Washington, Oregon, and Idaho), tobacco, vegetables (not including vegetables, other than asparagus, for canning or freezing and not including potatoes* for canning, freezing, or other processing*), hops, honeybees and naval stores as included in the Naval Stores Act [7 U.S.C. 91 et seq.] and standards established thereunder (including refined or partially refined oleoresin): Provided, That no order issued pursuant to this section shall be effective as to any grapefruit for canning or freezing unless the Secretary of Agriculture determines, in addition to other findings and determinations required by this chapter, that the issuance of such order is approved or favored by the processors who, during a representative period determined by the Secretary, have been engaged in canning or freezing such commodity for market and have canned or frozen for market more than 50 per centum of the total volume of such commodity canned or frozen for market during such representative period; and (B) any agricultural commodity (except honey, cotton, rice, wheat, corn, grain sorghums, oats, barley, rye, sugarcane, sugarbeets, wool, mohair, livestock, soybeans, cottonseed, flaxseed, poultry (but not excepting turkeys and not excepting poultry which produce commercial eggs), fruits and vegetables for canning or freezing, including potatoes for canning, freezing, or other processing 1 and apples), or any regional or market classification thereof, not subject to orders under (A) of this subdivision, but not the products (including canned or frozen commodities or products) thereof. No order issued pursuant to this section shall be effective as to cherries, apples, or cranberries for canning or freezing unless the Secretary of Agriculture determines, in addition to other required findings and determinations, that the issuance of such order is approved or favored by processors who, during a representative period determined by the Secretary, have engaged in canning or freezing such commodity for market and have frozen or canned more than 50 per centum of the total volume of the commodity to be regulated which was canned or frozen within the production area, or marketed within the marketing area, defined in such order, during such representative period. No order issued pursuant to this section shall be applicable to peanuts produced in more than one of the following production areas: the Virginia-Carolina production area, the Southeast production area, and the Southwest production area. If the Secretary determines that the declared policy of this chapter will be better achieved thereby (i) the commodities of the same general class and used wholly or in part for the same purposes may be combined and treated as a single commodity and (ii) the portion of an agricultural commodity devoted to or marketed for a particular use or combination of uses, may be treated as a separate agricultural commodity. All agricultural commodities and products covered hereby shall be deemed specified herein for the purposes of subsections (6) and (7).
Whenever the Secretary of Agriculture has reason to believe that the issuance of an order will tend to effectuate the declared policy of this chapter with respect to any commodity or product thereof specified in subsection (2) of this section, he shall give due notice of and an opportunity for a hearing upon a proposed order.
After such notice and opportunity for hearing, the Secretary of Agriculture shall issue an order if he finds, and sets forth in such order, upon the evidence introduced at such hearing (in addition to such other findings as may be specifically required by this section) that the issuance of such order and all of the terms and conditions thereof will tend to effectuate the declared policy of this chapter with respect to such commodity.
In the case of milk and its products, orders issued pursuant to this section shall contain one or more of the following terms and conditions, and (except as provided in subsection (7)) no others:
Classifying milk in accordance with the form in which or the purpose for which it is used, and fixing, or providing a method for fixing, minimum prices for each such use classification which all handlers shall pay, and the time when payments shall be made, for milk purchased from producers or associations of producers. Such prices shall be uniform as to all handlers, subject only to adjustments for (1) volume, market, and production differentials customarily applied by the handlers subject to such order, (2) the grade or quality of the milk purchased, and (3) the locations at which delivery of such milk, or any use classification thereof, is made to such handlers. Throughout the 2-year period beginning on the effective date of this sentence (and subsequent to such 2-year period unless modified by amendment to the order involved), for purposes of determining prices for milk of the highest use classification, the Class I skim milk price per hundredweight specified in section 1000.50(b) of title 7, Code of Federal Regulations (or successor regulations), shall be the sum of the adjusted Class I differential specified in section 1000.52 of such title 7 (or successor regulations), plus the adjustment to Class I prices specified in sections 1005.51(b), 1006.51(b), and 1007.51(b) of such title 7 (or successor regulations), plus the simple average of the advanced pricing factors computed in sections 1000.50(q)(1) and 1000.50(q)(2) of such title 7 (or successor regulations), plus $0.74.
Providing:
for the payment to all producers and associations of producers delivering milk to the same handler of uniform prices for all milk delivered by them: Provided, That, except in the case of orders covering milk products only, such provision is approved or favored by at least three-fourths of the producers who, during a representative period determined by the Secretary of Agriculture, have been engaged in the production for market of milk covered in such order or by producers who, during such representative period, have produced at least three-fourths of the volume of such milk produced for market during such period; the approval required hereunder shall be separate and apart from any other approval or disapproval provided for by this section; or
for the payment to all producers and associations of producers delivering milk to all handlers of uniform prices for all milk so delivered, irrespective of the uses made of such milk by the individual handler to whom it is delivered;
subject, in either case, only to adjustments for (a) volume, market, and production differentials customarily applied by the handlers subject to such order, (b) the grade or quality of the milk delivered, (c) the locations at which delivery of such milk is made, and (d) a further adjustment, equitably to apportion the total value of the milk purchased by any handler, or by all handlers, among producers and associations of producers, on the basis of their marketings of milk during a representative period of time.,2 [(e) omitted] and (f) a further adjustment, equitably to apportion the total value of milk purchased by any handler or by all handlers among producers on the basis of the milk components contained in their marketings of milk 3
In order to accomplish the purposes set forth in paragraphs (A) and (B) of this subsection, providing a method for making adjustments in payments, as among handlers (including producers who are also handlers), to the end that the total sums paid by each handler shall equal the value of the milk purchased by him at the prices fixed in accordance with paragraph (A) of this subsection.
Providing that, in the case of all milk purchased by handlers from any producer who did not regularly sell milk during a period of 30 days next preceding the effective date of such order for consumption in the area covered thereby, payments to such producer, for the period beginning with the first regular delivery by such producer and continuing until the end of two full calendar months following the first day of the next succeeding calendar month, shall be made at the price for the lowest use classification specified in such order, subject to the adjustments specified in paragraph (B) of this subsection.
Providing (i) except as to producers for whom such services are being rendered by a cooperative marketing association, qualified as provided in paragraph (F) of this subsection, for market information to producers and for the verification of weights, sampling, and testing of milk purchased from producers, and for making appropriate deductions therefor from payments to producers, and (ii) for assurance of, and security for, the payment by handlers for milk purchased.
Nothing contained in this subsection is intended or shall be construed to prevent a cooperative marketing association qualified under the provisions of sections 291 and 292 of this title, engaged in making collective sales or marketing of milk or its products for the producers thereof, from blending the net proceeds of all of its sales in all markets in all use classifications, and making distribution thereof to its producers in accordance with the contract between the association and its producers: Provided, That it shall not sell milk or its products to any handler for use or consumption in any market at prices less than the prices fixed pursuant to paragraph (A) of this subsection for such milk.
No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States.
Omitted
Establishing or providing for the establishment of research and development projects, and advertising (excluding brand advertising), sales promotion, educational, and other programs designed to improve or promote the domestic marketing and consumption of milk and its products, to be financed by producers in a manner and at a rate specified in the order, on all producer milk under the order. Producer contributions under this subparagraph 4 may be deducted from funds due producers in computing total pool value or otherwise computing total funds due producers and such deductions shall be in addition to the adjustments authorized by paragraph (B) of this subsection. Provision may be made in the order to exempt, or allow suitable adjustments or credits in connection with, milk on which a mandatory checkoff for advertising or marketing research is required under the authority of any State law. Such funds shall be paid to an agency organized by milk producers and producers’ cooperative associations in such form and with such methods of operation as shall be specified in the order. Such agency may expend such funds for any of the purposes authorized by this subparagraph 4 and may designate, employ, and allocate funds to persons and organizations engaged in such programs which meet the standards and qualifications specified in the order. All funds collected under this subparagraph 4 shall be separately accounted for and shall be used only for the purposes for which they were collected. Programs authorized by this subparagraph 4 may be either local or national in scope, or both, as provided in the order, but shall not be international. Order provisions under this subparagraph 4 shall not become effective in any marketing order unless such provisions are approved by producers separately from other order provisions, in the same manner provided for the approval of marketing orders, and may be terminated separately whenever the Secretary makes a determination with respect to such provisions as is provided for the termination of an order in subsection (16)(B). Disapproval or termination of such order provisions shall not be considered disapproval of the order or of other terms of the order. Notwithstanding any other provision of this chapter, any producer against whose marketings any assessment is withheld or collected under the authority of this subparagraph,4 and who is not in favor of supporting the research and promotion programs, as provided for herein, shall have the right to demand and receive a refund of such assessment pursuant to the terms and conditions specified in the order.
Providing for the payment, from the total sums payable by all handlers for milk (irrespective of the use classification of such milk) and before computing uniform prices under paragraph (A) and making adjustments in payments under paragraph (C), to handlers that are cooperative marketing associations described in paragraph (F) and to handlers with respect to which adjustments in payments are made under paragraph (C), for services of marketwide benefit, including but not limited to—
providing facilities to furnish additional supplies of milk needed by handlers and to handle and dispose of milk supplies in excess of quantities needed by handlers;
handling on specific days quantities of milk that exceed the quantities needed by handlers; and
transporting milk from one location to another for the purpose of fulfilling requirements for milk of a higher use classification or for providing a market outlet for milk of any use classification.
Notwithstanding any other provision of law, milk produced by dairies—
owned or controlled by foreign persons; and
financed by or with the use of bonds the interest on which is exempt from Federal income tax under section 103 of title 26;
shall be treated as other-source milk, and shall be allocated as milk received from producer-handlers for the purposes of classifying producer milk, under the milk marketing program established under this chapter. For the purposes of this subparagraph,4 the term “foreign person” has the meaning given such term under section 3508(3) of this title.
The Secretary of Agriculture shall prescribe regulations to carry out this subparagraph.4
This subparagraph 4 shall not apply with respect to any dairy that began operation before May 6, 1986.
Providing that adjustments in payments by handlers under paragraph (A) need not be the same as adjustments to producers under paragraph (B) with regard to adjustments authorized by subparagraphs (2) and (3) of paragraph (A) and clauses (b), (c), and (d) of paragraph (B)(ii).
Notwithstanding any other provision of this section, a milk handler described in clause (ii) shall be subject to all of the minimum and uniform price requirements of a Federal milk marketing order issued pursuant to this section applicable to the county in which the plant of the handler is located, at Federal order class prices, if the handler has packaged fluid milk product route dispositions, or sales of packaged fluid milk products to other plants, in a marketing area located in a State that requires handlers to pay minimum prices for raw milk purchases.
Except as provided in clause (iv), clause (i) applies to a handler of Class I milk products (including a producer-handler or producer operating as a handler) that—
operates a plant that is located within the boundaries of a Federal order milk marketing area (as those boundaries are in effect as of April 11, 2006);
has packaged fluid milk product route dispositions, or sales of packaged fluid milk products to other plants, in a milk marketing area located in a State that requires handlers to pay minimum prices for raw milk purchases; and
is not otherwise obligated by a Federal milk marketing order, or a regulated milk pricing plan operated by a State, to pay minimum class prices for the raw milk that is used for such dispositions or sales.
For purposes of clause (ii)(III), the Secretary may not consider a handler of Class I milk products to be obligated by a Federal milk marketing order to pay minimum class prices for raw milk unless the handler operates the plant as a fully regulated fluid milk distributing plant under a Federal milk marketing order.
Clause (i) does not apply to—
a handler (otherwise described in clause (ii)) that operates a nonpool plant (as defined in section 1000.8(e) of title 7, Code of Federal Regulations, as in effect on April 11, 2006);
a producer-handler (otherwise described in clause (ii)) for any month during which the producer-handler has route dispositions, and sales to other plants, of packaged fluid milk products equaling less than 3,000,000 pounds of milk; or
a handler (otherwise described in clause (ii)) for any month during which—
less than 25 percent of the total quantity of fluid milk products physically received at the plant of the handler (excluding concentrated milk received from another plant by agreement for other than Class I use) is disposed of as route disposition or is transferred in the form of packaged fluid milk products to other plants; or
less than 25 percent in aggregate of the route disposition or transfers are in a marketing area or areas located in one or more States that require handlers to pay minimum prices for raw milk purchases.
Notwithstanding any other provision of this section, no handler with distribution of Class I milk products in the marketing area described in Order No. 131 shall be exempt during any month from any minimum price requirement established by the Secretary under this subsection if the total distribution of Class I products during the preceding month of any such handler’s own farm production exceeds 3,000,000 pounds.
Subparagraphs (M) and (N) shall not be construed as affecting, expanding, or contracting the treatment of producer-handlers under this subsection except as provided in such subparagraphs.
In the case of the agricultural commodities and the products thereof, other than milk and its products, specified in subsection (2) orders issued pursuant to this section shall contain one or more of the following terms and conditions, and (except as provided in subsection (7)), no others:
Limiting, or providing methods for the limitation of, the total quantity of any such commodity or product, or of any grade, size, or quality thereof, produced during any specified period or periods, which may be marketed in or transported to any or all markets in the current of interstate or foreign commerce or so as directly to burden, obstruct, or affect interstate or foreign commerce in such commodity or product thereof, during any specified period or periods by all handlers thereof.
Allotting, or providing methods for allotting, the amount of such commodity or product, or any grade, size, or quality thereof, which each handler may purchase from or handle on behalf of any and all producers thereof, during any specified period or periods, under a uniform rule based upon the amounts sold by such producers in such prior period as the Secretary determines to be representative, or upon the current quantities available for sale by such producers, or both, to the end that the total quantity thereof to be purchased, or handled during any specified period or periods shall be apportioned equitably among producers.
Allotting, or providing methods for allotting, the amount of any such commodity or product, or any grade, size, or quality thereof, which each handler may market in or transport to any or all markets in the current of interstate or foreign commerce or so as directly to burden, obstruct, or affect interstate or foreign commerce in such commodity or product thereof, under a uniform rule based upon the amounts which each such handler has available for current shipment, or upon the amounts shipped by each such handler in such prior period as the Secretary determines to be representative, or both, to the end that the total quantity of such commodity or product, or any grade, size, or quality thereof, to be marketed in or transported to any or all markets in the current of interstate or foreign commerce or so as directly to burden, obstruct, or affect interstate or foreign commerce in such commodity or product thereof, during any specified period or periods shall be equitably apportioned among all of the handlers thereof.
Determining, or providing methods for determining, the existence and extent of the surplus of any such commodity or product, or of any grade, size, or quality thereof, and providing for the control and disposition of such surplus, and for equalizing the burden of such surplus elimination or control among the producers and handlers thereof.
Establishing or providing for the establishment of reserve pools of any such commodity or product, or of any grade, size, or quality thereof, and providing for the equitable distribution of the net return derived from the sale thereof among the persons beneficially interested therein.
Requiring or providing for the requirement of inspection of any such commodity or product produced during specified periods and marketed by handlers.
In the case of hops and their products in addition to, or in lieu of, the foregoing terms and conditions, orders may contain one or more of the following:
Limiting, or providing methods for the limitation of, the total quantity thereof, or of any grade, type, or variety thereof, produced during any specified period or periods, which all handlers may handle in the current of or so as directly to burden, obstruct, or affect interstate or foreign commerce in hops or any product thereof.
Apportioning, or providing methods for apportioning, the total quantity of hops of the production of the then current calendar year permitted to be handled equitably among all producers in the production area to which the order applies upon the basis of one or more or a combination of the following: The total quantity of hops available or estimated will become available for market by each producer from his production during such period; the normal production of the acreage of hops operated by each producer during such period upon the basis of the number of acres of hops in production, and the average yield of that acreage during such period as the Secretary determines to be representative, with adjustments determined by the Secretary to be proper for age of plantings or abnormal conditions affecting yield; such normal production or historical record of any acreage for which data as to yield of hops are not available or which had no yield during such period shall be determined by the Secretary on the basis of the yields of other acreage of hops of similar characteristics as to productivity, subject to adjustment as just provided for.
Allotting, or providing methods for allotting, the quantity of hops which any handler may handle so that the allotment fixed for that handler shall be limited to the quantity of hops apportioned under preceding section 5 (ii) to each respective producer of hops; such allotment shall constitute an allotment fixed for that handler within the meaning of subsection (5) of section 608a of this title.
providing 6 a method for fixing the size, capacity, weight, dimensions, or pack of the container, or containers, which may be used in the packaging, transportation, sale, shipment, or handling of any fresh or dried fruits, vegetables, or tree nuts: Provided, however, That no action taken hereunder shall conflict with the Standard Containers Act of 1916 (15 U.S.C. 251–256) and the Standard Containers Act of 1928 (15 U.S.C. 257–257i); 7
establishing 6 or providing for the establishment of production research, marketing research and development projects designed to assist, improve, or promote the marketing, distribution, and consumption or efficient production of any such commodity or product, the expense of such projects to be paid from funds collected pursuant to the marketing order: Provided, That with respect to orders applicable to almonds, filberts (otherwise known as hazelnuts), California-grown peaches, cherries, papayas, carrots, citrus fruits, onions, Tokay grapes, pears, dates, plums, nectarines, celery, sweet corn, limes, olives, pecans, eggs, avocados, apples, raisins, walnuts, tomatoes, caneberries (including raspberries, blackberries, and loganberries), Florida grown 8 strawberries, or cranberries, such projects may provide for any form of marketing promotion including paid advertising and with respect to almonds, filberts (otherwise known as hazelnuts), raisins, walnuts, olives, Florida Indian River grapefruit, and cranberries may provide for crediting the pro rata expense assessment obligations of a handler with all or any portion of his direct expenditures for such marketing promotion including paid advertising as may be authorized by the order and when the handling of any commodity for canning or freezing is regulated, then any such projects may also deal with the commodity or its products in canned or frozen form: Provided further, That the inclusion in a Federal marketing order of provisions for research and marketing promotion, including paid advertising, shall not be deemed to preclude, preempt or supersede any such provisions in any State program covering the same commodity.
In the case of pears for canning or freezing, any order for a production area encompassing territory within two or more States or portions thereof shall provide that the grade, size, quality, maturity, and inspection regulation under the order applicable to pears grown within any such State or portion thereof may be recommended to the Secretary by the agency established to administer the order only if a majority of the representatives from that State on such agency concur in the recommendation each year.
In the case of the agricultural commodities and the products thereof specified in subsection (2) orders shall contain one or more of the following terms and conditions:
Prohibiting unfair methods of competition and unfair trade practices in the handling thereof.
Providing that (except for milk and cream to be sold for consumption in fluid form) such commodity or product thereof, or any grade, size, or quality thereof shall be sold by the handlers thereof only at prices filed by such handlers in the manner provided in such order.
Providing for the selection by the Secretary of Agriculture, or a method for the selection, of an agency or agencies and defining their powers and duties, which shall include only the powers:
To administer such order in accordance with its terms and provisions;
To make rules and regulations to effectuate the terms and provisions of such order;
To receive, investigate, and report to the Secretary of Agriculture complaints of violations of such order; and
To recommend to the Secretary of Agriculture amendments to such order.
No person acting as a member of an agency established pursuant to this paragraph shall be deemed to be acting in an official capacity, within the meaning of section 610(g) of this title, unless such person receives compensation for his personal services from funds of the United States. There shall be included in the membership of any agency selected to administer a marketing order applicable to grapefruit for canning or freezing one or more representatives of processors of the commodity specified in such order.
Incidental to, and not inconsistent with, the terms and conditions specified in subsections (5), (6), and (7) and necessary to effectuate the other provisions of such order.
Except as provided in subsection (9) of this section, no order issued pursuant to this section shall become effective until the handlers (excluding cooperative associations of producers who are not engaged in processing, distributing, or shipping the commodity or product thereof covered by such order) of not less than 50 per centum of the volume of the commodity or product thereof covered by such order which is produced or marketed within the production or marketing area defined in such order have signed a marketing agreement, entered into pursuant to section 608b of this title, which regulates the handling of such commodity or product in the same manner as such order, except that as to citrus fruits produced in any area producing what is known as California citrus fruits no order issued pursuant to this subsection shall become effective until the handlers of not less than 80 per centum of the volume of such commodity or product thereof covered by such order have signed such a marketing agreement: Provided, That no order issued pursuant to this subsection shall be effective unless the Secretary of Agriculture determines that the issuance of such order is approved or favored:
By at least two-thirds of the producers who (except that as to citrus fruits produced in any area producing what is known as California citrus fruits said order must be approved or favored by three-fourths of the producers), during a representative period determined by the Secretary, have been engaged, within the production area specified in such marketing agreement or order, in the production for market of the commodity specified therein, or who, during such representative period, have been engaged in the production of such commodity for sale in the marketing area specified in such marketing agreement, or order, or
By producers who, during such representative period, have produced for market at least two-thirds of the volume of such commodity produced for market within the production area specified in such marketing agreement or order, or who, during such representative period, have produced at least two-thirds of the volume of such commodity sold within the marketing area specified in such marketing agreement or order.
Any order issued pursuant to this section shall become effective in the event that, notwithstanding the refusal or failure of handlers (excluding cooperative associations of producers who are not engaged in processing, distributing, or shipping the commodity or product thereof covered by such order) of more than 50 per centum of the volume of the commodity or product thereof (except that as to citrus fruits produced in any area producing what is known as California citrus fruits said per centum shall be 80 per centum) covered by such order which is produced or marketed within the production or marketing area defined in such order to sign a marketing agreement relating to such commodity or product thereof, on which a hearing has been held, the Secretary of Agriculture determines:
That the refusal or failure to sign a marketing agreement (upon which a hearing has been held) by the handlers (excluding cooperative associations of producers who are not engaged in processing, distributing, or shipping the commodity or product thereof covered by such order) of more than 50 per centum of the volume of the commodity or product thereof (except that as to citrus fruits produced in any area producing what is known as California citrus fruits said per centum shall be 80 per centum) specified therein which is produced or marketed within the production or marketing area specified therein tends to prevent the effectuation of the declared policy of this chapter with respect to such commodity or product, and
That the issuance of such order is the only practical means of advancing the interests of the producers of such commodity pursuant to the declared policy, and is approved or favored:
By at least two-thirds of the producers (except that as to citrus fruits produced in any area producing what is known as California citrus fruits said order must be approved or favored by three-fourths of the producers) who, during a representative period determined by the Secretary, have been engaged, within the production area specified in such marketing agreement or order, in the production for market of the commodity specified therein, or who, during such representative period, have been engaged in the production of such commodity for sale in the marketing area specified in such marketing agreement, or order, or
By producers who, during such representative period, have produced for market at least two-thirds of the volume of such commodity produced for market within the production area specified in such marketing agreement or order, or who, during such representative period, have produced at least two-thirds of the volume of such commodity sold within the marketing area specified in such marketing agreement or order.
No order shall be issued under this section unless it regulates the handling of the commodity or product covered thereby in the same manner as, and is made applicable only to persons in the respective classes of industrial or commercial activity specified in, a marketing agreement upon which a hearing has been held. No order shall be issued under this chapter prohibiting, regulating, or restricting the advertising of any commodity or product covered thereby, nor shall any marketing agreement contain any provision prohibiting, regulating, or restricting the advertising of any commodity, or product covered by such marketing agreement.
No order shall be issued under this section which is applicable to all production areas or marketing areas, or both, of any commodity or product thereof unless the Secretary finds that the issuance of several orders applicable to the respective regional production areas or regional marketing areas, or both, as the case may be, of the commodity or product would not effectively carry out the declared policy of this chapter.
Except in the case of milk and its products, orders issued under this section shall be limited in their application to the smallest regional production areas or regional marketing areas, or both, as the case may be, which the Secretary finds practicable, consistently with carrying out such declared policy.
All orders issued under this section which are applicable to the same commodity or product thereof shall, so far as practicable, prescribe such different terms, applicable to different production areas and marketing areas, as the Secretary finds necessary to give due recognition to the differences in production and marketing of such commodity or product in such areas.
In the case of milk and its products, no county or other political subdivision of the State of Nevada shall be within the marketing area definition of any order issued under this section.
Whenever, pursuant to the provisions of this section, the Secretary is required to determine the approval or disapproval of producers with respect to the issuance of any order, or any term or condition thereof, or the termination thereof, the Secretary shall consider the approval or disapproval by any cooperative association of producers, bona fide engaged in marketing the commodity or product thereof covered by such order, or in rendering services for or advancing the interests of the producers of such commodity, as the approval or disapproval of the producers who are members of, stockholders in, or under contract with, such cooperative association of producers.
No order issued under subsection (9) of this section shall be applicable to any person who sells agricultural commodities or products thereof at retail in his capacity as such retailer, except to a retailer in his capacity as a retailer of milk and its products.
No order issued under this chapter shall be applicable to any producer in his capacity as a producer.
Any handler subject to an order issued under this section, or any officer, director, agent, or employee of such handler, who violates any provision of such order shall, on conviction, be fined not less than $50 or more than $5,000 for each such violation, and each day during which such violation continues shall be deemed a separate violation. If the court finds that a petition pursuant to subsection (15) of this section was filed and prosecuted by the defendant in good faith and not for delay, no penalty shall be imposed under this subsection for such violations as occurred between the date upon which the defendant’s petition was filed with the Secretary, and the date upon which notice of the Secretary’s ruling thereon was given to the defendant in accordance with regulations prescribed pursuant to subsection (15).
Any handler subject to an order issued under this section, or any officer, director, agent, or employee of such handler, who violates any provision of such order may be assessed a civil penalty by the Secretary not exceeding $1,000 for each such violation. Each day during which such violation continues shall be deemed a separate violation, except that if the Secretary finds that a petition pursuant to paragraph (15) was filed and prosecuted by the handler in good faith and not for delay, no civil penalty may be assessed under this paragraph for such violations as occurred between the date on which the handler’s petition was filed with the Secretary, and the date on which notice of the Secretary’s ruling thereon was given to the handler in accordance with regulations prescribed pursuant to paragraph (15). The Secretary may issue an order assessing a civil penalty under this paragraph only after notice and an opportunity for an agency hearing on the record. Such order shall be treated as a final order reviewable in the district courts of the United States in any district in which the handler subject to the order is an inhabitant, or has the handler’s principal place of business. The validity of such order may not be reviewed in an action to collect such civil penalty.
Any handler subject to an order may file a written petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. He shall thereupon be given an opportunity for a hearing upon such petition, in accordance with regulations made by the Secretary of Agriculture, with the approval of the President. After such hearing, the Secretary shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law.
The District Courts of the United States in any district in which such handler is an inhabitant, or has his principal place of business, are hereby vested with jurisdiction in equity to review such ruling, provided a bill in equity for that purpose is filed within twenty days from the date of the entry of such ruling. Service of process in such proceedings may be had upon the Secretary by delivering to him a copy of the bill of complaint. If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, the law requires. The pendency of proceedings instituted pursuant to this subsection (15) shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief pursuant to section 608a(6) of this title. Any proceedings brought pursuant to section 608a(6) of this title (except where brought by way of counterclaim in proceedings instituted pursuant to this subsection (15)) shall abate whenever a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this subsection (15).
Except as provided in clause (ii), the Secretary of Agriculture shall, whenever he finds that any order issued under this section, or any provision thereof, obstructs or does not tend to effectuate the declared policy of this chapter, terminate or suspend the operation of such order or such provision thereof.
The Secretary may not terminate any order issued under this section for a commodity for which there is no Federal program established to support the price of such commodity unless the Secretary gives notice of, and a statement of the reasons relied upon by the Secretary for, the proposed termination of such order to the Committee on Agriculture, Nutrition, and Forestry of the Senate and the Committee on Agriculture of the House of Representatives not later than 60 days before the date such order will be terminated.
The Secretary shall terminate any marketing agreement entered into under section 608b of this title, or order issued under this section, at the end of the then current marketing period for such commodity, specified in such marketing agreement or order, whenever he finds that such termination is favored by a majority of the producers who, during a representative period determined by the Secretary, have been engaged in the production for market of the commodity specified in such marketing agreement or order, within the production area specified in such marketing agreement or order, or who, during such representative period, have been engaged in the production of such commodity for sale within the marketing area specified in such marketing agreement or order: Provided, That such majority have, during such representative period, produced for market more than 50 per centum of the volume of such commodity produced for market within the production area specified in such marketing agreement or order, or have, during such representative period, produced more than 50 per centum of the volume of such commodity sold in the marketing area specified in such marketing agreement or order, but such termination shall be effective only if announced on or before such date (prior to the end of the then current marketing period) as may be specified in such marketing agreement or order.
Except as otherwise provided in this subsection with respect to the termination of an order issued under this section, the termination or suspension of any order or amendment thereto or provision thereof, shall not be considered an order within the meaning of this section.
The provisions of this section and section 608d of this title applicable to orders shall be applicable to amendments to orders.
Not later than 60 days after the date of enactment of this subparagraph, the Secretary shall issue, using informal rulemaking, supplemental rules of practice to define guidelines and timeframes for the rulemaking process relating to amendments to orders.
At a minimum, the supplemental rules of practice shall establish—
proposal submission requirements;
pre-hearing information session specifications;
written testimony and data request requirements;
public participation timeframes; and
electronic document submission standards.
The supplemental rules of practice shall take effect not later than 120 days after the date of enactment of this subparagraph, as determined by the Secretary.
Not more than 30 days after the receipt of a proposal for an amendment hearing regarding a milk marketing order, the Secretary shall—
issue a notice providing an action plan and expected timeframes for completion of the hearing not more than 120 days after the date of the issuance of the notice;
issue a request for additional information to be used by the Secretary in making a determination regarding the proposal; and
if the additional information is not provided to the Secretary within the timeframe requested by the Secretary, issue a denial of the request; or
issue a denial of the request.
A post-hearing brief may be filed under this paragraph not later than 60 days after the date of an amendment hearing regarding a milk marketing order.
A recommended decision on a proposed amendment to an order shall be issued not later than 90 days after the deadline for the submission of post-hearing briefs.
A final decision on a proposed amendment to an order shall be issued not later than 60 days after the deadline for submission of comments and exceptions to the recommended decision issued under clause (iii).
If the Secretary determines it is necessary to improve or expedite rulemaking under this subsection, the Secretary may impose an assessment on the affected industry to supplement appropriated funds for the procurement of service providers, such as court reporters.
The Secretary may use rulemaking under section 553 of title 5 to amend orders, other than provisions of orders that directly affect milk prices.
The Secretary shall not be required to hold a hearing on any amendment proposed to be made to a milk marketing order in response to an application for a hearing on the proposed amendment if—
the application requesting the hearing is received by the Secretary not later than 90 days after the date on which the Secretary has announced the decision on a previously proposed amendment to that order; and
the 2 proposed amendments are essentially the same, as determined by the Secretary.
As part of any hearing to adjust make allowances under marketing orders commencing prior to September 30, 2012, the Secretary shall—
determine the average monthly prices of feed and fuel incurred by dairy producers in the relevant marketing area;
consider the most recent monthly feed and fuel price data available; and
consider those prices in determining whether or not to adjust make allowances.
The Secretary of Agriculture, prior to prescribing any term in any marketing agreement or order, or amendment thereto, relating to milk or its products, if such term is to fix minimum prices to be paid to producers or associations of producers, or prior to modifying the price fixed in any such term, shall ascertain the parity prices of such commodities. The prices which it is declared to be the policy of Congress to establish in section 602 of this title shall, for the purposes of such agreement, order, or amendment, be adjusted to reflect the price of feeds, the available supplies of feeds, and other economic conditions which affect market supply and demand for milk or its products in the marketing area to which the contemplated marketing agreement, order, or amendment relates. Whenever the Secretary finds, upon the basis of the evidence adduced at the hearing required by section 608b of this title or this section, as the case may be, that the parity prices of such commodities are not reasonable in view of the price of feeds, the available supplies of feeds, and other economic conditions which affect market supply and demand for milk and its products in the marketing area to which the contemplated agreement, order, or amendment relates, he shall fix such prices as he finds will reflect such factors, insure a sufficient quantity of pure and wholesome milk, and be in the public interest. Thereafter, as the Secretary finds necessary on account of changed circumstances, he shall, after due notice and opportunity for hearing, make adjustments in such prices.
For the purpose of ascertaining whether the issuance of an order is approved or favored by producers or processors, as required under the applicable provisions of this chapter, the Secretary may conduct a referendum among producers or processors and in the case of an order other than an amendatory order shall do so. The requirements of approval or favor under any such provision shall be held to be complied with if, of the total number of producers or processors, or the total volume of production, as the case may be, represented in such referendum, the percentage approving or favoring is equal to or in excess of the percentage required under such provision. The terms and conditions of the proposed order shall be described by the Secretary in the ballot used in the conduct of the referendum. The nature, content, or extent of such description shall not be a basis for attacking the legality of the order or any action relating thereto. Nothing in this subsection shall be construed as limiting representation by cooperative associations as provided in subsection (12) of this section. For the purpose of ascertaining whether the issuance of an order applicable to pears for canning or freezing is approved or favored by producers as required under the applicable provisions of this chapter, the Secretary shall conduct a referendum among producers in each State in which pears for canning or freezing are proposed to be included within the provisions of such marketing order and the requirements of approval or favor under any such provisions applicable to pears for canning or freezing shall be held to be complied with if, of the total number of producers, or the total volume of production, as the case may be, represented in such referendum, the percentage approving or favoring is equal to or in excess of 66⅔ per centum except that in the event that pear producers in any State fail to approve or favor the issuance of any such marketing order, it shall not be made effective in such State.
Source credit: (May 12, 1933, ch. 25, title I, § 8c, as added Aug. 24, 1935, ch. 641, § 5, 49 Stat. 753; amended June 25, 1936, ch. 804, 49 Stat. 1921; June 3, 1937, ch. 296, §§ 1, 2(d)–(f), 50 Stat. 246, 247; June 3, 1937, ch. 296, § 2(k), (l), as added Aug. 5, 1937, ch. 567, 50 Stat. 563; Apr. 13, 1938, ch. 143, §§ 1, 2, 52 Stat. 215; May 31, 1939, ch. 157, 53 Stat. 793; Feb. 10, 1942, ch. 52, §§ 2, 3, 56 Stat. 85; 1947 Reorg. Plan No. 1, § 102, eff. July 1, 1947, 12 F.R. 4534, 61 Stat. 951; Aug. 1, 1947, ch. 425, §§ 2, 4, 61 Stat. 707, 710; July 3, 1948, ch. 827, title III, § 302(b), (c), 62 Stat. 1258; June 29, 1949, ch. 273, 63 Stat. 282; Aug. 28, 1954, ch. 1041, title IV, § 401(b)–(d), 68 Stat. 906, 907; Pub. L. 87–128, title I, § 141(3), (4), Aug. 8, 1961, 75 Stat. 304, 305; Pub. L. 87–703, title IV, § 403, Sept. 27, 1962, 76 Stat. 632; Pub. L. 89–321, title I, §§ 101, 102, Nov. 3, 1965, 79 Stat. 1187; Pub. L. 89–330, § 1(b), Nov. 8, 1965, 79 Stat. 1270; Pub. L. 91–196, § 1, Feb. 20, 1970, 84 Stat. 14; Pub. L. 91–292, § 1(2), June 25, 1970, 84 Stat. 333; Pub. L. 91–341, July 18, 1970, 84 Stat. 438; Pub. L. 91–363, July 31, 1970, 84 Stat. 687; Pub. L. 91–384, Aug. 18, 1970, 84 Stat. 827; Pub. L. 91–522, Nov. 25, 1970, 84 Stat. 1357; Pub. L. 91–524, title II, § 201(a), Nov. 30, 1970, 84 Stat. 1359; Pub. L. 91–670, title I, § 101, title II, § 201, Jan. 11, 1971, 84 Stat. 2040, 2041; Pub. L. 92–120, Aug. 13, 1971, 85 Stat. 340; Pub. L. 92–233, Feb. 15, 1972, 86 Stat. 39; Pub. L. 92–466, Oct. 6, 1972, 86 Stat. 780; Pub. L. 91–524, title II, § 201(f), Nov. 30, 1970, as added Pub. L. 93–86, § 1(2)(B), Aug. 10, 1973, 87 Stat. 222; Pub. L. 93–230, Dec. 29, 1973, 87 Stat. 945; Pub. L. 95–279, title IV, § 401(a), May 15, 1978, 92 Stat. 242; Pub. L. 96–494, title I, § 101, Dec. 3, 1980, 94 Stat. 2570; Pub. L. 97–98, title I, § 101(a), Dec. 22, 1981, 95 Stat. 1218; Pub. L. 98–171, § 1, Nov. 29, 1983, 97 Stat. 1117; Pub. L. 98–180, title III, § 304, Nov. 29, 1983, 97 Stat. 1151; Pub. L. 99–198, title I, §§ 131(a), 133, title XVI, §§ 1661(a), 1662(a), Dec. 23, 1985, 99 Stat. 1372, 1373, 1630, 1631; Pub. L. 100–203, title I, § 1501, Dec. 22, 1987, 101 Stat. 1330–27; Pub. L. 100–418, title IV, §§ 4601, 4602, Aug. 23, 1988, 102 Stat. 1407; Pub. L. 101–624, title I, §§ 112, 113, title XIII, § 1306, Nov. 28, 1990, 104 Stat. 3380, 3561; Pub. L. 102–237, title I, § 115(2), Dec. 13, 1991, 105 Stat. 1840; Pub. L. 102–553, § 2, Oct. 28, 1992, 106 Stat. 4141; Pub. L. 106–78, title VII, §§ 757(a), 760, Oct. 22, 1999, 113 Stat. 1171, 1173; Pub. L. 107–76, title VII, § 765, Nov. 28, 2001, 115 Stat. 743; Pub. L. 107–171, title X, § 10601(a), May 13, 2002, 116 Stat. 511; Pub. L. 108–379, § 1, Oct. 30, 2004, 118 Stat. 2209; Pub. L. 109–215, § 2(a), (b), Apr. 11, 2006, 120 Stat. 328, 329; Pub. L. 110–234, title I, § 1504, May 22, 2008, 122 Stat. 993; Pub. L. 110–246, § 4(a), title I, § 1504, June 18, 2008, 122 Stat. 1664, 1721; Pub. L. 115–334, title I, § 1403(a), Dec. 20, 2018, 132 Stat. 4518.)
- 1933Enacted · Act of May 12, 1933, ch. 25 · 49 Stat. 753
- 1936Amended · Act of June 25, 1936, ch. 804 · 49 Stat. 1921
- 1937Amended · Act of June 3, 1937, ch. 296 · 50 Stat. 246, 247
- 1937Amended · Act of June 3, 1937, ch. 296 · 50 Stat. 563
- 1938Amended · Act of Apr. 13, 1938, ch. 143 · 52 Stat. 215
- 1939Amended · Act of May 31, 1939, ch. 157 · 53 Stat. 793
- 1942Amended · Act of Feb. 10, 1942, ch. 52 · 56 Stat. 85
- 1947Amended · Act of Aug. 1, 1947, ch. 425 · 61 Stat. 707, 710
- 1948Amended · Act of July 3, 1948, ch. 827 · 62 Stat. 1258
- 1949Amended · Act of June 29, 1949, ch. 273 · 63 Stat. 282
- 1954Amended · Act of Aug. 28, 1954, ch. 1041 · 68 Stat. 906, 907
- 1961Amended · Pub. L. 87-128 · 75 Stat. 304, 305
- 1962Amended · Pub. L. 87-703 · 76 Stat. 632
- 1965Amended · Pub. L. 89-321 · 79 Stat. 1187
- 1965Amended · Pub. L. 89-330 · 79 Stat. 1270
- 1970Amended · Pub. L. 91-196 · 84 Stat. 14
- 1970Amended · Pub. L. 91-292 · 84 Stat. 333
- 1970Amended · Pub. L. 91-341 · 84 Stat. 438
- 1970Amended · Pub. L. 91-363 · 84 Stat. 687
- 1970Amended · Pub. L. 91-384 · 84 Stat. 827
- 1970Amended · Pub. L. 91-522 · 84 Stat. 1357
- 1970Amended · Pub. L. 91-524 · 84 Stat. 1359
- 1971Amended · Pub. L. 91-670 · 84 Stat. 2040, 2041
- 1971Amended · Pub. L. 92-120 · 85 Stat. 340
- 1972Amended · Pub. L. 92-233 · 86 Stat. 39
- 1972Amended · Pub. L. 92-466 · 86 Stat. 780
- 1970Amended · Pub. L. 91-524 · 87 Stat. 222
- 1973Amended · Pub. L. 93-230 · 87 Stat. 945
- 1978Amended · Pub. L. 95-279 · 92 Stat. 242
- 1980Amended · Pub. L. 96-494 · 94 Stat. 2570
- 1981Amended · Pub. L. 97-98 · 95 Stat. 1218
- 1983Amended · Pub. L. 98-171 · 97 Stat. 1117
- 1983Amended · Pub. L. 98-180 · 97 Stat. 1151
- 1985Amended · Pub. L. 99-198 · 99 Stat. 1372, 1373, 1630, 1631
- 1987Amended · Pub. L. 100-203 · 101 Stat. 1330
- 1988Amended · Pub. L. 100-418 · 102 Stat. 1407
- 1990Amended · Pub. L. 101-624 · 104 Stat. 3380, 3561
- 1991Amended · Pub. L. 102-237 · 105 Stat. 1840
- 1992Amended · Pub. L. 102-553 · 106 Stat. 4141
- 1999Amended · Pub. L. 106-78 · 113 Stat. 1171, 1173
- 2001Amended · Pub. L. 107-76 · 115 Stat. 743
- 2002Amended · Pub. L. 107-171 · 116 Stat. 511
- 2004Amended · Pub. L. 108-379 · 118 Stat. 2209
- 2006Amended · Pub. L. 109-215 · 120 Stat. 328, 329
- 2008Amended · Pub. L. 110-234 · 122 Stat. 993
- 2008Amended · Pub. L. 110-246 · 122 Stat. 1664, 1721
- 2018Amended · Pub. L. 115-334 · 132 Stat. 4518
A history note hasn’t been published yet. The record shows enactment by ch. 25 on 1933-05-12.
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