7 U.S.C. § 608c : US Code - Section 608C: Orders

Search 7 U.S.C. § 608c : US Code - Section 608C: Orders

(1) Issuance by Secretary
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.
(2) Commodities to which applicable
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) of this section.
(3) Notice and hearing
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.
(4) Finding and issuance of 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.
(5) Terms - Milk and its products
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) of this
section) no others:
(A) 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), the
minimum aggregate amount of the adjustments, under clauses (1) and
(2) of the preceding sentence, to prices for milk of the highest
use classification under orders that are in effect under this
section on December 23, 1985, shall be as follows:
Minimum
Aggregate
Dollar         
Amount of Such
Adjustments    
Marketing Area                                    Per
Hundredweight
of Milk        
Subject to Order                                Having 3.5
Percent Milkfat
New England                                              $3.24  
New York-New Jersey                                       3.14  
Middle Atlantic                                           3.03  
Georgia                                                   3.08  
Alabama-West Florida                                      3.08  
Upper Florida                                             3.58  
Tampa Bay                                                 3.88  
Southeastern Florida                                      4.18  
Michigan Upper Peninsula                                  1.35  
Southern Michigan                                         1.75  
Eastern Ohio-Western Pennsylvania                         1.95  
Ohio Valley                                               2.04  
Indiana                                                   2.00  
Chicago Regional                                          1.40  
Central Illinois                                          1.61  
Southern Illinois                                         1.92  
Louisville-Lexington-Evansville                           2.11  
Upper Midwest                                             1.20  
Eastern South Dakota                                      1.50  
Black Hills, South Dakota                                 2.05  
Iowa                                                      1.55  
Nebraska-Western Iowa                                     1.75  
Greater Kansas City                                       1.92  
Tennessee Valley                                          2.77  
Nashville, Tennessee                                      2.52  
Paducah, Kentucky                                         2.39  
Memphis, Tennessee                                        2.77  
Central Arkansas                                          2.77  
Fort Smith, Arkansas                                      2.77  
Southwest Plains                                          2.77  
Texas Panhandle                                           2.49  
Lubbock-Plainview, Texas                                  2.49  
Texas                                                     3.28  
Greater Louisiana                                         3.28  
New Orleans-Mississippi                                   3.85  
Eastern Colorado                                          2.73  
Western Colorado                                          2.00  
Southwestern Idaho-Eastern Oregon                         1.50  
Great Basin                                               1.90  
Lake Mead                                                 1.60  
Central Arizona                                           2.52  
Rio Grande Valley                                         2.35  
Puget Sound-Inland                                        1.85  
Oregon-Washington                                         1.95  
Effective at the beginning of such two-year period, the minimum
prices for milk of the highest use classification shall be adjusted
for the locations at which delivery of such milk is made to such
handlers.
(B) Providing:
(i) 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
(ii) 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)
(C) 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.
(D) 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.
(E) 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.
(F) 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.
(G) 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.
(H) Omitted
(I) 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) of this section. 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.
(J) 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 - 
(i) 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;
(ii) handling on specific days quantities of milk that exceed
the quantities needed by handlers; and
(iii) 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.
(K)(i) Notwithstanding any other provision of law, milk produced
by dairies - 
(I) owned or controlled by foreign persons; and
(II) 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.
(ii) The Secretary of Agriculture shall prescribe regulations to
carry out this subparagraph.(!4)
(iii) This subparagraph (!4) shall not apply with respect to any
dairy that began operation before May 6, 1986.
(L) 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).
(M) Minimum Milk Prices for Handlers. - 
(i) Application of minimum price requirements. -
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.
(ii) Covered milk handlers. - 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 - 
(I) 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);
(II) 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
(III) 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.
(iii) Obligation to pay minimum class prices. - 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.
(iv) Certain handlers exempted. - Clause (i) does not apply to -

(I) 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);
(II) 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
(III) a handler (otherwise described in clause (ii)) for any
month during which - 
(aa) 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
(bb) 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.
(N) Exemption for Certain Milk Handlers. - 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.
(O) Rule of Construction Regarding Producer-Handlers. -
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.
(6) Terms - Other commodities
In the case of the agricultural commodities and the products
thereof, other than milk and its products, specified in subsection
(2) of this section orders issued pursuant to this section shall
contain one or more of the following terms and conditions, and
(except as provided in subsection (7) of this section), no others:
(A) 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.
(B) 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.
(C) 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.
(D) 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.
(E) 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.
(F) Requiring or providing for the requirement of inspection of
any such commodity or product produced during specified periods and
marketed by handlers.
(G) 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:
(i) 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.
(ii) 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.
(iii) 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.
(H) 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)
(I) 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.
(J) 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.
(7) Terms common to all orders
In the case of the agricultural commodities and the products
thereof specified in subsection (2) of this section orders shall
contain one or more of the following terms and conditions:
(A) Prohibiting unfair methods of competition and unfair trade
practices in the handling thereof.
(B) 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.
(C) 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:
(i) To administer such order in accordance with its terms and
provisions;
(ii) To make rules and regulations to effectuate the terms and
provisions of such order;
(iii) To receive, investigate, and report to the Secretary of
Agriculture complaints of violations of such order; and
(iv) 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.
(D) Incidental to, and not inconsistent with, the terms and
conditions specified in subsections (5), (6), and (7) of this
section and necessary to effectuate the other provisions of such
order.
(8) Orders with marketing agreement
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:
(A) 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
(B) 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.
(9) Orders with or without marketing agreement
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:
(A) 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
(B) 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:
(i) 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
(ii) 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.
(10) Manner of regulation and applicability
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.
(11) Regional application
(A) 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.
(B) 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.
(C) 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.
(D) 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.
(12) Cooperative association representation
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.
(13) Retailer and producer exemption
(A) 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.
(B) No order issued under this chapter shall be applicable to any
producer in his capacity as a producer.
(14) Violation of order
(A) 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) of this section.
(B) 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.
(15) Petition by handler and review
(A) 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.
(B) 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).
(16) Termination of orders and marketing agreements
(A)(i) 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.
(ii) 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.
(B) 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.
(C) 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.
(17) Provisions applicable to amendments
The provisions of this section, section 608d of this title,(!9)
applicable to orders shall be applicable to amendments to orders:
Provided, That notice of a hearing upon a proposed amendment to any
order issued pursuant to this section, given not less than three
days prior to the date fixed for such hearing, shall be deemed due
notice thereof.
(18) Milk prices
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.
(19) Producer referendum
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 66 2/3  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.