76R8540 BDH-F
By Turner of Coleman, Telford, Brimer H.B. No. 2000
Walker, Ramsay, et al.
Substitute the following for H.B. No. 2000:
By Hupp C.S.H.B. No. 2000
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the ratification of the Southern Dairy Compact;
1-3 providing civil penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subtitle D, Title 6, Agriculture Code, is amended
1-6 by adding Chapter 182 to read as follows:
1-7 CHAPTER 182. SOUTHERN DAIRY COMPACT
1-8 Sec. 182.001. DEFINITIONS. In this chapter:
1-9 (1) "Compact" means the Southern Dairy Compact.
1-10 (2) "Compact commission" means the Southern Dairy
1-11 Compact Commission established by Section 4, Article III, of the
1-12 compact.
1-13 (3) "Delegate" means a member of the delegation from
1-14 this state to the Southern Dairy Compact Commission as set forth in
1-15 Section 4, Article III, of the compact.
1-16 Sec. 182.002. DELEGATES; QUALIFICATIONS. (a) The
1-17 commissioner shall appoint one delegate to this state's delegation
1-18 to the compact commission to serve at the pleasure of the
1-19 commissioner. The commissioner may appoint himself or herself as
1-20 the delegate under this subsection. If the commissioner appoints a
1-21 person other than the commissioner as a delegate, the
1-22 commissioner's appointee must be an employee of the department,
1-23 preferably an employee with experience with milk marketing and
1-24 stabilization. The delegate serving under this subsection shall
2-1 serve as chair of the delegation from this state.
2-2 (b) The governor shall appoint four delegates to this
2-3 state's delegation to the compact commission as follows:
2-4 (1) two delegates who must be dairy farmers engaged in
2-5 the production of milk at the time of appointment or reappointment;
2-6 (2) one delegate who must be a dairy processor engaged
2-7 in the production of milk at the time of appointment or
2-8 reappointment; and
2-9 (3) one delegate who must be a consumer
2-10 representative.
2-11 (c) Each delegate must be a resident and registered voter
2-12 of this state.
2-13 (d) A delegate is not an officer of this state by virtue of
2-14 holding the position of delegate.
2-15 Sec. 182.003. TERMS; REMOVAL; VACANCY. (a) Each delegate
2-16 serves a term of four years.
2-17 (b) Each delegate shall serve from the date of appointment
2-18 until a successor is appointed and qualified.
2-19 (c) An individual, including the commissioner serving as a
2-20 delegate, may not serve more than three consecutive terms as a
2-21 delegate.
2-22 (d) A delegate may be removed for cause.
2-23 Sec. 182.004. EFFECTIVE DATE OF COMPACT. (a) The compact
2-24 shall become effective when:
2-25 (1) the governor has executed the compact on behalf of
2-26 this state and has filed a verified copy of the compact with the
2-27 secretary of state;
3-1 (2) the United States Congress has consented to the
3-2 compact; and
3-3 (3) two or more of the other states named in Section
3-4 20, Article VIII, of the compact, have ratified the compact in a
3-5 form substantially similar to that contained in Section 182.005.
3-6 (b) The governor shall take such action as may be necessary
3-7 to complete the exchange of official documents between this state
3-8 and any other state ratifying the compact.
3-9 Sec. 182.005. COMPACT TO BE ENTERED; TEXT. Subject to
3-10 Section 182.004, the Southern Dairy Compact is hereby entered into
3-11 and enacted into law as follows:
3-12 ARTICLE I. STATEMENT OF PURPOSE, FINDINGS, AND
3-13 DECLARATION OF POLICY
3-14 Sec. 1. STATEMENT OF PURPOSE, FINDINGS, AND DECLARATION OF
3-15 POLICY. The purpose of this compact is to recognize the interstate
3-16 character of the southern dairy industry and the prerogative of the
3-17 states under the United States Constitution to form an interstate
3-18 commission for the southern region. The mission of the commission
3-19 is to take such steps as are necessary to assure the continued
3-20 viability of dairy farming in the South, and to assure consumers of
3-21 an adequate, local supply of pure and wholesome milk.
3-22 The participating states find and declare that the dairy
3-23 industry is an essential agricultural activity of the South. Dairy
3-24 farms, and associated suppliers, marketers, processors, and
3-25 retailers, are an integral component of the region's economy.
3-26 Their ability to provide a stable, local supply of pure, wholesome
3-27 milk is a matter of great importance to the health and welfare of
4-1 the region.
4-2 The participating states further find that dairy farms are
4-3 essential and they are an integral part of the region's rural
4-4 communities. The farms preserve land for agricultural purposes and
4-5 provide needed economic stimuli for rural communities.
4-6 By entering into this compact, the participating states
4-7 affirm that their ability to regulate the price which southern
4-8 dairy farmers receive for their product is essential to the public
4-9 interest. Assurance of a fair and equitable price for dairy
4-10 farmers ensures their ability to provide milk to the market and the
4-11 vitality of the southern dairy industry, with all the associated
4-12 benefits.
4-13 Recent dramatic price fluctuations, with a pronounced
4-14 downward trend, threaten the viability and stability of the
4-15 southern dairy region. Historically, individual state regulatory
4-16 action had been an effective emergency remedy available to farmers
4-17 confronting a distressed market. The federal order system,
4-18 implemented by the Agricultural Marketing Agreement Act of 1937,
4-19 establishes only minimum prices paid to producers for raw milk,
4-20 without preempting the power of states to regulate milk prices
4-21 above the minimum levels so established.
4-22 In today's regional dairy marketplace, cooperative, rather
4-23 than individual state action, is needed to more effectively address
4-24 the market disarray. Under our constitutional system, properly
4-25 authorized states acting cooperatively may exercise more power to
4-26 regulate interstate commerce than they may assert individually
4-27 without such authority. For this reason, the participating states
5-1 invoke their authority to act in common agreement, with the consent
5-2 of the United States Congress, under the compact clause of the
5-3 United States Constitution.
5-4 In establishing their constitutional regulatory authority
5-5 over the region's fluid milk market by this compact, the
5-6 participating states declare their purpose that this compact
5-7 neither displace the federal order system nor encourage the merging
5-8 of federal orders. Specific provisions of the compact itself set
5-9 forth this basic principle.
5-10 Designed as a flexible mechanism able to adjust to changes in
5-11 a regulated marketplace, the compact also contains a contingency
5-12 provision should the federal order system be discontinued. In that
5-13 event, the interstate commission is authorized to regulate the
5-14 marketplace in replacement of the order system. This contingent
5-15 authority does not anticipate such a change, however, and should
5-16 not be so construed. It is only provided should developments in
5-17 the market other than establishment of this compact result in
5-18 discontinuance of the order system.
5-19 ARTICLE II. DEFINITIONS AND RULES OF CONSTRUCTION
5-20 Sec. 2. DEFINITIONS. For the purposes of this compact, and
5-21 of any supplemental or concurring legislation enacted pursuant
5-22 thereto, except as may be otherwise required by the context:
5-23 (1) "Class I milk" means milk disposed of in fluid
5-24 form or as a fluid milk product, subject to further definition in
5-25 accordance with the principles expressed in Section 3(b) of this
5-26 compact.
5-27 (2) "Commission" means the Southern Dairy Compact
6-1 Commission established by this compact.
6-2 (3) "Commission marketing order" means regulations
6-3 adopted by the commission pursuant to Sections 9 and 10 of this
6-4 compact in place of a terminated federal marketing order or state
6-5 dairy regulation. Such order may apply throughout the region or in
6-6 any part or parts thereof as defined in the regulations of the
6-7 commission. Such order may establish minimum prices for any or all
6-8 classes of milk.
6-9 (4) "Compact" means this interstate compact.
6-10 (5) "Compact over-order price" means a minimum price
6-11 required to be paid to producers for Class I milk established by
6-12 the commission in regulations adopted pursuant to Sections 9 and 10
6-13 of this compact, which is above the price established in federal
6-14 marketing orders or by state farm price regulation in the regulated
6-15 area. Such price may apply throughout the region or in any part or
6-16 parts thereof as defined in the regulations of the commission.
6-17 (6) "Milk" means the lacteal secretion of cows and
6-18 includes all skim, butterfat, or other constituents obtained from
6-19 separation or any other process. The term is used in its broadest
6-20 sense and may be further defined by the commission for regulatory
6-21 purposes.
6-22 (7) "Partially regulated plant" means a milk plant not
6-23 located in a regulated area but having Class I distribution within
6-24 such area. Commission regulations may exempt plants having such
6-25 distribution or receipts in amounts less than the limits defined
6-26 therein.
6-27 (8) "Participating state" means a state which has
7-1 become a party to this compact by the enactment of concurring
7-2 legislation.
7-3 (9) "Pool plant" means any milk plant located in a
7-4 regulated area.
7-5 (10) "Region" means the territorial limits of the
7-6 states which are parties to this compact.
7-7 (11) "Regulated area" means any area within the region
7-8 governed by and defined in regulations establishing a compact
7-9 over-order price or commission marketing order.
7-10 (12) "State dairy regulation" means any state
7-11 regulation of dairy prices, and associated assessments, whether by
7-12 statute, marketing order, or otherwise.
7-13 Sec. 3. RULES OF CONSTRUCTION. (a) This compact shall not
7-14 be construed to displace existing federal milk marketing orders or
7-15 state dairy regulation in the region but to supplement them. In
7-16 the event some or all federal orders in the region are
7-17 discontinued, the compact shall be construed to provide the
7-18 commission the option to replace them with one or more commission
7-19 marketing orders pursuant to this compact.
7-20 (b) This compact shall be construed liberally in order to
7-21 achieve the purposes and intent enunciated in Section 1 of this
7-22 compact. It is the intent of this compact to establish a basic
7-23 structure by which the commission may achieve those purposes
7-24 through the application, adaptation, and development of the
7-25 regulatory techniques historically associated with milk marketing
7-26 and to afford the commission broad flexibility to devise regulatory
7-27 mechanisms to achieve the purposes of this compact. In accordance
8-1 with this intent, the technical terms which are associated with
8-2 market order regulation and which have acquired commonly understood
8-3 general meanings are not defined herein, but the commission may
8-4 further define the terms used in this compact and develop
8-5 additional concepts and define additional terms as it may find
8-6 appropriate to achieve its purposes.
8-7 ARTICLE III. COMMISSION ESTABLISHED
8-8 Sec. 4. COMMISSION ESTABLISHED. There is hereby created a
8-9 commission to administer the compact, composed of delegations from
8-10 each state in the region. The commission shall be known as the
8-11 Southern Dairy Compact Commission. A delegation shall include not
8-12 less than three nor more than five persons. Each delegation shall
8-13 include at least one dairy farmer who is engaged in the production
8-14 of milk at the time of appointment or reappointment, and one
8-15 consumer representative. Delegation members shall be residents and
8-16 voters of, and subject to such confirmation process as is provided
8-17 for in, the appointing state. Delegation members shall serve no
8-18 more than three consecutive terms with no single term of more than
8-19 four years and be subject to removal for cause. In all other
8-20 respects, delegation members shall serve in accordance with the
8-21 laws of the state represented. The compensation, if any, of the
8-22 members of a state delegation shall be determined and paid by each
8-23 state, but their expenses shall be paid by the commission.
8-24 Sec. 5. VOTING REQUIREMENTS. All actions taken by the
8-25 commission, except for the establishment or termination of an
8-26 over-order price or commission marketing order, and the adoption,
8-27 amendment, or rescission of the commission's bylaws shall be by
9-1 majority vote of the delegations present. Each state delegation
9-2 shall be entitled to one vote in the conduct of the commission's
9-3 affairs. Establishment or termination of an over-order price or
9-4 commission marketing order shall require at least a two-thirds vote
9-5 of the delegations present. The establishment of a regulated area
9-6 which covers all or part of a participating state shall require
9-7 also the affirmative vote of that state's delegation. A majority
9-8 of the delegations from the participating states shall constitute a
9-9 quorum for the conduct of the commission's business.
9-10 Sec. 6. ADMINISTRATION AND MANAGEMENT. (a) The commission
9-11 shall elect annually from among the members of the participating
9-12 state delegations a chairperson, a vice-chairperson, and a
9-13 treasurer. The commission shall appoint an executive director and
9-14 fix his or her duties and compensation. The executive director
9-15 shall serve at the pleasure of the commission, and, together with
9-16 the treasurer, shall be bonded in an amount determined by the
9-17 commission. The commission may establish through its bylaws an
9-18 executive committee composed of one member elected by each
9-19 delegation.
9-20 (b) The commission shall adopt bylaws for the conduct of its
9-21 business by a two-thirds vote and shall have the power by the same
9-22 vote to amend and rescind these bylaws. The commission shall
9-23 publish its bylaws in convenient form with the appropriate agency
9-24 or officer in each of the participating states. The bylaws shall
9-25 provide for appropriate notice to the delegations of all commission
9-26 meetings and hearings and of the business to be transacted at such
9-27 meetings or hearings. Notice also shall be given to other agencies
10-1 or officers of participating states as provided by the laws of
10-2 those states.
10-3 (c) The commission shall file an annual report with the
10-4 secretary of agriculture of the United States, and with each of the
10-5 participating states by submitting copies to the governor, both
10-6 houses of the legislature, and the head of the state department
10-7 having responsibilities for agriculture.
10-8 (d) In addition to the powers and duties elsewhere
10-9 prescribed in this compact, the commission shall have the power:
10-10 (1) to sue and be sued in any state or federal court;
10-11 (2) to have a seal and alter the same at pleasure;
10-12 (3) to acquire, hold, and dispose of real and personal
10-13 property by gift, purchase, lease, license, or other similar
10-14 manner, for its corporate purposes;
10-15 (4) to borrow money and to issue notes, to provide for
10-16 the rights of the holders thereof and to pledge the revenue of the
10-17 commission as security therefore, subject to the provisions of
10-18 Section 18 of this compact;
10-19 (5) to appoint such officers, agents, and employees as
10-20 it may deem necessary and prescribe their powers, duties, and
10-21 qualifications; and
10-22 (6) to create and abolish such offices, employments,
10-23 and positions as it deems necessary for the purposes of the compact
10-24 and provide for the removal, term, tenure, compensation, fringe
10-25 benefits, pension, and retirement rights of its officers and
10-26 employees. The commission may also retain personal services on a
10-27 contract basis.
11-1 Sec. 7. RULEMAKING POWER. In addition to the power to
11-2 promulgate a compact over-order price or commission marketing
11-3 orders as provided by this compact, the commission is further
11-4 empowered to make and enforce such additional rules and regulations
11-5 as it deems necessary to implement any provisions of this compact,
11-6 or to effectuate in any other respect the purposes of this compact.
11-7 ARTICLE IV. POWERS OF THE COMMISSION
11-8 Sec. 8. POWERS TO PROMOTE REGULATORY UNIFORMITY, SIMPLICITY,
11-9 AND INTERSTATE COOPERATION. The commission is hereby empowered to:
11-10 (1) Investigate or provide for investigations or
11-11 research projects designed to review the existing laws and
11-12 regulations of the participating states, to consider their
11-13 administration and costs, and to measure their impact on the
11-14 production and marketing of milk and their effects on the shipment
11-15 of milk and milk products within the region.
11-16 (2) Study and recommend to the participating states
11-17 joint or cooperative programs for the administration of the dairy
11-18 marketing laws and regulations and to prepare estimates of cost
11-19 savings and benefits of such programs.
11-20 (3) Encourage the harmonious relationships between the
11-21 various elements in the industry for the solution of their material
11-22 problems. Conduct symposia or conferences designed to improve
11-23 industry relations or a better understanding of problems.
11-24 (4) Prepare and release periodic reports on activities
11-25 and results of the commission's efforts to the participating
11-26 states.
11-27 (5) Review the existing marketing system for milk and
12-1 milk products and recommend changes in the existing structure for
12-2 assembly and distribution of milk which may assist, improve, or
12-3 promote more efficient assembly and distribution of milk.
12-4 (6) Investigate costs and charges for producing,
12-5 hauling, handling, processing, distributing, selling, and for all
12-6 other services performed with respect to milk.
12-7 (7) Examine current economic forces affecting
12-8 producers, probable trends in production and consumption, the level
12-9 of dairy farm prices in relation to costs, the financial conditions
12-10 of dairy farmers, and the need for an emergency order to relieve
12-11 critical conditions on dairy farms.
12-12 Sec. 9. EQUITABLE FARM PRICES. (a) The powers granted in
12-13 this section and Section 10 of this compact shall apply only to the
12-14 establishment of a compact over-order price, so long as federal
12-15 milk marketing orders remain in effect in the region. In the event
12-16 that any or all such orders are terminated, this article shall
12-17 authorize the commission to establish one or more commission
12-18 marketing orders, as herein provided, in the region or parts
12-19 thereof as defined in the order.
12-20 (b) A compact over-order price established pursuant to this
12-21 section shall apply only to Class I milk. Such compact over-order
12-22 price shall not exceed $1.50 per gallon at Atlanta, Georgia;
12-23 however, this compact over-order price shall be adjusted upward or
12-24 downward at other locations in the region to reflect differences in
12-25 minimum federal order prices. Beginning in 1990, and using that
12-26 year as a base, the foregoing $1.50 per gallon maximum shall be
12-27 adjusted annually by the rate of change in the Consumer Price Index
13-1 as reported by the Bureau of Labor Statistics of the United States
13-2 Department of Labor. For purposes of the pooling and equalization
13-3 of an over-order price, the value of milk used in other use
13-4 classifications shall be calculated at the appropriate class price
13-5 established pursuant to the applicable federal order or state dairy
13-6 regulation, and the value of unregulated milk shall be calculated
13-7 in relation to the nearest prevailing class price in accordance
13-8 with and subject to such adjustments as the commission may
13-9 prescribe in regulations.
13-10 (c) A commission marketing order shall apply to all classes
13-11 and uses of milk.
13-12 (d) The commission is hereby empowered to establish a
13-13 compact over-order price for milk to be paid by pool plants and
13-14 partially regulated plants. The commission is also empowered to
13-15 establish a compact over-order price to be paid by all other
13-16 handlers receiving milk from producers located in a regulated area.
13-17 This price shall be established either as a compact over-order
13-18 price or by one or more commission marketing orders. Whenever such
13-19 a price has been established by either type of regulation, the
13-20 legal obligation to pay such price shall be determined solely by
13-21 the terms and purpose of the regulation without regard to the situs
13-22 of the transfer of title, possession, or any other factors not
13-23 related to the purposes of the regulation and this compact.
13-24 Producer-handlers as defined in an applicable federal market order
13-25 shall not be subject to a compact over-order price. The commission
13-26 shall provide for similar treatment of producer-handlers under
13-27 commission marketing orders.
14-1 (e) In determining the price, the commission shall consider
14-2 the balance between production and consumption of milk and milk
14-3 products in the regulated area, the costs of production including,
14-4 but not limited to, the price of feed, the cost of labor, including
14-5 the reasonable value of the producer's own labor and management,
14-6 machinery expense, and interest expense, the prevailing price for
14-7 milk outside the regulated area, the purchasing power of the
14-8 public, and the price necessary to yield a reasonable return to the
14-9 producer and distributor.
14-10 (f) When establishing a compact over-order price, the
14-11 commission shall take such other action as is necessary and
14-12 feasible to help ensure that the over-order price does not cause or
14-13 compensate producers so as to generate local production of milk in
14-14 excess of those quantities necessary to assure consumers of an
14-15 adequate supply for fluid purposes.
14-16 (g) The commission shall whenever possible enter into
14-17 agreements with state or federal agencies for exchange of
14-18 information or services for the purpose of reducing regulatory
14-19 burden and cost of administering the compact. The commission may
14-20 reimburse other agencies for the reasonable cost of providing these
14-21 services.
14-22 Sec. 10. OPTIONAL PROVISIONS FOR PRICING ORDER. Regulations
14-23 establishing a compact over-order price or a commission marketing
14-24 order may contain, but shall not be limited to, any of the
14-25 following:
14-26 (1) provisions classifying milk in accordance with the
14-27 form in which or purpose for which it is used, or creating a flat
15-1 pricing program;
15-2 (2) with respect to a commission marketing order only,
15-3 provisions establishing or providing a method for establishing
15-4 separate minimum prices for each use classification prescribed by
15-5 the commission, or a single minimum price for milk purchased from
15-6 producers or associations of producers;
15-7 (3) with respect to an over-order minimum price,
15-8 provisions establishing or providing a method for establishing such
15-9 minimum price for Class I milk;
15-10 (4) provisions for establishing either an over-order
15-11 price or a commission marketing order may make use of any
15-12 reasonable method for establishing such price or prices, including
15-13 flat pricing and formula pricing. Provision may also be made for
15-14 location adjustments, zone differentials, and for competitive
15-15 credits with respect to regulated handlers who market outside the
15-16 regulated area;
15-17 (5) provisions for the payment to all producers and
15-18 associations of producers delivering milk to all handlers of
15-19 uniform prices for all milk so delivered, irrespective of the uses
15-20 made of such milk by the individual handler to whom it is
15-21 delivered, or for the payment of producers delivering milk to the
15-22 same handler of uniform prices for all milk delivered by them;
15-23 (A) With respect to regulations establishing a
15-24 compact over-order price, the commission may establish one
15-25 equalization pool within the regulated area for the sole purpose of
15-26 equalizing returns to producers throughout the regulated area.
15-27 (B) With respect to any commission marketing
16-1 order, as defined in Section 2(3) of this compact, which replaces
16-2 one or more terminated federal orders or state dairy regulation,
16-3 the marketing area of now separate state or federal orders shall
16-4 not be merged without the affirmative consent of each state, voting
16-5 through its delegation, which is partly or wholly included within
16-6 any such new marketing area.
16-7 (6) provisions requiring persons who bring Class I
16-8 milk into the regulated area to make compensatory payments with
16-9 respect to all such milk to the extent necessary to equalize the
16-10 cost of milk purchased by handlers subject to a compact over-order
16-11 price or commission marketing order. No such provisions shall
16-12 discriminate against milk producers outside the regulated area.
16-13 The provisions for compensatory payments may require payment of the
16-14 difference between the Class I price required to be paid for such
16-15 milk in the state of production by a federal milk marketing order
16-16 or state dairy regulation and the Class I price established by the
16-17 compact over-order price or commission marketing order;
16-18 (7) provisions specially governing the pricing and
16-19 pooling of milk handled by partially regulated plants;
16-20 (8) provisions requiring that the account of any
16-21 person regulated under the compact over-order price shall be
16-22 adjusted for any payments made to or received by such persons with
16-23 respect to a producer settlement fund of any federal or state milk
16-24 marketing order or other state dairy regulation within the
16-25 regulated area;
16-26 (9) provisions requiring the payment by handlers of an
16-27 assessment to cover the costs of the administration and enforcement
17-1 of such order pursuant to Section 18(a), Article VII, of this
17-2 compact;
17-3 (10) provisions for reimbursement to participants of
17-4 the Women, Infants and Children Special Supplemental Food Program
17-5 of the United States Child Nutrition Act of 1966; and
17-6 (11) other provisions and requirements as the
17-7 commission may find are necessary or appropriate to effectuate the
17-8 purposes of this compact and to provide for the payment of fair and
17-9 equitable minimum prices to producers.
17-10 ARTICLE V. RULEMAKING PROCEDURE
17-11 Sec. 11. RULEMAKING PROCEDURE. Before promulgation of any
17-12 regulations establishing a compact over-order price or commission
17-13 marketing order, including any provision with respect to milk
17-14 supply under Section 9(f) of this compact, or amendment thereof, as
17-15 provided in Article IV of this compact, the commission shall
17-16 conduct an informal rulemaking proceeding to provide interested
17-17 persons with an opportunity to present data and views. Such
17-18 rulemaking proceeding shall be governed by Section 4, federal
17-19 Administrative Procedure Act (5 U.S.C. Section 553), as amended.
17-20 In addition, the commission shall, to the extent practicable,
17-21 publish notice of rulemaking proceedings in the official register
17-22 of each participating state. Before the initial adoption of
17-23 regulations establishing a compact over-order price or a commission
17-24 marketing order and thereafter before any amendment with regard to
17-25 prices or assessments, the commission shall hold a public hearing.
17-26 The commission may commence a rulemaking proceeding on its own
17-27 initiative or may in its sole discretion act upon the petition of
18-1 any person including individual milk producers, any organization of
18-2 milk producers or handlers, general farm organizations, consumer or
18-3 public interest groups, and local, state, or federal officials.
18-4 Sec. 12. FINDINGS AND REFERENDUM. In addition to the
18-5 concise general statement of basis and purpose required by Section
18-6 4(b), federal Administrative Procedure Act (5 U.S.C. Section 553
18-7 (c)), as amended, the commission shall make findings of fact with
18-8 respect to:
18-9 (1) whether the public interest will be served by the
18-10 establishment of minimum milk prices to dairy farmers under Article
18-11 IV of this compact;
18-12 (2) the level of prices that will assure that
18-13 producers receive a price sufficient to cover their costs of
18-14 production and will elicit an adequate supply of milk for the
18-15 inhabitants of the regulated area and for manufacturing purposes;
18-16 (3) whether the major provisions of the order, other
18-17 than those fixing minimum milk prices, are in the public interest
18-18 and are reasonably designed to achieve the purposes of the order;
18-19 and
18-20 (4) whether the terms of the proposed regional order
18-21 or amendment are approved by producers as provided in Section 13 of
18-22 this compact.
18-23 Sec. 13. PRODUCER REFERENDUM. (a) For the purpose of
18-24 ascertaining whether the issuance or amendment of regulations
18-25 establishing a compact over-order price or a commission marketing
18-26 order, including any provision with respect to milk supply under
18-27 Section 9(f) of this compact, is approved by producers, the
19-1 commission shall conduct a referendum among producers. The
19-2 referendum shall be held in a timely manner, as determined by
19-3 regulation of the commission. The terms and conditions of the
19-4 proposed order or amendment shall be described by the commission in
19-5 the ballot used in the conduct of the referendum, but the nature,
19-6 content, or extent of such description shall not be a basis for
19-7 attacking the legality of the order or any action relating thereto.
19-8 (b) An order or amendment shall be deemed approved by
19-9 producers if the commission determines that it is approved by at
19-10 least two-thirds of the voting producers who, during a
19-11 representative period determined by the commission, have been
19-12 engaged in the production of milk, the price of which would be
19-13 regulated under the proposed order or amendment.
19-14 (c) For purposes of any referendum, the commission shall
19-15 consider the approval or disapproval by any cooperative association
19-16 of producers, qualified under the provisions of the Act of Congress
19-17 of February 18, 1922, as amended, known as the Capper-Volstead Act,
19-18 bona fide engaged in marketing milk, or in rendering services for
19-19 or advancing the interests of producers of such commodity, as the
19-20 approval or disapproval of the producers who are members or
19-21 stockholders in, or under contract with, such cooperative
19-22 association of producers, except as provided in Subdivision (1) of
19-23 this subsection and subject to the provisions of Subdivisions (2)
19-24 through (5) of this subsection.
19-25 (1) No cooperative which has been formed to act as a
19-26 common marketing agency for both cooperatives and individual
19-27 producers shall be qualified to block vote for either.
20-1 (2) Any cooperative which is qualified to block vote
20-2 shall, before submitting its approval or disapproval in any
20-3 referendum, give prior written notice to each of its members as to
20-4 whether and how it intends to cast its vote. The notice shall be
20-5 given in a timely manner as established and in the form prescribed
20-6 by the commission.
20-7 (3) Any producer may obtain a ballot from the
20-8 commission in order to register approval or disapproval of the
20-9 proposed order.
20-10 (4) A producer who is a member of a cooperative which
20-11 has provided notice of its intent to approve or not to approve a
20-12 proposed order, and who obtains a ballot and with such ballot
20-13 expresses his approval or disapproval of the proposed order, shall
20-14 notify the commission as to the name of the cooperative of which he
20-15 or she is a member, and the commission shall remove such producer's
20-16 name from the list certified by such cooperative with its corporate
20-17 vote.
20-18 (5) In order to ensure that all milk producers are
20-19 informed regarding a proposed order, the commission shall notify
20-20 all milk producers that an order is being considered and that each
20-21 producer may register his approval or disapproval with the
20-22 commission either directly or through his or her cooperative.
20-23 Sec. 14. TERMINATION OF OVER-ORDER PRICE OR MARKETING ORDER.
20-24 (a) The commission shall terminate any regulations establishing an
20-25 over-order price or commission marketing order issued under this
20-26 article whenever it finds that such order or price obstructs or
20-27 does not tend to effectuate the declared policy of this compact.
21-1 (b) The commission shall terminate any regulations
21-2 establishing an over-order price or a commission marketing order
21-3 issued under this article whenever it finds that such termination
21-4 is favored by a majority of the producers who, during a
21-5 representative period determined by the commission, have been
21-6 engaged in the production of milk the price of which is regulated
21-7 by such order; but such termination shall be effective only if
21-8 announced on or before such date as may be specified in such
21-9 marketing agreement or order.
21-10 (c) The termination or suspension of any order or provision
21-11 thereof shall not be considered an order within the meaning of this
21-12 article and shall require no hearing but shall comply with the
21-13 requirements for informal rulemaking prescribed by Section 4,
21-14 federal Administrative Procedure Act (5 U.S.C. Section 553), as
21-15 amended.
21-16 ARTICLE VI. ENFORCEMENT
21-17 Sec. 15. RECORDS, REPORTS, ACCESS TO PREMISES. (a) The
21-18 commission may by rule and regulation prescribe recordkeeping and
21-19 reporting requirements for all regulated persons. For purposes of
21-20 the administration and enforcement of this compact, the commission
21-21 is authorized to examine the books and records of any regulated
21-22 person relating to his or her milk business, and for that purpose,
21-23 the commission's properly designated officers, employees, or agents
21-24 shall have full access during normal business hours to the premises
21-25 and records of all regulated persons.
21-26 (b) Information furnished to or acquired by commission
21-27 officers, employees, or agents pursuant to this section shall be
22-1 confidential and not subject to disclosure except to the extent
22-2 that the commission deems disclosure to be necessary in any
22-3 administrative or judicial proceeding involving the administration
22-4 or enforcement of this compact, an over-order price, a compact
22-5 marketing order, or other regulations of the commission. The
22-6 commission may promulgate regulations further defining the
22-7 confidentiality of information pursuant to this section. Nothing
22-8 in this section shall be deemed to prohibit (i) the issuance of
22-9 general statements based upon the reports of a number of handlers
22-10 which do not identify the information furnished by any person, or
22-11 (ii) the publication by direction of the commission of the name of
22-12 any person violating any regulation of the commission, together
22-13 with a statement of the particular provisions violated by such
22-14 person.
22-15 (c) No officer, employee, or agent of the commission shall
22-16 intentionally disclose information, by inference or otherwise,
22-17 which is made confidential pursuant to this section. Any person
22-18 violating the provisions of this section shall, upon conviction, be
22-19 subject to a fine of not more than $1,000 or to imprisonment for
22-20 not more than one year, or both, and shall be removed from office.
22-21 The commission shall refer any allegation of a violation of this
22-22 section to the appropriate state enforcement authority or the
22-23 United States Attorney.
22-24 Sec. 16. SUBPOENA, HEARINGS, AND JUDICIAL REVIEW. (a) The
22-25 commission is hereby authorized and empowered by its members and
22-26 its properly designated officers to administer oaths and issue
22-27 subpoenas throughout all signatory states to compel the attendance
23-1 of witnesses and the giving of testimony and the production of
23-2 other evidence.
23-3 (b) Any handler subject to an order may file a written
23-4 petition with the commission stating that any such order or any
23-5 provision of any such order or any obligation imposed in connection
23-6 therewith is not in accordance with law and praying for a
23-7 modification thereof or to be exempted therefrom. He shall
23-8 thereupon be given an opportunity for a hearing upon such petition,
23-9 in accordance with regulations made by the commission. After such
23-10 hearing, the commission shall make a ruling upon the prayer of such
23-11 petition which shall be final, if in accordance with law.
23-12 (c) The district courts of the United States in any district
23-13 in which such handler is an inhabitant, or has his principal place
23-14 of business, are hereby vested with jurisdiction to review such
23-15 ruling, provided a complaint for that purpose is filed within 30
23-16 days from the date of the entry of such ruling. Service of process
23-17 in such proceedings may be had upon the commission by delivering to
23-18 it a copy of the complaint. If the court determines that such
23-19 ruling is not in accordance with law, it shall remand such
23-20 proceedings to the commission with directions either (1) to make
23-21 such ruling as the court shall determine to be in accordance with
23-22 law, or (2) to take such further proceedings as, in its opinion,
23-23 the law requires. The pendency of proceedings instituted pursuant
23-24 to this subsection shall not impede, hinder, or delay the
23-25 commission from obtaining relief pursuant to Section 17 of this
23-26 compact. Any proceedings brought pursuant to Section 17 of this
23-27 compact, except where brought by way of counterclaim in proceedings
24-1 instituted pursuant to this section, shall abate whenever a final
24-2 decree has been rendered in proceedings between the same parties,
24-3 and covering the same subject matter, instituted pursuant to this
24-4 section.
24-5 Sec. 17. ENFORCEMENT WITH RESPECT TO HANDLERS. (a) Any
24-6 violation by a handler of the provisions of regulations
24-7 establishing an over-order price or a commission marketing order,
24-8 or other regulations adopted pursuant to this compact, shall:
24-9 (1) Constitute a violation of the laws of each of the
24-10 signatory states. Such violation shall render the violator subject
24-11 to a civil penalty in an amount as may be prescribed by the laws of
24-12 each of the participating states, recoverable in any state or
24-13 federal court of competent jurisdiction. Each day such violation
24-14 continues shall constitute a separate violation.
24-15 (2) Constitute grounds for the revocation of a license
24-16 or permit to engage in the milk business under the applicable laws
24-17 of the participating states.
24-18 (b) With respect to handlers, the commission shall enforce
24-19 the provisions of this compact, regulations establishing an
24-20 over-order price, a commission marketing order, or other
24-21 regulations adopted hereunder by:
24-22 (1) commencing an action for legal or equitable relief
24-23 brought in the name of the commission in any state or federal court
24-24 of competent jurisdiction; or
24-25 (2) referral to the state agency for enforcement by
24-26 judicial or administrative remedy with the agreement of the
24-27 appropriate state agency of a participating state.
25-1 (c) With respect to handlers, the commission may bring an
25-2 action for injunction to enforce the provisions of this compact or
25-3 the order or regulations adopted thereunder without being compelled
25-4 to allege or prove that an adequate remedy of law does not exist.
25-5 ARTICLE VII. FINANCE
25-6 Sec. 18. FINANCE OF START-UP AND REGULAR COSTS. (a) To
25-7 provide for its start-up costs, the commission may borrow money
25-8 pursuant to its general power under Section 6(d)(4) of this
25-9 compact. In order to finance the costs of administration and
25-10 enforcement of this compact, including payback of start-up costs,
25-11 the commission is hereby empowered to collect an assessment from
25-12 each handler who purchases milk from producers within the region.
25-13 If imposed, this assessment shall be collected on a monthly basis
25-14 for up to one year from the date the commission convenes, in an
25-15 amount not to exceed $.015 per hundredweight of milk purchased from
25-16 producers during the period of the assessment. The initial
25-17 assessment may apply to the projected purchases of handlers for the
25-18 two-month period following the date the commission convenes. In
25-19 addition, if regulations establishing an over-order price or a
25-20 compact marketing order are adopted, they may include an assessment
25-21 for the specific purpose of their administration. These
25-22 regulations shall provide for establishment of a reserve for the
25-23 commission's ongoing operating expenses.
25-24 (b) The commission shall not pledge the credit of any
25-25 participating state or of the United States. Notes issued by the
25-26 commission and all other financial obligations incurred by it shall
25-27 be its sole responsibility and no participating state or the United
26-1 States shall be liable therefor.
26-2 Sec. 19. AUDIT AND ACCOUNTS. (a) The commission shall keep
26-3 accurate accounts of all receipts and disbursements, which shall be
26-4 subject to the audit and accounting procedures established under
26-5 its rules. In addition, all receipts and disbursements of funds
26-6 handled by the commission shall be audited yearly by a qualified
26-7 public accountant and the report of the audit shall be included in
26-8 and become part of the annual report of the commission.
26-9 (b) The accounts of the commission shall be open at any
26-10 reasonable time for inspection by duly constituted officers of the
26-11 participating states and by any persons authorized by the
26-12 commission.
26-13 (c) Nothing contained in this article shall be construed to
26-14 prevent commission compliance with laws relating to audit or
26-15 inspection of accounts by or on behalf of any participating state
26-16 or of the United States.
26-17 ARTICLE VIII. ENTRY INTO FORCE; ADDITIONAL MEMBERS AND WITHDRAWAL
26-18 Sec. 20. ENTRY INTO FORCE; ADDITIONAL MEMBERS. The compact
26-19 shall enter into force effective when enacted into law by any three
26-20 states of the group of states composed of Alabama, Arkansas,
26-21 Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North
26-22 Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and
26-23 West Virginia and when the consent of the United States Congress
26-24 has been obtained.
26-25 Sec. 21. WITHDRAWAL FROM COMPACT. Any participating state
26-26 may withdraw from this compact by enacting a statute repealing the
26-27 same, but no such withdrawal shall take effect until one year after
27-1 notice in writing of the withdrawal is given to the commission and
27-2 the governors of all other participating states. No withdrawal
27-3 shall affect any liability already incurred by or chargeable to a
27-4 participating state before the time of such withdrawal.
27-5 Sec. 22. SEVERABILITY. If any part or provision of this
27-6 compact is adjudged invalid by any court, such judgment shall be
27-7 confined in its operation to the part or provision directly
27-8 involved in the controversy in which such judgment shall have been
27-9 rendered and shall not affect or impair the validity of the
27-10 remainder of this compact. In the event the United States Congress
27-11 consents to this compact subject to conditions, said conditions
27-12 shall not impair the validity of this compact when said conditions
27-13 are accepted by three or more compacting states. A compacting state
27-14 may accept the conditions of the United States Congress by
27-15 implementation of this compact.
27-16 SECTION 2. Section 12.020(c), Agriculture Code, is amended
27-17 to read as follows:
27-18 (c) The provisions of this code subject to this section and
27-19 the applicable penalty amounts are as follows:
27-20 Provision
27-21 Maximum
27-22 Penalty
27-23 Chapters 13, 14, 18, 61, 94, 95, 101,
27-24 $500
27-25 102, 103, 121, 125, 132, [and] 134, and 182
27-26 Subchapter B, Chapter 71
27-27 $2,000
28-1 Chapter 19
28-2 Chapters 75 and 76
28-3 Subchapters A and C, Chapter 71
28-4 Chapters 72, 73 and 74
28-5 $5,000.
28-6 SECTION 3. The importance of this legislation and the
28-7 crowded condition of the calendars in both houses create an
28-8 emergency and an imperative public necessity that the
28-9 constitutional rule requiring bills to be read on three several
28-10 days in each house be suspended, and this rule is hereby suspended,
28-11 and that this Act take effect and be in force from and after its
28-12 passage, and it is so enacted.