The provisions of this chapter,
which shall be designated as the Milk Audit and Stabilization Act, are
combined and are hereby declared to be one law. The State Department of
Agriculture shall enforce and carry out the law. [1967 c.440 §9]
(1) The fees in ORS 583.166, are continuously
appropriated to the State Department of Agriculture for the purpose of
administering and enforcing the provisions of this chapter.
(2) It is the intent of this section and ORS 583.545 to avoid
duplication, and in lieu of requiring separate reports to be forwarded
and deductions to be withheld by first handlers to support the provisions
of this chapter, to combine the two into one deduction, payment and
report. In order to provide fees necessary to carry out and enforce both
laws and programs, an additional poundage fee of not more than one cent
per hundredweight on all milk is hereby authorized and shall be deducted
by first handlers and paid over to the department, at the same time, in
the same manner and as required and authorized by the provisions of ORS
583.046. Subject to the limitations of ORS 583.046 (2), the total maximum
poundage fee provided in ORS 583.046 is hereby increased to one and
three-fourths cents per hundredweight on such milk. [1963 c.442 §9(2),(3)]
As used in this chapter, unless the context
requires otherwise:
(1) "Classification" means the classification of all Grade A and
Grade B milk into classes according to its utilization.
(a) "Class 1 milk" includes but is not limited to Grade A and Grade
B milk received, used or sold to others for ultimate human consumption in
fluid form.
(b) "Class 2 milk" includes but is not limited to Grade A and Grade
B milk received, used or sold to others for ultimate use in the
manufacture of cottage cheese, ice cream, condensed milk and the frozen
desserts as shall be prescribed by the State Department of Agriculture
under this chapter.
(c) "Class 3 milk" means all the Grade A and Grade B milk received,
used or sold to others, for use other than that prescribed for Class 1
and Class 2 milk.
(d) In addition to the classifications under paragraphs (a) to (c)
of this subsection, the department under this chapter may by rule
classify, within the above classes, any Grade A or Grade B milk received,
used or sold to others, that has not been defined herein.
(2) "Consumer" means any person, other than a handler, jobber or
store who purchases milk for human consumption in fluid form.
(3) "Department" means the State Department of Agriculture.
(4) "First handler" means the handler who receives Grade A or Grade
B milk from a producer, either physically or as a marketing agent,
irrespective of the final or ultimate destination of such milk.
(5) "Handler":
(a) Means any person, partnership, corporation, association,
cooperative organization or other entity engaged in the handling of Grade
A or Grade B milk in the capacity as the operator of a fluid milk plant
which processes milk in Class 1, Class 2 or Class 3 uses and who
purchases or receives such milk from a producer, or from another handler,
or from the herd of the producer or handler, or
(b) Means any person, cooperative corporation or association
serving as a marketing agent for producers, or
(c) Means any contract purchaser making sales of Grade A or Grade B
milk to another handler.
(d) Does not mean any person, partnership, corporation,
association, cooperative organization or other entity operating
exclusively a plant or establishment, purchasing or using manufacturing
grade milk for manufacturing purposes only. This exception or exemption,
however, does not apply if such plant or establishment is owned by, under
the control of the same management, or is a part of a fluid milk plant
processing milk for human consumption.
(6) "Jobber" means a person who purchases bottled or packaged milk
or milk products from a handler or a producer-handler and who thereafter
sells such milk or milk products at wholesale or retail.
(7) "Market area" means any one or more primary markets, as
established under ORS 583.470.
(8) "Milk" means the whole milk or cream or any constituent part
thereof which is the lacteal secretion of cows.
(a) "Grade A or Grade B milk" means all milk or cream as defined
herein which meets the standards of identity as provided in ORS chapter
621.
(b) "Manufacturing grade milk" means all milk or cream, as defined
herein, which does not meet the standards of identity as provided in ORS
chapter 621.
(9) "Milk product" means milk or dairy products as defined by the
department under this chapter. It may adopt the same standards and
definitions, all or in part, as are established by or under the
provisions of ORS chapter 621.
(10) "Primary market" means an area established under ORS 583.465.
(11) "Producer" means any person producing Grade A or Grade B milk,
any portion of which is sold to, or received by or used by, a licensed
handler for human consumption in fluid form.
(12) "Producer-handler" means a person, partnership or corporation
who:
(a) Operates a dairy farm which the person, partnership or
corporation owns, leases or is purchasing;
(b) Owns or is purchasing the person's own dairy cows;
(c) Owns, or is purchasing or leasing the person's own dairy plant
of the person, partnership or corporation which the person, partnership
or corporation operates for the processing, bottling or packaging of
Grade A or Grade B milk;
(d) Sells or distributes all bottled Class 1 Grade A or Grade B
milk direct to wholesalers, to jobbers, to consumers, to stores or to
drive-in markets, but not to licensed handlers or other producer-handlers;
(e) Sells surplus milk in excess of Class 1 sales only to a
licensed handler, at Class 3 price established by the department, or to a
nonlicensed manufacturing plant as manufactured milk;
(f) Confines milk processing and route distribution to milk
produced by the dairy herd of the person, partnership or corporation, and
receives no skim milk, including nonfat dry milk or condensed skim milk
or skim milk recombined from nonfat dry milk or condensed skim milk, or
butterfat from any other source for use in fluid milk products;
(g) Is in compliance with the provisions of this chapter or rules
thereunder, including but not limited to a determination by the
department that a lessee under paragraphs (a) and (c) of this subsection
is otherwise qualified as a producer-handler; and
(h) Notwithstanding the provisions of this subsection, may
purchase, from other licensed handlers, packaged fluid milk products,
other than whole milk, in an amount not in excess of an average of 100
pounds per day during the month.
(13) "Replacement milk" means Grade A or Grade B milk produced in
one market area, thereafter processed in another market area and then
returned to the market area where it was originally produced, for
distribution or sale within such original market area.
(14) "Store" means any grocery store, hotel, restaurant, soda
fountain or any other place, establishment or business wherein milk is
sold as an article of merchandise or served and consumed on the premises.
[1967 c.440 §2 (enacted in lieu of 583.006); 1977 c.307 §1] (1) Whereas, the production, sale
and distribution of milk and milk products in this state are attended
with conditions adversely affecting milk producers, handlers and
consumers of milk, it is hereby declared that the purpose of ORS 583.007,
583.016 and 583.046 to 583.166 is to provide the assistance of the State
of Oregon in maintaining an adequate supply of healthful milk through the
state auditing of the records of handlers as they pertain to the pooling
and usage of milk and the payment therefor.
(2) The provisions of ORS 583.007, 583.016 and 583.046 to 583.166
shall not be construed to conflict with or repeal, and are in addition to
and not in lieu of, any other law of this state or any municipal
ordinance relating to any health or sanitary requirement, or any
municipal ordinance relating to the inspection, grading or production of
Grade A milk. [1961 c.638 §§1,18] Notwithstanding
other provisions to the contrary, a producer-handler owning or
maintaining less than 26 dairy cows, who does not purchase bulk, bottled
or packaged milk, shall be exempt from the provisions of this chapter.
The State Department of Agriculture is authorized to investigate the
premises of any nonlicensed or licensed producer-handler claiming
exemption as authorized in this section to verify the number of dairy
cows owned or maintained by such person. [1967 c.440 §6](1) Notwithstanding other provisions of this chapter to the
contrary, the following wording and provisions relate and apply to each
applicable section of law prescribed in this section:
(a) In addition to and as a part of the provisions of ORS 583.076,
the State Department of Agriculture is also authorized thereunder to
audit the records of all the milk received, handled, used or sold by a
handler or producer-handler and may investigate the premises thereof to
help verify the accuracy of the audit or to confirm the receipts,
production, usage or disposition of all such milk regardless of its
source.
(b) The provisions of ORS 583.500, 583.520 and 583.530 also
include, cover and apply to Class 3 milk.
(c) The prices established by the department under this chapter
also apply to milk sold or purchased between handlers.
(d) In ORS 583.515 (1) "quota" shall also mean a producer's portion
of the total Class 1 sales of pool milk plus 15 percent.
(2) The provisions of subsection (1)(a) to (d) of this section are
in addition to and not in lieu of the sections of law designated therein.
If there is a conflict then the provisions of this section supersede the
provisions of each such applicable or designated section of law. [1967
c.440 §10](1) Each first handler in Oregon of Grade A milk shall pay to
the State Department of Agriculture a poundage fee of not more than
three-fourths of one cent per hundredweight on all Grade A milk purchased
or handled by said handler. Each first handler shall deduct from the
purchase price for Grade A milk purchased or handled by such first
handler from a producer or producer group the amount of the poundage fee
such handler is required to pay to the department under this section as
to such Grade A milk so purchased or handled. Such poundage fee shall be
paid monthly not later than the last day of the month following the
reported month for all quantities of Grade A milk purchased or handled by
the first handler in the previous calendar month or part thereof.
(2) No increase or decrease in the poundage fee shall be
established by the department until a hearing has been held. In addition
to other standards, the department, in increasing or decreasing poundage
fees, shall also consider:
(a) The current auditing and enforcement program.
(b) Proposed program changes.
(c) General milk industry changes.
(d) Increased or decreased benefits accruing to producers, handlers
and consumers. [1961 c.638 §5(1),(2)](1) In addition to other penalties
prescribed by ORS 583.007, 583.016 and 583.046 to 583.166, any handler
who delays transmittal of payment of fees as required by this section
beyond the due date, shall pay an additional one percent of the amount of
poundage fees due for the first month of delay and 25 percent of the
amount of poundage fees due for the second month of delay.
(2) A lien may be filed by the State Department of Agriculture as
authorized by ORS 561.450 upon the real and personal property of any
handler who fails to pay fees or penalties as required by this section.
(3) In addition to other remedies or actions, the department may
file an action at law in the circuit court for the recovery of fees or
penalties against any handler who delays transmittal of such amounts as
required by this section. Nothing in this section shall be construed to
prohibit the department from filing an action as authorized by ORS
561.280 against any handler for violation of the provisions of ORS
583.007, 583.016 and 583.046 to 583.166. [1961 c.638 §5 (3),(4),(5)] The State Department of
Agriculture shall cause an audit to be made at least once each year, and
at such other times as it deems necessary, of all handlers' records in so
far as such records relate to Grade A milk handled, used or sold, and
determine what proportion of the milk produced by each producer or
producer group shall be considered used as milk for bottle and can and
what proportion so produced shall be considered as used in the
manufacture of milk products, and shall include the determination of
whether producers are being accurately and properly paid for their milk.
[1961 c.638 §7](1) After an audit has been completed as
authorized by ORS 583.007, 583.016 and 583.046 to 583.166, the State
Department of Agriculture shall first review such audit with the affected
handler. If, after audit and review of such audit with the handler, the
department finds that milk has not been properly accounted for or paid
for by the handler or person whose records have been audited, or that
such person has violated the provisions of ORS 583.007, 583.016 and
583.046 to 583.166 or regulations promulgated thereunder, the department
shall file a copy of the audit findings in its Salem office, forward by
certified mail a copy of the audit findings and such other pertinent
information concerning the audit as it deems necessary to the handler or
person whose records have been audited, and may notify affected
producers. The findings shall include an order requiring that payment be
made or that certain procedures or practices which are in violation of
law or regulation be stopped, corrected or changed, as the case may be.
The audit findings on file shall be available for examination only by the
affected handler or producers of such milk, or the authorized agents of
either.
(2) Within 30 days following the date the department mails a copy
of its audit findings, as required by subsection (1) of this section, the
handler or the person whose milk records have been audited, and the
producers affected by such audit, either or both, may file with the
department all additional information, facts, figures or other material
which they believe may show or prove the audit findings to be incorrect.
(3) If at the expiration of the period specified in subsection (2)
of this section:
(a) Handlers, persons or producers have not filed additional
information, facts, figures and other material with the department, then
the department shall forward a notice, by certified mail, to the handler
or person, that the audit findings of the department are final. Within 16
days after the date the notice is mailed, the handler or person shall pay
the amounts or make corrections of violations of law or regulations as
set out in such findings.
(b) Handlers, persons or producers have filed additional
information, facts, figures and other material with the department, then
the department shall again review and reaudit, within 90 days, all
necessary records of such handler or person as otherwise required by ORS
583.007, 583.016 and 583.046 to 583.166. The department may affirm,
modify or set aside its prior findings. The department shall file in its
Salem office a copy of the reaudit findings and forward a copy of such
findings by certified mail to the affected handler or person, and in
addition, shall forward by regular mail, as it deems necessary, a part or
all of its findings to affected producers. Unless appealed to the circuit
court, as authorized by ORS 583.096, the reaudit findings of the
department shall become final. [1961 c.638 §10] (1) A judicial review of
the audit findings of the State Department of Agriculture, as provided by
this section, shall be permitted only after any party claiming to be
aggrieved by such findings has exhausted remedies under ORS 583.086.
(2) Within 30 days after the date the department mails a copy of
its reaudit findings as provided by ORS 583.086 (3)(b), any party
aggrieved thereby may secure judicial review thereof by commencing an
action in the Circuit Court for Marion County or in the circuit court for
the county in which the aggrieved party resides or has a principal
business office. If an appeal is filed in the wrong county, the court
shall enter an order transferring it to the proper county.
(3) In such action, the complaint shall name the department as
defendant. A copy of such complaint shall be served by the sheriff or by
certified mail on the department. It shall state the nature of the
aggrieved party's interest, the facts showing how such person or persons
are aggrieved by the decision or findings of the department, and the
ground or grounds upon which such person or persons contend that the
decision or findings should be reversed and set aside.
(4) Within 30 days after service of the complaint, or within such
further time as the court may allow, the department shall file its answer
with the court and transmit to such court the original or certified
copies of all findings, decisions, documents, records and other papers
related to such audit and reaudit.
(5) If, before the date set for hearing, application is made to the
court for leave to present additional evidence as to the matters in
controversy in the case, and it is shown to the satisfaction of the court
that the additional evidence is material and that there were good and
substantial reasons for failure to present it in the proceeding before
the department, the court may order that the additional evidence be taken
before the department upon such conditions as the court deems proper. The
department may modify its findings and decision by reason of the
additional evidence and shall, within a time to be fixed by the court,
file with the reviewing court, to become a part of the record, the
additional evidence, together with any modifications or new findings or
decision, or its certificate that it elects to stand on its original
findings or decision, as the case may be.
(6) The hearing and review shall be conducted by the court as an
action tried without a jury and shall be given precedence on the docket
over all other cases except those given equal status by statute.
(7) The court may adopt, modify or set aside the decision and the
findings of the department. In the actual reversal or modification, the
court shall make special findings of fact based upon evidence in the
record and conclusions of law indicating clearly all respects in which
the decision and the findings of the department are erroneous.
(8)(a) If the court affirms findings of the department which
require a handler or person to make payment for milk or if the court
modifies such findings, the court shall also at the same time order that
such amounts be paid.
(b) If the court affirms the findings of the department that
violations of law or regulations exist, or if the court modifies such
findings, the court shall also order that the handler or person shall be
enjoined from further violating such law or regulations. Future similar
violation of such law or regulations is subject to contempt action as
provided by paragraph (a) of this subsection.
(9) An appeal may be taken from the order or judgment of the
circuit court to the Court of Appeals as in other cases, regardless of
the amounts involved. The court may in its discretion assess costs to the
prevailing party. [1961 c.638 §11; 1979 c.284 §175](1) The State Department of Agriculture shall file
an injunction action in the circuit court for the county in which the
handler or person resides or has the principal business office of the
handler or person, based upon the findings of the department against a
handler or other person whose records have been audited, if:
(a) The handler or such person has not made payment or corrected
violations of law or regulations promulgated thereunder as required by
the provisions of ORS 583.086 (3)(a) and if such handler or producers
have not filed additional information, facts or figures with the
department within the time prescribed as authorized by ORS 583.086
(3)(b); or
(b) The handler or such person has not made payment or correction
of violations of law or regulations promulgated thereunder as set out in
the reaudit as provided by ORS 583.086 (3)(b) and has not filed an appeal
to the circuit court within the time prescribed by ORS 583.096.
(2) In any judicial proceeding under this section, the findings of
the department as to the facts if supported by substantial evidence, in
the absence of fraud, are conclusive and the jurisdiction of the court
shall be confined to questions of law. Such action shall be heard in a
summary manner without a jury and shall be given precedence on the docket
over all other civil cases except those given equal status by statute.
(3) If the findings of the department include a requirement that
the handler or person make payment to producers or persons for milk, the
court shall order such handler or person to make payment. If the order is
not carried out within the time prescribed by the court, then upon motion
or notification from the department, the court shall proceed against such
handler or person for contempt of court. If the findings of the
department include violations of law or regulations, the court may, in
the same order, enjoin such handler or person from further violation of
law or regulations. The court may take such action as it deems necessary
and proper in regard to any complaint filed under this section.
(4) The court may adopt, modify or set aside the decision and the
findings of the department. In the case of reversal or modification, the
court shall make special findings of the conclusions of law indicating
clearly all respects in which the decision and the findings of the
department are erroneous.
(5) An appeal may be taken from the order or judgment of the
circuit court to the Court of Appeals as in other cases, regardless of
the amount of money involved. [1961 c.638 §12; 1979 c.562 §28; 2003 c.576
§523] If
the court, as provided by ORS 583.096 or 583.106, affirms or modifies
findings of the State Department of Agriculture that a handler owes
moneys to producers or other persons under ORS 583.007, 583.016 and
583.046 to 583.166, the order shall be a judgment of record against the
real and personal property of such handler or person until paid. In
addition to other remedies, the department, for and in the name of
persons entitled to such funds, may file an attachment or take other
action authorized by law in order to require such judgment or moneys be
paid. Moneys recovered or received by the department shall be paid over
to the persons entitled thereto, without deduction of the department's
cost incurred. [Part of 1961 c.638 §13](1) Producers have the right as set out in but not limited to
the provisions of ORS 583.086, either individually or through agents, to
file with the State Department of Agriculture information, facts, figures
and material relating to the handling of their milk, the audits thereof
and practices or problems which may affect such milk or payment therefor,
under the provisions of ORS 583.007, 583.016 and 583.046 to 583.166.
(2) No handler shall engage in any of the following unfair
practices:
(a) Interfere with, restrain or coerce producers in the exercise of
their rights under subsection (1) of this section.
(b) Terminate an agreement or threaten to terminate an agreement
relating to handling or sale of milk or payment therefor, or refuse to
accept milk from a producer because such producer has exercised rights
and privileges as set out under subsection (1) of this section.
(3) The department, as authorized by ORS 583.007, 583.016 and
583.046 to 583.166, shall, in the course of auditing, review and
investigate all unfair practices as provided by subsection (2) of this
section coming to its attention and shall in audit or reaudit findings
make a finding of fact and a determination relative to such practices.
Such audit findings shall be subject to review and appeal by producers
and handlers as otherwise provided in ORS 583.007, 583.016 and 583.046 to
583.166.
(4) In addition to other remedies provided by ORS 583.007, 583.016
and 583.046 to 583.166 or other law, any producer injured by any
violation of the provisions of this section may maintain an action for
damages in a circuit court. The court may award reasonable attorney fees
to the prevailing party in an action under this section. [1961 c.638 §14;
1981 c.897 §67; 1995 c.618 §88] Notwithstanding other
provisions of ORS 583.007, 583.016 and 583.046 to 583.166, if the State
Department of Agriculture has reason to believe that any handler or other
person whose records have been or are being audited, is violating the
provisions of ORS 583.007, 583.016 and 583.046 to 583.166 or regulations
promulgated thereunder and that such violation could result in serious
economic loss to producers or handlers, the department is authorized to
file an action in the circuit court asking for a temporary injunction
against such handler or person until such time as the department may
complete an audit and reaudit procedure or take other action as
authorized by ORS 583.007, 583.016 and 583.046 to 583.166. The court
shall have broad authority under this section to approve any action
necessary to protect the rights and interests of producers, producer
groups and handlers as provided by ORS 583.007, 583.016 and 583.046 to
583.166. [1961 c.638 §15(1)] In legal proceedings filed under ORS
583.096, 583.106 or 583.136, the court may award reasonable attorney fees
to the prevailing party. Any attorney fees awarded to the State
Department of Agriculture shall be deposited by and used by the
department as authorized under ORS 583.166. If the department does not
prevail in such legal proceedings, it shall pay the costs, disbursements
and reasonable attorney fees at trial and on appeal, as adjudged by the
court, of the prevailing party from the moneys in the Department of
Agriculture Account. [1961 c.638 §15(2); 1981 c.897 §68; 1995 c.618 §89]
(1) For errors in audit or the verification of new facts, figures
or information which would change the results of such audit, brought to
the attention of or discovered or verified by the department within three
years of such audit.
(2) For procedures or actions of such handler or other person,
based upon fraud. [1961 c.638 §16] The State Department of Agriculture
shall deposit all fees paid under ORS 583.046 to 583.166 in the State
Treasury to the credit of the Department of Agriculture Service Fund, and
such fees are continuously appropriated to the department for
administering and enforcing ORS 583.001 to 583.565. [1961 c.638 §6; 1979
c.499 §6] (1) The production, processing,
distribution and sale of fluid milk for human consumption are attended by
conditions which adversely affect the general welfare and result in 90 to
95 percent of the total milk production in the United States being
marketed under federal and state stabilization regulations, deemed
necessary to protect the interests of producers, distributors and
consumers. It is therefore declared to be the policy of the State of
Oregon, which imposes regulations on milk producers to assure a wholesome
product for the benefit of the consuming public, to provide the necessary
assistance and authority to maintain a stable milk market, to sustain the
economy of the dairy industry and the economic welfare of the state and
to assure an adequate and healthful supply of milk and milk products for
the consuming public.
(2) The provisions of ORS 583.001, 583.004, 583.021, 583.028 and
583.410 to 583.565 are in pari materia with the provisions of ORS
583.007, 583.016 and 583.046 to 583.166. If there is a conflict, the
provisions of ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to
583.565 supersede the provisions of ORS 583.007, 583.016 and 583.046 to
583.166.
(3) The provisions of ORS 583.001, 583.004, 583.021, 583.028 and
583.410 to 583.565 shall not be construed to conflict with or repeal, and
are in addition to and not in lieu of, any other law of this state or any
municipal ordinance relating to any board of health or sanitary
requirement, or any municipal ordinance relating to the inspection,
grading or production of Grade A milk. [1963 c.442 §§1,10,26; 1977 c.307
§3] No provision of ORS
583.001, 583.004, 583.021, 583.028 and 583.410 to 583.565 shall apply or
be construed to apply to interstate commerce except to the extent that
the Constitution and laws of the United States permit it to apply to
interstate commerce. [1963 c.442 §27] (1) Except as
provided by subsection (2) of this section, the provisions of ORS chapter
183 apply to ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to
583.565, rules promulgated thereunder and to the appeal of any person
aggrieved thereby. Before any order is promulgated, the State Department
of Agriculture shall hold at least one public hearing. All hearings shall
be public hearings and testimony shall be given under oath.
(2) Notwithstanding ORS chapter 183, and except as otherwise
provided in ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to
583.565, a public hearing may be instituted only by:
(a) The department on its own motion, or
(b) A petition filed with the department and signed by at least 10
percent of the producers qualified to sign petitions as provided by ORS
583.480 to 583.490, or
(c) A petition filed with the department and signed by at least 50
percent of the handlers in the applicable market area.
(3) All guideposts, standards and the provisions of this chapter
may be taken into consideration in the promulgation of any order. [1963
c.442 §3; 1977 c.307 §4]In order to facilitate the carrying out of provisions and
purposes of ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to
583.565, the State Department of Agriculture may hold joint hearings with
authorized officers or agencies of adjoining states who have duties and
powers similar to those of the department or with any authorized person
designated by the United States Department of Agriculture, and may enter
into joint agreements with such authorized state or federal agencies for
exchange of information with regard to prices paid to producers for milk
moving from one state to the other or for any purpose to carry out and
enforce the provisions of ORS 583.001, 583.004, 583.021, 583.028 and
583.410 to 583.565. [1963 c.442 §4; 1977 c.307 §5](1) Beginning 30 days after June 4, 1963, no person shall
engage in business as a handler or producer-handler within this state
unless such person is licensed as provided in subsections (1) and (2) of
this section and ORS 583.445 and 583.450. With prior approval of the
State Department of Agriculture, the location or place of business of the
licensee may be moved without the requirement to obtain a new license.
The license is personal to the applicant and any change in the business
entity requires that a new license be obtained by the new owner.
(2) The license required by subsection (1) of this section is in
addition to and not in lieu of any other license required of handlers or
producer-handlers by any other law of this state or by any municipal
ordinance.
(3) No person shall operate as, or engage in the business or
activities of a handler, or as a producer-handler or any other type of
operation, except the category or type approved by the department under
ORS 583.447. The department may reissue a license showing a change in a
category or type of operation if it verifies there has been such a
change. Persons affected thereby may appeal the decision of the
department as provided in ORS chapter 183. [1963 c.442 §§5,6; subsection
(3) enacted as 1967 c.440 §5(3)] Application for a license required
by ORS 583.440 (1) which shall be made upon forms furnished by the State
Department of Agriculture, shall be accompanied by the license fee of $1,
and shall state:
(1) The nature of the business to be conducted.
(2) The full name and address of the applicant, if an individual;
if a partnership, the full name and address of each member thereof; and
if a corporation or association, the full name and address of the officer
authorized to sign on behalf of the corporation.
(3) The name of the city and the street number of the principal
place of business of the applicant. [1963 c.442 §7] (1) After the State Department of
Agriculture receives an application for a license as required under ORS
583.445 and after it has been furnished sufficient information by the
applicant to make such determination, when the license is issued the
department shall designate on the license which of the following
categories of type of operation the licensee is authorized to operate and
engage in:
(a) A handler as defined in ORS 583.007 (5), or
(b) A producer-handler as defined in ORS 583.007 (12) and other
provisions or rules relating thereto.
(c) Any other category or type of operation deemed necessary to
carry out the purpose and intent of this chapter.
(2) After July 1, 1967, the department shall without cost to the
licensees, reissue licenses to those persons who as of such date were
licensed under ORS 583.445 and shall designate on the reissued licenses,
or on new licenses, the categories or types set forth in subsection
(1)(a) to (c) of this section. Any licensee shall at the request of the
department immediately furnish information which may be necessary in
order for the department to make the proper determination. [1967 c.440
§5(1),(2)] The State
Department of Agriculture as authorized by ORS chapter 183 may decline to
grant a license required by ORS 583.440 (1) or may suspend or revoke such
license when it appears that the handler or producer-handler has:
(1) Failed to account and make payment without reasonable cause for
milk purchased from a producer.
(2) Failed to withhold and pay the amounts required under ORS
583.510 (3).
(3) Failed to keep books and records or to furnish the reports,
statements or information required of the handler or producer-handler by
ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to 583.565 or
regulations promulgated thereunder.
(4) Failed to pay the fees required by ORS 583.004 and 583.545.
(5) Failed to comply with any provision of ORS 583.001, 583.004,
583.021, 583.028 and 583.410 to 583.565. [1963 c.442 §8; 1977 c.307 §6]
(1) Each licensee shall keep books and records prescribed by the State
Department of Agriculture showing:
(a) The quantity of all milk received or produced, the butterfat
content thereof, the prices paid therefor, the deductions or charges made
in connection therewith and the name and address of each person from whom
received.
(b) The quantity of milk used or sold as Class 1 milk.
(c) The quantity of milk used or sold for use in the manufacture of
Class 2 milk products.
(d) The quantity of milk used or sold for use in the manufacture of
Class 3 milk products.
(e) Such other information as the department deems necessary for
the proper administration and enforcement of this chapter.
(2) Each licensee shall furnish such report, statements or
information as are required by the department for the proper
administration and enforcement of this chapter. [1963 c.442 §11; 1967
c.440 §15]
(1) Holders of licenses issued under ORS 583.440 shall in writing notify
the State Department of Agriculture when they cease doing business
thereunder, or when there is a change in ownership or entity of their
operations or business.
(2) When the department receives such a notice of termination of
business or if it finds the licensee has ceased to do business, it may
suspend the license by sending a written notice to the licensee at the
last-known address on the records of the department. The department may
then remove the license from its active files.
(3) Any person whose license has been temporarily suspended under
this section may within two years from the date the department mailed its
notice, file a written notice with the department again advising that
such person is again engaged in the business covered by the license.
After receiving the notice, if the department verifies the applicant is
in compliance with the law and there has been no change in the entity or
ownership, it shall reinstate the license. [1967 c.440 §13]Nonlicensed milk manufacturing plants shall file reports and
information, in the manner and at the times required by the State
Department of Agriculture in the proper carrying out and enforcement of
the provisions of this chapter, of the purchases of Grade A milk and
cream from handlers, producer-handlers and Grade A producers. [1967 c.440
§19] (1) The State Department of Agriculture
within 60 days after June 4, 1963, shall determine and establish primary
markets. In addition to other guideposts and standards set out in ORS
583.001, 583.004, 583.021, 583.028 and 583.410 to 583.565, the department
may take into consideration:
(a) Centers of processing and distribution of milk and milk
products, on which producers, regardless of their location, depend for a
market.
(b) Locations or combinations of locations with similar marketing
conditions, where substantial quantities of milk are received and
processed and from which such milk is distributed for sale in consumer
channels.
(2) Primary markets may be established, changed, amended or
terminated only after a public hearing has been held by the department in
each established market area or in a proposed new or enlarged or reduced
market area. When practical and if the interests of the milk industry
will be more adequately protected, a hearing may be held in each
established primary market area or proposed primary market area. [1963
c.442 §16; 1977 c.307 §7] (1) Concurrently with the establishment of
primary markets, as provided by ORS 583.465, the State Department of
Agriculture shall establish market areas embracing one or more primary
markets. In addition to other guideposts and standards set out in ORS
583.001, 583.004, 583.021, 583.028 and 583.410 to 583.565, the department
may take into consideration:
(a) Primary markets where market conditions and influences are
similar.
(b) Major metropolitan consumer areas.
(c) Normal flow of milk from producing areas to point of processing
and distribution to consumers.
(d) Influence of markets and marketing conditions in adjacent
states.
(e) Any other condition which may benefit or may have an adverse
effect on the stability of the market, or the primary markets, in the
market area.
(2) Market areas may be established, changed, amended or terminated
only after a public hearing, in each established market area or in a
proposed, new, enlarged or reduced market area.
(3) Producers or handlers as authorized by ORS 583.425, may file a
petition requesting the department to hold a public hearing relating to
market areas. [1963 c.442 §17; 1977 c.307 §8](1) After June 4,
1963, and within 45 days after the State Department of Agriculture
establishes a market area, as provided by ORS 583.470, the producers in
such market area may file a petition with the department requesting that
a referendum be held on the question of preventing a market pool being
established as required by law in such area. The petition and the
referendum shall clearly explain to the producers involved, that a market
pool is to be established by law in their market area unless two-thirds
of the producers voting in a referendum decide that a market pool shall
not be established. If the petition complies with the provisions of ORS
583.001, 583.004, 583.021, 583.028 and 583.410 to 583.565, the department
shall hold a referendum in such market area and it shall take no further
action in establishing a market pool in such area until after the
referendum and the results thereof are known and filed with the Secretary
of State. The ballots shall also contain wording, substantially as
follows:
___________________________________________________________________________
___
__No. I vote against the establishment of a market pool in Market
Area No.__.
__Yes. I vote in favor of permitting a market pool to be
established in Market Area No.__.
___________________________________________________________________________
___ (a) If in the referendum two-thirds or more of the producers who
vote, vote against the establishment of a market pool, the department
shall take no further action at that time to establish a market pool in
such market area. At least nine calendar months must elapse after the
date the results of such referendum are filed with the Secretary of
State, before the producers in such market area may petition the
department for another referendum for the establishment of a market pool.
(b) If less than two-thirds of the producers who vote, vote against
the establishment of a market pool, the department within 120 days from
the date the results of the referendum are filed with the Secretary of
State, shall establish a market pool in the market area, as authorized by
ORS 583.510.
(2) If the petition referred to in subsection (1) of this section
contains the signatures of two-thirds or more of the producers qualified
to sign petitions in such market area and it is clear that the petition
states such producers do not want a market pool established in their
market area, no referendum shall be held by the department and it shall
take no further action at that time to establish a market pool in such
market area. At least nine calendar months must elapse after the date the
petition is filed with the department before the producers may petition
the department for the establishment of a market pool.
(3) Nothing in ORS 583.001, 583.004, 583.021, 583.028 and 583.410
to 583.565 is to be construed as preventing producers from filing a
petition and asking for a referendum on the question of establishing a
market pool, or to terminate and close an existing market pool, if the
petition and referendum are filed within applicable time limits as
authorized by this section or ORS 583.490 (2) and otherwise are in
compliance with ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to
583.565. [1963 c.442 §19; 1977 c.307 §9](1) The producers qualified to sign a petition,
or to vote in any referendum under ORS 583.001, 583.004, 583.021, 583.028
and 583.410 to 583.565, shall be all those producers shipping milk to the
market area on a regular supply basis and who would or do receive or pay
equalization in an existing market pool in a market area, or in a market
pool if established in such market area.
(2) The State Department of Agriculture is authorized during
business hours to review the books and records of handlers or
producer-handlers to obtain a list of the producers qualified to sign
petitions or to vote in referendums. [1963 c.442 §22(1),(5); 1977 c.307
§10] Petitions filed with the State
Department of Agriculture by producers, handlers and licensees shall
comply with the provisions of ORS 583.001, 583.004, 583.021, 583.028 and
583.410 to 583.565 and applicable law and regulations thereunder. A
petition shall:
(1) Consist of one or more pages, each of which is dated at the
bottom. The date shall be inserted on each sheet prior to, or at the time
the first signature is obtained on each sheet. The department shall not
accept a sheet on which such date is more than 60 days prior to the time
it is filed with the department. After a petition is filed, additional
pages may be filed if time limits have not expired and there is
compliance with other provisions of ORS 583.001, 583.004, 583.021,
583.028 and 583.410 to 583.565.
(2) Contain wording at the top of each page which clearly explains
to each person whose signature appears thereon the meaning and intent of
the petition. Such wording shall also clearly indicate to the department
if it is in reference to a request for public hearing, exactly what
matters are to be studied and desired. Similar information must be
directed to the department if the matter relates to a referendum. The
department has the authority to clarify wording from a petition before
making it a part of a referendum. [1963 c.442 §22(6); 1977 c.307 §11] (1) A two-third majority vote by the
producers voting in a referendum is required to pass or approve the
subject matter contained in or the proposition put to the voters by the
referendum.
(2) The results of any referendum held by the State Department of
Agriculture shall be filed with the Secretary of State and shall not be
considered to be part of its regulations. At least nine calendar months
must elapse after the results of a referendum are filed with the
Secretary of State, before another referendum can be held among producers
relating to the same subject matter or proposition covered by the prior
referendum.
(3) If the referendum is conducted by mail, the department in order
to insure secret balloting, shall use a double-envelope ballot system
similar to the voting and referendum procedure approved and used by the
Oregon State Bar Association as of June 4, 1963. Two envelopes and a
ballot shall be furnished by the department to each producer authorized
to vote in a referendum. A transmittal envelope shall contain only
information necessary for the department to accurately determine the
producer is authorized to vote. The producer shall mark a ballot and
place it in a ballot envelope, both of which shall not contain or be
identified in any way as to the name of the producer. Upon receipt of the
transmittal envelope and after verification of the right of the producer
to vote, the department shall remove the unopened sealed ballot envelope
and drop it in a locked box until such time as all ballots are later
counted as required by law. Only the final results of any referendum
shall be a public record.
(4) No informalities or technicalities in the conduct of a
referendum, or in any matters relating thereto, shall invalidate any
referendum if it is fairly and reasonably conducted by the department.
The provisions of ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to
583.565 are intended as guideposts or standards, with the department
authorized to enumerate and define persons who may sign petitions, who
may vote in referendums and to establish additional procedures to carry
out the provisions of ORS 583.480 to 583.490. [1963 c.442
§22(2),(3),(4),(7); 1977 c.307 §12](1) Before making any order under ORS
583.505, the State Department of Agriculture shall hold a public hearing
in the market area to be affected by the order. The order shall be made
within 30 days after the hearing.
(2) In establishing minimum prices under ORS 583.505 and this
section, the department may take into consideration, with regard to the
market area to be affected by the order:
(a) Average price per hundredweight for manufacturing milk, f.o.b.
plants in Wisconsin and Minnesota, as reported monthly by the United
States Department of Agriculture.
(b) Price of Class 1 and Class 2 milk in adjacent states.
(c) Cost of transporting milk.
(d) Prevailing price for manufacturing grade milk used in products
which are sold in competition with similar products made from Grade A
milk.
(e) Available supply of milk for human consumption in relations to
actual consumption thereof.
(f) Cost of producing Grade A milk, especially sanitary measures
necessary to insure the purity and wholesomeness of the milk, leveling
out of seasonal production to meet requirements of the market and such
other factors as are pertinent. [1963 c.442 §14](1) In accordance with ORS chapter 183, the State
Department of Agriculture shall establish by order:
(a) The minimum price for the sale of Class 1 milk by producers to
handlers and between handlers.
(b) The minimum price for Class 2 milk by producers to handlers and
between handlers. This price shall be computed by the department
establishing a differential amount above the Class 3 price, which shall
be automatically added by the department at the same time it establishes
the price for Class 3 milk as authorized by ORS 583.507.
(2) The department after public hearing shall make a separate order
for each market area and each order shall designate the market area to
which it is applicable. Such orders and the minimum price for Class 1
milk and the differential amount which is used to arrive at the Class 2
price established thereby may vary in different market areas. [1963 c.442
§15; 1967 c.440 §16] (1)
The basic price for the sale of Class 3 milk testing 3.5 percent, by
producers to handlers and the sale thereof between handlers shall be
established by formula in each market pool in each market area. The
formula, sometimes referred to as the "Chicago butter-powder formula," is
computed as follows:
(a) Multiply the Chicago butter price by 4.2.
(b) Multiply by 8.2 the weighted average of carlot prices per pound
of nonfat dry milk solids, spray process, for human consumption, f.o.b.
manufacturing plants in the Chicago area, as published for the period
from the 26th of the immediately preceding month through the 25th day of
the current month by the United States Department of Agriculture. From
the sum of the results arrived at under paragraphs (a) and (b) of this
subsection, subtract a "make charge" and round to the nearest cent.
(2) "Chicago butter price" means the simple average of the daily
wholesale selling prices, using the midpoint of any price range as one
price, of Grade AA (93-score) bulk creamery butter per pound at Chicago
as reported for the month by the United States Department of Agriculture.
If no price is reported for Grade AA (93-score) butter, the highest of
the prices reported for Grade A (92-score) butter for that day shall be
used in lieu of the price for Grade AA (93-score) butter.
(3) "Make charge" shall be established by the State Department of
Agriculture, after public hearing, under ORS chapter 183. It is a figure
or amount representing the cost of manufacturing, processing, handling
and moving the product to market. The department shall receive evidence
and testimony from all segments of the industry, take into consideration
any other facts, information, figures or data and the "make charge" use
by other federal and state milk laws, rules or programs and arrive at
such charge or amount.
(4) If the average butterfat content of Class 3 milk, computed
pursuant to subsection (1) of this section differs from 3.5 percent,
there shall be added to, or subtracted from, the basic price for each
one-tenth of one percent that the average butterfat content is above or
below 3.5 percent, a differential. Rules relating to the determination of
such differential shall be established by the department after public
hearing pursuant to the provisions of ORS chapter 183.
(5) It must be recognized that the provisions of this section are
standards and guideposts and that the details must by necessity be more
completely set forth as otherwise authorized in this chapter to establish
and maintain the formula to make it fair, reasonable, practical and
workable for the benefit of the entire dairy industry of this state.
[1967 c.440 §17](1) Except as provided by ORS 583.475, the State
Department of Agriculture shall establish a system of pooling of all milk
used in each market area established by ORS 583.470.
(2) Thereafter the department shall establish a system in each
market area for the equalization of returns for all quota milk and all
surplus over quota milk whereby all producers selling milk to milk
handlers will receive the same price for all quota milk and all surplus
over quota milk utilized as Class 1, Class 2 and Class 3 except that any
premium paid to a producer by a handler above minimum prices established
under ORS 583.505, because of quality of milk produced and sold shall not
be considered in determining average pool prices.
(3) In providing for such pooling and equalization, the department
shall determine amounts to be withheld from producers by a handler and
paid to the department of not more than five cents per hundredweight for
administering the market pool and amounts for the benefit of producers
selling milk to other handlers in the market area in which the market
pool is established in order to equalize payments between producers or
producer groups. Upon the failure of any handler to withhold out of
amounts due or to become due to a producer at the time a handler is
notified by the department of the amounts to be withheld and upon failure
of such handler to pay such amounts, the department subject to ORS
583.450, may revoke the license of the handler required by ORS 583.440
(1). The department may commence an action against the handler in the
circuit court of the county in which the handler resides or has principal
place of business to collect such amounts. If it is determined upon such
action that the handler has wrongfully refused to pay the amounts the
handler shall be required to pay, in addition to such amounts, all the
costs and disbursements of the action, to the department as determined by
the court. If the department's contention in such action is not
sustained, the department shall pay to the handler all costs and
disbursements of the action as determined by the court.
(4) Replacement milk will be subject to equalization in the market
area where produced and sold, without regard to the market area where
processed.
(5) The amounts received by the department under this section shall
be deposited in a designated account in the State Treasury in accordance
with ORS 293.445. Disbursements therefrom shall be made as provided by
this section or orders promulgated thereunder. Notwithstanding ORS
293.140, interest earned on cash balances invested by the State Treasurer
shall be credited to this account.
(6) A producer-handler desiring to be a producer may have a quota
activated in the producer equalization and pooling system in a manner
prescribed by the department. Such activated quota shall remain in effect
thereafter for at least 12 consecutive months. In order to establish
ability and intent to assume the obligation of supplying consumers' need
for milk, a producer-handler who becomes a producer shall be ineligible
to transfer such quota for two years. Also, a producer who sells cows and
transfers quota shall become ineligible to become a producer-handler for
a period of two years thereafter. A producer-handler who for any reason
fails to meet the requirements set forth in ORS 583.007 (12) shall be
treated as a producer with quota and as a licensed handler until such
time as the producer-handler again qualifies as a producer-handler for a
full month. [1963 c.442 §18; 1967 c.440 §18; 1967 c.637 §§16,16a; 1977
c.307 §2; 1981 c.523 §1](1) Under a market pool and as used in this
section, "quota" means a producer's portion of the total sales of Class 1
milk in a market area plus 15 percent.
(2) The State Department of Agriculture shall provide by order,
under procedures set forth in ORS 583.001, 583.004, 583.021, 583.028 and
583.410 to 583.565, for the transfer of quota between individual
producers as necessary to carry out the purpose and intent of ORS
583.001, 583.004, 583.021, 583.028 and 583.410 to 583.565.
(3) After June 4, 1963, to establish each producer's initial quota
in the market area, the department shall give equal weight to production
and to Class 1 sales by determining the simple average of the production
of the producer and Class 1 sales in the market area during January,
February, March and April 1963. The percentage that the monthly
production-sales average of the producer is of the monthly
production-sales average of all producers supplying the market area,
times the total Class 1 sales in the area, times 115 percent, divided by
30, will be the daily quota of the producer in the area. Thereafter,
annually on or before March 1 of each year, each producer's quota will be
adjusted in accordance with the daily average production of the producer
during the four low months of the previous calendar year adjusted to the
average of the four high months of Class 1 sales in the market area, plus
15 percent; except the department may establish by administrative order,
if there are months of low production because producers have adjusted
production to meet conditions existing in a particular market, or because
of acts of God or other legitimate reasons which cannot be attributed to
poor management, such months may be excluded in determining the low four
months.
(4) If, during any three consecutive months, in the market area
surplus in quota is less than 10 percent or more than 20 percent, the
department shall adjust quotas allocated under subsection (3) of this
section to provide sufficient quota milk to meet Class 1 requirements.
(5)(a) A new producer or a producer with allocated quota can
acquire quota or increase the quota of the producer by purchasing a herd
with assigned quota providing the department, or the producer group which
has reallocated assigned quota, is advised of the transfer.
(b) A new producer who does not acquire quota as provided by
paragraph (a) of this subsection, may, after qualifying for Grade A
production and after selling such production as manufacturing milk for a
minimum of 180 days, have assigned as the quota of the producer in the
market area the same proportion, less 30 percent, that the monthly
average production of the producer for the 180-day period bears to the
Class 1 utilization of all production in the market area. Such quota with
penalty must be maintained for at least six months prior to adjustments,
as provided by subsection (4) of this section. [1963 c.442 §21; 1977
c.307 §13] Notwithstanding the provisions of ORS
583.515 and in addition thereto, at the time, each March 1, when the
State Department of Agriculture under a plan or system reallocates quota
to producers, it is also authorized to include provisions allowing a
producer to maintain the quota of the producer if the producer
consistently produces and furnishes milk equal to or in excess of the
quota of the producer. Such a plan or part of the system shall be
considered if it is apparent a large segment of the producers are in
agreement therewith and if such procedures will not seriously lessen or
reduce the supply of milk needed for consumers and handlers thereof.
[1967 c.440 §7] (1) In order
to further carry out the intent and purposes of this chapter and to
further help stabilize the production, marketing and use of pooled milk
and to insure an adequate supply of healthful milk for the people of this
state, and to assure licensed handlers in a market pool and market area
that they will at all times when possible and practical have a total
supply of milk to meet their Class 1 and Class 2 needs, the State
Department of Agriculture is authorized to establish, maintain, carry out
and enforce a plan or system under which licensed handlers shall divert
and move pool milk from their own use and needs to another licensed
handler for Class 1 or Class 2 use and needs.
(2) If after public hearing under ORS chapter 183 there is
sufficient evidence and testimony received by the department to indicate
a general agreement and approval by and between producers and other
segments of the dairy industry, the department may also establish a plan
or system to require and provide for the equalization between producers
of the cost of moving or transporting pooled milk. In considering the
provisions necessary to carry out this intent and purpose, the department
may pattern such provisions or requirements after the system wherein
producers under equalization receive the same price for quota milk and
surplus over quota milk, or it may provide any other plan or system which
is fair and reasonable.
(3) If a plan or system of equalizing the costs of moving or
transporting pool milk is established under subsection (2) of this
section, then any amount required by the department to be deducted by a
handler from producers is an authorized deduction and it shall be
identified and deducted as set forth in ORS 583.525 (3).
(4) No handler shall fail or refuse to comply with a directive or
order issued by the department if a plan or system is established to move
pool milk under the provisions of subsection (1) or (2) of this section.
[1967 c.440 §11]In addition to other actions
it may take, or penalties it may apply, the State Department of
Agriculture after public hearing under ORS chapter 183 may establish a
plan or system of assessing a penalty amount against a handler who fails
or refuses to move or transport pool milk for the Class 1 or Class 2
needs of another handler, when ordered so to do by the department as
authorized in ORS 583.517. This penalty which shall be established in an
amount not to exceed $1 per hundredweight of milk and paid to the
department, shall be computed on the basis of the number of pounds of
milk which was not moved or transported as ordered by the department. If
the handler in violation of such an order does not pay the amount of
penalty within 30 days after the date of the written notice by the
department, the department in addition to other actions available to it
under this chapter may:
(1) File suit against the handler for recovery of the penalty
amount, or
(2) Deduct the amount of the penalty from any amount or
equalization which may be later due and payable by the department to such
handler. Any such withholding by the department shall not be passed on
to, or be withheld by the handler from the price paid to producers for
milk. [1967 c.440 §20]In the event the producers through petition or
referendum pursuant to ORS 583.475 prevent a market pool from being
established, or by referendum terminate and close a market pool, the
State Department of Agriculture shall provide a system whereby each
producer selling milk to a particular handler except for replacement milk
shall receive the same price for Class 1 milk and for Class 2 milk of
like quality, as every other producer selling milk to that particular
handler and whereby each producer shall receive the minimum price
established by the department under ORS 583.505. Such system which is for
the purpose of assuring fair, reasonable and equitable treatment and
payment for all affected producers, may take into consideration the
existence, if any, of a voluntary equalization program established by
contract between groups of producers. [1963 c.442 §20](1) It is
the intent of the provisions of ORS 583.001, 583.004, 583.021, 583.028
and 583.410 to 583.565 to minimize and eliminate as far as possible and
practical, certain unfair and inequitable trade and competitive practices
and advantages that have existed between types or classes of handlers of
milk.
(2) No handler shall purchase milk from a producer or producers for
less than the minimum prices established under ORS 583.505. Each handler
shall pool such milk in accordance with the provisions of ORS 583.510 and
583.520, whichever is applicable.
(3) Notwithstanding the provisions of ORS chapter 62 or amendments
thereto, or other laws to the contrary, a handler may only deduct from
the amounts due a producer or producers, the following:
(a) Deductions by the handler for payment to the Oregon Dairy
Products Commission under ORS 576.051 to 576.455, payments to the State
Department of Agriculture under this chapter.
(b) A pooling charge of not to exceed the amount established by the
department, if such handler actually performs a pooling service for the
producer and if such pooling charges are limited to milk purchased from
or handled for an individual producer.
(c) Deductions based on assignment, approved and signed by the
producer, directing the handler to pay a specified sum to a person other
than such handler on the producer's behalf. Such "other person" shall not
be an officer, employee, agent or representative of the handler.
(d) Deductions based on an assignment, approved and signed by the
producer, authorizing amounts to be retained by the handler to cover or
reimburse such handler for bona fide loans or advances of money made to
the producer, or for commodities, articles or merchandise which have been
furnished by the handler to the producer.
(e) Deductions for hauling charges in accordance with applicable
common or contract carrier rates approved by the Public Utility
Commission. If no rates have been established by the Public Utility
Commission for the hauling of the milk which is covered by the deduction,
then such deduction shall not exceed the rate established by the
department after public hearing under the provisions of ORS chapter 183
and taking into consideration the advice of the Public Utility Commission.
(f) After the above deductions have been taken, if any, a
cooperative corporation or association organized under the laws of any
state and engaged in marketing or making collective sales of milk
produced by its members or other producers represented by or through the
cooperative, may then take and retain such other deductions from payment
to its members or producers, differentials as may be specifically
authorized in advance by contract or membership agreements between the
cooperative and its members.
(4) A handler when making payment for milk, shall clearly identify
and explain the deductions to the producer.
(5) The department after public hearing and as authorized by ORS
chapter 183, may approve additional deductions or further orders as may
be necessary to carry out the provisions of this section. Such
determinations shall not result in an undue advantage for one handler
over another handler or permit a handler to evade or circumvent the
intent of this section. [1963 c.442 §23; 1977 c.307 §14; 2003 c.604 §105] (1) No handler or producer-handler
shall:
(a) Buy milk from any person other than a producer, producer agent,
or another handler licensed under ORS 583.001, 583.004, 583.021, 583.028
and 583.410 to 583.465.
(b) Deal in or handle milk if such handler knows such milk has
previously been dealt in or handled in violation of any provision of ORS
583.001, 583.004, 583.021, 583.028 and 583.410 to 583.465.
(c) Purchase or accept delivery of any milk in a market area where
a market pool is established, that has not been assigned quota as
prescribed and established by the State Department of Agriculture under
the provisions of ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to
583.565, unless such milk is replacement milk as defined in ORS 583.007.
(2) No handler shall buy or offer to buy from a handler, producer,
producer's agent or cooperative corporation or association, and no
handler, producer, producer's agent or cooperative corporation or
association shall sell or offer to sell to a handler, any Class 1 or
Class 2 milk at a price less than that established under ORS 583.505.
[1963 c.442 §§12,25; 1977 c.307 §15; 1983 c.740 §225] (1) The State
Department of Agriculture may enforce by injunction or other appropriate
proceedings in the circuit court of the county in which the defendant
resides or has the principal place of business of the defendant any
provisions of ORS 583.001, 583.004, 583.021, 583.028 and 583.410 to
583.565 or any order promulgated thereunder. The department shall not be
required to give bond in any such proceeding. Such proceedings shall be
given preference on the calendar of the circuit court in which filed.
(2) The provisions of ORS 583.001, 583.004, 583.021, 583.028 and
583.410 to 583.565 or violations thereof may be enforced under and as a
part of the provisions of ORS 583.007, 583.016 and 583.046 to 583.166.
[1963 c.442 §13; 1977 c.307 §16]Except as provided by ORS 583.510 (5),
the State Department of Agriculture shall deposit all fees paid under ORS
583.004 and 583.410 to 583.565 in the State Treasury to the credit of the
Department of Agriculture Service Fund, and such fees are continuously
appropriated to the department for administering and enforcing ORS
583.001 to 583.565. [1963 c.442 §9(1); 1977 c.307 §17; 1979 c.499 §7]Nothing in the
provisions of ORS 583.001, 583.007, 583.021, 583.028, 583.440 (3),
583.445 to 583.463, 583.505 to 583.510, 583.516 to 583.518, 583.560,
583.565 and 583.993 shall be construed as terminating, repealing,
settling or changing any action, suit, audit or any other matter,
started, commenced or hereinafter started or commenced by the State
Department of Agriculture, or by any person against the department, for
violations of, or for any matter arising from the provisions of this
chapter prior to July 1, 1967. All moneys owing to the department, or
owing by the department, continue to be owing. The department may with
the written approval, which shall be a public record, of the director,
the Attorney General and other supervisory officials, compromise or
settle any matter or claim arising before or after July 1, 1967, if in
their opinion such action is in the best interests of the milk industry.
[1967 c.440 §22; 1971 c.418 §15; 1977 c.307 §18] (1) Notwithstanding other
provisions to the contrary, including ORS 182.080, if all or only a part
of the provisions of this chapter are terminated or become inoperative,
in all or in a part of the state, the State Department of Agriculture is
authorized to take such steps and procedures as are necessary to
immediately wind up and conclude the administration and enforcement of
this chapter, all or in part, for the period prior to such termination or
inoperative date. If the provisions of this chapter continue to apply and
cover a part or parts of the state, the department is authorized to
continue to carry out and enforce the provisions of this chapter in such
part or parts of the state.
(2) The termination shall not affect or impair any act done, right
accrued, acquired or occurring, liability, payment demanded or required
under this chapter to be paid, or rules or orders promulgated for the
period prior to the termination. The department in carrying out the
intent and purpose of this section shall have the authority to determine,
collect and disburse any moneys due it, or due other persons who were
subject to the law, as authorized or required by this chapter prior to
its termination. The department with the written approval of the director
and the Attorney General, in order to expedite the winding-up procedures,
is authorized to compromise any matter or debt owing to it, or owing by
the department to persons subject to the provisions of this chapter.
(3) After the department has carried out its responsibilities and
duties as required in this section and has paid the expenses thereof, any
unexpended funds under its control or supervision derived under this
chapter and not needed thereunder, shall be transferred by the department
to the account designated in ORS 621.015 and may be expended by the
department thereunder. [1967 c.440 §8; 1971 c.418 §16](1)(a) No handler, producer-handler, jobber or
other person shall sell or offer to sell fluid milk to retailers or other
milk distributors at a price less than the amount paid for the raw fluid
milk product, plus the cost to manufacture and distribute the product.
(b) The State Department of Agriculture shall establish a method
for determining individual costs of manufacture and distribution of fluid
milk.
(c) For the purpose of this section, price shall be determined
after deductions of all discounts and rebates, either direct or indirect,
given before sale, at sale or after sale.
(2) A handler, producer-handler, jobber or other person may sell or
offer to sell fluid milk to an existing customer at a price less than the
amount established in subsection (1) of this section if the price is not
less than the price offered to the customer by another handler,
producer-handler, jobber or other person who is selling or offering to
sell at a price lawfully established pursuant to this section. This
subsection only permits sales or offers to sell at less than the price
established pursuant to subsection (1) of this section for locations
where the competitive situation described in this subsection exists.
(3) Every handler, producer-handler, jobber and store shall keep
accurate records of transactions concerning fluid milk, for at least one
year. This subsection requires a store to keep only those records
necessary to provide information to the department concerning the
purchase price paid by the store for fluid milk covered by subsection (1)
of this section. [1977 c.285 §2] (1) The State Department of
Agriculture may determine and assess a fee, not to exceed one cent per
hundredweight on fluid milk, to be paid monthly by the handler,
producer-handler or jobber who first sells the milk in this state.
(2) The department shall deposit all fees paid under this section
in the Department of Agriculture Service Fund, and such fees are
continuously appropriated to the department for the administration of ORS
583.600 to 583.630.
(3) To assist the department in its determination of fees under
this section, the department may prescribe periodic reports to be
submitted to the department by all handlers, producer-handlers and
jobbers evidencing the volume of milk distributed during specific
periods. [1977 c.285 §3; 1979 c.499 §8] (1) The State
Department of Agriculture may investigate for any violations of the
provisions of ORS 583.600 to 583.630 and 583.993, either on its own
initiative or upon the written request of any person.
(2) In accordance with audit and enforcement provisions set forth
in ORS 583.028 to 583.166, 583.540 and 583.560, the department may
enforce the provisions of ORS 583.600 to 583.630 and 583.993 against any
handler, producer-handler, jobber or any other person selling or offering
to sell fluid milk to retailers or other milk distributors and may
conduct audits of any handler, producer-handler, jobber or store.
(3) Provisions for the enforcement of ORS 583.600 to 583.630 and
583.993 are not exclusive and are cumulative to any other applicable
provision of law. [1977 c.285 §4] In accordance with
ORS chapter 183, the State Department of Agriculture may adopt any rules
necessary to carry out the provisions of ORS 583.600 to 583.630 and
583.993, except that the rules first adopted under ORS 583.600 to 583.630
and 583.993 shall be established with the advice of the segments of the
milk industry affected by the provisions of ORS 583.600 to 583.630 and
583.993. The provisions of ORS 583.425 apply to the procedures the
department uses to establish a method for determination of individual
costs under ORS 583.600 (1). [1977 c.285 §5](1) Subject to ORS 153.022, violation of any
provision of ORS 583.001 to 583.565 or rule thereunder is a Class A
violation.
(2) Subject to ORS 153.022, violation of any provision of ORS
583.600 to 583.630, or of any rule promulgated pursuant thereto, is
punishable, upon conviction, by a fine not to exceed $10,000. [1967 c.440
§25; 1977 c.285 §6; 1999 c.1051 §204]
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