8 CCR 1204-4
SECTION I DEFINITIONS Definitions as used herein have the following terms and meanings:
A. “COMMISSIONER” means the Commissioner of Agriculture for the State of Colorado.
B. “ACT” means Chapter 7, Article 3, Colorado Revised Statutes 1963, as amended.
C. “PERSON” means an individual, partnership, corporation, association, legal representative, or any organized group of individuals.
D. “PEACHES” means all peaches grown in the county of Mesa in the State of Colorado and shipped in fresh form.
E. “PEACH ADMINISTRATIVE COMMITTEE” means the Board of Control established pursuant to Section II herein, and hereinafter referred to as the Committee.
F. “PRODUCER” means any person who is engaged in the business of producing or causing to be produced for market, peaches in the county of Mesa in the State of Colorado.
G. “HANDLER” means any person (except a common or contract carrier of peaches owned by another person) who as owner, agent, or otherwise ships peaches, or causes peaches to be shipped.
H. “DISTRIBUTOR” means any person engaged in the operation of selling, marketing, or distributing peaches which he has produced, or purchased or acquired from a producer, or which he is marketing on behalf of a producer whether as owner, agent, employee, broker, or otherwise, but shall not include a retailer as herein defined except such retailer who purchases or acquires from, or handles on behalf of any producer, peaches not theretofore subject to regulation by any marketing order covering such peaches.
I. “RETAILER” means any person who purchases and/or acquires any peaches for resale at retail to the general public for consumption off the premises but such person shall also be included within the definition of distributor as herein defined.
J. “TO HANDLE” means to engage in the business of a handler as herein defined.
K. “TO DISTRIBUTE” means to engage in the business of a distributor as herein defined.
L. “GRADE” means the official U.S. and/or Colorado terminology applied to agricultural commodities as determined by the presence or absence of certain quality and other factors.
M. “SHIP” means to sell, transport, or offer for sale or transportation peaches produced in Mesa county to a point or points outside of Mesa county by any means whatsoever.
N. “FISCAL PERIOD” means the period beginning and ending on the dates established by the Commissioner pursuant to recommendations by the Administrative Committee.
O. “VARIETIES” means and includes all classifications and subdivisions, including customary and trade names thereof, of peaches according to those definitive characteristics now or hereafter recognized by the United States Department of Agriculture or the Colorado State Department of Agriculture, or such groupings of peaches according to such characteristics or types as may be established by the committee with the approval of the Commissioner.
P. “The INDEPENDENT PRODUCER-HANDLER MEMBER” of the Administrative Committee and the alternate for such member, to be selected from the nominees of producers and handlers other than cooperative associations and members of each association, must be a producer or handler (including employees and bona fide agents designated for carrying on business activities for such handler) and shall not be a member or an employee of a cooperative association.
Q. “PROCESSOR” means any person engaged within this state in the operation of canning, freezing, fermenting, distilling, extracting, preserving, drying, grinding, crushing, or changing the physical form of peaches in the operation of marketing such peaches.
R. “PROCESSING” means the operation of canning, freezing, fermenting, distilling, extracting, preserving, drying, grinding, crushing, or changing the physical form of peaches in the operation of marketing such peaches.
SECTION II PEACH ADMINISTRATIVE COMMITTEE A. ESTABLISHMENT AND MEMBERSHIP An Administrative Committee is hereby established consisting of nine (9) members, of whom five (5) shall represent producers, three (3) shall represent cooperative associations which are handlers, and one (1) shall represent producers and handlers other than cooperative associations and members of such associations.
B. REPRESENTATIVE DISTRICTS FOR PRODUCER MEMBERS For the purpose of nomination and selection of the producer members of the Administrative Committee and their respective alternates, the county of Mesa in the State of Colorado shall be divided into five representative districts as established by the Commissioner based on the recommendations of the Committee, provided that the districts so designated will be divided in an equitable manner to provide the most equal representation possible.
In making such recommendations for the establishment of such districts, or in making recommendations for any changes in such established districts, the Committee shall consider (a) the relative importance of new producing sections, (b) relative production, (c) the geographic locations of producing sections as they would affect the efficiency of administration of this Order, and (d) other relevant factors. The Commissioner shall promptly notify the Administrative Committee of the boundaries of each district or any changes in such boundaries and the Administrative Committee shall give adequate notice thereof to producers. Such boundaries of the five representative districts, as of the beginning of the fiscal period following this amendment to the Peach Marketing Order dated June 21, 1976, shall be as follows: DISTRICT NO. 1 shall include all that portion of Mesa County lying North of the Colorado River and EAst of a line designated as 37.3 Road and an extension thereof. DISTRICT NO. 2 shall include all that portion of Mesa County lying South of the Colorado River, known as Vineland, on the floor of the valley and northeasterly, which is to include the Rapid Creek area. DISTRICT NO. 3 shall include all that portion of Mesa County lying South of the Colorado River on the West of District No. 2, known as Orchard Mesa, to the natural barrier known as the Big Wash. DISTRICT NO. 4 shall include all that portion of Mesa County lying South of the Colorado River, bounded on the West by the Gunnison River, and bounded on the East by the natural barrier known as the Big Wash.
DISTRICT NO. 5 shall be all that portion of Mesa County bounded on the East by 37.3 Road and an extension thereof, lying North of the Colorado River to the Junction of the Colorado River and Gunnison River, and all the rest of Mesa County lying West and North of the junction of the Colorado and Gunnison Rivers.
C. NOMINATION AND SELECTION OF PRODUCER MEMBERS 1. Nomination of producer members and their respective alternates shall be made at meetings of producers for each of the districts at such time and place as the Administrative Committee shall designate at least 30 days prior to the end of the term of office. At each such meeting the producers eligible to participate therein shall select a chairman and a secretary therefor. The chairman of each meeting shall announce at such meeting the name of each person for whom votes have been cast and the number of votes cast for each person; and the chairman or the secretary of the meeting shall forthwith transmit such information to the Commissioner.
2. Only producers shall participate in the nomination of producer members and their alternates, and a producer may participate only in the meeting held for the district in which he produces peaches. No producer shall participate in the nomination of producer members and their alternates for more than one district in any fiscal period. Each producer shall be entitled to cast but one vote on behalf of himself, his agents, partners, and representatives. Proxy voting shall be prohibited.
3. At least twice as many persons shall be nominated as there are positions to be filled. Such nominees shall be ranked in the order of the votes cast, and such ranking shall determine their standing in the order of importance of the positions to be filled. The Commissioner shall select a member and an alternate from the nominees thus selected and ranked.
D. NOMINATION AND SELECTION OF INDEPENDENT PRODUCER HANDLER MEMBERS 1. Nomination of an independent producer handler member and his alternate shall be made at a meeting of the producers or handlers other than cooperative associations and members of associations at such time and place as the Administrative Committee shall designate at least 30 days prior to the end of the term of office. At each such meeting the persons eligible to participate therein shall select a chairman and a secretary therefor.
2. The chairman of the meeting shall announce at such meeting the names of each person for whom votes have been cast, and the number of votes cast for each such person; and the chairman or secretary of the meeting shall forthwith transmit such information to the Commissioner.
E. NOMINATION AND SELECTION OF COOPERATIVE HANDLER MEMBERS 1. Cooperative associations of producers shall nominate three (3) persons to serve as members and three (3) persons to serve as alternate members of the Committee. One (1) member and one (1) alternate shall be nominated by each of the two (2) cooperative associations of producers qualifying as a handler of peaches as of the effective date hereof; and in alternate terms, each such association shall nominate either the third member, or the third alternate member to the end that in alternate terms each association shall be represented by two (2) members and one (1) alternate or one (1) member and two (2) alternates.
2. Nomination of cooperative members and their respective alternates shall be made by such cooperative associations at such time and places and in such manner as the members of the respective associations may designate with the concurrence of the Administrative Committee, and at least 30 days prior to the end of the term of office. Such nominations shall be forthwith transmitted to the Commissioner.
3. At least twice as many persons shall be nominated as there are vacancies to be filled. Such nominees shall be ranked in the order of votes cast for each, and such ranking shall determine their standing in the order of importance of the vacancies to be filled. Member vacancies shall be considered of first importance.
4. The Committee, with the approval of the Commissioner, may provide for the reapportionment of the cooperative handler membership of the Committee so as to more equitably provide representation to present and future cooperative associations engaged in handling of Mesa county peaches should the need for such reapportionment of present cooperative handler positions arise. Any such reapportionment should be based, so far as practicable, upon the volume of peaches handled by the respective associations.
F. FAILURE TO NOMINATE In the event nominations for members and their respective alternates are not made and the names of such nominees are not submitted to the Commissioner before the end of the term of office pursuant to Section II (C) (D) and (E), the Commissioner may select such members and alternates without regard to nominations.
G. ELIGIBILITY FOR MEMBERSHIP 1. Producer members to the Administrative Committee and alternate for each such member must be producers of peaches in the district in and for which they were nominated and selected.
2. The cooperative handler member of the Administrative Committee and the alternate for each such member must be a member or an employee of a cooperative association.
3. The independent producer handler member of the Administrative Committee and the alternate for such member must be an independent producer handler.
H. QUALIFICATION BY MEMBERS AND ALTERNATES Any person selected by the Commissioner as a member or as an alternate for a member of the Administrative Committee shall qualify therefor by filing a written acceptance with the Commissioner within 15 days after being notified of such selection.
I. TERM OF OFFICE The term of office means a period beginning and ending on such dates as established by the Commissioner upon the recommendation of the Administrative Committee. The term of office of each member and their alternates shall be for two (2) years, or until their successors have been selected and qualified. Terms of office of members and their respective alternates shall be arranged so that approximately one-half shall terminate each year. (Determination of which initial members and their alternates shall serve for one year or two years in the first term following the adoption of this amendment shall be by lot).
J. ALTERNATE MEMBERS OF ADMINISTRATIVE COMMITTEE An alternate member shall act in the place and stead of a member during such member's absence, or, in the event of death, removal, resignation, or disqualification of such member, and until a successor for such member is selected and has qualified.
K. VACANCIES To fill any vacancy occasioned by the failure to qualify of any person selected as a member or as an alternate member of the Administrative Committee, or, in the event of the death, removal, resignation, or disqualification of any member or of any alternate, nominations and selections to fill such vacancy shall be made in the manner set forth in this section.
L. COMPENSATION AND EXPENSES The members and alternate members of the Administrative Committee shall serve without salary but may be compensated for attendance at meetings at a rate not to exceed $5.00 per meeting, plus mileage at not to exceed 10 cents per mile. Such members and alternates also may be reimbursed for reasonable expenses necessarily incurred by them in the performance of duties, specifically assigned by the Committee, other than attendance at meetings.
M. POWERS AND DUTIES The Administrative Committee shall have the following powers and duties:
1. Subject to the approval of the Commissioner to administer this marketing agreement or order of the Commissioner;
2. Subject to the approval of the Commissioner to employ necessary personnel including an attorney approved by the Attorney General of the State of Colorado, fix their compensation and terms of employment, and to incur such expenses, to be paid by the Commissioner from monies collected as herein provided, as the Commissioner may deem necessary and proper to enable such Administrative Committee properly to perform such of its duties as are authorized herein;
3. To recommend to the Commissioner administrative rules and regulations relating to the administration of the terms and provisions hereof;
4. To receive and report to the Commissioner complaints of violations hereof;
5. To submit to the Commissioner for his approval an estimated budget of expenses necessary for the operation hereof; and also submit for approval a method of assessing and collecting such funds, as the Commissioner may find necessary for the administration hereof;
6. To assist the Commissioner in the collection of such necessary information and data as the Commissioner may deem necessary to the proper administration hereof; “Each season prior to making any recommendation to the Commissioner for the regulation of shipments pursuant to the provisions hereof, to determine the marketing policy to be followed during such season and to submit to the Commissioner a report of such policy containing, among other provisions, information relative to the estimated total production of peaches; information as to the expected grades and sizes of such peaches; possible or expected demand conditions of different market outlets; supplies of competitive commodities; an appropriate analysis of the foregoing factors and conditions; and the type of regulation of shipments of peaches expected to be recommended;” 7. To act as intermediary between the Commissioner and any producer, distributor, or handler;
8. To keep minutes, books, and records which will clearly reflect all of the acts and transactions of the Administrative Committee, which minutes, books, and records shall be subject at any time to examination by the Commissioner;
9. To cause the books of the Administrative Committee to be audited by a competent account at least once each fiscal period and at such times as the Committee may deem necessary or as the Commissioner may request, and to file with the Commissioner copies of any and all audit reports;
10. To give the Commissioner the same notice of all meetings of the Administrative Committee as given to the members;
11. To select a chairman and such other officers of the Administrative Committee as may be deemed advisable from time to time;
12. To perform such duties as may be assigned to it from time to time by the Commissioner in connection with the administration hereof; and 13. To cooperate, consult, and confer with committees administering other marketing agreements and orders and with other governmental agencies and industry groups engaged in marketing research and development activities deemed beneficial to the marketing of peaches.
O. PROCEDURE 1. A quorum shall consist of six (6) members of the Administrative Committee, or alternates then serving in the place and stead of any members, in attendance at a meeting, and all decisions of the Committee shall be made by not less than six (6) affirmative votes.
2. The members of the Administrative Committee, including successors and alternates, and any agent or employee appointed or employed by the Committee shall be subject to removal or suspension by the Commissioner for cause at any time. Each and every regulation, decision, determination, or other act of the Committee shall be subject to the continuing right of the Commissioner to disapprove of the same at any time, and upon such disapproval shall be deemed null and void except as to acts done in reliance thereon or in compliance therewith prior to such disapproval by the Commissioner.
P. FUNDS AND OTHER PROPERTY 1. All funds received by the Administrative Committee pursuant to any of the provisions hereof shall be paid over to the Commissioner for deposit in a bank or other depository approved by the State Treasurer allocated to the commodity regulated hereunder, and shall be used solely for the purpose herein specified. The Committee shall account to the Commissioner for all funds so received.
2. Upon the death, resignation, removal or expiration of term of office of any member of the Administrative Committee all books, records, and other property in his possession shall be delivered to his successor in office or to the Committee, and such assignments and other instruments shall be executed as may be necessary to vest in his successor or the Committee full title to all books, records, and other property in the possession or under the control of such members pursuant hereto.
SECTION III REGULATION OF SHIPMENTS 1. Whenever the Administrative Committee deems it advisable to regulate, during any period or periods, the shipment of one or more varieties of peaches by grades or sizes, or both, or by minimum standards of quality or maturity, or both, it shall so recommend to the Commissioner 2. At the time of submitting each such recommendation for the regulation by grades or sizes, or both, the Committee shall furnish to the Commissioner, in addition to all pertinent data and information on which it acted in making such recommendation, such other data and information as the Commissioner may request. The Administrative Committee shall promptly give adequate notice to handlers and producers of each such recommendation.
3. At the time of submitting each such recommendation for the regulation by minimum standards of quality or maturity, or both, the Administrative Committee shall furnish to the Commissioner, in addition to all pertinent data and information on which it acted in making such recommendation, such other data and information as the Commissioner may request. Each such recommendation of the Administrative Committee should, so far as it is practicable, be in the terms of such grades or sizes, or both, of peaches, as would be in the public interest and tend to effectuate the declared policy of the Act. The Administrative Committee shall promptly give adequate notice to handlers and producers of each such recommendation.
C. ESTABLISHMENT OF REGULATION 1. By Grades and Sizes - Whenever the Commissioner finds, from any such recommendation and information or other available information, that to limit the shipment of the total quantity of any variety or varieties of peaches to particular grades or sizes, or both, thereof would tend to effectuate the declared policy of the Act, he shall so limit the shipment of such variety or varieties during a specified period or periods. The Commissioner shall promptly notify the Administrative Committee of each such regulation; and the Committee shall promptly give adequate notice thereof to handlers and producers.
2. By Minimum Standards of Quality and Maturity - Whenever the Commissioner finds, from any such recommendation and information or other available information that to establish minimum standards of quality or maturity, or both, and to limit the shipment of peaches during any period or periods to those meeting such minimum standards would be in the public interest and would tend to effectuate the declared policy of the Act, he shall so limit the shipment of such variety or varieties during a specified period or periods. The Commissioner shall promptly notify the Administrative Committee of each such regulation; and the Committee shall promptly give adequate notice thereof to handlers and producers.
D. EXEMPTIONS AND EXEMPTION CERTIFICATES 1. The Administrative Committee shall, subject to the approval of the Commissioner, adopt procedural rules to govern the issuance of exemption certificates.
2. In the event the Commissioner issues a regulation pursuant to this section the Committee shall determine the percentage which each variety of peaches permitted to be shipped under the regulation bears to the total production of such variety; and the Committee shall forthwith announce such percentage. The Committee shall thereafter issue one or more exemption certificates to any producer who furnishes evidence satisfactory to the Committee that, by reason of conditions beyond the control of a prudent grower and beyond his reasonable expectations, he will be prevented because of the regulation issued from shipping or having shipped as large a proportion of a particular variety of his peaches as the average proportion of all such peaches which may be so shipped. Causes regarded as within the control of a prudent grower include, but are not necessarily limited to, failure properly and adequately to prune, irrigate, thin, fertilize, spray, and cultivate according to accepted practices. Causes regarded as beyond reasonable expectation include, but are not necessarily limited to exceptionally late spring and early frosts, ditch breaks, water shortages, general shortage of labor during the growing season, or illness of a kind causing inability to carry out the management of his crop in the manner of a prudent grower.
3. The Administrative Committee, with the approval of the Commissioner, may include in the rules and regulations adopted pursuant to (D) (1) of this section such refinement of definition as is deemed necessary with respect to causes beyond the control of a prudent grower and beyond a grower's reasonable expectation.
4. The exemption certificate issued pursuant to this section shall permit the respective grower to whom the certificate is issued to ship or have shipped a percentage of his crop of a particular variety of peaches equal to the percentage determined pursuant to paragraph (D) (2) of this section; but such exemption may be limited to the specific damage by reason of which the exemption is claimed, and the Committee may establish special requirements with respect to the minimum standards of grade, quality, size and maturity which must be met by peaches shipped under such certificate.
E. INSPECTION AND CERTIFICATION During any period in which the shipment of peaches is regulated pursuant to this section, each handler who first ships peaches shall, prior to making each such shipment of peaches, have the shipment inspected by an authorized representative of the federal-state inspection service, or such other inspection service as the Commissioner shall designate. Promptly thereafter, such shipper shall submit, or cause to be submitted, to the Administrative Committee a copy of the inspection certificate issued with respect to such shipment.
F. MODIFICATION, SUSPENSION OR TERMINATION Whenever the Administrative Committee deems it advisable to recommend to the Commissioner the modification, suspension or termination of any or all the regulations issued pursuant to this section, it shall so recommend to the Commissioner. If the Commissioner finds, upon the basis of such recommendation or other available information, that to modify any such regulation will tend to effectuate the declared policy of the Act, he shall so modify such regulations. If the Commissioner finds, upon the basis of such recommendation or other available information, that any such regulation obstructs or does not tend to effectuate the declared policy of the Act, he shall suspend or terminate such regulation. The Commissioner shall promptly notify the Administrative Committee, and the Committee shall promptly give adequate notice to handlers and producers, of each such modification, suspension or termination. In like manner and upon the same basis the Commissioner may terminate any such modification or suspension. SECTION IV PRICE FILING AND POSTING Whenever the Administrative Committee deems it advisable that the shipment of peaches which may be distributed, shall be regulated by requiring that peaches should be quoted, offered for sale, and sold only at prices filed by such handlers, it may so recommend to the Commissioner. Such recommendation shall include the time of commencement and termination of the proposed regulation period or periods, and such additional information as the Commissioner may request. The Administrative Committee shall promptly give adequate notice to handlers of each recommendation submitted by it to the Commissioner.
B. ESTABLISHMENT Whenever the Commissioner finds from the recommendation made by the Administrative Committee and from the information submitted by the Committee, or from other available information, that to regulate the shipment of peaches, which may be distributed during the period or periods recommended by the Committee, or during any portion of such period or periods, by requiring handlers to file schedules of prices at which such handlers shall quote, offer for sale, or sell peaches, would tend to effectuate the declared policy of the Act, he may establish a period or periods during which handlers shall file such schedules of prices in the manner prescribed in this section. The Commissioner shall immediately notify the Administrative Committee of the issuance of each such regulation, and the Committee shall promptly give adequate notice thereof to handlers.
C. SCHEDULES OF PRICES 1. After a price-filing regulating becomes effective and before making a sale of peaches thereafter, each handler shall file with the Administrative Committee a complete schedule of prices at which such handler will quote, offer for sale, or sell peaches during such regulations period. Such schedules of prices (hereinafter referred to as “Price Terms”) shall include the selling prices, discounts, rebates, allowance, and all other terms and conditions of sale relating thereto, as to each variety, grade, size and type of pack of peaches to be sold during such period by the handler filing such price terms. Immediately upon receipt of each such price terms, or revision thereof, the Administrative Committee shall cause to be noted thereon the date and time the same is filed and the date and time the same is to become effective and shall cause a copy thereof to be posted in the office of the Committee. Upon request of any handler who has filed price terms with the Committee, the Committee shall furnish to such handler by telephone, or in any other manner requested, full information concerning any price terms, or revisions thereof, filed by any other handler. Any cost incidential to the furnishing of such information shall be assumed by the handler requesting such information.
2. Price terms, or revisions thereof, shall remain in effect only during the regulations period during which the same are filed. The initial price terms filed by each handler during each regulation period shall become effective immediately upon being received by the Administrative Committee.
D. REVISION OF PRICE TERMS 1. In the event any handler desires to quote, offer for sale, or sell peaches during any regulation period at prices other than those contained in the price terms filed by him with the Administrative Committee during such regulation period such handler may at any time revise such price terms, or any revision thereof, by filing with the Committee a revision thereof. Each such revision, except as provided in sub-paragraph (2) of this paragraph, and unless withdrawn before the time it is effective shall become effective at the end of two hours, or at the end of such other period of time, not less than one (1) hour nor more than twenty-four (24) hours, as may be established by the Administrative Committee, after such revision has been received by the Committee.
2. Any handler (herein referred to as “Revising Handler”) may revise his price terms, or any revision thereof, to prices not lower than the lowest prices, as to the same variety, grade, size, and type of pack of peaches, considering the quantity of peaches contained in such pack and the terms and conditions of sale relating to such prices, as set forth in the price terms, or any revision thereof, whichever was last filed, of any other handler. Such revising handler's revised price terms shall become effective as of the date and time such other handler's price terms, or revisions thereof, is to become effective, or, if such other handler's price terms, or revisions thereof, are in effect at the time such revising handler's revision is received by the Administrative Committee, then such revising handler's revision shall become effective immediately upon being received by the Committee: Such revising handler shall, at the time of filing such revised price terms, and upon the standard form delivered by him in connection therewith, indicate to the Administrative Committee the name of such other handler with whose price terms, or revision thereof, such revising handler's revised price terms are to be compared. If such other handler withdraws or revises his price terms, or revision thereof, before effective, such revising handler's price terms, as filed, shall become effective according to the provisions of this sub-paragraph and notwithstanding such action by the other handler, unless such revising handler also withdraws or revises his revised price terms.
E. MANNER OF FILING AND REVISING PRICE TERMS At the time of submitting to the Commissioner the first recommendation for a price-filing regulation, pursuant to the provisions of paragraph (A) of this section, the Administrative Committee shall prescribe a standard form or forms upon which each handler shall file his price terms and any revisions thereof. The Committee may at any time prescribe rules and regulations relating to the filing of such price terms and revisions thereof. All such standard forms, rules and regulations shall be subject to the continuing right of the Commissioner to disapprove the same in whole, or in part; may be amended or revoked by the Administrative Committee at any time; and shall, after having been prescribed by the Committee, remain in full force and effect during all subsequent price-filing regulation periods, unless amended or revoked by the Committee or disapproved by the Commissioner. The Committee shall promptly give adequate notice to handlers of all standard forms, rules, and regulations prescribed by it and of all subsequent action by the Committee or by the Commissioner with respect thereto.
F. CONFORMITY OF SALES TO PRICE TERMS AND EXCEPTION During any price-filing regulation period established by the Commissioner, no handler shall quote, offer for sale, or sell peaches at prices other than the prices specified in his then effective price terms on file with the Administrative Committee. Provided, however, that the provision of this section shall not apply to peaches sold at bona fide public auction or by process of law. SECTION V ADVERTISING AND SALES PROMOTION PLAN Whenever the Administrative Committee deems it advisable that an advertising and sales promotion plan be established in connection herewith, it may submit to the Commissioner a recommendation for the establishment of such plan and the information upon which such recommendation is based. At the time of submitting such recommendation and information, the Committee shall prepare and submit therewith a proposed advertising and sales promotion plan, together with a budget of the expenses that will necessarily be incurred in connection with the execution, operation, and administration of such plan and a rate of assessment, based upon the gross quantity of peaches handled, to be levied against each handler for the purpose of providing a fund to defray such expenses.
B. ESTABLISHMENT Whenever the Commissioner finds from the recommendation and information submitted by the Administrative Committee, or from other available information that the establishment of an advertising and sales promotion plan will tend to effectuate the declared purposes of the Act, he shall prepare and issue an advertising and sales promotion plan based upon the plan submitted and recommended by the Administrative Committee.
C. FUND FOR EXPENSES AND RATE OF ASSESSMENT 1. Upon the issuance of any advertising and sales promotion plan, the Commissioner shall approve a budget and rate of assessment based upon the recommendation and information submitted by the Committee and shall promptly notify the Committee of his action thereon.
2. Each handler's pro-rata share of the expenses that may be incurred during a fiscal period in connection with any advertising and sales promotion plan established pursuant to this section shall be based upon the rate of assessment recommended by the Administrative Committee and approved by the Commissioner and shall be that proportion of such expenses which the total quantity of peaches shipped by each handler during such fiocal period is of the total quantity of all peaches shipped by all handlers during said fiscal period and shall be paid by such handler to the Commissioner at such time and in such manner as the Commissioner shall provide.
3. The rate of assessment may be adjusted from time to time by the Administrative Committee with the approval of the Commissioner, in order to cover any later finding by the Committee and Commissioner of the estimated expenses or the actual expenses that may be incurred in connection with any advertising and sales promotion plan.
D. ADMINISTRATION OF PLAN The Commissioner shall administer any plan issued pursuant to this section in such manner as best to effectuate the purposes hereof; provided, that any such plan shall be directed toward creating new or larger markets and increasing the sale of peaches without reference to a particular brand shall be issued or administered by the Commissioner which shall make use of false or unwarranted claims in behalf of peaches or which shall disparage the quality, value, sale or use of any other agricultural commodity. SECTION VI WEIGHING AND INSPECTION STATIONS Whenever the Administrative Committee deems it advisable that weighing and inspection stations be established at which all peaches, if sold in bulk, shall be weighed to determine the net weight of peaches so sold, and at which stations the official grade inspection referred to in paragraph (E) of section III, shall be performed for such peaches, and at which station the sale price as determined by prices filed by any handler making such sale shall be collected under regulations of the Administrative Committee approved by the Commissioner, it may so recommend to the Commissioner.
B. ESTABLISHMENT Based upon such recommendations and information furnished by the Administrative Committee, or upon any other information, the Commissioner may establish weighing and inspection stations as may be considered necessary for the purpose of weighing to determine net weight, inspection to determine grade, and collection of sale price as filed, by all handlers selling peaches in bulk and for the further purpose of providing a checking station at which all peaches sold to trucks in packages may be checked.
C. OPERATION Under the authority of the Commissioner the Administrative Committee shall operate such weighing and inspection stations in the manner which, in their discretion, shall best effectuate the purposes hereof. SECTION VII PROVISIONS FOR RESEARCH Whenever the Administrative Committee deems it advisable to establish programs in the field of research for the improvement of production, control of insects or diseases, harvesting, storing, transporting, marketing, handling, processing, or any other phase of research work which would benefit the peach producers, it may submit to the Commissioner of Agriculture a recommendation for the establishment of such a plan or program along with the information upon which such recommendation is based. At the time of submitting such recommendations and information the Committee shall prepare and submit therewith a proposed research program, together with a budget of the expense that will necessarily be incurred in connection with the execution, operation, and administration of such program, and a rate of assessment based upon the gross quantity of peaches to be levied against each handler for the purpose of providing a fund to defray such expenses.
B. ESTABLISHMENT Whenever the Commissioner finds from the recommendations and information submitted by the Administrative Committee or from other available information that the establishment of a research program will tend to effectuate the declared purposes of the Act, he shall prepare and issue a research plan based upon the program submitted and recommended by the Administrative Committee. SECTION VIII PROVISIONS FOR ESTABLISHING PROCESSING PLANTS Whenever the Administrative Committee deems it advisable to establish processing plants or make necessary arrangements with persons or companies for the processing of peach products which processing would tend to benefit the peach industry, it may submit to the Commissioner of Agriculture a recommendation for the establishing of such a plan, along with the information upon which such recommendation is based. At the time of submitting such recommendation and information, the Committee shall prepare and submit therewith a proposed plan together with a budget of the expenses that will necessarily be incurred in connection with the execution, operation, and administration of such a plan, and a rate of assessment based on the gross quantity of peaches handled to be levied against each handler for the purpose of providing a fund to defray such expense.
B. ESTABLISHMENT Whenever the Commissioner finds from the recommendations and information submitted by the Administrative Committee or from other available information that the establishment of a processing plant will tend to effectuate the declared purposes of the Act, he shall prepare and issue a plan for establishing a processing plant based upon the program submitted and recommended by the Administrative Committee.
SECTION IX PROVISIONS FOR DISPOSING OF UNMARKETABLE PEACHES Whenever the Administrative Committee deems it advisable to establish methods whereby peaches other than marketable peaches may be disposed of, it may submit to the Commissioner of Agriculture a recommendation for the establishment of such a plan or program, along with the information upon which such recommendation is based. At the time of submitting such recommendations and information the Committee shall prepare and submit a proposed plan, together with a budget of the expenses that will necessarily be incurred in connection with the execution, operation, and administration of such program and a rate of assessment based upon the gross quantity of peaches handled to be levied against each handler for the purpose of providing a fund to defray such expenses.
B. ESTABLISHMENT Whenever the Commissioner finds from the recommendations and information submitted by the Administrative Committee, or from other available information, that the establishment of provisions for the method whereby peaches other than marketable peaches may be disposed of he shall prepare and issue a plan for disposing of unmarketable peaches based upon the program submitted and recommended by the Administrative Committee.
SECTION X EXPENSES AND ASSESSMENTS The Administrative Committee is authorized to incur such expenses as the Commissioner finds are reasonable and likely to be incurred by such Administrative Committee for its maintenance and functioning hereunder during the then current fiscal period. The Administrative Committee shall prepare and submit to the Commissioner a proposed budget of expenses and a proposed rate of assessment for the then current fiscal period. The funds to cover such expenses shall be acquired by the levying of assessments as provided in this section.
B. ASSESSMENTS Each handler shall pay to the Administrative Committee, upon demand, such handler's pro-rata share of the aforesaid expenses. Each handler's pro-rata share shall be based upon a rate of assessment fixed by the Commissioner and shall be that proportion of such expenses which the total quantity of peaches shipped by such handler as the first handler thereof is of the total quantity of peaches shipped by all handlers as the first handlers thereof, during said fiscal period. The rate of assessment may be increased, from time to time, during any fiscal period, by the Commissioner in order to cover any later finding by the Commissioner of the estimated or actual expenses of the Administrative Committee for said fiscal period. Each such increase shall be applicable to all assessable peaches shipped during such fiscal period.
C. EMERGENCY ASSESSMENTS The Administrative Committee is authorized to levy such emergency assessments, not to exceed two cents (2#cent#) per bushel or eight-tenths of one cent (8/10 of 1#cent#) per box on all handlers or producers for their pro-rata share of expenses for the prevention of loss to the industry through unusual, unexpected, unnatural or emergency conditions such as labor and housing shortages, unreasonable harvest conditions, damage by the elements or any other cause not in the natural course of the operation of enforcement of this Act. The unused portions of such assessments are to be refunded pro-rata to the handler's or producer's upon completion of the necessity for the emergency and in no way are to be considered a precedent established for the regular collection or retention of such fees.
D. ACCOUNTING If, at the end of a fiscal period, the assessments collected are in excess of expenses incurred, the Committee, with the approval of the Commissioner, may carry over such excess into subsequent fiscal periods as a reserve: Provided, that funds already in the reserve do not exceed approximately two fiscal periods' expenses. Such reserve funds may be used (a) to cover any expenses authorized by this order, and (b) to cover necessary expenses of liquidation in the event of termination of this order. If any such excess is not retained in a reserve, it shall be refunded proportionately to the handlers from whom the excess was collected. Upon termination of this order, any funds not required to defray the necessary expenses of liquidation shall be disposed of in such manner as the Commissioner may determine to be appropriate: Provided, that to the extent practical, such funds shall be returned pro rata to the persons from whom such funds were collected.
E. BUDGETING AND COLLECTION OF FEE 1. For the purpose of providing funds to defray the necessary expenses incurred by the Commissioner in the formulation, issuance, administration and enforcement of this marketing order, the Commissioner shall prepare a necessary budget covering the costs of the same. Likewise, the Committee shall prepare a budget for all administration and operating costs and expenses including advertising and sales promotion when same are requested, which budget shall be approved by the Commissioner. Both budgets with the provisions for the collection of such necessary fees, the time and conditions of such payment, and in no case to exceed five percent (5%) of the gross dollar volume of such sales or dollar volume of purchase or amounts handled, as provided in the Act. Each and every person engaged in the production, processing, distributing, or the handling of peaches grown in the county of Mesa, in the state of Colorado, and directly affected by this marketing order, shall pay to the Commissioner at such time and in such manner as prescribed in this order as adopted, an assessment covering the budgets provided by the Act, such percentages of the gross dollar volume of such sales or dollar volume of purchase or amounts handled, or distribution of any peaches affected by this marketing order, as are necessary to defray the expenses of the enforcement of this order, but in no case to exceed 5% of the gross dollar volume.
2. The Commissioner may require each and every producer, distributor, or handler directly affected herein to deposit with him in advance, an amount based upon the estimated gross dollar volume of sales by such producer, distributor, or handler during any given fiscal period and based upon the rate of assessment for such fiscal period. At the close of such fiscal period, the sum so deposited shall be adjusted to the amount which is chargeable against such producer, distributor, or handler upon the basis of the actual gross dollar volume of the sales by such producer, distributor, or handler during such fiscal period.
3. The Commissioner shall prescribe rules and regulations with respect to the assessment and collection of such funds for such purposes.
F. DEPOSITS Any money collected by the Commissioner shall be deposited in a bank or other depository approved by the State Treasurer, allocated to peaches and disbursed by the Commissioner only for the purposes for which such monies were collected. Any monies remaining in such fund, at the discretion of the Commissioner, may be refunded at the close of any fiscal period upon a pro-rata basis to all persons from whom such funds were collected. Provided, that upon termination hereof by the Commissioner, any and all monies remaining and not yet required by the Commissioner to defray the expenses incurred previously to such termination and all other affairs of the Administrative Committee and the expenses incident to such termination hereof, shall be returned by the Commissioner upon a pro-rata basis to all persons from whom such funds were collected.
SECTION XI REPORTS AND RECORDS The Commissioner may require any and all handlers to maintain books and records reflecting their operations as such and to furnish to the Commissioner, or his duly authorized or designated representatives, such information as may be from time to time requested by them relating to such operations, and to permit the inspection by said Commissioner or his duly authorized or designated representatives of such portions of such books and records as relate to such operations. SECTION XII LIABILITY The members of any such Administrative Committee duly appointed by the Commissioner including employees of such Committee, shall not be held responsible individually in any way whatsoever to any producer, distributor, or handler, or to any other person for errors in judgment, mistakes, or other acts, either of commission or omission, as principal, agent, person, or employee, except for their own individual acts of dishonesty or crime. No such person or employee shall be held responsible individually for any act or omission of any other member of such Committee. The liability of the members of such Committee shall be several and not joint, and no member shall be liable for the default of any other member. SECTION XII COMPLIANCE AND EXCEPTIONS Except as provided herein, no person shall ship peaches, the shipment of which has been prohibited by the Commissioner or shall fail to faithfully comply with all of the regulations promulgated in accordance with the law and the provisions hereof.
SECTION XIV PEACHES NOT SUBJECT TO REGULATION Nothing contained herein shall be construed to authorize any limitation of the right of any person to ship;
(1) peaches for consumption by a charitable institution or for distribution for relief purposes or for distribution by a relief agency; or (2) peaches for processing, on a commercial scale; or (3) peaches shipped to any one person during any one day, if such peaches are not for resale and do not aggregate more than 19 bushels. The inspection and assessment provisions hereof shall not be applicable to peaches so shipped. The Administrative Committee may prescribe adequate safeguards to prevent peaches, shipped for such purposes, from entering commercial channels of trade contrary to the provisions hereof.
SECTION XV EFFECTIVE TIME AND TERMINATION A. EFFECTIVE TIME The provisions hereof shall become effective at such time as the Commissioner may declare above his signature attached hereto and shall continue in force until terminated as specified in this section.
B. TERMINATION 1. The Commissioner shall suspend, amend or terminate any provision hereof whenever he finds that such provision does not tend to effectuate the declared purpose of the Act within the standards and subject to the limitations and restrictions therein imposed, provided that such suspension or termination shall be effective until the expiration of the then current marketing season.
2. If the Commissioner finds that the termination hereof is requested in writing by more than fifty percent (50%) of the producers, who are engaged within Mesa county, Colorado, in the production for market of peaches, or who produce for market more than fifty percent (50%) of the volume of peaches produced within Mesa county, Colorado, for market, the Commissioner shall terminate the provisions hereof, provided that such termination shall be effective only if announced on or before February 1, of the then current marketing period.
3. The provisions hereof shall, in any event, terminate whenever the provisions of the Act authorizing them cease to be in effect.
C. PROCEEDINGS AFTER TERMINATION 1. Upon the termination of the provisions hereof, the Commissioner may appoint the members of the Administrative Committee then functioning to continue as joint trustees, for the purpose of liquidating the affairs of the Committee, of all property then in the possession or under the control of the Committee, including property not delivered at the time of termination.
2. The trustees may continue in such capacity until discharged by the Commissioner; shall, from time to time, account for all receipts and disbursements or deliver all funds and property on hand, together with all books and records of the Administrative Committee and the joint trustees to such person as the Commissioner may direct; and shall, upon receipt of the Commissioner execute such assignments or other instruments necessary or appropriate to vest in such person full title to all of the funds and claims vested in the Committee or the joint trustees pursuant hereto.
3. Any person to whom funds, property, or claims have been delivered by such joint trustees upon discretion of the Commissioner as provided in this paragraph, shall be subject to the same obligations and duties with respect to said funds, property, or claims as are imposed upon the joint trustees.
SECTION XVI The benefits, privileges, and immunities conferred upon any person by virtue hereof shall cease upon the termination hereof, except with respect to acts done under and during the existence hereof. SECTION XVII SEPARABILITY If any provision hereof is declared invalid, or the applicability thereof to any person, circumstance, or thing is held invalid, the validity of the remainder hereof or the applicability thereof to any other person, circumstance, or thing, shall not be affected thereby.
SECTION XVIII DEROGATION Nothing contained herein is or shall be construed to be in derogation or in modification of the rights of the Commissioner or of the State of Colorado to exercise any powers granted by the Act or otherwise, or, in accordance with such powers, to act in the premises whenever such notice is deemed advisable. SECTION XIX AMENDMENTS Amendments hereto may be proposed from time to time by the Administrative Committee or by the Commissioner.
IN WITNESS WHEREOF, I, Clinton E. Jeffers, Commissioner of Agriculture of the State of Colorado, pursuant to the authority in me vested by law, do hereby execute, issue and publish this marketing order at my office in Denver, Colorado, this 25th day of July 1969, and do declare that I have this day posted a notice of issuance of this order on a public bulletin board in my office and a copy of said notice is hereby published on this date in the Denver Post, and therefore, this order shall be in full force and effect on and after 12:01 a.m., D.S.T., August 5, 1969.
Peach Operating Expense and Rate of Assessment - 1977 Pursuant to the provisions of the Marketing Order regulating the handling of peaches grown in the County of Mesa in the State of Colorado, dated June 21, 1976; under the applicable provisions of Colorado Revised Statutes 1973, 35-28-113; from the provisions of said Marketing Order; and upon further information available to the Commissioner of Agriculture, State of Colorado, it is hereby found and determined that the expense that will necessarily be incurred by the Administrative Committee established pursuant to the said Marketing Order for the operation and functioning of said Committee during the 1977 fiscal year will be $52,790, of which $49,500 will be raised by assessment, with $3,290 available from other sources.
Therefore, pursuant to the aforesaid authority and in compliance therewith, it is hereby ordered that the rate of assessment paid by each handler or producer upon all peaches shipped by such handler or producer during the peach shipping season of the current fiscal year, as such season is defined in said Order, shall be for all peaches shipped $0.36 per hundredweight, with proportionate amounts for other units of measure. Such sums shall be allocated to the operating fund of the Peach Marketing Order and disbursed according to the authorized budget, which rate of assessment is hereby approved as such handler's or producer's pro rata share of such expenses, subject to the continuing right of the Commissioner to approve or disapprove further action.
Marketing Regulations 1977 - - - - - - - - - - - Pursuant to the provisions of the Marketing Order regulating the handling of peaches grown in Mesa County, Colorado, Docket No. 0-1, dated June 21, 1976, the applicable provisions of Title 35, Article 28, Colorado Revised Statutes 1973; from the recommendations of the Mesa County Peach Administrative Committee established pursuant to the provisions of said Marketing Order; and upon further information available to the Commissioner of Agriculture, State of Colorado, the Commissioner hereby finds that the limitation of shipment of such peaches as hereunder provided will tend to effectuate the declared policy of the Act.
Pursuant to the aforesaid authority and in compliance therewith, it is hereby ORDERED that during the period from 12:01 a.m. M.D.T., July 13, 1977, through 11:59 p.m. M.D.T., September 30, 1977, no person shall ship peaches in Mesa County, Colorado, which do not meet the following requirements:
1. GRADE AND SIZE REQUIREMENTS (1) No handler shall distribute peaches which do not meet the requirements of U. S. No. 1 grade or higher grades, as such grades are defined in the U. S. Standards for Peaches, with the following limitations:
(2) No handler shall distribute peaches in packages or bulk smaller than a minimum size of two and one- eighth inches (2 1/8'), as defined in the U. S. Standards of Peaches issued by the U. S. Department of Agriculture, for all varieties produced in Mesa County. Also, peaches in bushel or one-half bushel round-bottom or tub baskets shall be ringfaced and tightly packed with sufficient bulge to prevent any appreciable movement of peaches within the package when lidded. This shall apply to all shipments of all peaches grown in the County of Mesa, State of Colorado, and administered by the Administrative Committee under the provisions and limitations adopted July 8, 1969, with exemptions only as issued by the Administrative Committee covering such peaches.
(3) Each handler prior to distributing any shipment of peaches shall, during the effective time of this Order, have the peaches included in each shipment inspected by a duly authorized representative of the Federal-State Inspection Service and shall submit promptly, or cause to be submitted, to the Administrative Committee a Federal-State Inspection Certificate stating the grade and size of peaches in each shipment.
2. PEACHES NOT SUBJECT TO REGULATION (1) Peaches for consumption by a charitable institution or for distribution for relief purposes, for distribution by a relief agency, or by a state institution.
(2) Peaches for processing, on a commercial scale.
(3) Peaches shipped to any one person during any one day, if such peaches are not for resale or do not aggregate more than nineteen (19) bushels.