Chapter 36 - Dairy Marketing
CHAPTER 36 - DAIRY MARKETING
11-36-101. Short title; legislative declarations; purposes.
(a) This act shall be known and may be cited as the"Wyoming Dairy Marketing Act of 1971."
(b) It is hereby declared:
(i) That a sound and efficiently operated system fordistribution, transportation, manufacture, storage, sale, handling, marketing,pricing, processing, production and promotion of dairy products is essential toa prosperous dairy industry within the state of Wyoming and is indispensable tothe maintenance of full employment, health, welfare and prosperity of thestate;
(ii) That the marketing of dairy products in this state inexcess of market demands, disorderly marketing of such commodities, improperpreparation for market and lack of uniform grading and classification of dairyproducts, unfair methods of competition in marketing of dairy products and theinability of individual producers, processors or handlers to maintain presentmarkets or to develop new or larger markets for Wyoming dairy products, resultin an unreasonable and unnecessary economic waste of part of the agriculturalwealth of this state;
(iii) That such conditions and waste jeopardize the continueddistributing, transporting, manufacturing, selling, storing, handling,marketing, pricing, processing, producing and promoting of adequate foodsupplies, feed and fiber for the people of this state and other states andprevent producers, processors or handlers of dairy products from obtaining afair return on their labor, invested capital and expertise;
(iv) That such conditions and waste vitally concern the health,peace, safety and welfare of the people of this state;
(v) That the distributing, transporting, manufacturing,selling, storing, handling, marketing, pricing, processing, producing andpromoting of dairy products in Wyoming is hereby declared to be affected with apublic interest. Accordingly, the provisions of this act are enacted in theexercise of the police powers of this state for the purpose of protecting thehealth, peace, safety and welfare of the people of this state.
(c) It is hereby declared to be the purposes of this act to aidagricultural producers, processors or handlers of dairy products in the orderlydistributing, transporting, manufacturing, selling, storing, handling,marketing, pricing, processing, producing and promoting of dairy products, toprovide methods and means for the development of new and larger markets and toreduce waste in the marketing of dairy products.
11-36-102. Definitions.
(a) As used in this act:
(i) "Board" means the state board of agriculture;
(ii) "Director" means the director of the departmentof agriculture or any of his duly authorized representatives;
(iii) "Dairy products" mean any product containing milkor any product derived therefrom either in their natural state or as aprocessed commodity;
(iv) "Handler" means any person engaged in theoperation of processing, packaging, grading, selling, distributing, offeringfor sale or marketing any dairy product, or who as owner, agent or otherwise,stores, transports, ships or causes to be shipped any dairy product;
(v) "Marketing" means the sale or offering for sale, atprices at the wholesale levels, of any dairy product;
(vi) "Marketing order" means an order issued pursuantto this act;
(vii) "Marketing order area" means the state ofWyoming, unless the board divides the state into two (2) or more marketing areas;
(viii) "Milk" means the lacteal secretion, practicallyfree from colostrum, obtained by the complete milking of one (1) or morehealthy cows or goats;
(ix) "Prices at the wholesale levels" or"wholesale prices" mean the prices received by producers, processorsor handlers for dairy products for resale, but the terms do not mean the retailprices paid for dairy products by the ultimate consumers thereof;
(x) "Processor" means any person engaged in theoperation of receiving, grading, packaging, canning, extracting, preserving,manufacturing or changing the form or state of any dairy product for thepurpose of marketing the product;
(xi) "Producer" means any person engaged in thebusiness of producing or causing to be produced for marketing any dairyproduct;
(xii) "Proposal" means a suggested or recommendedmarketing order or the termination of a then existing order, submitted inwriting by the director or to the director by any person or group;
(xiii) "This act" means W.S. 11-36-101 through11-36-110.
11-36-103. Marketing orders; authority to promulgate.
Subject to this act, the board maypromulgate marketing orders within this state regulating the distributing,transporting, manufacturing, storing, selling, handling, marketing, pricing,processing, producing and promoting practices of dairy products. The board maypromulgate orders directed to producers, processors or handlers, either jointlyor individually, within separate or joint orders, setting forth marketingpractices, including prices or the methods of determining prices at thewholesale levels, to be received by them for their dairy products.
11-36-104. Marketing orders; hearing on issuance or termination; noticeand procedure; disposition; minimum pricing; conflicts in area.
(a) Upon receipt of a proposal from any interested person forissuance or termination of a marketing order and upon investigation by theboard, if the board has reason to believe that a marketing order or thetermination of a marketing order will effectuate the purposes of this act, theboard shall afford all interested persons an opportunity for a hearing, afternotice. All interested persons shall be afforded an opportunity to presentevidence and argument with respect to a proposed marketing order or thetermination of a marketing order. Notice of hearing and the procedures observedat the hearing shall be in compliance with the procedures governing contestedcases under the Wyoming Administrative Procedure Act [ 16-3-101through 16-3-115].
(b) At the conclusion of a hearing and after consideration ofthe evidence received at such hearing, the board shall make written findings offact and conclusions of law, and may:
(i) Enter a marketing order determining the marketing practicesor the minimum prices at the wholesale levels to be paid to producers,processors or handlers for their dairy products;
(ii) Enter a marketing order adopting a formula for thedetermination of prices to be paid to producers, processors or handlers fortheir dairy products, consistent with the policies of this act; or
(iii) Terminate any marketing order issued under this act.
(c) Any marketing order determining minimum wholesale prices oradopting a formula for the determination of such prices may classify producers,handlers or processors, and may further classify any dairy product according toclass, form, grade or use, as the board deems advisable, and may specify theminimum wholesale prices or the method of determining minimum wholesale pricestherefor. If two (2) or more marketing order areas in the state are governed bydifferent marketing orders, a dairy product which is marketed or handled in one(1) marketing order area but is produced, handled or processed in anothermarketing order area shall be paid for by the producer, processor or handleraccording to the prices set forth in the marketing order of the marketing orderarea where the dairy product is ultimately marketed or handled.
11-36-105. Marketing orders; when issued; economic factors to be considered;termination.
(a) Upon the conclusion of the hearing provided for in W.S.11-36-104(a), the board shall issue a marketing order if it makes any of thefollowing findings:
(i) That the order will help to reestablish or maintainwholesale prices received by producers, processors or handlers for any dairyproduct at levels which are comparable to the general economic conditionswithin the marketing area. The board may adopt the methods and procedurespresently prescribed by the United States department of agriculture in makingsimilar determinations;
(ii) That the order will help approach and maintain suchcomparable general economic conditions at as rapid a rate as is feasible inview of the demand for any dairy product;
(iii) That the order will help to prevent economic waste ofagricultural resources because of improper preparation of any dairy product formarket, because of lack of uniform grading and inspection or because ofexcessive shipments to markets;
(iv) That the order will help to insure a beneficial future forany dairy product;
(v) That the order will help to protect the interests ofconsumers of any dairy product in assuring an adequate supply.
(b) In making the finding set forth in this section, the boardshall take into consideration all facts available to it with respect to thefollowing economic factors, which are not intended to be exclusive of all othereconomic factors:
(i) The quantity of any dairy product available fordistribution;
(ii) The quantity of any dairy product normally required fordistribution;
(iii) The cost of producing, processing or handling any dairyproducts as determined by available statistics and surveys, including:
(A) The fixed and variable cost of producing, processing orhandling, including the reasonable value of the time, skill and experience ofthe person producing, processing or handling any dairy product;
(B) A fair return upon the value of employed assets of theproducer, processor or handler;
(C) Comparable compensation received by persons engaged inother means of earning a livelihood for themselves and their families, as wellas any other appropriate factors.
(iv) The purchasing power of consumers;
(v) The level of prices of commodities, services and articlesthat dairy farmers buy; and
(vi) The level of prices of other commodities that compete withor are utilized as substitutes for dairy products.
(c) Upon conclusion of the hearing the board shall terminate amarketing order if it determines that the termination thereof will effectuatethe purposes of this act.
11-36-106. Budget to cover costs; part of orders; assessments.
For the purpose of providing funds todefray expenses incurred in the administration of this act, the board shallprepare a budget covering the costs of administration including advertising andsales promotion when included in any marketing order. The funding of a budget,together with the assessment of such fees as are deemed necessary by the board,the time and conditions of payment of fees, which may not exceed five percent(5%) of the gross dollar value of commodities regulated by the marketing order,shall become a part of any marketing order. Every person engaged as a producer,processor or handler of any marketable dairy product directly affected by anymarketing order for the product, shall pay to the board, at such time and insuch manner as prescribed by the marketing order, an assessment as determinedby the board to fund and cover the budget.
11-36-107. Deposit and disbursement of collected monies; biennial auditrequired.
(a) Any monies collected by the board pursuant to W.S.11-36-106 shall be deposited with the state treasurer and credited to aseparate account for each marketing order under which they are collected andshall be disbursed by the director only for expenses incurred with respect toeach separate marketing order. Funds so collected shall be deposited anddisbursed in conformity with appropriate rules and regulations prescribed bythe board.
(b) All expenditures by the director shall be audited at leastbiennially by the director of the state department of audit or his designeeconcurrently with the audit of the department of agriculture, and a copy of theaudit shall be delivered within thirty (30) days after completion to thegovernor and the board.
11-36-108. Duty to maintain books and records; failure thereof;confidentiality required; exceptions.
(a) Any person subject to the provisions of this act or of anymarketing order issued pursuant to this act shall:
(i) Maintain books and records prescribed by the boardreflecting that person's operations under this act or the marketing order;
(ii) Present upon the board's request the books and records andany other books and records at a place designated by the board for itsinspection or audit;
(iii) Furnish authorized representatives of the board suchinformation as requested by them relating to operations of any person subjectto this act or to the marketing order and permit the inspection or audit byauthorized representatives of the board of the books and records.
(b) Failure or refusal to maintain the books and recordsprescribed by the board or to furnish any books or records to the board or toits representatives, or to permit inspection or audit thereof, constitutes aviolation of this act.
(c) Information obtained by any person hereunder isconfidential and shall not be disclosed by that person to any other personexcept a person employed by the board for the enforcement of this act or anorder issued under this act, or to an attorney employed to give legal advicethereupon, or by reason of any public hearing under this act or a court order.
11-36-109. Administration and enforcement; prosecution of violations;hearings by director; disposition thereof; penalty for violation; injunctions.
(a) The board is responsible for the administration andenforcement of this act and shall adopt and enforce rules and proceduresnecessary to carry out the provisions of this act.
(b) Upon finding by the director that he has reasonable causeto believe there may have been a violation of any marketing order issued by theboard or a violation of this act, the director shall file a complaint in thename of the state of Wyoming against the alleged violator in the district courtof the county in which the alleged violation occurred. The alleged violationshall be prosecuted by the attorney general of the state or the districtattorney.
(c) Upon filing with the board a complaint by any person otherthan the director, charging a violation of this act or any marketing orderissued by the board, and prior to the institution of any court proceeding, thedirector may call a hearing to consider the charges set forth in the complaint.At the hearing the director may take testimony, administer oaths, subpoenawitnesses and issue subpoenas for the production of books, records or documentsof any kind. Upon conclusion of the hearing:
(i) If the director finds that no violation has occurred, thedirector shall dismiss the complaint and notify the parties to the complaint ofthe dismissal;
(ii) If the director finds that a violation has occurred, thedirector shall enter his findings and accordingly notify the parties to thecomplaint. Should any violator fail, neglect or refuse to desist from theviolation or continued violation within the time and manner specified by thedirector, the director may file a complaint against the violator with thedistrict court of the county in which the violation occurred and the attorneygeneral of the state or the district attorney for the county shall prosecutethe violator in the name of the state of Wyoming.
(d) Every person who violates this act or any marketing orderissued by the board is guilty of a misdemeanor and may be fined not more thanone thousand dollars ($1,000.00) for each violation.
(e) The violation of this act or any marketing order issued bythe board may be enjoined by a proceeding brought by the board in the name ofthe state of Wyoming, prosecuted by the attorney general of this state or bythe district attorney for the county wherein the violation occurred, whether ornot any assessment has been levied and collected pursuant to W.S. 11-36-106 orwhether or not a criminal proceeding has been instituted. Neither the board northe state may be required to post any bonds otherwise required by law or rulesrelating to injunctive proceedings.
11-36-110. Powers of director or board; failure to obey subpoenas;amendment of orders.
(a) The director or the board, with respect to matters withintheir respective jurisdictions, may:
(i) Conduct hearings, obtain information and make studies andinvestigations as to any matter concerning which any question may arise underthis act, or as necessary to assist in prescribing any rules, regulations,orders or amendment of orders or in the administration and enforcement of thisact and regulations and orders hereunder;
(ii) Require any person who is engaged as a producer, processoror handler of any dairy product to furnish any information under oath,affirmation or otherwise, to make and keep records and other documents and tomake reports, and require any person to permit the inspection and copying ofrecords and other documents;
(iii) Administer oaths and affirmations and whenever necessary,subpoena any person to appear and testify or to appear and produce all books,documents, papers and records at any designated place.
(b) In case of contumacy by or refusal to obey a subpoenaserved upon any person, the district court for any county in which the personis found or resides or transacts business, upon application by the director orthe board, may issue an order requiring the person to appear and give testimonyor to appear and produce documents or both. Any failure to obey the order ofthe court may be punished by the court as a contempt.
(c) Upon making appropriate and adequate studies andinvestigations, the board may amend any order or marketing order promulgatedunder this act.