Code of Vermont Rules
Agency 20 - DEPARTMENT OF AGRICULTURE, FOOD AND MARKETS
Sub-Agency 090 - MILK CONTROL BOARD
Chapter 003 - DEVELOPMENT AND ISSUANCE OF AN ORDER TO ESTABLISH A RETAIL FLUID MILK PREMIUM, OR AMENDMENT OF SUCH ORDER
Section 20 090 003 - DEVELOPMENT AND ISSUANCE OF AN ORDER TO ESTABLISH A RETAIL FLUID MILK PREMIUM, OR AMENDMENT OF SUCH ORDER

Universal Citation: VT Code of Rules 20 090 003

Current through February, 2024

Part I APPLICABILITY

The procedural rules are adopted pursuant to 6 V.S.A. § 2929. They apply to the issuance by the Vermont Milk Commission of an order establishing a retail fluid milk premium, or amendment of such order, pursuant to 6 V.S.A. § 2924(e) and 6 V.S.A. Chapter 161, passim. The rules also apply to a subjects and issues administrative process initiated by the Commission relating to the issuance of an order establishing a retail fluid milk premium or a proposed amendment to such an order.

Part II PROCEDURE FOR DEVELOPMENT, CONSIDERATION AND ISSUANCE OF AN ORDER BY THE COMMISSION

Section 1 Commencement of Proceedings

(a) Upon the Commission's initiative. The Commission may commence a proceeding to establish a retail fluid milk premium on its own initiative, upon the recommendation of the Chair or at the request of another Commission member.

(b) Upon petition of any person or organization. In its sole discretion, the Commission may commence a proceeding upon petition of any person or organization. These may include individual milk producers or handlers, any organization of milk producers or handlers, general farm organizations, consumer or public interest groups, as well as local, state or federal officials.

(1) A person or organization petitioning for commencement of a proceeding shall submit to the Commission a statement in support of the petition. This statement shall include a brief written explanation of how the proposal will promote the purposes of the Commission's statutory responsibilities under 6 V.S.A. Chapter 161 and the function of a retail fluid milk premium as authorized by 6 V.S.A. § 2924(e). The Commission may conduct additional inquiry into the basis of the petition and explanatory statement, in its discretion, before ruling on the petition.

(2) If the Commission determines not to grant the petition, the Chair shall promptly notify the petitioner of the Commission's decision. Notice of denial shall include a brief statement of the grounds for the denial. Upon the request of the petitioner, the Commission may in its discretion allow for a responsive submission by the petitioner and further review by the Commission.

(d) Commencement of proceedings. The Chair shall commence a proceeding by serving notice in accordance with Section 2.

Section 2 Notice

Pursuant to 6 V.S.A. § 2929(b)(1), notice of a proceeding to adopt a fluid milk premium shall be adopted in accordance with the applicable provisions of 3 V.S.A. § 809(b), as follows:

(a) Contents of the notice - subject matter.

(1) The notice for a proposed milk price order, or proposed amendment to an existing order, shall include:

(i) A statement of the Milk Commission's legal authority and jurisdiction to conduct the hearing under 6 V.S.A. §§ 2929.

(ii) A statement of the governing legal authority of 6 V.S.A. chapter 161, and 6 V.S.A. §§ 2924(e), 2925 and 2929.

(iii) The technical, regulatory provisions of the proposed order or amendment;

(iv) The proposed effective date;

(v) A short and plain statement of the matters at issue;

(vi) the Commission's assessment of reasonable costs and charges for producing, hauling, handling, processing and any other services performed with respect to fluid dairy products, taking into consideration the balance between production and consumption of fluid milk, the costs of production and distribution, the purchasing power of the public and the price necessary to yield a reasonable return to producers, handlers and distributors. The summary shall also specifically account for (1) actual producer prices prevailing in federal market order I, (2) producer costs of production in Vermont, as accurately as possible, (3) subject to constitutional limitations, the competitive position of Vermont producers within the market order, (4) the actual rate of return received by distributors or handlers, whichever is greater, as determined by the Commission, and (5) the lowest price milk purchased from producers can be received, processed, packaged and distributed by handlers and distributors at a just and reasonable return in Vermont.

(vii) proposed findings and conclusions regarding

(1) the adequacy of the federal milk marketing order minimum price to ensure that the price paid to dairy producers will cover the costs of milk production and provide a reasonable economic return to dairy producers sufficient to ensure a stable milk production and distribution system in Vermont.

(2) the competitive position of producers and their costs, handler and distributor costs and reasonable rates of return, and actual handler and distributor rates of return.

(2) The notice for a subjects and issues proceeding shall include a concise summary of the matter at issue, and may include specific questions or any other material the Commission deems relevant or useful.

(b) Contents of the notice - time, date and place of hearing; nature of hearing. Notice shall be given of the time, date and place of at least one public hearing to be held by the Commission. The date of the hearing shall be at least 15 days after the publication of notice. The notice shall also describe the nature of the hearing by providing a copy of these rules.

(c) Right to provide comment. The notice shall identify the right of any person to testify personally at the hearing, or to participate otherwise in the proceeding by the submission of written comment, either as part of, or independent of, the hearing. In the latter instance, the notice shall identify the right of any person to provide comment for up to 30 days after publication of the notice.

(d) Publication of notice and supplemental publicity. A complete copy of the notice required by subsections (a)-(c) shall be posted on the Commission's webpage and be otherwise made available through the Agency of Agriculture, Food and Markets. In addition to this posting, the Chair shall give notice under this section as follows:

(1) By publication in the newspapers of record approved by the secretary of state under 3 V.S.A. § 839(d), and any additional newspaper the Chair concludes will further tend to bring the notice to the attention of interested persons.

(2) By correspondence to interested persons in accordance with a list of such persons compiled by the Commission. Any interested person may have his or her name added to the list by making a written request to the Commission;

(3) By correspondence with the appropriate officials of the other New England states, New York and Pennsylvania; and.

(4) Such other notice as directed by the Commission.

Section 3 Conduct of the Hearing

The hearing shall be held in accordance with the applicable provisions of 3 V.S.A. § 840(c) and (d), and with additional procedural requirements, as follows:

(a) Presiding Officer--The Chair of the Commission shall be the presiding officer. In the absence of the Chair, the Commission shall elect a presiding officer from those members present at the hearing or retain a qualified member of the public to serve as presiding officer.

(b) Authority of the Presiding Officer--The presiding officer shall have the authority to:

(1) Regulate the course of the hearing;

(2) Administer oaths and affirmations;

(3) Rule upon issues of evidence and procedure and receive affidavits; and

(4) Present questions to the Commission for its determination.

(c) Recording of Notice. At the opening of the hearing, the presiding officer shall certify for the record the provision of notice under Section 2.

(d) Certified record; transcript and evidentiary exhibits. The Commission shall cause a complete, certified record to be kept of the hearing proceeding, including a certified transcript of all sworn testimony and evidence received, matters officially noticed, questions and offers of proof submitted by interested persons, and any proposed findings presented.

(e) Witness appearance; right to appear as a witness. Any person shall be given an opportunity to appear as a witness, either in person or through a representative. Witnesses shall provide their names, addresses and occupations for the record before proceeding to testify. A person acting as representative on behalf of another shall so identify himself or herself, provide his or her name, address and occupation for the record, and shall provide any other information as required by the presiding officer.

(f) Testimony. Persons shall be sworn or make affirmation before testifying. Any member of the Commission or designated staff may ask questions of a person giving testimony. At the discretion of the presiding officer, questions submitted in written form from other witnesses or the public at large may also be posed to a witness. Submission of such written questions shall include identification of the question's author, which shall be noted for the record.

(g) Evidence. Evidence which is relevant and material to the subject matter of the hearing and is of a type commonly relied upon by reasonably prudent persons shall be admissible. Evidence that is irrelevant, immaterial or unduly repetitious shall be excluded. As possible, the relevancy of evidence shall be determined by reference to the statutory purposes of the Commission under 6 V.S.A. Chapter 161 and with specific regard to the statutory intent for establishment of a retail fluid milk premium.

(1) Exclusion of evidence. The presiding officer may act to exclude evidence on his or her own or upon a request by any Commission member.

(2) Objections and offers of proof; rulings by the presiding officer. A witness may object to a ruling to exclude evidence. The person shall state the reasons for the objection and provide an offer of proof, consisting of a statement of the substance of the testimony or that which is expected to be shown by the answer. The presiding officer may limit the length of time allowed for the offer of proof. The record shall reflect the objection, the stated basis for the objection and the offer of proof. The presiding officer may rule on the objection when made, either denying the objection or granting it and allowing the witness to proceed with the contested testimony. The presiding officer may also stay a ruling for decision at a future time. In this instance, if the objection is granted, the record shall be reopened to reflect the testimony as provided in the offer of proof. The witness shall be notified within three days of the ruling on the objection.

(3) Exhibits, Documentary and Real Evidence. All written statements, charts, tabulations or similar data offered in evidence at the hearing shall be made part of the record upon identification by the witness and upon satisfactory showing of its authenticity, relevance and materiality. At the discretion of the presiding officer, any part of an exhibit that is irrelevant or immaterial may be excluded and the remainder admitted.

(4) Cost Conclusions. Conclusory statements regarding costs shall be admissible only if supported by actual cost data based on actual operations of producers, handlers or retailers, as appropriate. Projections or estimates of costs shall be considered only where the actual costs or other data upon which such projections or estimates are provided as part of the analysis.

(5) Commission Evidence. The Commission may introduce the results and data of any inquiry or investigation conducted by the Commission, or any other evidence it deems appropriate. The Commission may also designate as evidence all or part of the record of prior hearings before the Commission.

(6) Official notice. The Commission may take official notice of such matters as are judicially noticed by the courts of the United States and any other matter of technical, scientific or commercial fact of established character. Matters taken by official notice shall be so designated in the record. Interested persons shall be given adequate notice of this action, at the hearing or afterward, and opportunity to provide comment.

Section 4 Availability and Copies of the Transcript and Record

A copy of the hearing transcript and record shall be available for review at the Vermont Agency of Agriculture, Food and Markets during its official business hours, within 5 business days_of the completion of the hearing, unless otherwise specified by the presiding officer at the close of the hearing. A copy of the transcript and record may be obtained upon written request and payment of reasonable cost per page.

Section 5 Additional Comment and Proposed Findings By Interested Persons

At the conclusion of the hearing, the presiding officer shall announce that persons who participated in the hearing may submit additional comment and proposed findings of fact. The comment or findings, or both, shall be received within twenty-one_calendar days of the conclusion of the hearing, unless otherwise specified in the published notice for the proposed order. Proposed findings shall address the issues identified in the finding requirements of Section 7(b), and shall be based solely on evidence included in the record. Page numbers of the transcript, where supporting evidence appears, shall be cited whenever possible.

Section 6 Submission of Written Comment and Exhibits Independent of the Hearing

Consistent with 6 V.S.A. § 2929(b), any person may submit to the Commission written comment and exhibits independent of the hearing for inclusion in the record. Such comment and exhibits shall identify the author's name, address and occupation and a sworn, notarized statement indicating that the comment is presented based upon the author's personal knowledge or belief. Comment and exhibits may be submitted until the latter of the closing date of the post-hearing comment period established under Section 5 or 30 days after publication of the notice of the proceeding.

Section 7 Final Order; Commission Deliberation and Decision; Statutory Findings

(a) Commission deliberation and decision--The Commission shall convene a formal, deliberative meeting as soon as is practicable after the close of the post-hearing comment period, to determine whether to adopt_a final order to establish a retail fluid milk premium pursuant to 6 V.S.A. § 2929(c), or an amendment to an existing order, and thereby submit such order or amendment to producer referendum as under Part III.

(b) The commission may also decide to continue the hearing to receive further evidence.

(d) Summary Assessment; Findings and Conclusions. Consistent with 6 V.S.A. §§ 2925 and 2929, as part of its deliberations and issuance of a final order or amendment, the Commission shall reconsider and restate its summary assessment, and separate findings and conclusions, as previously described in Section 2(a) and 3(b) of these rules.

Section 8 Submission for Producer Referendum; Issuance of Final Order or Amendment; Effective Date

(a) A final order or amendment_adopted pursuant to Section 7 shall be submitted for producer referendum in accordance with Part III and shall not take effect unless approved by such referendum.

(b) A final order or amendment adopted and approved under these rules shall be issued in accordance with the publication notice provisions of Section 2(d). The Commission shall ensure actual notice by certified mail, return receipt requested, to all milk processors who will be subject to the terms of the order on the effective date.

Section 9 Right to Petition for Rehearing

In accordance with 6 V.S.A. §§ 2931-33, a party or person affected by a final order or amendment may petition the Commission for rehearing, within 20 days of the order or amendment's issuance, with appeal to the Vermont Supreme Court.

Section 10 Ex Parte Communications

In accordance with 6 V.S.A. § 2929(c) the Commission shall adhere to limitations on ex parte communications consistent with the applicable provisions of 3 V.S.A. § 813, as follows:

(a) After issuance of a notice of a proceeding pursuant to Section 2 and until final decision by the Commission, or final action by the Vermont Supreme Court in the case of an appeal, Commission members, special hearing counsel, and Agency of Agriculture staff shall not discuss ex parte any issue of fact or law, or the merits of the proceeding in any other manner, with any person or representative of such person having an interest in the proceeding. Similarly Commission members shall not discuss ex parte among themselves, or with Agency employees, except as part of the formal meeting of the Commission convened for this purpose under Section 7. The Chair, in his or her capacity as Secretary of the Agency of Agriculture, may consult with Agency employees who will not otherwise be involved with the Commission's deliberations or decision- making process.

(b) In the event the Commission Chair causes the development of a draft, proposed equitable, minimum, fluid milk handler price order, or amendment, for the Commission's consideration, the Chair shall notify the Commission of such action in timely fashion. In such instance, the Chair's notification shall constitute initiation of the period during which the prohibition of ex parte communication applies, as provided in subsection (a).

(c) A Commission member, special hearing counsel, or Agency employee who receives a written or oral communication prohibited by this section shall disclose the substance of such communication on the record. As necessary and appropriate, the Commission may act accordingly to nullify the effect of the prohibited communication.

(d) This section shall not be construed to apply to requests for status reports or requests on other procedural matters.

Part III PRODUCER REFERENDUM

Section 1 Definitions

1. "Approved by producers" means that at least two-thirds of the eligible producers who cast a vote approve the proposed order or amendment.

2. "Eligible producer" means a producer who, during the representative period determined by the Commission, has been engaged in the production of milk, the price of which would be regulated under the proposed order or amendment.

3. "Producer referendum" means the balloting process by which the Commission determines whether a proposed order or amendment is approved by eligible producers.

4. "Qualified cooperative" means a cooperative association of producers, qualified under the provisions of the Act of Congress of February 18, 1922, as amended, known as the Capper-Volstead Act, bona fide engaged in marketing milk, or in rendering services for or advancing the interests of producers of milk, but shall not include any cooperative which has been formed to act as a common marketing agency for both cooperatives and individual producers.

5. "Representative period" means that period of time designated by the Commission for the purpose of determining who is a producer eligible to participate in a producer referendum.

6. "Representative vote" means a vote of approval or disapproval of a proposed order or amendment, cast in a producer referendum, by a qualified cooperative on behalf of its members or stockholders who are eligible producers.

Section 2 Purpose

Prior to issuing, or amending, any order to establish a retail fluid milk premium, or amendment of such order, the Commission shall conduct a producer referendum for the purpose of ascertaining whether the issuance or amendment of the order is approved by producers.

Section 3 Referendum Procedure

The Commission shall certify the referendum procedure at the time it approves a final order. The referendum procedure shall include:

(a) A designated representative period for determining eligible producers;

(b) The date by which the ballots will be distributed to eligible producers and qualified cooperatives;

(c) The date by which all qualified cooperatives must mail notices to eligible producer members as required by Section 9(b) and (c);

(d) The date by which all ballots must be returned;

(e) A designated referendum agent; and

(f) Any other procedures necessary for the conduct of the particular producer referendum.

Section 4 Referendum Agent

The Chair shall designate the referendum agent, who shall:

(a) Verify all ballots, cast individually or by representative vote, with respect to timeliness, producer eligibility, cooperative identification, authenticity and other steps taken to avoid duplication of ballots.

(b) Mark ballots determined to be invalid "disqualified" with a notation of the reason for disqualification. Disqualified ballots shall not be considered in determining approval or disapproval of the regulation.

(1) The total number of ballots cast;

(2) The total number of ballots disqualified;

(3) The total number of verified ballots cast in favor of the regulation or amendment;

(4) The total number of verified ballots cast in opposition to the regulation or amendment;

(5) Whether two-thirds of all verified ballots were cast in the affirmative.

(d) Report to the Commission Chair the certified computations and results of the referendum under Section (c); and

(e) At the completion of his or her work, seal all ballots, including the disqualified ballots, and submit a final report to the Chair stating all actions taken in connection with the referendum. The final report shall include all ballots cast and all other information furnished to or compiled by the Referendum Agent.

Section 5 Confidentiality of Ballots

The ballots cast, the identity of any person or cooperative, or the manner in which any person or cooperative voted, and all information furnished to or compiled by the referendum agent shall be regarded as confidential.

Section 6 Publication of Referendum Results

The Chair shall ensure notice of the certified results of the referendum in accordance with Section 3 of these rules.

Section 7 Ballots

(a) The Commission shall prepare and ensure the prompt distribution of a ballot to all eligible producers consistent with the dates prescribed in the referendum procedure under Section 3.

(b) The ballot shall describe the terms and conditions of the referendum and be accompanied by an official copy of the proposed regulation or amendment. The ballot shall provide notice that a producer may register his or her approval or disapproval with the Commission either directly or through his or her cooperative. The ballot shall indicate that any qualified cooperative eligible to representative vote must provide written notice to each eligible producer as to whether and how it intends to cast its vote. The notice shall also identify the final due date for the Commission's receipt of the completed ballot.

Section 8 Qualified Cooperative Representative Vote

(a) Qualified cooperatives may representative vote on behalf of their eligible producer members. The Commission shall ensure that each qualified cooperative is notified of its right to cast a representative vote on behalf of eligible members in each producer referendum by the date prescribed pursuant to Section 3(b).

(b) A qualified cooperative shall, before casting its ballot in any referendum, give prior written notice to each of its eligible producers of how it intends to cast its vote. The notice and ballot shall be on the form provided by the Commission and shall be mailed by the cooperative to eligible producer members as prescribed in the producer referendum procedure pursuant to Section 3. The notice shall make express reference to the ballot documentation provided by the Commission, and may include a copy of such documentation.

(c) Any qualified cooperative that does not intend to representative vote shall give written notice to each of its members on a form approved by the Commission. The notice shall be mailed by the cooperative to eligible producer members as prescribed in the producer referendum procedure pursuant to Section 3. The notice shall make express reference to the ballot documentation provided by the Commission, and may include a copy of such documentation.

(d) Each qualified cooperative shall certify to the Commission, on the form provided by the Commission, that it is qualified to representative vote and that it has provided proper and timely notice of either the ballot cast or of the decision that the cooperative is not casting a representative vote. The cooperative shall mail a copy of the notice to the Commission no later than two days after mailing of notice to members. Cooperatives that are voting shall also submit the original executed ballot in a separate envelope marked "Referendum Ballot," or as otherwise provided in the referendum procedure pursuant to Section 3.

(e) If the ballot submitted to the Commission by a qualified cooperative differs in any significant way from the notice of its ballot sent to member producers, then the Commission may take appropriate remedial action.

(f) A producer who is a member of a cooperative that has provided notice of its intent to cast a representative vote to approve or not to approve a proposed order or not to cast a representative vote and who by ballot expresses his approval or disapproval of the proposed order, shall notify the Commission as to the name of the cooperative of which he or she is a member, and the Commission shall remove such producer's name from the list certified by such cooperative with its corporate vote. If the producer lists the name of a cooperative that is different from the cooperative identified by the ballot number, as determined by the representative period for the referendum, the latter will control.

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