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DEPARTMENT OF AGRICULTURE

 

DIVISION 76

SUPERVISION OF PRICE NEGOTIATIONS

603-076-0005

Definitions

As used in these regulations, unless the context requires otherwise:

(1) "Dealer" and "grass seed dealer" has the same meaning provided by the definition of grass seed dealers under ORS 646.515(3).

(2) "Grower Bargaining Association" refers to any growers association legally organized in accordance with Federal Capper-Volstead Laws (7 U.S.C. 291-292) and state law (ORS 646.515 to 646.545) for incorporation as a grower cooperative or bargaining unit for perennial ryegrass, annual ryegrass, or tall fescue grass seed.

(3) "Mediate" or "mediation" has the same meaning as ORS 36.110(5).

(4) "Price negotiation," "negotiate," or "bargain" means to discuss the terms of a contract price and related issues, and attempt to come to terms.

(5) "Director" means the Director of Agriculture or a designee of the Director of Agriculture.

(6) "Department" means the Oregon Department of Agriculture.

(7) "Active supervision," "active state supervision," and "actively supervise" means the Department's regulatory oversight of the price discussions among dealers, and price negotiations between dealers and grower representatives of a grower bargaining association for the purpose of arriving at a negotiated price for the sale of seed under production contracts meeting quality standards developed by the association (such as TournamenT®Quality for perennial ryegrass).

(8) "Negotiated price" means the proposed price agreed upon by representatives of a grower bargaining association and seed dealers for production contracted seed meeting standards developed by the association (such as TournamenT®Quality for perennial ryegrass).

(9) "Established price" means the price set and approved by the Director as the minimum price at which production contracted seed meeting standards developed by the growers association shall be sold to seed dealers.

(10) "TournamenT® Quality perennial ryegrass seed" means turf-type perennial ryegrass seed produced by a member of the PRBA meeting TournamenT® Quality mechanical standards, each lot of which meets the Oregon certified mechanical standards (for purity and germination) and which lot is free, in a 5-gram sample, of contaminatton of certain grasses classified as "coarse grasses" or "undesirable grass seed (UGS)" which include the following species: bentgrass, bermudagrass and giant bermudagrass, Poa trivialis, meadow fescue, orchardgrass, redtop, timothy, velvetgrass, and grass of the bromus and wheatgrass species; and which lot is free, in a 50-gram ample, of Poa annua and noxious eeds listed in the Oregon Seed Certification Handbook.

(11) "State action immunity" means immunity liability under the federal antitrust laws and the Oregon Antitrust Act for conduct that is carried out pursuant to a regulatory program in which competition in certain areas of the perennial ryegrass industry is displaced by regulations and active state supervision in accordance with ORS 62.015, 62.845, 62.848, 646.535 and 646.740.

(12) "Parties" or "party" means grass seed producers, grass seed grower associations, grass seed cooperatives, or seed dealers who are participants in the state regulatory program for establishing prices on grass seed produced in Oregon.

(13) "Bargaining Council" means the collective group of dealers and growers from the bargaining association, who voluntarily meet under the auspices of the department for the purposes of price negotiations.

(14) "Regulatory program" means the state regulatory program described in ORS 62.015, 62.845, 62.848, 646.535 and 646.740 that is actively supervised by the Director of Agriculture, and that authorizes parties to engage in bargaining and negotiations to establish the price and terms of grass seed products produced under contract and sold to seed dealers.

[Publications referenced are available from the agency.]

Stat. Auth.: ORS 62.015, 62.848, 646.535 & 646.740
Stats. Implemented: ORS 62.015, 62.845, 62.848, 646.535, 646.740
Hist.: DOA 25-2001, f. & cert. ef. 11-6-01; DOA 13-2007, f. 7-2-07, cert. ef. 7-5-07

603-076-0016

Active State Supervision of Grass Seed Price Negotiations

It is the intent of the department that the process of state supervised price negotiations for grass seed will assist in the efficiency of price discovery, the generation of credible data on which to make pricing decisions, and good faith negotiations by all parties. To ensure that the Director is actively supervising the conduct of the grower representatives and the seed dealers under the regulatory program in accordance with the requirements of the federal antitrust laws and the Oregon Antitrust Act:

(1) All parties involved in supervised negotiations shall sign a pre-negotiation agreement, developed by the department, which provides that each party will:

(a) Negotiated in good faith, considering all relevant data presented;

(b) Develop, share, or document all information requested by the department for consideration and deliberation by the Bargaining Council, to include, but not limited to: acres under contract, inventory, yields, import/export information, and market issues;

(c) Pay the $100 participation fee as outlined in Section 9(b); and,

(d) Agree to have a preliminary negotiated price established by a date certain prior to fall planting; exceptions to the date by which a price is established may be modified by the department in order to accommodate special circumstances at the director's discretion.

(2) The Director or the director's designee shall attend all meetings between the grower association and seed dealer representatives pursuant to the regulatory program and shall monitor and, if necessary, mediate the price negotiations between the representatives at these meetings.

(3) Minutes of all meetings between representatives of the growers association and the seed dealers will be created and maintained by the Department. Bargaining Council sessions supervised by the department are not subject to public meeting laws; however, the minutes of the Bargaining Council are a public document.

(4) Within two (2) days after the final meeting of the Bargaining Council between the representatives of the growers association and seed dealers, the Bargaining Council shall either:

(a) Submit to the Director, prior to October 1 of each year, for review and approval, a preliminary negotiated price effective for the upcoming crop year; or

(b) Notify the Director that the bargaining representatives cannot arrive at a negotiated price, and either: (1) ask for a suggested price from the Director which the representatives may further consider, or (2) suggest to the Director a specified price range for consideration, from which the Director shall determine the price that represents the interests of the state and the industry based on the information and facts available.

(5) Within two (2) days after the parties' submission under section (4), the Director shall approve an established price, or reject the parties' negotiated price and direct the parties to continue their negotiations. The Director may request any information deemed necessary from the parties to understand, review and approve the established price. The Director shall immediately notify the parties of the decision under this section in writing.

(6) In approving the established price, the Director shall consider the negotiated price reached by the representatives of the growers association and the seed dealers. The Director may also consider grass seed inventories for the respective type of seed under consideration, acres contracted, production factors, competitive factors, local, national and world market prices, the influence of imported product on prices, and any other factors the Director deems necessary to approve the established price.

(7) The Director must approve the established price and any adjustments to established prices previously approved by the Director before the established prices shall be implemented by the parties.

(8) Pricing adjustments after October 1 of any year, as approved under Section 4(A), will be based on objective data, and may include a pricing formula agreed to by the Bargaining Council. The final price will be established by October 1 of the harvest year. The final price of year(x) may become the preliminary price of the following year(x+1).

(9) The authorizing legislation establishes that the parties to the negotiations shall reimburse the Department for costs associated with supervising and administering the regulatory program. The Department will provide the parties with an itemized list of costs associated with program supervision, and cost recovery shall be as follows:

(a) Department consultative fees for Attorney General counsel directly related to supervising the regulatory program shall be divided evenly between the parties and reimbursed to the Department;

(b) All parties to the negotiations will be assessed a fee of $100 towards the cost of state supervision of the negotiations at the onset of the supervised pricing provided by the department. Costs above the total collected from the parties for this $100 flat fee will be evenly divided between all parties for payment to the department;

(c) Total costs for the department's supervisory role will include: $45.00 per hour for time devoted to administration and supervision of the regulatory program, plus associated travel costs (mileage at state rates, and travel time) and expenses (copies, etc.).

Stat. Auth.: ORS 62.846(2)(3)(4)
Stats. Implemented: ORS 62.015, 62.845, 646.535 & 646.740
Hist.: DOA 25-2001, f. & cert. ef. 11-6-01; DOA 13-2007, f. 7-2-07, cert. ef. 7-5-07

603-076-0051

Definitions

As used in these regulations, unless the context requires otherwise:

(1) "Dealer" has the same meaning provided under ORS 646.515(3), and who has bought product in the prior year respective to the specific seafood species under price negotiations.

(2) "Parties" or "party" to the supervised negotiations means an Oregon seafood harvester association or cooperative that represents Oregon seafood harvesters as defined in ORS 646.515, and dealers who purchase Oregon seafood who voluntarily participate in the regulatory program to negotiate a season starting price.

(3) "Mediate" or "mediation" has the same meaning as ORS 36.110(6)

(4) "Price negotiation," "negotiate," or "bargain" means to discuss the terms of a season starting price and the associated time for which the price is in effect, and related issues, with the objective of coming to terms on issues.

(5) "Director" means the Director of Agriculture or a designee of the Director of Agriculture.

(6) "Department" means the Oregon Department of Agriculture.

(7) "Active supervision," "active state supervision," and "actively supervise" means the Department's regulatory oversight of the price discussions among dealers, and price negotiations between dealers and seafood harvester associations or cooperative representatives for the purpose of arriving at a negotiated season starting price and related terms for the sale of Oregon seafood from harvesters to dealers.

(8) "Negotiated price" means the proposed season starting price and related time period and other terms agreed upon by representatives of seafood harvesters and seafood dealers who participate in the price negotiations supervised by the Oregon Department of Agriculture.

(9) "Established price" means the price set and approved by the Director as the season starting price for which the specific seafood identified in the negotiations shall be sold to dealers who have participated in the negotiations, and harvesters who will deliver the specific seafood, effective over the time period negotiated by the parties and approved by the department.

(10) "State action immunity" means immunity from liability under the federal antitrust laws and the Oregon Antitrust Act for conduct that is carried out pursuant to a regulatory program in which competition in certain areas of the seafood industry is displaced by regulations and active state supervision in accordance with ORS 62.015, 62.845, 646.515, 646.535, and 646.740.

(11) "Regulatory program" means the state regulatory program described in ORS 62.015, 62.845, 646.535 and 646.740 that is actively supervised by the Director of Agriculture, and that authorizes parties to engage in bargaining and negotiations to negotiate a proposed season opening price and associated terms of seafood commodities harvested and sold to dealers who participate in the negotiations.

Stat. Auth.: ORS 575.62- 576-650, Ch. 487 OL 2003, SB 673
Stats. Implemented: ORS 62.845, 646.515, 646.535, 646.740
Hist.: DOA 13-2004, f. & cert. ef. 5-5-04

603-076-0052

Active State Supervision of Season Starting Price Negotiations for Seafood Commodities

To ensure that the Director is actively supervising the conduct of the seafood harvester association representatives and the seafood dealers under the regulatory program in accordance with the requirements of the federal antitrust laws and the Oregon Antitrust Act:

(1)(a) The Director — at the request of a minimum of fifty-one percent (51%) of harvesters with active permits for the specific seafood subject to negotiations, and fifty-one percent (51%) of dealers by volume of pounds landed in the previous year of the specific seafood species subject to negotiations — shall convene duly elected or appointed representatives of the seafood harvesters and seafood dealers, at a predetermined location, date and time to enter into price negotiations with the objective of reaching agreement on a negotiated season starting price for review and approval by the Department.

(b) The Director may schedule a series of meetings between the representatives of the harvesters and dealers.

(c) The names and affiliations of the representatives of the seafood harvester and the dealers shall be provided to the Department at least two working days prior to the meeting.

(2) The Director or the Director’s designee shall be present at and actively supervise all meetings between the seafood harvesters and dealer representatives pursuant to the regulatory program and, if necessary, mediate the price negotiations between the representatives at these meetings.

(3) The department shall designate someone to keep minutes of all state-supervised meetings between representatives of the seafood harvesters associations or cooperatives and dealer representatives; minutes of negotiations shall be distributed to all interested parties upon request.

(4) At the conclusion of the negotiations between the representatives of the seafood harvesters and dealers, the representatives shall by consensus take one of the following actions:

(a) Submit to the Director for review and approval a negotiated season starting price effective for the time period agreed to in the negotiations; or

(b) Notify the Director that the bargaining representatives cannot arrive at a negotiated price, and request that the Director establish the price based on all information presented in the negotiations; or

(c) Terminate the negotiations.

(5) Within two (2) days after the parties’ submission under section (4), the Director shall review the negotiated price and approve it as the established price, or reject the parties’ negotiated price and direct the parties to continue their negotiations if it is determined that the price does not reflect the interests of the State. The Director may request any information deemed necessary from the parties to review and approve the established price. The Director shall immediately notify the parties of the decision under this section in writing.

(6) In approving the established season opening price, the Director shall consider the negotiated price reached by representatives of the seafood harvesters and dealers. The Director may also consider information available from the parties, including inventories; previous price-harvest relationships; production and supply factors; competitive factors; local, national and world market production and supply, and prices; the influence of imported product on prices, and any other factors the Director deems necessary to approve the established price.”

(7)(a) The Director must approve the established season opening price before the parties shall implement the season opening prices effective for the parties which participated in and agreed to be bound by such through negotiations.

(b) The Director shall not be involved in adjustments to seafood prices once the time period effective for the season opening price has expired.

(c) However, if during the applicable time period effective for the season opening price, a majority of seafood harvesters and a majority of dealers who were parties to the negotiations request the Director to be involved in any adjustments to the established season starting price, a continuation of the supervised price negotiations may occur. Any proposed adjustments to an established season opening price or applicable time period require approval by the Director before they may become effective.

(8) The established season opening price shall be binding for all parties to the negotiations who have agreed to the prices and time frames and other terms and conditions as specified and approved by the Director.

(9) Parties to the negotiations shall reimburse the Department for costs associated with supervising and administering the regulatory program. The Department will provide the parties with an itemized list of costs associated with program supervision, and cost recovery shall be as follows:

(a) Department consultative fees for Attorney General counsel directly related to supervising the regulatory program shall be divided evenly between the parties and reimbursed to the Department.

(b) All parties to the negotiations will be assessed a fee of $100 towards the cost of state supervision of the negotiations. Costs above the total collected from the parties for this $100 flat fee will be evenly divided between all parties.

(c) Total costs for the department’s supervisory role will include: $45.00 per hour for time devoted to administration and supervision of the regulatory program, plus associated travel costs (mileage at state rates, and travel time) and expenses (copies, etc.).

Stat. Auth.: ORS 576.620 - 576.650, Ch. 487 OL 2003 & SB 673
Stats. Implemented: ORS 62.845, 646.515, 646.535 & 646.740
Hist.: DOA 13-2004, f. & cert. ef. 5-5-04; DOA 23-2011(Temp), f. & cert. ef. 12-8-11 thru 1-15-12; Administrative correction, 2-24-12; DOA 27-2012, f. & cert. ef. 11-2-12

603-076-0101

Definitions

As used in these regulations, unless the context requires otherwise:

(1) "Blackberry dealer" and "blackberry packer" means dealer as defined in ORS 646.515(3)(a), or a licensed food processor that is a cooperative.

(2) "Grower Bargaining Association" refers to any growers association legally organized in accordance with Federal Capper-Volstead Laws (7 U.S.C. 291-292) and state law (ORS 646.515 to 646.545) for incorporation as a grower cooperative or bargaining unit for blackberries.

(3) "Mediate" or "mediation" has the same meaning as ORS 36.110(5).

(4) "Price negotiation," "negotiate," or "bargain" means to discuss the terms of a contract price and related issues, and attempt to come to agreement.

(5) "Director" means the Director of Agriculture or a designee of the Director of Agriculture.

(6) "Department" means the Oregon Department of Agriculture.

(7) "Active supervision," "active state supervision," and "actively supervise" means the Department's regulatory oversight of the price discussions among dealers, and price negotiations between dealers and grower representatives of a grower bargaining association for the purpose of arriving at a negotiated price for the sale of blackberries under production contracts or other arrangements that meet standards established by the Blackberry Bargaining Council.

(8) "Negotiated price" means the proposed price for blackberries agreed upon by representatives of a grower bargaining association and blackberry dealers.

(9) "Established price" means the price set and approved by the Director as the price at which blackberries produced by grower members of the bargaining association shall be sold to dealers.

(10) "State action immunity" means immunity liability under the federal antitrust laws and the Oregon Antitrust Act for conduct that is carried out pursuant to a regulatory program in which competition in certain areas of the blackberry industry in Oregon is displaced by regulations and active state supervision in accordance with ORS 62.845, 62.848, 646.535 and 646.740.

(11) "Parties" or "party" means blackberry producers, blackberry grower associations, blackberry processing or marketing cooperatives, or blackberry dealers who are participants in the state regulatory program for establishing prices on blackberries produced in Oregon.

(12) "Blackberry Bargaining Council" means the collective group of blackberry dealers and blackberry growers from the bargaining association, who voluntarily meet under the auspices of the department for the purposes of price negotiations.

(13) "Regulatory program" means the state regulatory program described in ORS 62.015, 62.845, 62.848, 646.535 and 646.740 that is actively supervised by the Director of Agriculture, and that authorizes parties to engage in bargaining and negotiations to establish the price and terms of blackberry products produced under contract or other terms and sold to blackberry dealers.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: SB 409 (2009); ORS 62.015, 62.848, 646.535 & 646.740
Stats. Implemented: ORS 62.015, 62.845, 62.848, 646.535, 646.740
Hist.: DOA 2-2010, f. 1-13-10, cert. ef. 1-15-10

603-076-0106

Active State Supervision of Blackberry Price Negotiations

(1) Where more than one blackberry dealer is agreeable to meet with a grower bargaining association, it is the intent of the department that the process of state supervised price negotiations for blackberries will assist in good faith negotiations by all parties, the generation of credible data on which to make pricing decisions, and the efficiency and efficacy of price discovery.

(2) To ensure that the Director is actively supervising the conduct of the grower representatives and the blackberry dealers under the regulatory program in accordance with the requirements of the federal antitrust laws and the Oregon Antitrust Act (ORS 646.740):

(a) The Director or the director's designee shall attend all meetings between the grower association and blackberry dealer representatives pursuant to the regulatory program and shall monitor, and if necessary, mediate the price negotiations between the representatives at these meetings.

(b) The Director or the director's designee will ask each party who participates in the negotiations to sign a pre-mediation agreement with the following commitments:

(A) Negotiate in good faith, arm’s length transactions, considering all relevant data presented;

(B) Develop, share, document, and evaluate all information requested by the department for consideration and deliberation by the Blackberry Bargaining Council, to include, but not limited to: by variety or other appropriate categories — acres under production, inventory, yields, import/export data, and market information (the department shall aggregate all data sources and not reveal any proprietary data to any other party);

(C) Actively participate and contribute toward common interests and reasonable pricing agreements; and,

(D) Comply with applicable state laws pertaining to non-discrimination in pricing based on membership in a grower bargaining association (ORS 646.535), payment term requirements (ORS 585.213, unless otherwise negotiated), and other considerations of Oregon’s contract laws (ORS 72.3050).

(E) Pay the fees described in these rules.

(c) The parties to the supervised blackberry pricing negotiations shall, to the extent practical, aggregate blackberry varieties into three categories: early varieties, late varieties, and Boysenberries.

(d) The Blackberry Bargaining Council may, under the direct supervision of the Department, conduct individual negotiations each year for categories of blackberries as described in section (c), andhow berries are packed (i.e., IQF, straight pack, puree, juice, etc.)

(e) Meetings of the Bargaining Council are not subject to Oregon's public meeting laws. However, minutes of all meetings between representatives of the growers association and the blackberry dealers will be created and maintained by the Department and are subject to the provisions of ORS 192.

(f) Within two (2) days after the final meeting of the Blackberry Bargaining Council, the Council shall either:

(A) Submit to the Director, for review and approval, a negotiated price or price range effective for the upcoming crop year; or,

(B) Notify the Director that the bargaining representatives cannot arrive at a negotiated price or price range, and suggest to the Director a specified price range for consideration, from which the Director shall approve a price that represents the interests of the state and the industry based on the information and facts available; or,

(C) Terminate the negotiations.

(g) Within two (2) days after the Blackberry Bargaining Council's submission under section (f), the Director shall approve an established price, or reject the parties' negotiated price and direct the parties to continue their negotiations. The Director may request any information deemed necessary from the parties to understand, review and approve the established price. The Director may notify the parties of the decision under this section in writing.

(h) In approving the established price, the Director shall consider the negotiated price reached by the representatives of the growers’ association and the blackberry dealers. The Director shall ensure the parties have considered, to the extent practical, blackberry inventories for the respective type of berry under consideration; acres in production; production factors; competitive factors; local, national and world market prices; the influence of imported product on prices; and any other factors the Director deems necessary to approve the established price.

(i) The Director must approve the established price and any adjustments to established prices previously approved by the Director before the established prices shall be implemented by the parties.

(j) The Director shall collect fees from the parties who are participants in the blackberry regulatory program as follows:

(A) Fees may include reimbursement of costs for Department consultation with the Attorney General as this consultation directly relates to the Department's supervision of the regulatory program. Such fees shall be divided evenly between the parties and reimbursed to the Department

(B) The Department shall assess a flat rate fee of $1,000 for each yearly negotiation meeting supervised by the Department. This fee shall be assessed evenly across all parties or otherwise fairly divided between the parties, such that the dealers pay half of the fee and the growers association pays half of the fee. Other equitable arrangements may be allowed as approved by the Director. The Department may assess additional fees to reimburse the Department any cost or expense that exceeds the flat rate fee. The costs will be documented by the Department, evenly divided between the parties, and collected from the parties. Payment of all fees is to the Department of Agriculture.

Stat. Auth.: SB 409 (2009); ORS 62.846(2)(3)(4)
Stats. Implemented: ORS 62.015, 62.845, 646.535 & 646.740
Hist.: DOA 2-2010, f. 1-13-10, cert. ef. 1-15-10

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