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with intermediaries, such as wholesalers, distributors or other third parties, including promoters of tripartite promotional plans, which provide that such intermediaries will perform all or part of the packer's obligations under this part. However, the interposition of intermediaries between the packer and his customers does not relieve the packer of his ultimate responsibility of compliance with the provisions of the Packers and Stockyards Act. The packer, in order to demonstrate his good faith effort to discharge his obligations under this part, should include in any such agreement provisions that the intermediary will:
(1) Give notice to the packer's customers in conformity with the standards set forth in items 5 and 7; supra.
(2) Check customer performance in conformity with the standards set forth in item 8; supra.
(3) Implement the plan in a manner which will insure its functional availability to the packer's customers in conformity with the standards set forth in item 6, supra. (This must be done whether the plan is one devised by the packer himself or by the intermediary for use by the packer's customers.); and
(4) Provide certification in writing and at reasonable intervals that the packer's customers have been and are being treated in conformity with the agreement.
(b) A packer who negotiates such agreements with his wholesalers, distributors or third party promoters will be considered by the Administration to have justified his "good faith” obligations under this section only if he accompanies such agreements with the following supplementary measures: At regular intervals the packer takes affirmative steps to verify that his customers are receiving the proportionally equal treatment to which they are entitled by making spot checks designed to reach a representative cross section of his customers. Whenever such spot checks indicate that the agreements are not being implemented in such a way that his customers are receiving such proportionally equal treatment, the packer takes immediate steps to expand or to supplement such agreements in a manner reasonably designed to eliminate the repeti. tion or continuation of any such discriminations in the future.
(c) Intermediaries, subject to the Packers and Stockyards Act, administering promo
onal assistance programs on behalf of a packer may be in violation of the provisions of the Packers and Stockyards Act if they have agreed to perform the packer's obligations under the Act with respect to a program which they have represented to be usable and suitable for all the packer's competing customers if it should later develop that the program was not offered to all or, if offered, was not usable or suitable, or was
otherwise administered in a discriminatory manner.
11. Customer's liability. A customer, subject to the Packers and Stockyards Act, who knows, or should know, that he is receiving payments or services which are not available on proportionally equal terms to his competitors engaged in the resale of the same packer's products may be in violation of the provisions of the Act. Also, customers (subject to the Packers and Stockyards Act) that make unauthorized deductions from purchase invoices for alleged advertising or other promotional allowances may be proceeded against under the provisions of the Act.
Example 1: A customer subject to the Act should not induce or receive an allowance in excess of that offered in the packer's advertising plan by billing the packer at "vendor rates" or for any other amount in excess of that authorized in the packer's promotion program.
12. Meeting competition. A packer charged with discrimination under the provisions of the Packers and Stockyards Act may defend his actions by showing that the payments were made or the services were furnished in good faith to meet equally high payments made by a competing packer to the particular customer, or to meet equivalent services furnished by a competing packer to the particular customer. This defense, however, is subject to important limitations. For instance, it is insufficient to defend solely on the basis that competition in a particular market is very keen, requiring that special allowances be given to some customers if a packer is “to be competitive."
13. Cost justification. It is no defense to a charge of unlawful discrimination in the payment of an allowance or the furnishing of a service for a packer to show that such payment or service could be justified through savings in the cost of manufacture, sale, or delivery.
The foregoing are guidelines which set forth the general views of the Packers and Stockyards Administration regarding adver. tising allowances and other merchandising payments and services. In a particular situa. tion in which the Administrator believes that the Act has been violated in connection with such activities, a complaint may be issued instituting a formal administrative proceeding under the Act. In such a proceeding, the Administrative Law Judge or the Judicial Officer of the Department will determine, after opportunity for full hearing, whether the packer has in fact violated the Packers and Stockyards Act and should be ordered to cease and desist from continu. ing such violation. (Sec. 202(a), 42 Stat. 161, as amended, 7 U.S.C. 192; sec. 402, 42 Stat. 168, as amend. ed, 7 U.S.C. 222; sec. 407(a), 42 Stat. 169, as amended, 7 U.S.C. 228(a); sec. 6(g), 38 Stat. 721, 15 U.S.C. 46(g)) [38 FR 21173, Aug. 6, 1973)
8 203.15 Trust benefits under section 206
of the Act. (a) Within the times specified under section 206(b) of the Act, the seller, to preserve his interest in the statutory trust, must give written notice to the packer and file such notice with the Secretary. One of the ways to satisfy the notification requirement under this provision is to make certain that notice is given to the packer within the prescribed time by letter, mailgram, or telegram stating:
(1) Notification to preserve trust benefits;
(2) Identification of packer;
(5) Date of seller's receipt of notice that payment instrument has been dishonored (if applicable); and
(6) Amount of money due; and to make certain that a copy of such letter, mailgram, or telegram is filed with a P&SA Area Office or with P&SA, USDA, Washington, D.C. 20250, within the prescribed time.
(b) While the above information is desirable, any written notice which informs the packer and the Secretary that the packer has failed to pay for livestock is sufficient to meet the above-mentioned statutory requirement if it is given within the prescribed time. OMB CONTROL No. 0581-0024. (47 FR 746, Jan. 7, 1982) (Sec. 401, 42 Stat. 168, (7 U.S.C. 221); sec. 407, 42 Stat. 169, (7 U.S.C 228); sec. 409, as added by sec. 7, 90 Stat. 1250, (7 U.S.C 228b); 7 CFR 2.17, 2.54; 42 FR 35625; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.)) [42 FR 49929, Sept. 28, 1977, as amended at 47 FR 746, Jan. 7, 1982)
ment, at the time a check in payment for such livestock may be delivered by the purchaser, and may not wish to authorize a representative to receive such a check; or for other reasons such a seller may prefer that such a purchaser make payment by mailing a check within the time limit as prescribed in section 409(a) of the Act. In cases when the seller does not intend to be present, he may use the following form of notification to the purchaser:
I do not intend to be present at the point of transfer of possession of livestock sold by me to (name of packer, market agency, or dealer) for the purpose of receiving a check in payment for such livestock.
I hereby direct (name of packer, market agency, or dealer) to make payment for livestock purchased from me, by mailing & check for the full amount of the purchase price before the close of the next business day following the purchase of livestock and transfer of possession thereof or, in the case of a purchase on a “carcass” or “grade and yield” basis, not later than the close of the first business day following determination of the purchase price.
This does not constitute an extension of credit to (name of packer, market agency or dealer). This is subject to cancellation by me at any time, and if not cancelled by (date), it shall terminate on that date. If the seller, for reasons other than not being present to receive payment, prefers to have the packer, market agency, or dealer make payment by mailing a check within the time limit as provided in section 409(a), he may use the above form but should not include the statement in the first sentence that he does not intend to be present.
(b) The Packers and Stockyards Administration believes that such an agreement would not constitute an extension of credit within the meaning of section 206 of the Act because it would not give the purchaser any more time to issue a check than is provided in section 409(a). OMB CONTROL No. 0581-0024. (47 FR 746, Jan. 7, 1982) (Sec. 401, 42 Stat. 168 (7 U.S.C 221); sec. 407, 42 Stat. 169 (7 U.S.C. 228); sec. 409, as added by sec. 7, 90 Stat. 1250 (7 U.S.C. 228b); 7 CFR 2.17, 2.54; 42 FR 35625; Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.))
8 203.16 Mailing of checks in payment for
livestock purchased for slaughter, for
cash and not on credit. (a) The Packers and Stockyards Administration recognizes that one who sells livestock to a packer, market agency, or dealer, who is purchasing for slaughter, may not intend to be present at the point of transfer of possession of the livestock, to receive pay
[42 FR 49929, Sept. 28, 1977, as amended at 47 FR 746, Jan. 7, 1982)
PART 204-ORGANIZATION AND
Sec. 204.1 Introduction. 204.2 Organization. 204.3 Delegations of authority. 204.4 Public inspection and copying. 204.5 Indexes. 204.6 Requests for records. 204.7 Appeals.
AUTHORITY: 5 U.S.C. 552.
SOURCE: 46 FR 60414, Dec. 10, 1981, unless otherwise noted.
8 203.17 Statement of general policy with
respect to rates and charges at posted
stockyards. (a) Requests have been received from stockyard operators, market agencies, and livestock producers urging a reduction of rate regulation at posted stockyards. Their requests are based on the belief that competition among markets will set a level of rates and charges fair to both the market operator and to the livestock producer. The Packers and Stockyards Administration will accept for filing tariffs containing any level of charges after ten (10) days' notice to the public and to the Secretary as required by the Act.
(b) The Packers and Stockyards Administration will not investigate the level of the rates and charges established by stockyard owners and market agencies for reasonableness except upon receipt of a valid complaint or under compelling circumstances warranting such an investigation. Stockyard owners and market agencies will have substantial flexibil. ity in setting their own rates and charges.
(c) Rates and charges for market agencies operating on the same posted stockyard shall be assessed under the same tariff.
(d) Complaints filed about the reasonableness of rates and charges will be investigated to determine the validity of such complaints and appropriate action taken if warranted.
(e) The Packers and Stockyards Administration will continue to insure that the schedules of rates and charges filed with the Department are applied uniformly and in a nondiscriminatory manner.
(f) Sections 201.17 through 201.26 of the regulations issued under the Act pertaining to schedules of rates and charges will be amended as appropriate to conform with this policy statement.
8 204.1 Introduction.
The Packers and Stockyards Administration hereby describes its central and field organization, indicates the established places at which and methods whereby the public may secure information, directs attention to the general course and method by which its functions are channeled and determines and set forth the procedures governing the availability of opinions, orders, and other records in the files of said Administration.
8 204.2 Organization.
(a) The Packers and Stockyards Administration consists of a headquarters office located in the South Building of the U.S. Department of Agricul. ture in Washington, D.C., and 13 regional offices. The Washington headquarters office is organized to include the Office of the Administrator and two Divisions, the Packer and Poultry Division and the Livestock Marketing Division.
(b) Office of the Administrator. This office has overall responsibility for administering the provisions of the Pack. ers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et seq.), for enforcement of the Truth-in-Lending Act (15 U.S.C. 16011665) with respect to any activities subject to the Packers and Stockyards Act, 1921, as amended, and for executing assigned civil defense and defense mobilization activities. These responsibilities include formulation of long
(7 U.S.C. 228(a)) (43 FR 46494, Oct. 6, 1978, as amended at 46 FR 60414, Dec. 10, 1981)
range and current programs relating try operations, surveillance of these to assigned functions; technical and operations, investigation of comadministrative direction and coordina- plaints, initiation of formal proceedtion in the execution of approved poli- ings, when warranted, to correct ilcies and programs carried out by the legal practices, and maintenance of Packers and Stockyards Administra- working relationships with the meat tion; review and evaluation of program packer and poultry industries. operations and determination of reme- (d) Livestock Marketing Division. dial measures for improvement; main- This Division enforces those provitenance of relations and communica- sions of the Packers and Stockyards tions with producer and industry Act relating to stockyard owners, groups.
market agencies, and dealers. Included (1) The Administrator. The Adminis- within these responsibilities and functrator is responsible for the general di- tions are determination of the applicarection and supervision of programs bility of the provisions of the Act to and activities assigned to the Packers individual stockyard operations; postand Stockyards Administration except ing of stockyards; registration and such activities as are reserved to the bonding of market agencies and dealJudicial Officer (32 FR 7468). He re- ers; bonding of packers; testing of ports to the Assistant Secretary for scales and checkweighing; acceptance Marketing and Inspection Services. for filing of schedules of rates and
(2) Deputy Administrator. The charges; surveillance and investigation Deputy Administrator shares overall of the lawfulness of rates and charges responsibility with the Administrator of stockyard owners and market agenfor the general direction and supervi- cies and the adequacy of stockyard sion of programs and activities as- services furnished by stockyard signed to the Packers and Stockyards owners and market agencies; and surAdministration.
veillance and investigation of trade (3) Assistant to the Administrator. practices within the purview of the The Assistant to the Administrator Act, other than packer and poultry participates with the Administrator marketing practices. The Division also and Deputy Administrator in the de- initiates formal proceedings, when velopment, administration, and analy- warranted, to correct illegal practices, sis of policies and program and directs rates, or charges and maintains workthe internal administrative manage- ing relationships with producer and inment, information, and related activi- dustry groups. ties of the Packers and Stockyards Ad- (e) Field Service. (1) The Field Servministration and maintains liaison for ice of the Packers and Stockyards Admanagement support services.
ministration is divided into 13 regional (4) Director, Industry Analysis Staff. offices. These offices are responsible The Director of the Industry Analysis for supervision of the operations of Staff serves as the source of economic stockyard companies, market agencies, advice for the Administrator on broad dealers, packers, and poultry dealers policy questions and on the economic and licenses to assure compliance with implications of various Administration the Act. They formulate recommendaprograms and policies on livestock and tions relating to enforcement of the poultry producers, on the several seg- Act; conduct investigations to determents of the livestock, meat, and poul. mine the existence of and develop evitry marketing, processing, and whole- dence of, unfair trade practices; evalusaling industries, and on consumers. ate the adequacy of stockyard facill
(c) Packer and Poultry Division. ties and services; receive and investiThis Division carries out the enforce- gate complaints including reparation ment of the provisions of the Packers complaints; prepare investigative reand Stockyards Act relating to packers
and recommend corrective and live poultry dealers and handlers action, audit books, records, and reand licensees. These responsibilities ports of persons subject to the Act; and functions include determination review applications for registration, 11of applicability of the provisions of censes, and rate changes for accuracy the Act to individual packer and poul- and compliance; assist in prosecution
of cases; and maintain relationships with producers, the trade, States, and other groups interested in the welfare of the livestock and poultry industries concerning enforcement of the Act.
(2) The addresses of these offices, which are under regional supervisors, are as follows: Atlanta-Room 338, 1720 Peachtree Street,
NE., Atlanta, GA 30309 Bedford-Turnpike Road, Box 101E, Bed
ford, VA 24523 Denver—208 Livestock Exchange Building,
Denver, CO 80216 Fort Worth-Room 8A36, Federal Building,
819 Taylor Street, Fort Worth, TX
76102 Indianapolis-Suite 24, 537 Turtle Creek,
South Drive, Indianapolis, IN 46227 Kansas City—828 Livestock Exchange
Building, Kansas City, MO 64102 Lawndale-15000 Aviation Boulevard, Room
2W6, P.O. Box 6102, Lawndale, CA 90261 Memphis-Room 459, Federal Building, 167
North Main Street, Memphis, TN 38103 North Brunswick-825 Georges Road, Room
303, North Brunswick, NJ 08902 Omaha-909 Livestock Exchange Building,
Omaha, NE 68107 Portland-9370 S.W. Greenburg Road, Suite
E, Portland, OR 97223 South St. Paul-208 Post Office Building,
Box 8, South St. Paul, MN 55075 Springfield—975 Durkin Drive, Suite G,
Springfield, IL 62704
the Administrator and Deputy Administrator under paragraph (i) of this section.
(c) Branch Chiefs. (1) The Chief of the Financial Protection Branch; the Chief of the Marketing Practices Branch; the Chief of the Scales and Weighing Branch of the Livestock Marketing Division; the Chief of the Livestock Procurement Branch, the Chief of the Meat Merchandising Branch, and the Chief of the Poultry Branch of the Packer and Poultry Division are hereby individually delegated authority under the provisions of section 402 of the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 222), to issue special orders pursuant to the provisions of section 6(b) of the Federal Trade Commission Act (15 U.S.C. 46(b)) and, with respect thereto, to issue notices of default provided for in section 10 of the Federal Trade Commission Act (15 U.S.C. 50).
(2) The Chief of the Financial Protection Branch of the Livestock Mar. keting Division is hereby delegated authority to perform all acts, functions, and duties with respect to suspending the operation of schedules of rates and charges of stockyard owners and market agencies and extending the time of such suspensions as prescribed in section 306(e) of the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 207(e)); all acts, functions and duties as prescribed in $ 1.133 of Part 1 of Title 7 (7 CFR 1.133) with respect to the investigation and disposition of information furnished concerning apparent violations involving rates or charges or the application of regulations of stockyard owners and market agencies, or the alleged failure of such persons to furnish reasonable stock. yard services as required by section 304 of the same Act (7 U.S.C. 205); all acts, functions, and duties with respect to the posting and deposting of stockyards pursuant to the provisions of section 302(b) of the same Act (7 U.S.C. 202(b)); perform all acts, functions, and duties of the Administrator with respect to the execution of bonds and trust fund agreements under 88 201.27 through 201.38 of this chapter, including the power to determine that a bond is inadequate under 8 201.30(f) of this chapter, and to de
8 204.3 Delegations of authority.
(a) Deputy Administrator. Under the direction of the Administrator, the Deputy Administrator is hereby delegated authority to perform all the duties and to exercise all the functions and powers which are now or which may hereafter be, vested in the Administrator (including the power of redelegation).
(b) Division Directors. The Directors of the Industry Analysis Staff, Livestock Marketing Division, and the Packer and Poultry Division, under administrative and technical direction of the Administrator and the Deputy Administrator, are hereby individually delegated authority, in connection with the respective functions assigned to each of said organizational units in § 204.2, to perform all the duties and to exercise all the functions and powers which are now, or which may hereafter be, vested in the Administrator (including the power of redelegation) except such authority as is re