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. Statutory/Other Authority: SB 409 (2009); ORS 62.846(2)(3)(4) Statutes/Other Implemented: ORS 62.015, 62.845, 646.535 & 646.740 History: DOA 2-2010, f. 1-13-10, cert. ef. 1-15-10