GA Code § 2-8-23 (2021)
2021 Georgia Code|Title 2 - Agriculture|Chapter 8 - Agricultural Commodities Promotion|Article 2 - Agricultural Commodity Commissions Generally|§ 2-8-23. Approval by Producers Prerequisite to Issuance of Marketing Order or Major Amendment; Notice; Rules and Regulations; Expiration; Extensions; Referendum

      No marketing order or major amendment thereto, directly affecting producers or producer marketing, issued pursuant to this article, shall be made effective by the Commissioner or the commission until approved in a referendum by two-thirds of a quorum consisting of at least 25 percent of the notified eligible producers who are engaged within the area specified in such marketing order or amendment thereto.   No marketing order renewal, directly affecting producers or producer marketing, issued pursuant to this article, shall be made effective by the Commissioner or the Commission until approved in a referendum by two-thirds of the producers who are engaged within the area specified in such marketing order or amendment thereto.     Whenever any marketing order or any major amendment to any marketing order is issued by the commission, the commission shall determine whether assent, approval, or favor thereto of the producers shall be by written assents or by referendum.   If the Commissioner or the commission determines that a referendum shall be had, the Commissioner or the commission shall establish a referendum period of 30 days. At the close of such referendum period, the Commissioner or the commission shall count and tabulate the ballots filed during such period.   At a public hearing held to consider a proposed marketing order or major amendments to an existing marketing order which directly affect producers or producer marketing, the Commissioner or the commission shall also receive testimony or evidence from which he or she or it can determine whether the assent, approval, or favor of such producers shall be determined by written assents or by referendum as prescribed in this Code section. Upon the conclusion of any hearing which involves a marketing order or a major amendment thereto directly affecting producers or producer marketing, the Commissioner or the commission shall make a finding, based upon the testimony and evidence received, whether producer assent, approval, or favor shall be determined by written assents or by referendum. If the Commissioner or the commission finds that a referendum shall be had, he or she or it shall direct that a referendum be held in accordance with this subsection.   Any referendum or assent in writing to a marketing order under paragraphs (3), (5), and (6) of subsection (a) of Code Section 2-8-22 shall be held pursuant to this Code section; and upon the approval thereof by two-thirds of those voting therein, where the total vote cast thereon represents not less than 25 percent of those eligible to vote or where the total vote cast thereon represents not less than 25 percent of the total amount of the affected agricultural commodity, such marketing order may be declared by the commission to be approved.   In the event of the failure of any proposed marketing order to be approved, no additional referendum thereon shall be held during a period of 12 months from the date of the close of the previous referendum period.     Subject to the provisions, restrictions, and limitations imposed in this article, the Commissioner or the commission may issue marketing orders regulating producer marketing and the processing, distributing, or handling in any manner of agricultural commodities by any and all persons engaged in such producer marketing, processing, distributing, or handling of such agricultural commodities within this state.     Upon the recommendation of not less than three of the appointive members of the commission, the Commissioner or the commission may make effective minor amendments to a marketing order. The Commissioner or the commission may require a public hearing upon minor amendments if in the Commissioner's or commission's opinion the substance of such minor amendments so warrants. The Commissioner or the commission, however, shall not be required to submit minor amendments for written assents or referendum approval.   In making effective major amendments to a marketing order, the Commissioner or the commission shall follow the same procedures prescribed in this article for the institution of a marketing order. For the purpose of this article, a major amendment to a marketing order shall include, but shall not be limited to, any amendment which adds to or deletes from any such marketing order any of the following types of regulations or authorizations:   Authority for regulating the period or periods during which any agricultural commodity or any grade, size, or quality of such commodity may be processed, distributed, or otherwise marketed within this state;   Authority for the establishment of uniform grading and inspection of any agricultural commodity and the establishment of grading standards of quality, condition, size, or pack of such commodity;   Authority for the establishment of plans for advertising and sales promotion of any agricultural commodity;   Authority to prohibit unfair trade practices;   Authority for carrying out research studies in the production, processing, or distribution of any agricultural commodity;   Authority to increase an assessment rate beyond the maximum rate authorized by the marketing order in effect;   Authority to extend the application of the provisions of any marketing order to portions or uses of an agricultural commodity not previously subject to such provisions or to restrict or extend the application of such provisions upon the producers or handlers of such portions or uses of such commodity.     Modification of any provisions of any marketing order in effect, for the purpose of clarifying the meaning or application of such provisions or of modifying administrative procedures for carrying out such provisions, are declared not to be a major amendment of such marketing order.     Upon the issuance of any order making effective a marketing order or any suspension, amendment, or termination thereof, a copy of such notice shall be published as the Commissioner or the commission may prescribe. No marketing order nor any suspension, amendment, or termination thereof shall become effective until the termination of a period of five days from the date of such posting and publication. It shall also be the duty of the Commissioner or the commission to mail a copy of the notice of such issuance to all persons directly affected by the terms of such marketing order, suspension, amendment, or termination whose names and addresses are on file in the office of the Commissioner or the commission and to every person who files in the office of the Commissioner or the commission a written request for such notice.   The Commissioner or the commission shall have the power, consistent with this article and in accordance with marketing orders and agreements made effective under this article, to establish such general rules and regulations for uniform application to all marketing orders issued hereunder as may be necessary to facilitate the administration and enforcement of such marketing orders. The provisions of subsection (d) of this Code section relative to publication, mailing of notice, and time of taking effect shall be applicable to any such general rule or regulation established pursuant to this subsection and applicable to marketing orders generally. Such notice shall be furnished by the Commissioner or the commission for each marketing order in active operation.   Upon the recommendation of the commission concerned, the Commissioner shall have the power, consistent with this article, to establish administrative rules and regulations for each marketing order issued and made effective as may be necessary to facilitate the supervision, administration, and enforcement of each such order. The provisions of subsection (d) of this Code section relative to publication, mailing of notice, and time of taking effect shall be applicable to any such administrative rules and regulations.   Unless extended as provided in this Code section, all marketing orders issued under the authority of this article shall expire, terminate, and become of no force and effect at the expiration of three years from the date of the issuance of the original marketing order or, if such marketing order has been extended, at the expiration of three years after the date of any such extension.   In the event either one of the following conditions is complied with, a marketing order shall be extended for a period of three years after the date of its original expiration:   Assent has been given in writing to such marketing order by not less than two-thirds of the producers participating; or   Approval or favor of such marketing order has been given by producers in a referendum among producers directly affected if at least 66 2/3 percent of the votes cast in such referendum favor the extension of such marketing order.     If the Commissioner or the commission determines that a referendum shall be held, the Commissioner or the commission shall establish a referendum period of 30 days, such referendum period to terminate at least 30 days prior to the expiration date of the marketing order which is the subject of such referendum. At the close of such referendum period, the Commissioner or the commission shall count and tabulate the ballots cast during such period. If from such tabulation the Commissioner or the commission finds that the number of producers voting in favor of the extension of such marketing order is not less than 66 2/3 percent of the total number of ballots cast, then such marketing order shall be extended for a period of three years after the expiration date. If it is found from the tabulation of such referendum that the number of producers who had voted in favor of the extension of such marketing order is less than the required 66 2/3 percent of the total number of ballots cast, then the marketing order shall expire, terminate, and be of no force and effect as provided in subsection (g) of this Code section.     (Ga. L. 1961, p. 301, § 14; Ga. L. 1964, p. 141, §§ 2, 3; Ga. L. 1969, p. 763, §§ 15, 16; Code 1981, §2-8-15; Code 1981, §2-8-23, as redesignated by Ga. L. 1989, p. 1420, § 1; Ga. L. 2021, p. 614, § 3/SB 247.)    The 2021 amendment,  effective July 1, 2021, rewrote paragraph (a)(1), which read: "No marketing order or major amendment thereto, directly affecting producers or producer marketing, issued pursuant to this article, shall be made effective by the commission or the Commissioner until the finding of one or more of the following:   "(A) That such marketing order or amendment thereto has been assented to in writing by not less than 65 percent of the producers who are engaged within the area specified in such marketing order or amendment thereto in the production for market or the producer marketing of not less than 51 percent of the agricultural commodity specified therein in commercial quantities;   "(B) That such marketing order or amendment thereto has been assented to in writing by producers who produce not less than 65 percent of the volume of such agricultural commodity and by 51 percent of the total number of producers so engaged; or   "(C) That such marketing order or amendment thereto has been approved or favored by producers in a referendum among producers directly affected if the valid votes cast in such referendum in favor of such marketing order or amendment thereto represent not less than 51 percent of the total number of producers of the commodity of record with the department who marketed not less than 51 percent of the total quantity of the commodity marketed in the next preceding marketing season by the total number of producers of record with the department."; deleted the former last two sentences of paragraph (a)(3), which read: "If from such tabulation the Commissioner or the commission finds that the number of producers voting in favor of such marketing order or amendment thereto is not less than 51 percent of the total number of producers of record with the department and that such producers who voted in favor of the marketing order or amendment thereto marketed not less than 51 percent of the total volume of such commodity marketed by all producers of record with the department during the marketing season next preceding such referendum, the Commissioner or the commission may make such marketing order or amendment thereto effective. The Commissioner and the commission are authorized to prescribe such additional procedures as may be necessary to conduct such referendum."; inserted "or she" near the middle of the first and last sentences of paragraph (a)(4); substituted "the Commissioner's or commission's" for "his or its" in the second sentence of paragraph (c)(1); deleted "a notice thereof shall be posted on a public bulletin board maintained at the Department of Agriculture; and" following "or termination thereof," in the first sentence of subsection (d); substituted "publication, mailing of notice," for "posting, publication," near the beginning of the second sentence of subsection (e); and deleted "posting" following "this Code section relative to" in the second sentence of subsection (f).   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 2021, a comma following "to" was deleted in the second sentence of subsection (f).   OPINIONS OF THE ATTORNEY GENERAL   Conflict between Commission Rules and Uniform Rules.   - Only the Commissioner can adopt rules and regulations that apply uniformly to all commodity commissions. Therefore, the provisions of Commission Rules dealing with subjects other than the depositing and disbursement of funds must yield to the provisions of the Uniform Rules covering the same subject matter whenever a conflict exists. 1989 Op. Att'y Gen. No. 89-1.   Business unit applies in determining eligibility to vote in referendum.   - The business unit engaged in the producing of an affected commodity is the appropriate criterion to apply in determining eligibility to vote in commodity commission referendum; such business unit is entitled to cast one vote. 1970 Op. Att'y Gen. No. 70-168.    Producer is individual to whom voting rights in commission referenda must devolve.  1976 Op. Att'y Gen. No. 76-4.    Party responsible for assessments levied by commission.  76 Op. Att'y Gen. No. 76-115.