Cite as 24 A.D. 602 ORDER Respondent, its officers, representatives, agents and employees, directly or through any corporate or other device shall cease and desist from engaging in the following activities in commerce: (1) weighing livestock at other than the true and correct weight ascertained in accordance with the weighing regulations under the act; (2) issuing scale tickets showing weights other than such true and correct weights, and (3) selling any livestock or paying consignors the proceeds of the sale of livestock on the basis of false and incorrect weights. Respondent, when weighing livestock for purposes of sale, shall make and issue scale tickets which fully and accurately show all the information required by section 201.49 of the regulations (9 CFR 201.49). Respondent shall keep accounts, records, and memoranda which correctly disclose the weighing of livestock in its business subject to the act. Respondent is suspended as a registrant under the act for a period of 20 days. However, except with respect to respondent's operations at its stockyard at Watertown, New York, this suspension shall be held in abeyance and not become effective unless it is found, after opportunity for a hearing, that respondent has again violated the act within six months from the effective date of this order. The provisions of this order, except with respect to the suspension ordered, shall become effective on the sixth day after service of a copy hereof upon respondent. The suspension of respondent as a registrant under the act with respect to its activities at the Watertown yard shall become effective on the 30th day after such service upon respondent. (No. 9817) In re CORNELIUS C. HOF. P&S Docket No. 3407. Decided May 14, 1965. Suspension terminated Decision by Thomas J. Flavin, Judicial Officer Cite as 24 A.D. 603 SUPPLEMENTAL ORDER In this disciplinary proceeding under the Packers and Stockyards Act, 1921, as amended and supplemented (7 U.S.C. 181 et seq.), an order was issued on February 17, 1965, suspending respondent as a registrant under the Act until respondent complies with the bonding requirements of the Act and the regulations issued thereunder. Complainant has now recommended that a supplemental order be issued terminating the suspension of respondent as a registrant under the Act as respondent has furnished a bond which meets the requirements of the Act and the regulations issued thereunder. Accordingly, the suspension of respondent as a registrant under the Act in the order of February 17, 1965, is hereby terminated. Such order shall remain in full force and effect in all other respects. Copies hereof shall be served upon the parties. (No. 9818) In re JOHN MORRELL & Co. P&S Docket No. 3500. Decided May 17, 1965. Packer Gifts in sales promotion campaign-Cease and desist-Consent Respondent is ordered to cease and desist from sponsoring or conducting any sales promotion program under which it offers or gives personal gifts of more than nominal value to officers or employees of retail food stores, or to the stores which gifts may be utilized for personal use of any officer or employee other than in the course of the store's business, based upon the volume of refrigerated processed meat products purchased from respondent. The order contains the conditions under which respondent may obtain a modification thereof after July 1, 1966. Mr. Robert R. Kimmel for complainant. Mr. Charles L. Stewart, Jr., and Mr. Edward J. Grier, Chicago, Ill., for respondent. Decision by Thomas J. Flavin, Judicial Officer PRELIMINARY STATEMENT This is a disciplinary proceeding under the Packers and Stockyards Act, 1921, as amended (7 U.S.C. 181 et seq.), hereinafter referred to as the Act, instituted by a complaint filed on April Cite as 24 A.D. 603 5, 1965, by the Director, Packers and Stockyards Division, Consumer and Marketing Service, United States Department of Agriculture. The complaint alleges that John Morrell & Co. violated various provisions of the Act in connection with certain sales promotion programs continuously sponsored and conducted by it since February, 1963. On May 11, 1965, John Morrell & Co. filed an answer in which it states (1) that it is a packer subject to the provisions of the Packers and Stockyards Act, 1921, as amended, (2) that it is engaged in the business of manufacturing and selling meat and meat food products in commerce, (3) that it waives oral hearing, the report of the Hearing Examiner, and the inclusion in the final order of the Secretary of Agriculture of any findings of fact other than those set forth in paragraphs 1 through 3 of its answer, (4) that it consents to the entry of a specified order, which order shall have the same force and effect as if entered after full hearing and shall become effective on July 1, 1965, (5) that its answer is for settlement purposes only and does not constitute an admission by respondent that it has violated the Act and evinces a willingness of respondent to cooperate with the Department in bringing about certain changes in marketing practices, (6) that its answer is made with the understanding that the order consented to relates only to the types of sales promotion programs referred to in paragraph VI of the complaint and shall not be construed as applying to, nor passing upon the merits of, programs or activities not involved in this proceeding, such as the payment or granting of anything of value by respondent to any of its retail food store customers for promotional services or facilities furnished by any such customer, or the furnishing of promotional services or facilities by respondent to any such customer, in connection with the retail sale of refrigerated processed meat products manufactured, sold or offered for sale by respondent, and (7) that the complaint may be used to construe the order. Complainant has recommended that the order consented to by John Morrell & Co. be entered. Complainant states in its recommendation that in view of the novel issues in this proceeding complainant believes that a provision for subsequent modification, included by respondent as an essential part of the order consented to, is appropriate in this proceeding. Cite as 24 A.D. 603 FINDINGS OF FACT 1. John Morrell & Co., hereinafter referred to as the respondent, is a corporation organized and existing under the laws of the State of Maine, with its general offices located at 208 South LaSalle Street, Chicago, Illinois. 2. Respondent is now, and was at all times material herein, a packer within the meaning of that term as defined in the Packers and Stockyards Act, 1921, as amended. 3. Respondent is now, and was at all times material herein, engaged in the business of manufacturing and selling meat and meat food products in commerce. CONCLUSIONS Section 202.5 (b) of the rules of practice governing proceedings under the Act provides: § 202.5 Stipulations and consent orders . . . (b) Consent Order. At any time after the issuance of the moving paper and prior to the hearing in any proceeding the Secretary, in his discretion, may allow the respondent to consent to an order. In so consenting, the respondent must submit, for filing in the record, a stipulation or statement in which he admits at least those facts necessary to the Secretary's jurisdiction and agrees that an order may be entered against him. Upon a record composed of the complaint and the stipulation or agreement consenting to the order, the Secretary may enter the order consented to by the respondent, which shall have the same force and effect as an order made after oral hearing. The answer filed by John Morrell & Co. comes within the provisions of the above section and may serve as the basis for the entry of a consent order. The facts stated by John Morrell & Co. are set forth in the findings of fact and are sufficient to subject John Morrell & Co. to the jurisdiction of the Secretary of Agriculture under the provisions of the above section. John Morrell & Co. has agreed to the entry of a specified cease and desist order and complainant has recommended that the order consented to by John Morrell & Co. be entered. Accordingly, the order will be issued. Cite as 24 A.D. 606 ORDER Respondent John Morrell & Co., a corporation, by its officers, directors, agents, and employees, in or in connection with the sale and distribution in commerce of refrigerated processed meat products, such as bacon, hams, sausage, frankfurters, and lunch meats, shall cease and desist from sponsoring or conducting any sales promotion program under which: 1. any officer, agent, or employee of any of its retail food store customers is offered or given any personal gift of more than nominal value, or 2. any of its retail food store customers is offered or given any personal gift of more than nominal value which is intended to be, or which respondent has reason to believe will be, utilized for, or devoted to, the personal use of any officer, agent, or employee of such customer other than in the business of such customer, conditioned upon the amount of respondent's refrigerated processed meat products purchased by such customer. In addition to any and all other rights to obtain modification or termination of this order which respondent may have, this order shall be modified, on application or applications of respondent filed at any time after the expiration of one year from the effective date hereof, to eliminate any stricture, limitation, or requirement herein contained which is not then applicable to similar activities and conduct of all other packers subject to the jurisdiction of the Secretary of Agriculture under the Packers and Stockyards Act, 1921, as amended, as evidenced by any final court decision or any order, rule, regulation, or change of policy under the Packers and Stockyards Act, 1921, as amended. This order shall become effective on July 1, 1965. (No. 9819) In re HARRY L. NEVERETT, ROBERT H. NEVERETT, AND WILLIAM J. NEVERETT, d/b/a H. L. NEVERETT AND SONS. P&S Docket No. 3501. Decided May 17, 1965. Market agency-Insolvency-Shippers' proceeds-Checks-Accounts of sale Suspension of registration-Consent Respondents are ordered to cease and desist from operating under the act while insolvent, using shippers' proceeds for unauthorized purposes, |