[Federal Register Volume 59, Number 226 (Friday, November 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29091]


[[Page Unknown]]

[Federal Register: November 25, 1994]


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DEPARTMENT OF AGRICULTURE
7 CFR Parts 1005, 1011, and 1046

[Docket No. AO-388-A8, et al.; DA-94-12]

 

Milk in the Carolina, Tennessee Valley, and Louisville-Lexington-
Evansville Marketing Areas; Notice of Hearing on Proposed Amendments to 
Tentative Marketing Agreements and Orders

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   7 CFR Part                 Marketing area                  AO Nos.   
------------------------------------------------------------------------
1005............  Carolina..............................  AO-388-A8     
1011............  Tennessee Valley......................  AO-251-A39    
1046............  Louisville-Lexington-Evansville.......  AO-123-A66    
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AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice of public hearing on proposed rulemaking.

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SUMMARY: A public hearing is being held in response to industry 
requests to amend the Carolina, Tennessee Valley, and Louisville-
Lexington-Evansville Federal milk marketing orders. Several proposals 
would amend the pooling standards of the Tennessee Valley and Carolina 
orders; one proposal would change the marketing areas of the Tennessee 
Valley and Louisville-Lexington-Evansville orders; and another proposal 
would change locational pricing under the Carolina order.

DATES: The hearing will convene at 9:00 a.m. on January 4, 1995.

ADDRESSES: The hearing will be held at the Radisson Plaza Hotel, 101 
South Tryon Street, Charlotte, NC 28280 (Tel: (704) 377-0400).

FOR FURTHER INFORMATION CONTACT: Nicholas Memoli, Marketing Specialist, 
Order Formulation Branch, USDA/AMS/Dairy Division, Room 2971, South 
Building, P.O. Box 96456, Washington, DC 20090-6456, (202) 690-1932.

SUPPLEMENTARY INFORMATION: This administrative action is governed by 
the provisions of sections 556 and 557 of Title 5 of the United States 
Code and, therefore, is excluded from the requirements of Executive 
Order 12866.
    Notice is hereby given of a public hearing to be held at the 
Radisson Plaza Hotel, 101 South Tryon Street, Charlotte, NC 28280 (Tel: 
(704) 377-0400), beginning at 9:00 a.m., on January 4, 1995, with 
respect to proposed amendments to the tentative marketing agreements 
and to the orders regulating the handling of milk in the Carolina, 
Tennessee Valley, and Louisville-Lexington-Evansville marketing areas.
    The hearing is called pursuant to the provisions of the 
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), and the applicable rules of practice and procedure governing the 
formulation of marketing agreements and marketing orders (7 CFR Part 
900).
    The purpose of the hearing is to receive evidence with respect to 
the economic and marketing conditions which relate to the proposed 
amendments, hereinafter set forth, and any appropriate modifications 
thereof, to the tentative marketing agreements and to the orders.
    Actions under the Federal milk order program are subject to the 
Regulatory Flexibility Act (Pub. L. 96-354). This Act seeks to ensure 
that, within the statutory authority of a program, the regulatory and 
informational requirements are tailored to the size and nature of small 
businesses. For the purpose of the Act, a dairy farm is a ``small 
business'' if it has an annual gross revenue of less than $500,000, and 
a dairy products manufacturer is a ``small business'' if it has fewer 
than 500 employees. Most parties subject to a milk order are considered 
as a small business. Accordingly, interested parties are invited to 
present evidence on the probable regulatory and informational impact of 
the hearing proposals on small businesses. Also, parties may suggest 
modifications of these proposals for the purpose of tailoring their 
applicability to small businesses.
    The amendments to the rules proposed herein have been reviewed 
under Executive Order 12778, Civil Justice Reform. They are not 
intended to have a retroactive effect. If adopted, the proposed 
amendments would not preempt any state or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    The Agricultural Marketing Agreement Act provides that 
administrative proceedings must be exhausted before parties may file 
suit in court. Under section 8c(15)(A) of the Act, any handler subject 
to an order may file with the Secretary a petition stating that the 
order, any provision of the order, or any obligation imposed in 
connection with the order is not in accordance with the law and 
requesting a modification of an order or to be exempted from the order. 
A handler is afforded the opportunity for a hearing on the petition. 
After a hearing, the Secretary would rule on the petition. The Act 
provides that the district court of the United States in any district 
in which the handler is an inhabitant, or has its principal place of 
business, has jurisdiction in equity to review the Secretary's ruling 
on the petition, provided a bill in equity is filed not later than 20 
days after the date of the entry of the ruling.
    Interested parties who wish to introduce exhibits should provide 
the Presiding Officer at the hearing with 4 copies of such exhibits for 
the Official Record. Also, it would be helpful if additional copies are 
available for the use of other participants at the hearing.

List of Subjects in 7 CFR Parts 1005, 1011, and 1046

    Milk marketing orders.

    The authority citation for 7 CFR Parts 1005, 1011, and 1046 
continues to read as follows:

    Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-
674.

    The proposed amendments, as set forth below, have not received the 
approval of the Secretary of Agriculture.

Proposed by Land-O-Sun Dairies, Inc.

    Proposal No. 1: In Sec. 1011.7, change the word ``(d)'' to ``(e)'' 
in the introductory text, redesignate paragraph (d) as paragraph (e), 
and add a new paragraph (d) and revise newly designated paragraph 
(e)(3) to read as follows:


Sec. 1011.7  Pool Plant.

* * * * *
    (d) A plant located within the marketing area (other than a 
producer-handler plant or a governmental agency plant) that meets the 
qualifications described in paragraph (a) of this section regardless of 
its quantity of route disposition in any other Federal order marketing 
area.
    (e) * * *
    (3) A plant which is located outside the marketing area, which 
meets the pooling requirements of another Federal order, and from which 
there is a greater quantity of route disposition, except filled milk, 
during the month in such other Federal order marketing area than in 
this marketing area;
* * * * *

Proposal No. 2: In Sec. 1005.7, redesignate paragraph (d)(4) as 
(d)(5) and add a new paragraph (d)(4) to read as follows:


Sec. 1005.7  Pool plant.

* * * * *
    (d) * * *
    (4) A distributing plant located within the marketing area of 
another Federal order which is a fully regulated distributing plant 
under such order; and
* * * * *

Proposed by Armour Food Ingredients

    Proposal No. 3: Amend Sec. 1011.7(b) so that a supply plant which 
meets the shipping requirements during the immediately preceding months 
of August through February would be a pool plant for the months of 
March through July unless the milk received at the plant does not 
continue to meet the requirements of a duly constituted regulatory 
agency or a written application is filed by the plant operator with the 
market administrator on or before the first day of any such month 
requesting that the plant be designated as a nonpool plant for such 
month and for each subsequent month through July during which it would 
not otherwise qualify as a pool plant.

Proposed by Mid-America Dairymen, Inc.

    Proposal No. 4: In Sec. 1005.7, change the word ``(d)'' to ``(e)'' 
in the introductory text, redesignate paragraph (d) as paragraph (e), 
and add a new paragraph (d) and revise newly designated paragraph 
(e)(3) to read as follows:


Sec. 1005.7  Pool Plant.

* * * * *
    (d) A plant located within the marketing area (other than a 
producer-handler plant or a governmental agency plant) that meets the 
qualifications described in paragraph (a) of this section regardless of 
its quantity of route disposition in any other Federal order marketing 
area.
    (e) * * *
    (3) A plant which is located outside the marketing area, which 
meets the pooling requirements of another Federal order, and from which 
there is a greater quantity of route disposition, except filled milk, 
during the month in such other Federal order marketing area than in 
this marketing area;
* * * * *
    Proposal No. 5: In Sec. 1011.7, redesignate paragraph (d)(4) as 
paragraph (d)(5), and add a new paragraph (d)(4) to read as follows:


Sec. 1011.7  Pool plant.

* * * * *
    (d) * * *
    (4) A distributing plant located within the marketing area of 
another Federal order which is a fully regulated plant under such 
order; and
* * * * *

Proposed by Southern Belle Dairy Company, Inc.

    Proposal No. 6: Amend the marketing area definition of the 
Tennessee Valley order (Sec. 1011.2) by adding the following 
unregulated Kentucky counties to the marketing area: Clay, Jackson, 
Laurel, McCreary, Owsley, and Rockcastle. Also, remove Pulaski County 
from the Order 46 (Louisville-Lexington-Evansville) marketing area and 
add it to the Order 11 marketing area.
    Proposal No. 7: Revise Sec. 1011.7(d)(3) to read as follows:


Sec. 1011.7  Pool plant.

* * * * *
    (d) * * *
    (3) A plant qualified pursuant to paragraph (a) of this section 
which also meets the pooling requirements of another Federal order and 
from which there is a greater quantity of route disposition, except 
filled milk, during the month in such other Federal order marketing 
area than in this marketing area except that if such plant is located 
in the marketing area of this order it shall be subject to all the 
provisions of this order; and
* * * * *

Proposed by Milkco, Inc.

    Proposal No. 8: In Sec. 1005.7(a)(1), change the in-area route 
disposition requirement from 15 percent to 10 percent.

Proposed by Maryland & Virginia Milk Producers Cooperative 
Association, Inc.

    Proposal No. 9: Revise Sec. 1005.7(a)(1) to read as follows:


Sec. 1005.7  Pool plant.

* * * * *
    (a) * * *
    (1) Route disposition, except filled milk, in the marketing area 
not less than 15 percent of its dairy farmer receipts, except filled 
milk, during the month; and
* * * * *
    Proposal No. 10: In Sec. 1005.53, redesignate paragraph (a)(6) as 
paragraph (a)(7) and add a new paragraph (a)(6) to read as follows:


Sec. 1005.53  Plant location adjustments for handlers.

    (a) * * *
    (6) For a plant located within the Middle Atlantic Federal order 
marketing area and in the State of Maryland, the adjustment shall be 
zero.
* * * * *
    Proposal No. 11: In Secs. 1005.90, 1005.91, and 1005.93(b), delete 
June as a base-paying month by substituting the word ``May'' for 
``June'' wherever the word ``June'' appears.

Proposed by the Dairy Division, Agricultural Marketing Service

    Proposal No. 12: Make such changes as may be necessary to make the 
entire marketing agreements and the orders conform with any amendments 
thereto that may result from this hearing.
    Copies of this notice of hearing and the orders may be procured 
from the Market Administrator of each of the aforesaid marketing areas, 
or from the Hearing Clerk, Room 1083, South Building, United States 
Department of Agriculture, Washington, DC 20250, or may be inspected 
there.
    Copies of the transcript of testimony taken at the hearing will not 
be available for distribution through the Hearing Clerk's Office. If 
you wish to purchase a copy, arrangements may be made with the reporter 
at the hearing.
    From the time that a hearing notice is issued and until the 
issuance of a final decision in a proceeding, Department employees 
involved in the decision-making process are prohibited from discussing 
the merits of the hearing issues on an ex parte basis with any person 
having an interest in the proceeding. For this particular proceeding, 
the prohibition applies to employees in the following organizational 
units: Office of the Secretary of Agriculture, Office of the 
Administrator, Agricultural Marketing Service, Office of the General 
Counsel, Dairy Division, Agricultural Marketing Service (Washington 
office) and the Offices of all Market Administrators.
    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

    Dated: November 21, 1994.
Lon Hatamiya,
Administrator.
[FR Doc. 94-29091 Filed 11-23-94; 8:45 am]
BILLING CODE 3410-02-P