[Federal Register Volume 61, Number 228 (Monday, November 25, 1996)]
[Proposed Rules]
[Pages 59843-59844]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30034]


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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Parts 1005, 1007, 1011 and 1046

[Docket No. AO-388-A9, et al.; DA-96-08]


Milk in the Carolina and Certain Other Marketing Areas; Notice To 
Reopen 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-A9                
1007..............  Southeast................  AO-366-A38               
1011..............  Tennessee Valley.........  AO-251-A40               
1046..............  Louisville-Lexington-      AO-123-A67               
                     Evansville.                                        
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AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice to reopen public hearing on proposed rulemaking.

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SUMMARY: This notice announces a reopening of the hearing initially 
held on May 15-16, 1996, in Charlotte, North Carolina, to consider 
supplemental testimony and record evidence regarding the proposal to 
incorporate transportation credits for bulk milk that is imported for 
fluid use into 4 Southeastern milk orders. The reopened hearing, to be 
held on December 17, 1996, in Atlanta, Georgia, will receive 
supplementary data, testimony, and arguments concerning the operation 
and impact of the interim amendments since their inception on August 
10, 1996, in the 4 orders.
    The Department has received many comments from dairy farmers who 
have expressed concerns about the impact of the currently implemented 
transportation credits. Any changes to the interim amendments resulting 
from the impact of the credits must be based upon evidence placed in 
the record of the hearing. Accordingly, the Department has decided to 
reopen the hearing to receive such evidence.
    Testimony on a related proposal submitted by Carolina-Virginia Milk 
Producers' Association (CVMPA) and Mid-America Dairymen, Inc., to 
incorporate a ``dairy farmer for other markets'' provision to help 
ensure an adequate milk supply for the seasonally-deficit markets of 
the southeastern United States will also be heard.

DATES: The hearing will convene at 9:00 a.m. on December 17, 1996.

ADDRESSES: The hearing will be held at the Hilton Airport Hotel, 1031 
Virginia Avenue, Atlanta, Georgia 30354, telephone (404) 767-9000.

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 reopened public hearing to be held at 
the Hilton Airport Hotel, 1031 Virginia Avenue, Atlanta, Georgia, 
beginning at 9:00 a.m. on December 17, 1996, with respect to proposed 
amendments to the tentative marketing agreements and to the orders 
regulating the handling of milk in the Carolina, Southeast, 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 reopened hearing is to receive supplemental 
testimony and evidence with respect to the economic and marketing 
conditions which relate to the interim amendments, one new proposed 
amendment, hereinafter set forth, and any appropriate modifications of 
these amendments to the tentative marketing agreements and to the 
orders.
    Actions under the Federal milk order program are subject to the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 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 12988, 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 request modification or exemption from such order by 
filing 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. 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.
    A public hearing was held to consider proposed amendments to the 
marketing agreements and the orders regulating the handling of milk in 
the aforesaid marketing areas. The hearing was held 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 (7

[[Page 59844]]

CFR Part 900), in Charlotte, North Carolina, on May 15-16, 1996. Notice 
of such hearing was issued on May 1, 1996, and published May 3, 1996 
(61 FR 19861).
    Interested parties were given until May 28, 1996, to file post-
hearing briefs on the proposals as published in the Federal Register 
and as modified at the hearing. Information also was requested on 
whether the proposals should be considered on an emergency basis.
    Based upon the record of this hearing, an emergency tentative 
decision was issued on July 12, 1996, proposing amendments to the 4 
orders. The amendments provided transportation credits for handlers to 
offset costs in importing supplemental milk for fluid use to these 
seasonally deficit markets. Having been approved by more than two-
thirds of the producers in each of the respective marketing areas, the 
amendments became effective on an interim basis on August 10, 1996. The 
initial comment period for filing exceptions to the tentative decision 
was extended twice, based upon industry requests, and is now set to 
expire on November 30, 1996.
    The Department has decided to reopen the hearing in this matter on 
December 17, 1996. Based upon the comments that it has already 
received, the Department is reasonably certain that it will be asked to 
modify the interim amendments based upon experience with these 
provisions during the past 3 months. Any modifications to the interim 
amendments may be based only on factual information that is in the 
hearing record of this proceeding. In view of these considerations, the 
Department sees no point in waiting until the expiration of the current 
comment period to call for a reopened hearing.
    Interested parties who are planning to make an appearance at the 
reopened hearing need not send in written comments by November 30, 
1996, as requested in the Department's tentative decision and the two 
subsequent extensions of time, but instead should enter their 
statements into the record of the hearing. Although written comments 
may still be submitted concerning this matter, interested parties 
should understand that the Department cannot make any changes to the 
interim amendments based upon events that have occurred while the 
interim amendments were in effect unless the events are documented in 
the hearing record.
    Interested parties who wish to introduce exhibits should provide 
the Presiding Officer at the hearing with four 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.
    The May 15-16 hearing also considered a second proposal which 
concerned costs which are the responsibility of the plant operator. 
That proposal, and any modifications thereof, is being considered on a 
non-emergency basis and there is no indication that further evidence 
needs to be received on that issue. Hence, that issue will be outside 
the scope of the reopened hearing.

Prior Documents in This Proceeding

    Notice of Hearing: Issued May 1, 1996; published May 3, 1996 (61 FR 
19861).
    Tentative Decision: Issued July 12, 1996; published July 18. 1996 
(61 FR 37628).
    Interim Amendment of Rules: Issued August 2, 1996; published August 
9, 1996 (61 FR 41488).
    Notice of Extension of Time for Filing Comments to Tentative 
Partial Decision: Issued August 16, 1996; published August 23, 1996 (61 
FR 43474).
    Notice of Extension of Time for Filing Comments to Tentative 
Partial Decision: Issued October 18, 1996; published October 25, 1996 
(61 FR 55229).

List of Subjects in 7 CFR Parts 1005, 1007, 1011 and 1046

    Milk marketing orders.

    The authority citation for 7 CFR Parts 1005, 1007, 1011, and 1046 
continues to read as follows:

    Authority: 7 U.S.C. 601-674.

    In addition to receiving testimony concerning the interim 
amendments, the Department will hear the following related proposal 
submitted by Carolina-Virginia Milk Producers' Association. This 
proposal, as set forth below, has not received the approval of the 
Secretary of Agriculture.

Proposed by Carolina-Virginia Milk Producers' Association and Mid-
America Dairymen, Inc.: Proposal #4

    Add a new subparagraph to paragraph 100X.12(b) of each of the four 
orders to read as follows:

100X.12  Producer
* * * * *
    (b) Producer shall not include:
* * * * *
    (  ) Any person with respect to milk produced by him during the 
months of February through May that is caused to be delivered to a pool 
plant by a cooperative association or a pool plant operator if during 
the immediately preceding months of July through November more than 40 
percent of the milk from the same farm was caused by such cooperative 
association or pool plant operator to be delivered to plants as other 
than producer milk (except milk that is not producer milk as a result 
of a temporary loss of grade A approval or the application of Section 
100X.13), unless such pool plant was a nonpool plant during any of such 
immediately preceding months. Provided however, that for the purpose of 
determining the percentage of a person's milk that was pooled during 
the previous months of August through November, deliveries of the 
person's milk to plants as producer milk under Federal orders 100X, 
100X or 100X shall be considered as deliveries of producer milk under 
this order.
    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 decisionmaking 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 19, 1996.
Lon Hatamiya,
Administrator.
[FR Doc. 96-30034 Filed 11-22-96; 8:45 am]
BILLING CODE 3410-02-P