[Federal Register Volume 62, Number 125 (Monday, June 30, 1997)]
[Rules and Regulations]
[Pages 35065-35067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16674]



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 Rules and Regulations
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  Federal Register / Vol. 62, No. 125 / Monday, June 30, 1997 / Rules 
and Regulations  

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NORTHEAST DAIRY COMPACT COMMISSION

7 CFR Part 1381


Handler Petition Procedure; Interim Procedural Rule

AGENCY: Northeast Dairy Compact Commission.

ACTION: Interim procedural rule.

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SUMMARY: This interim procedural rule implements section 16(b) of the 
Northeast Interstate Dairy Compact by establishing the procedures by 
which a milk handler subject to a Compact Over-order price regulation, 
or other regulatory action of the Northeast Dairy Compact Commission, 
may petition the Commission for administrative relief.

DATES: Effective date: July 1, 1997.
    Comments on this interim procedural rule may be filed with the 
Commission by July 30, 1997.

ADDRESSES: Northeast Dairy Compact Commission, 43 State Street, P.O. 
Box 1058, Montpelier, VT 05601.

FOR FURTHER INFORMATION CONTACT: Daniel Smith, Executive Director, 
Northeast Dairy Compact Commission at the above address or by telephone 
at (802) 229-1941, or by facsimile at (802) 229-2028.

SUPPLEMENTARY INFORMATION:

I. Background

    The Northeast Dairy Compact Commission (the ``Commission'') was 
established under authority of the Northeast Interstate Dairy Compact 
(``Compact''). The Compact was enacted into law by each of the six 
participating New England states as follows: Connecticut--Pub. L. 93-
320; Maine-- Pub. L. 89-437, as amended, Pub. L. 93-274; 
Massachusetts--Pub. L. 93-370; New Hampshire--Pub. L. 93-336; Rhode 
Island--Pub. L. 93-106; Vermont--Pub. L. 89-95, as amended, 93-57. In 
accordance with Article I, Section 10 of the United States 
Constitution, Congress consented to the Compact in Pub. L. 104-127 
(FAIR ACT), Section 147, codified at 7 U.S.C. 7256. Subsequently, the 
United States Secretary of Agriculture, pursuant to 7 U.S.C. 7256(1), 
authorized implementation of the Compact.
    Pursuant to its authority under Article V, Section 11 of the 
Compact, the Commission conducted an informal rulemaking proceeding to 
decide whether to adopt a Compact Over-order price regulation. See 62 
FR 23032 (Apr. 28, 1997) (proposed rule). The Commission subsequently 
adopted a Compact Over-order price regulation, effective July 1, 1997. 
See 62 FR 29626 (May 30, 1997). Pursuant to Sections 12 and 13 of the 
Compact, the Commission conducted a producer referendum, which was 
approved. See 62 FR 29646 (May 30, 1997).
    Article VI, section 16(b) of the Compact establishes the right of a 
milk handler to petition the Commission for administrative relief from 
operation of any regulatory order of the Commission. It provides that:

[a]ny handler subject to an order may file a written petition with 
the commission stating that any such order or any provision of any 
such order or any obligation imposed in connection therewith is not 
in accordance with law and praying for a modification thereof or to 
be exempted therefrom. He shall thereupon be given an opportunity 
for a hearing upon such petition, in accordance with regulations 
made by the commission. After such hearing, the commission shall 
make a ruling upon the prayer of such petition, which shall be 
final, if in accordance with law.

Compact, Art. VI, section 16(b).
    Accordingly, this interim procedural rule establishes the 
Commission's regulations for the conduct of such petition proceedings.

List of Subjects in 7 CFR Part 1381

    Milk.

    For the reasons set forth in the preamble, the Commission adds a 
new part 1381 to 7 CFR chapter XIII to read as follows:

PART 1381--RULES OF PRACTICE GOVERNING PROCEEDINGS ON PETITIONS TO 
MODIFY OR TO BE EXEMPTED FROM COMPACT OVER-ORDER PRICE REGULATIONS.

Sec.
1381.1  Definitions.
1381.2  Institution of proceedings.
1381.3  Contents of petition.
1381.4  Conduct of proceedings.
1381.5  Judicial appeal; escrow

    Authority: U.S.C. 7256.


Sec. 1381.1  Definitions.

    As used in this part, the terms defined in Article II, section 2 of 
the Compact shall apply with equal force and effect. In addition, 
unless the context otherwise requires:
    (a) Administrative assessment shall include the assessment imposed 
upon Handlers under 7 CFR 1308.1 for their pro rata share of the 
expense of administering a Compact pricing regulation, as announced 
each month by the Federal Order #1 Market Administrator and authorized 
under 7 U.S.C. 7256.
    (b) Chair shall mean the Chair of the Northeast Dairy Compact 
Commission.
    (c) Handler shall mean any person subject to a Compact Over-order 
price regulation or administrative assessment, or to whom a Compact 
Over-order price or administrative assessment is sought to be made 
applicable.
    (d) Compact Over-order price regulation shall mean the prices 
regulated under the provisions of 7 CFR parts 1300, 1301, 1303-1307, as 
announced each month by the Federal Order #1 Market Administrator and 
authorized under 7 U.S.C. 7256.
    (e) Order shall include a Compact Over-order price regulation.


Sec. 1381.2  Institution of Proceedings.

    Any handler desiring to complain that any order, Compact over-order 
price, or administrative assessment, or any provision of such order or 
assessment, or any obligation imposed in connection therewith is not in 
accordance with law shall file with the Commission a petition in 
writing, along with 5 copies of the same.


Sec. 1381.3  Contents of petition.

    A petition shall contain:
    (a) The correct name, address, and principal place of business of 
the petitioner. If petitioner is a corporation, such fact shall be 
stated, together with

[[Page 35066]]

the name of the State of incorporation, the date of incorporation, and 
the names, addresses, and respective positions, held by its officers; 
if an unincorporated association, the names and addresses of its 
officers, and the respective positions held by them; if a partnership, 
the name and address of each partner.
    (b) Reference to the specific terms or provisions of the 
regulation, order, or notice of administrative assessment, or the 
interpretation or application thereof, which are complained of.
    (c) A full statement of the facts (avoiding a mere repetition of 
detailed evidence) upon which the petition is based, setting forth 
clearly and concisely the nature of the petitioner's business and the 
manner in which petitioner claims to be affected by the terms or 
provisions of the regulation, order or administrative assessment, or 
the interpretation or applications thereof, which are complained of.
    (d) A statement of the grounds on which the terms or provisions of 
the regulation, order, or administrative assessment or the 
interpretation or application thereof, which are complained of are 
challenged as not being in accordance with law.
    (e) Any prayer for specific relief which the petitioner desires the 
Commission to grant;
    (f) An affidavit by the petitioner, or if the petitioner, or if the 
petitioner is not an individual by an officer of the petitioner having 
knowledge of the facts stated in the petition, verifying the petition 
and stating that it is filed in good faith and not for the purposes of 
the delay. The affidavit may include a request for an oral hearing on 
the petition. Such request shall set forth specific grounds 
demonstrating the need for such a hearing.
    (g) Any additional affidavit evidence supporting the petition.
    (h) Petitioner's prayer for relief must include either payment of 
all sums due, or a request that payments due or payable during the 
pendency of the administrative appeal (or longer, see Sec. 1381.5(b)), 
be placed in an escrow account established by the Commission. If a 
request for escrow is made, petitioner may make payment into a 
Commission escrow account established while the Commission rules upon 
its request in accordance with Sec. 1381.4(b)(5). Any petitioner who 
refuses to make payment during this period shall be liable for payment 
of interest on such withheld funds, at the federal statutory rate set 
forth in 28 U.S.C. 1961, plus such additional penalties as are 
appropriate under Article VI, section 17 of the Compact.


Sec. 1381.4  Conduct of proceedings.

    (a) Appointment of Commission hearing panel. Upon receipt of a 
petition, the Chair shall appoint from one to three Commission members 
who shall consider the petition. For panels greater than one member, 
the Chair shall designate a chief hearing officer. The Commission panel 
chosen by the Chair shall consist of Commission members who are not 
members of the state delegation in which the Handler is incorporated or 
has its principal place of business, who have no pecuniary interest in 
the outcome, and who are otherwise fair and impartial.
    (b) Preliminary matters. The panel shall meet within 15 days of 
their appointment to determine whether to:
    (1) Limit the taking of evidence to affidavits, and thereby make 
their decision solely on the basis of the record before them without an 
oral hearing. In making this determination, the panel shall consider:
    (i) The nature of the petition before them;
    (ii) The nature of any facts in dispute that may necessitate an 
oral hearing; and
    (iii) Whether the petitioner will be unduly prejudiced by limiting 
the taking of evidence to affidavits without benefit of an oral 
hearing.
    (2) Require the production by affidavit or additional information, 
documents, reports, answers, records, accounts, papers or other data 
and documentary evidence necessary to the proper resolution of the 
matter.
    (3) Compel the production of documentary evidence by subpoena 
throughout all signatory states pursuant to section 16(a) of the 
Compact.
    (4) Consolidate two or more petitions pertaining to the same order 
or issue and the evidence relied upon under such consolidated 
proceeding may be embodied in a single decision.
    (5) Grant or deny petitioner's request for the establishment of an 
escrow account, if such request has been made. The panel shall deny 
such a request only if it has otherwise ensured adequate protection to 
the handler with respect to the payments of sums due and challenged in 
the petition.
    (c) The panel shall promptly notify petitioner by certified mail of 
the results of its deliberations under paragraphs (a) and (b) of this 
section. The panel's notice shall include a concise statement of the 
basis for its decisions under those paragraphs. The notice shall 
include a time and place for an oral hearing, if any, and the deadline 
for the submission of any additional information required by the panel. 
The notice shall also set forth the date by which the panel will issue 
its proposed findings of fact, conclusions and decision, as computed 
under paragraph (g) of this section. If a request has been made for the 
establishment of an escrow account and such request has been granted, 
the notice shall also include a procedure for the making of escrow 
payments. If such request is denied, any payments made and held in 
escrow may be released for disbursement by the Commission.
    (d) The panel may take official notice of such matters as are 
judicially noticed by the courts of the United States and of any other 
matter of technical, scientific or commercial fact of established 
character: Provided, That interested parties shall be given adequate 
notice of matters so noticed and shall be given adequate opportunity to 
show that such facts are inaccurate or are erroneously noticed.
    (e) The panel shall:
    (1) Exclude, insofar as practicable, evidence which is immaterial, 
irrelevant or unduly repetitious: Provided, That interested parties 
shall be given adequate notice of such exclusion and an opportunity to 
show that such evidence has been erroneously excluded.
    (2) Not discuss ex parte the merits of the proceeding with any 
person who is or who has been connected in any manner with the 
proceeding.
    (f) Oral Hearing.
    (1) Any oral hearing shall be conducted at a time and place 
determined by the panel.
    (2) Testimony presented at the hearing shall be:
    (i) Upon oath or affirmation administered by the panel and subject 
to reasonable cross examination; and
    (ii) Reported verbatim.
    (3) As part of the hearing, the panel may require the appearance of 
any witness, or the production of additional information, documents, 
reports, answers, records, accounts, papers, and other data and 
documentary evidence necessary to the proper resolution of the matter.
    (4) If appropriate, the panel shall compel the appearance of 
witnesses, the giving of testimony or the production of documentary 
evidence by subpoena throughout all signatory states pursuant to 
section 16(a) of the Compact.
    (5) The panel shall exclude evidence which is immaterial, 
irrelevant, or unduly repetitious.
    (6) The panel shall rule on offers of proof and otherwise 
reasonably regulate the course of the hearing.
    (g) Proposed findings of fact, conclusions and decision.

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    (1) Within 45 days of the panel's appointment, or, in the event an 
oral hearing is held, within 60 days, the panel shall issue proposed 
findings of fact, conclusions and a decision based upon the evidence in 
the record. The proposed findings, conclusions and decision shall be 
served upon the petitioner by certified mail.
    (2) Petitioner may submit a response to the panel's proposed 
findings of fact, conclusions and decision, along with supporting 
reasons. Such response shall be received by the Commission within 20 
days of petitioner's receipt of the panel's proposed findings, 
conclusions and decision.
    (3) The panel may modify, alter or amend its proposed findings, 
conclusions and decision in accordance with petitioner's response, as 
it deems appropriate.
    (h) Final ruling by the Commission.
    (1) Unless the panel so notifies the Commission of the need for an 
extension of time, at its first regularly scheduled meeting following 
the deadline for the receipt of petitioner's response to the panel's 
proposed findings, conclusions and decision, the Commission shall make 
a final ruling upon the petition. The Commission's determination shall 
be based upon the panel's final or modified proposed findings, 
conclusions and decision. The Commission shall also consider the 
petitioner's response to the panel's original proposed findings, 
conclusion and decision. The record shall also be available for review 
by the Commission.
    (2) The Commission's final ruling shall be served by certified mail 
upon the petitioner and be filed in the Commission offices, and be made 
available for public inspection and copying in accordance with the 
bylaws.
    (3) Any commissioner shall (on either the Commissioner's own motion 
or on motion of the petitioner) disqualify himself or herself from 
consideration of the Commission's final ruling on the panel's decision 
if that commissioner's impartiality might reasonably be questioned.


Sec. 1381.5  Judicial appeal; escrow.

    (a) As set forth in section 16(c) of the Compact, as approved by 7 
U.S.C. 7256, the district courts of the United States, in any district 
in which a handler is an inhabitant or has his principal place of 
business, have jurisdiction to review a final ruling of the Commission 
made pursuant to Sec. 1381.4(h), provided that a complaint is filed 
within thirty days from the date of the entry of that final ruling.
    (b) A petitioner who has been granted the establishment of an 
escrow account as part of the administrative proceeding and who has 
timely appealed may request that its payments be placed into escrow 
pending the appeal. Upon such a request, the Commission shall hold the 
money in escrow until the date that a timely judicial complaint is 
filed plus a period of ten days. The Commission may also, for good 
cause shown, continue to hold the money placed in escrow pending the 
ultimate resolution of any appeal, or for such other period as the 
Commission may establish.
Daniel Smith,
Executive Director.
[FR Doc. 97-16674 Filed 6-27-97; 8:45 am]
BILLING CODE 1650-01-P