[Federal Register Volume 66, Number 189 (Friday, September 28, 2001)]
[Proposed Rules]
[Pages 49571-49573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24315]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1033

[Docket No. AO-166-A68; DA-01-04]


Milk in the Mideast Marketing Area; Notice of Hearing on Proposed 
Amendments to Tentative Marketing Agreement and Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule; Notice of public hearing on proposed rulemaking.

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SUMMARY: A public hearing is being held to consider proposals that 
would amend certain pooling and related provisions of the Mideast 
order. Proposals include increasing the minimum route disposition 
requirements for distributing plants; amending the automatic pool plant 
qualification provision; decreasing the amount of producer milk that 
can be diverted to nonpool plants for varying months of the year; and 
increasing the minimum amount of milk that a producer needs to deliver 
to pool plants in order to qualify as a producer and to be eligible to 
be pooled on the order.
    Additionally, other proposals which call for eliminating a 
provision that currently permits a pool plant to have both a pool and a 
nonpool portion; establishing a ``net shipment'provision for milk 
received at pool plants for determining pooling eligibility; and 
establishing the criteria for requiring a waiting period for a supply 
plant to regain pool status if it fails to meet the pooling 
requirements, will also be considered. A proposal that would change the 
rate of partial payments to producers will also be heard.

DATES: The hearing will convene at 8:30 a.m. on Tuesday, October 23, 
2001.

ADDRESSES: The hearing will be held at the Holiday Inn Express Hotel 
and Suites/Galaxy Banquet Center, 231 Park Centre Dr., Wadsworth, OH 
44281, (330) 334-7666.

FOR FURTHER INFORMATION CONTACT: Gino Tosi, Marketing Specialist, Order 
Formulation Branch, USDA/AMS/Dairy Programs, Room 2971, South Building, 
P.O. Box 96456, Washington, DC 20090-6456, (202) 690-1366, e-mail 
address [email protected].
    Persons requiring a sign language interpreter or other special 
accommodations should contact David Z. Walker at 440-826-3220; email 
[email protected] before the hearing begins.

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 
Holiday Inn Express Hotel and Suites/Galaxy Banquet Center, 231 Park 
Centre Drive, Wadsworth, OH 44281, (330) 334-7666, beginning at 8:30 
a.m., on Tuesday, October 23, 2001, with respect to proposed amendments 
to the tentative marketing agreement and to the order regulating the 
handling of milk in the Mideast marketing area.
    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 agreement and to the order.
    Evidence also will be taken to determine whether emergency 
marketing conditions exist that would warrant omission of a recommended 
decision under the rules of practice and procedure (7 CFR 900.12(d)) 
with respect to any proposed amendments.
    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 
$750,000, 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

[[Page 49572]]

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 three (3) 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 Part 1033

    Milk marketing orders.

PART 1033--[AMENDED]

    The authority citation for 7 CFR Part 1033 continues to read as 
follows:

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

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

Submitted by: Dairy Farmers of America

Proposal No. 1
    1. Amend Sec. 1033.7 by revising paragraph (a), to read as follows:


Sec. 1033.7  Pool Plant.

    (a) A distributing plant, other than a plant qualified as a pool 
plant pursuant to paragraph (b) of this section or Sec. 1000.7(b) of 
any other Federal milk order, from which during the months of August 
through April are not less than forty percent, and during the months of 
May through July are not less than thirty-five percent or more of the 
total quantity of fluid milk products physically received at the plant 
(excluding concentrated milk received from another plant by agreement 
for other than Class I use) are disposed of as route disposition or are 
transferred in the form of packaged fluid milk products to other 
distributing plants. At least twenty-five percent of such route 
disposition and transfers must be to outlets in the marketing area.
* * * * *
Proposal No. 2
    1. Amend Sec. 1033.7 by removing paragraph (c)(1)(iv) and revising 
paragraph (c)(4) to read as follows:


Sec. 1033.7  Pool Plant.

* * * * *
    (c) * * *
    (4) Shipments used in determining qualifying percentages shall be 
milk transferred or diverted and physically received by distributing 
pool plants, less any transfers or diversions of bulk fluid milk 
products from such distributing pool plants.
* * * * *
Proposal No. 3
    1. Amend Sec. 1033.13 by redesignating paragraphs (d)(3) through 
(d)(6) as paragraphs (d)(4) through (d)(7), revising paragraphs (d)(2) 
and (d)(4), and adding a new paragraph (d)(3) to read as follows:


Sec. 1033.13  Producer Milk.

* * * * *
    (d) * * *
    (2) The equivalent of at least two day's production is caused by 
the handler to be physically received at a pool plant in each of the 
months of August through November;
    (3) The equivalent of at least two day's production is caused by 
the handler to be physically received at a pool plant in each of the 
months of December through July if the requirement of 
Sec. 1033.13(d)(2) for the prior August through November period are not 
met, except in the case of a dairy farmer who marketed no grade A milk 
during the prior August-November period.
    (4) Of the total quantity of producer milk received during the 
month (including diversions but excluding the quantity of producer milk 
received from a handler described in Sec. 1000.9(c)), the handler 
diverted to nonpool plants not more than sixty percent during the 
months of August through February, and seventy percent during the 
months of March through July.
* * * * *
Proposal No. 4
    1. Amend Sec. 1033.73 by revising paragraphs (a)(1), (b)(1), and 
(b)(2) to read as follows:


Sec. 1033.73  Payments to producers and to cooperative associations.

    (a) * * *
    (1) Partial Payment. For each producer who has not discontinued 
shipments as of the date of this partial payment, payment shall be made 
so that it is received by each producer on or before the 26th of the 
month (except as provided in Sec. 1000.90) for milk received during the 
first 15 days of the month from the producer at not less than one 
hundred ten percent of the lowest announced class price for the 
preceding month, less proper deductions authorized in writing by the 
producer.
* * * * *
    (b) * * *
    (1) Partial Payment to a cooperative association. For bulk fluid 
milk/skimmed milk received during the first 15 days of the month from a 
cooperative association in any capacity, except as the operator of a 
pool plant, the partial payment shall be equal to the hundredweight of 
milk received multiplied by not less than one hundred and ten percent 
of the lowest announced price of the preceding month.
    (2) Partial payment to a cooperative association for milk 
transferred from its pool plant. For bulk fluid milk/skimmed milk 
products received during the first 15 days of the month from a 
cooperative association in its capacity as the operator of a pool 
plant, the partial payment shall be at not less than one hundred and 
ten percent of the lowest announced price of the preceding month.
* * * * *
Proposal No. 5
    1. Amend Sec. 1033.7 by removing paragraph (h)(7).

Submitted by: Alto Dairy Cooperative

Proposal No. 6
    1. Amend Sec. 1033.13 by revising paragraph (d)(3) to read as 
follows:


Sec. 1033.13  Producer Milk

* * * * *
    (d) * * *
    (3) Of the total quantity of producer milk received during the 
month (including diversions but excluding the quantity of producer milk 
received from a handler described in Sec. 1000.9 (c)), the handler 
diverted to nonpool plants not more than sixty percent during the 
months of September through February. The handler diverted to nonpool 
plants no more than seventy percent during the months of March through 
August.
* * * * *

Submitted by: Independent Dairy Producers of Akron

Proposal No. 7
    1. Amend Sec. 1033.13 by revising paragraphs (d)(2) and (d)(3) to 
read as follows:


Sec. 1033.13  Producer Milk

* * * * *
    (d) * * *
    (2) The equivalent of at least four day's production is physically 
received at the pooling plant from August to March.
    (3) Of the quantity of producer milk physically received during the 
month, the handler diverted to nonpool milk not more than sixty percent 
during the months of August through March.
* * * * *

[[Page 49573]]

Submitted by: Dean Dairy Products Company, Schneider's Dairy, Inc., 
Turner Dairy Farms, Inc., Marburger Farm Dairy, Inc., Fike's Dairy, 
Inc., United Dairy, Inc., Carl Colteryahn Dairy, Inc., Smith Dairy 
Products Company, Superior Dairy, Goshen Dairy and Reiter Dairy

Proposal No. 8
    Amend Sec. 1033.7 by revising paragraph (c)(4) to read as follows:


Sec. 1033.7  Pool Plant

* * * * *
    (c) * * *
    (4) A supply plant that meets the shipping requirements of this 
paragraph during each of the immediately preceding months of August 
through February shall be a pool plant during the following months of 
March through July unless the milk received at the plant fails to meet 
the requirements of a duly constituted regulatory agency, the plant 
fails to meet a shipping requirement instituted pursuant to paragraph 
(g) of this section, or the plant operator requests nonpool status for 
the plant. Such nonpool status shall be effective on the first day of 
the month following the receipt of such request and thereafter for six 
consecutive months, after which the plant must requalify as a pool 
plant on the basis of its deliveries to a pool distributing plant(s). 
The automatic pool qualification of a plant can be waived if the 
handler or cooperative requests in writing to the market administrator 
the nonpool status of such plant. The request must be made prior to the 
beginning of any month during the March through July period. To 
requalify as a pool plant, such plant must first have met the 
percentage shipping requirements of paragraph (c) of this section for 
six consecutive months.
* * * * *
Proposal No. 9
    1. Amend Sec. 1033.13 by revising paragraph (d)(3) to read as 
follows:


Sec. 1033.13  Producer Milk

* * * * *
    (d) * * *
    (3) Of the quantity of producer milk physically received during the 
month, the handler diverted to nonpool plants not more than sixty 
percent during the months of August through February. Of the quantity 
of producer milk physically received during the month, the handler 
diverted to nonpool plants not more than eighty percent during the 
months of March through July.
* * * * *

Submitted by: Proposed by Dairy Programs, Agricultural Marketing 
Service

Proposal No. 10
    Make such changes as may be necessary to make the entire marketing 
agreement and the order conform with any amendments thereto that may 
result from this hearing.
    Copies of this notice of hearing and the order may be procured from 
the Market Administrator of the Mideast Marketing Area 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 Programs, Agricultural Marketing Service (Washington office) and 
the Office of the Market Administrator of the Mideast Market Area

    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

    Dated: September 21, 2001.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 01-24315 Filed 9-27-01; 8:45 am]
BILLING CODE 3410-02-P