[Federal Register Volume 68, Number 173 (Monday, September 8, 2003)]
[Proposed Rules]
[Pages 52860-52862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22683]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 1000, 1001, 1005, 1006, 1007, 1030, 1032, 1033, 1124, 
1126, 1131, and 1135

[Docket No. AO-14-A72, et al.; DA-03-08]


Milk in the Northeast and Other Marketing Areas; Notice of 
Hearing on Proposed Amendments to Tentative Marketing Agreements and 
Orders

[[Page 52861]]



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          7 CFR part             Marketing area           AO Nos.
------------------------------------------------------------------------
1001..........................  Northeast.......  AO-14-A72
1005..........................  Appalachian.....  AO-388-A13
1006..........................  Florida.........  AO-356-A36
1007..........................  Southeast.......  AO-366-A42
1030..........................  Upper Midwest...  AO-361-A37
1032..........................  Central.........  AO-313-A46
1033..........................  Mideast.........  AO-166-A70
1124..........................  Pacific           AO-368-A33
                                 Northwest.
1126..........................  Southwest.......  AO-231-A66
1131..........................  Arizona-Las       AO-271-A38
                                 Vegas.
1135..........................  Western.........  AO-380-A20
------------------------------------------------------------------------

AGENCY: Agricultural Marketing Service, USDA.

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

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SUMMARY: A hearing is being held to consider proposals to amend all 11 
Federal milk marketing orders. The proposals would reclassify 
evaporated milk in consumer-type packages and sweetened condensed milk 
in consumer-type packages from Class III products to Class IV products. 
Another proposal would reclassify bulk ending inventory each month to 
the lower-priced class of Class III or Class IV. Proponents have 
requested that the proposals be handled on an emergency basis.

DATES: The hearing will convene at 8:30 a.m. on October 21, 2003.

ADDRESSES: The hearing will be held at the Holiday Inn and Suites 
Alexandria (Historic District), 625 First Street, Alexandria, Virginia 
22314. Telephone Number: (703) 548-6300 or 1-877-732-3318.

FOR FURTHER INFORMATION CONTACT: Antoinette M. Carter, Marketing 
Specialist, Order Formulation and Enforcement, USDA/AMS/Dairy Programs, 
Room 2971-Stop 0231, 1400 Independence Avenue, SW., Washington, DC 
20250-0231, (202) 690-3465, e-mail address: [email protected].
    Persons requiring a sign language interpreter or other special 
accommodations should contact Erik F. Rasmussen, Market Administrator, 
at (617) 737-7199; e-mail [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 and Suites, Alexandria Historic District, beginning at 8:30 
a.m., on Tuesday, October 21, 2003, with respect to proposed amendments 
to the tentative marketing agreements and to the orders regulating the 
handling of milk in the Northeast and other 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.
    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 the proposals.
    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 
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 (6) 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

7 CFR Part 1000

    Milk marketing orders; Reporting and recordkeeping requirements.

7 CFR Parts 1001 Through 1135

    Milk marketing orders.
    The authority citation for 7 CFR parts 1001 through 1135 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.
    Proposed by O-AT-KA Milk Products Cooperative, Inc.:

[[Page 52862]]

Proposal No. 1
    In Sec.  1000.40, revise paragraph (c)(1)(iii) and paragraph 
(d)(1)(i), redesignate paragraph (d)(1)(ii) as paragraph (d)(1)(iii), 
and add new paragraph (d)(1)(ii) to read as follows:


Sec.  1000.40  Classes of utilization.

* * * * *
    (c) * * *
    (1) * * *
    (iii) Sweetened condensed milk in a consumer-type package; and
* * * * *
    (d) * * *
    (1) * * *
    (i) Butter, plastic cream, anhydrous milkfat, and butteroil;
    (ii) Evaporated milk in a consumer-type package; and
    (iii) Any milk product in dried form;
* * * * *
    Proposed by Diehl, Inc., and Milnot Holding Corporation:
Proposal No. 2
    In Sec.  1000.40, remove paragraph (c)(1)(iii), revise paragraph 
(d)(1)(i), redesignate paragraph (d)(1)(ii) as paragraph (d)(1)(iii), 
and add new paragraph (d)(1)(ii) to read as follows:


Sec.  1000.40  Classes of Utilization.

* * * * *
    (d) * * *
    (1) * * *
    (i) Butter, plastic cream, anhydrous milkfat, and butteroil;
    (ii) Evaporated or sweetened condensed milk in a consumer-type 
package; and
    (iii) Any milk product in dried form;
* * * * *
    Proposed by New York State Dairy Foods, Inc.:
Proposal No. 3
    In Sec.  1000.40, paragraph (d)(2) is removed, paragraphs (d)(3) 
and (d)(4) are redesignated as paragraphs (d)(2) and (d)(3), and 
paragraph (e) is revised to read as follows:


Sec.  1000.40  Classes of utilization.

* * * * *
    (e) Other uses shall include all skim milk and butterfat:
    (1) In inventory at the end of the month of fluid milk products and 
fluid cream products in bulk form. Such uses of skim milk and butterfat 
shall be assigned to the lowest priced class for the month.
    (2) Used in any product described in this section that is dumped, 
used for animal feed, destroyed, or lost by a handler in a vehicular 
accident, flood, fire, or similar occurrence beyond the handler's 
control. Such uses of skim milk and butterfat shall be assigned to the 
lowest priced class for the month to the extent that the quantities 
destroyed or lost can be verified from records satisfactory to the 
market administrator.
    Proposed by Dairy Programs, Agricultural Marketing Service:
Proposal No. 4
    For all Federal Milk Marketing Orders, 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 puA-90dvrchase 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 Offices of all Market Administrators.
    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

    Dated: September 2, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-22683 Filed 9-5-03; 8:45 am]
BILLING CODE 3410-02-P