[Federal Register Volume 69, Number 189 (Thursday, September 30, 2004)]
[Proposed Rules]
[Pages 58368-58370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22055]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / 
Proposed Rules  

[[Page 58368]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 1005, 1006 and 1007

[Docket No. AO-388-A16, AO-356-A38 and AO-366-A45; DA-04-07]


Milk in the Appalachian, Florida and Southeast Marketing Areas; 
Notice of Hearing on Proposed Amendments to Tentative Marketing 
Agreements and Orders

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, on an emergency basis, to 
consider a proposal submitted by Dairy Farmers of America, Inc., Lone 
Star Milk Producers Inc., Maryland & Virginia Milk Producers 
Cooperative Association, Inc., and Southeast Milk, Inc. The proposal 
would implement a temporary supplemental charge on Class I milk that 
would be disbursed through a marketwide service payment provision in 
the Appalachian, Florida and Southeast orders. The proposal would 
provide for emergency payments to reimburse handlers the cost of 
additional transportation expenses incurred as a result of disruptions 
occurring from several hurricanes in the Southeastern United States.

DATES: The hearing will convene at 9 a.m. on Thursday, October 7, 2004.

ADDRESSES: The hearing will be held at the Sheraton Gateway Atlanta 
Airport Hotel, 1900 Sullivan Road, Atlanta, Georgia 30337; (770) 997-
1100.

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 Sue L. Mosley, Market Administrator, at 
(770) 682-2501; 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 
Sheraton Gateway Atlanta Airport Hotel, 1900 Sullivan Road, Atlanta, 
Georgia 30337; (770) 997-1100, beginning at 9 a.m. on October 7, 2004, 
with respect to proposed amendments to the tentative marketing 
agreements and to the orders regulating the handling of milk in the 
Appalachian, Florida and Southeast milk 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 that 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 (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 Department of Agriculture (Department) 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 Department 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 Department'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.
    This public hearing is being conducted to collect evidence for the 
record concerning the need for emergency payments to reimburse handlers 
the cost of additional transportation expenses incurred as a result of 
disruptions occurring from several hurricanes in the Southeastern 
United States. The payments would be dispursed during the period of 
January 2005 through March 2005 based on transportation expenses 
incurred by handlers transporting milk to or from the Appalachian, 
Florida, and Southeast milk marketing areas, or any combination of the 
above.
    Proposal two was submitted by Dairy Programs, Agricultural 
Marketing Service, to 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.
    Evidence also will be taken at the hearing to determine whether

[[Page 58369]]

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.
    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, 1006 and 1007.

    Milk marketing orders.

    The authority citation for 7 CFR parts 1005, 1006 and 1007 
continues to read as follows:

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

    The proposed amendment, as set forth below, have not received the 
approval of the Department.

Proposal No. 1

Proposed by Dairy Farmers of America, Inc., Lone Star Milk Producers 
Inc., Maryland & Virginia Milk Producers Cooperative Association, Inc., 
and Southeast Milk, Inc.

    The proposal would provide for emergency payments to reimburse 
handlers the cost of additional transportation expenses incurred as a 
result of disruptions occurring from several hurricanes in the 
Southeastern United States.
    1. Section 1005.60 is amended by:
    (a) Revising paragraph (a);
    (b) Adding a new paragraph (g).
    The revisions and additions read as follows:


Sec.  1005.60  Handler's value of milk.

* * * * *
    (a) Multiply the pounds of skim milk and butterfat in producer milk 
that were classified in each class pursuant to Sec.  1000.44(c) by the 
applicable skim milk and butterfat prices, and add the resulting 
amounts; except that for the months of January 2005 through March 2005, 
the Class I skim milk price for this purpose shall be the Class I skim 
milk price as determined in Sec.  1000.50(b) plus $0.04 per 
hundredweight, and the Class I butterfat price for this purpose shall 
be the Class I butterfat price as determined in Sec.  1000.50(c) plus 
$0.0004 per pound. The adjustments to the Class I skim milk and 
butterfat prices provided herein may be reduced by the market 
administrator for any month if the market administrator determines that 
the payments yet unpaid computed pursuant to (g)(1) through (4) and 
(g)(6) of this section will be less than the amount computed pursuant 
to section (g)(5) of this section. The adjustments to the Class I skim 
milk and butterfat prices provided herein during the months of January 
2005 through March 2005 shall be announced along with the prices 
announced in Sec.  1000.53(b);
* * * * *
    (g) For the months of January 2005 through March 2005 for handlers 
who have submitted proof satisfactory for the market administrator to 
determine eligibility for reimbursement of transportation costs of 
marketwide benefit, subtract an amount equal to:
    (1) The cost of transportation on loads of producer milk delivered 
or rerouted to a pool distributing plant, which were delivered as a 
result of hurricanes Charley, Frances, Ivan and Jeanne.
    (2) The cost of transportation on loads of producer milk delivered 
or rerouted to a pool supply plant which was then transferred to a pool 
distributing plant, which were delivered as a result of hurricanes 
Charley, Frances, Ivan and Jeanne, and;
    (3) The cost of transportation on loads of bulk milk delivered or 
rerouted to a pool distributing plant from a pool supply plant, which 
were delivered as a result of hurricanes Charley, Frances, Ivan and 
Jeanne.
    (4) The cost of transportation on loads of bulk milk delivered or 
rerouted to a pool distributing plant from an other order plant, which 
were delivered as a result of hurricanes Charley, Frances, Ivan and 
Jeanne.
    (5) The total amount of payment to all handlers under this section 
shall be limited during the month to an amount determined by 
multiplying the total Class I producer milk for all handlers pursuant 
to Sec.  1000.44(c) times $0.09 per hundredweight.
    (6) If the cost of transportation computed pursuant to (g)(1) 
through (4) of this section exceeds the amount computed pursuant to 
(g)(5), the market administrator shall prorate such payments to each 
handler based on each handler's proportion of transportation costs 
submitted pursuant to (g)(1) through (4). Transportation costs 
submitted pursuant to (g)(1) through (4) which are not paid as a result 
of such a proration shall be included in each subsequent month's 
transportation costs submitted pursuant to (g)(1) through (4) until 
paid, or until the time period for such payments is concluded.
    (7) The reimbursement of transportation costs of marketwide benefit 
pursuant to this section shall be the actual demonstrated cost of such 
transportation of bulk milk delivered or rerouted as described in 
(g)(1) through (4) of this subsection, or the miles of transportation 
on loads of bulk milk delivered or rerouted as described in (g)(1) 
through (4) of this subsection multiplied by $2.25 per loaded mile, 
whichever is less.
* * * * *
    2. Section 1006.60 is amended by:
    (a) Revising paragraph (a);
    (b) Adding a new paragraph (g).
    The revisions and additions read as follows:


Sec.  1006.60  Handler's value of milk.

* * * * *
    (a) Multiply the pounds of skim milk and butterfat in producer milk 
that were classified in each class pursuant to Sec.  1000.44(c) by the 
applicable skim milk and butterfat prices, and add the resulting 
amounts; except that for the months of January 2005 through March 2005, 
the Class I skim milk price for this purpose shall be the Class I skim 
milk price as determined in Sec.  1000.50(b) plus $0.04 per 
hundredweight, and the Class I butterfat price for this purpose shall 
be the Class I butterfat price as determined in Sec.  1000.50(c) plus 
$0.0009 per pound. The adjustments to the Class I skim milk and 
butterfat prices provided herein may be reduced by the market 
administrator for any month if the market administrator determines that 
the payments yet unpaid computed pursuant to (g)(1) through (4) and 
(g)(6) of this section will be less than the amount computed pursuant 
to section (g)(5) of this section. The adjustments to the Class I skim 
milk and butterfat prices provided herein during the months of January 
2005 through March 2005 shall be announced along with the prices 
announced in Sec.  1000.53(b);
* * * * *
    (g) For the months of January 2005 through March 2005 for handlers 
who have submitted proof satisfactory for the market administrator to 
determine eligibility for reimbursement of transportation costs of 
marketwide benefit, subtract an amount equal to:
    (1) The cost of transportation on loads of producer milk delivered 
or rerouted to a pool distributing plant, which were delivered as a 
result of hurricanes Charley, Frances, Ivan and Jeanne.
    (2) The cost of transportation on loads of producer milk delivered 
or rerouted to a pool supply plant which was then transferred to a pool 
distributing plant, which were delivered as a result of hurricanes 
Charley, Frances, Ivan and Jeanne, and;
    (3) The cost of transportation on loads of bulk milk delivered or 
rerouted to a pool distributing plant from a pool supply plant, which 
were delivered as

[[Page 58370]]

a result of hurricanes Charley, Frances, Ivan and Jeanne.
    (4) The cost of transportation on loads of bulk milk delivered or 
rerouted to a pool distributing plant from an other order plant, which 
were delivered as a result of hurricanes Charley, Frances, Ivan and 
Jeanne.
    (5) The total amount of payment to all handlers under this section 
shall be limited during the month to an amount determined by 
multiplying the total Class I producer milk for all handlers pursuant 
to Sec.  1000.44(c) times $0.09 per hundredweight.
    (6) If the cost of transportation computed pursuant to (g)(1) 
through (4) of this section exceeds the amount computed pursuant to 
(g)(5), the market administrator shall prorate such payments to each 
handler based on each handler's proportion of transportation costs 
submitted pursuant to (g)(1) through (4). Transportation costs 
submitted pursuant to (g)(1) through (4) which are not paid as a result 
of such a proration shall be included in each subsequent month's 
transportation costs submitted pursuant to (g)(1) through (4) until 
paid, or until the time period for such payments is concluded.
    (7) The reimbursement of transportation costs of marketwide benefit 
pursuant to this section shall be the actual demonstrated cost of such 
transportation of bulk milk delivered or rerouted as described in 
(g)(1) through (4) of this subsection, or the miles of transportation 
on loads of bulk milk delivered or rerouted as described in (g)(1) 
through (4) of this subsection multiplied by $2.25 per loaded mile, 
whichever is less.
* * * * *
    3. Section 1007.60 is amended by:
    (a) Revising paragraph (a);
    (b) Adding a new paragraph (g).
    The revisions and additions read as follows:


Sec.  1007.60  Handler's value of milk.

* * * * *
    (a) Multiply the pounds of skim milk and butterfat in producer milk 
that were classified in each class pursuant to Sec.  1000.44(c) by the 
applicable skim milk and butterfat prices, and add the resulting 
amounts; except that for the months of January 2005 through March 2005, 
the Class I skim milk price for this purpose shall be the Class I skim 
milk price as determined in Sec.  1000.50(b) plus $0.04 per 
hundredweight, and the Class I butterfat price for this purpose shall 
be the Class I butterfat price as determined in Sec.  1000.50(c) plus 
$0.0004 per pound. The adjustments to the Class I skim milk and 
butterfat prices provided herein may be reduced by the market 
administrator for any month if the market administrator determines that 
the payments yet unpaid computed pursuant to (g)(1) through (4) and 
(g)(6) of this section will be less than the amount computed pursuant 
to section (g)(5) of this section. The adjustments to the Class I skim 
milk and butterfat prices provided herein during the months of January 
2005 through March 2005 shall be announced along with the prices 
announced in Sec.  1000.53(b);
* * * * *
    (g) For the months of January 2005 through March 2005 for handlers 
who have submitted proof satisfactory for the market administrator to 
determine eligibility for reimbursement of transportation costs of 
marketwide benefit, subtract an amount equal to:
    (1) The cost of transportation on loads of producer milk delivered 
or rerouted to a pool distributing plant, which were delivered as a 
result of hurricanes Charley, Frances, Ivan and Jeanne.
    (2) The cost of transportation on loads of producer milk delivered 
or rerouted to a pool supply plant which was then transferred to a pool 
distributing plant, which were delivered as a result of hurricanes 
Charley, Frances, Ivan and Jeanne, and;
    (3) The cost of transportation on loads of bulk milk delivered or 
rerouted to a pool distributing plant from a pool supply plant, which 
were delivered as a result of hurricanes Charley, Frances, Ivan and 
Jeanne.
    (4) The cost of transportation on loads of bulk milk delivered or 
rerouted to a pool distributing plant from an other order plant, which 
were delivered as a result of hurricanes Charley, Frances, Ivan and 
Jeanne.
    (5) The total amount of payment to all handlers under this section 
shall be limited during the month to an amount determined by 
multiplying the total Class I producer milk for all handlers pursuant 
to Sec.  1000.44(c) times $0.04 per hundredweight.
    (6) If the cost of transportation computed pursuant to (g)(1) 
through (4) of this section exceeds the amount computed pursuant to 
(g)(5), the market administrator shall prorate such payments to each 
handler based on each handler's proportion of transportation costs 
submitted pursuant to (g)(1) through (4). Transportation costs 
submitted pursuant to (g)(1) through (4) which are not paid as a result 
of such a proration shall be included in each subsequent month's 
transportation costs submitted pursuant to (g)(1) through (4) until 
paid, or until the time period for such payments is concluded.
    (7) The reimbursement of transportation costs of marketwide benefit 
pursuant to this section shall be the actual demonstrated cost of such 
transportation of bulk milk delivered or rerouted as described in 
(g)(1) through (4) of this subsection, or the miles of transportation 
on loads of bulk milk delivered or rerouted as described in (g)(1) 
through (4) of this subsection multiplied by $2.25 per loaded mile, 
whichever is less.
* * * * *

Proposal No. 2

Proposed by Dairy Programs, Agricultural Marketing Service

    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 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 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 28, 2004.
Kenneth C. Clayton,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 04-22055 Filed 9-28-04; 1:18 pm]
BILLING CODE 3410-02-P