[Federal Register: June 23, 2004 (Volume 69, Number 120)]
[Proposed Rules]
[Page 34963-34966]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23jn04-23]
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Proposed Rules
Federal Register
________________________________________________________________________
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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[[Page 34963]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1030
[Docket No. AO-361-A39; DA-04-03]
Milk in the Upper Midwest 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 to amend
the Upper Midwest Federal milk marketing order (Order 30). A proposal
to limit the volume of distant milk pooled on Order 30 by changing the
requirements for producer milk originating outside of the Upper Midwest
will be heard. Another proposal would limit the pooling of producer
milk normally associated with the market that was not pooled in a prior
month(s) while also changing the pooling requirements for producer milk
originating outside of the Upper Midwest. Other proposals would
establish a dairy farmer for other markets provision and would amend
the touch base requirements and the diversion limits for Order 30.
Also, another proposal would change the maximum rate the market
administrator may charge for the expense of administration of the order
from 5 cents per hundredweight up to 8 cents.
DATES: The hearing will convene at 1 p.m. on Monday, July 19, 2004.
ADDRESSES: The hearing will be held at the Sofitel Minneapolis Hotel
(I-494 and Highway 100), 5601 West 78th Street, Bloomington, Minnesota
55439; (952) 835-1900.
FOR FURTHER INFORMATION CONTACT: Jack Rower, 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: Jack.Rower@usda.gov.
Persons requiring a sign language interpreter or other special
accommodations should contact H. Paul Kyburz, Upper Midwest Market
Administrator, at (952) 831-5292; e-mail pkyburz@fmma30.com 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
Sofitel Minneapolis Hotel (I-494 and Highway 100), 5601 West 78th
Street, Bloomington, Minnesota 55439; (952) 835-1900, beginning at 1
p.m., on Monday, July 19, 2004, with respect to proposed amendments to
the tentative marketing agreement and to the order regulating the
handling of milk in the Upper Midwest 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 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 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 effect on the orderly marketing of fluid milk due
to pooling of milk from producers so distant from the market that they
cannot be considered viable suppliers and to consider inequities among
producers caused by provisions that allow reserve milk, which is used
in cheese or butter and nonfat dry milk production, to share in the
benefits of pooling, but do not require such milk to pool when there is
a cost (when the Class III price or Class IV price is above the blend
price). At the hearing, evidence will also be collected to consider
giving the
[[Page 34964]]
market administrator the discretion to increase the Administrative
Assessment to a maximum of 8 cents per hundredweight.
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 Part 1030
Milk marketing orders.
The authority citation for 7 CFR Part 1030 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 Department.
Proposed by Associated Milk Producers, Inc. (AMPI), Bongards'
Creameries, Ellsworth Cooperative Creamery, and First District
Association (AMPI, et. al.):
Proposal No. 1
This proposal would limit the pooling of milk located long
distances from the Upper Midwest marketing area.
1. Amend Sec. Sec. 1030.7 and 1030.13 by adding a new paragraph
Sec. 1030.7(c)(1)(v), revising paragraph Sec. 1030.7(c)(2), and
revising Sec. 1030.13(d) to read as follows:
Sec. 1030.7 Pool plant.
* * * * *
(c) * * *
(1) * * *
(v) Qualifying shipments by plants located outside the States of
Illinois, Iowa, Minnesota, North Dakota, South Dakota, and Wisconsin
and the Upper Peninsula of Michigan may be made only to plants
described in paragraphs (c)(1)(i) of this section.
(2) The operator of a supply plant located within the States of
Illinois, Iowa, Minnesota, North Dakota, South Dakota, and Wisconsin
and the Upper Peninsula of Michigan may include as qualifying shipments
under this paragraph milk delivered directly from producers' farms
pursuant to Sec. 1000.9(c) or Sec. 1030.13(c) to plants described in
paragraphs (a), (b) and (e) of this section. Handlers may not use
shipments pursuant to Sec. 1000.9(c) or Sec. 1030.13(c) to qualify
plants located outside the marketing area.
* * * * *
Sec. 1030.13 Producer milk.
* * * * *
(d) Diverted by the operator of a pool plant or a cooperative
association described in Sec. 1000.9(c) to a nonpool plant located in
the States of Illinois, Iowa, Minnesota, North Dakota, South Dakota,
and Wisconsin and the Upper Peninsula of Michigan or a distributing
plant fully regulated under another Federal order, subject to the
following conditions:
* * * * *
2. Amend Sec. 1030.55 by revising paragraph (a)(2) to read as
follows:
Sec. 1030.55 Transportation credits and assembly credits.
* * * * *
(a) * * *
(2) Multiply the hundredweight of milk eligible for the credit by
.28 cents times the number of miles, not to exceed 400 miles, between
the transferor plant and the transferee plant:
* * * * *
Proposed by Cass-Clay Creamery Inc., Dairy Farmers of America,
Foremost Farms USA, Land O'Lakes, Mid-West Dairymen's Company,
Milwaukee Cooperative Milk Producers, Manitowoc Milk Producers
Cooperative, Swiss Valley Farms, and Woodstock Progressive Milk
Producers (Mid-West, et. al.):
Proposal No. 2
This proposal would limit the pooling of producer milk normally
associated with the market that was not pooled in a prior month(s),
would change the pooling requirements for producer milk originating
outside of the States where the Upper Midwest marketing area is
located, and would limit the transportation and assembly credits not to
exceed 400 miles.
1. Amend Sec. 1030.13 by adding new paragraphs (f) through (f)(4)
to read as follows:
Sec. 1030.13 Producer milk.
* * * * *
(f) Except in the month of August, the quantity of milk reported by
a handler pursuant to Sec. 1030.30(a)(1) and/or Sec. 1030.30(c)(1)
for September through February and for April through July may not
exceed 125 percent, and March may not exceed 135 percent of the
producer milk receipts pooled by the handler during the prior month.
Milk diverted to nonpool plants reported in excess of this limit shall
be removed from the pool. Milk received at pool plants, other than pool
distributing plants, shall be classified pursuant to Sec.
1000.44(a)(3)(v) and Sec. 1000.44(b)(3)(v). The handler must
designate, by producer pick-up, which milk is to be removed from the
pool. If the handler fails to provide this information, the market
administrator will make the determination. The following provisions
apply:
(1) Milk shipped to and physically received at pool distributing
plants shall not be subject to the 125 or 135 percent limitation;
(2) Producer milk qualified pursuant to Sec. ----.13 of any other
Federal Order and continuously pooled in any Federal Order for the
previous six months shall not be included in the computation of the 125
or 135 percent limitation;
(3) The market administrator may waive the 125 or 135 percent
limitation;
(i) For a new handler on the order, subject to the provisions of
Sec. 1030.13(f)(3), or
(ii) For an existing handler with significantly changed milk supply
conditions due to unusual circumstances;
(4) A bloc of milk may be considered ineligible for pooling if the
market administrator determines that handlers altered the reporting of
such milk for the purpose of evading the provisions of this paragraph.
* * * * *
2. Amend Sec. Sec. 1030.7 and 1030.13 by adding a new paragraph
Sec. 1030.7(c)(1)(v), revising paragraph Sec. 1030.7(c)(2), and
revising Sec. 1030.13(d) to read as follows:
Sec. 1030.7 Pool plant.
* * * * *
(c) * * *
(1) * * *
(v) Qualifying shipments by plants located outside the States of
Illinois, Iowa, Minnesota, North Dakota, South Dakota, and Wisconsin
and the Upper Peninsula of Michigan may be made only to plants
described in paragraphs (c)(1)(i) of this section.
(2) The operator of a supply plant located within the States of
Illinois, Iowa, Minnesota, North Dakota, South Dakota, and Wisconsin
and the Upper Peninsula of Michigan may include as qualifying shipments
under this paragraph milk delivered directly from producers' farms
pursuant to Sec. 1000.9(c) or Sec. 1030.13(c) to plants described in
paragraphs (a), (b) and (e) of this section. The operator of a supply
plant located outside the area described above cannot include such
shipments as qualifying shipments. Cooperative associations may not use
shipments pursuant to Sec. 1000.9(c) to qualify plants located outside
the marketing area.
* * * * *
Sec. 1030.13 Producer milk
* * * * *
(d) Diverted by the operator of a pool plant or a cooperative
association described in Sec. 1000.9(c) to a nonpool plant (except a
distributing plant fully regulated under another Federal order),
[[Page 34965]]
located in the States of Illinois, Iowa, Minnesota, North Dakota, South
Dakota, and Wisconsin and the Upper Peninsula of Michigan, subject to
the following conditions:
* * * * *
3. Amend Sec. 1030.55 by revising paragraph (a)(2) to read as
follows:
Sec. 1030.55 Transportation credits and assembly credits.
* * * * *
(a) * * *
(2) Multiply the hundredweight of milk eligible for the credit by
.28 cents times the number of miles, not to exceed 400 miles, between
the transferor plant and the transferee plant:
* * * * *
Proposed by Dean Foods Company:
Proposal No. 3
This proposal to establish a dairy farmer for other markets
provision would require a year round commitment in order for milk to be
pooled.
1. Amend Sec. 1030.12 by adding a new paragraph (b)(5) to read as
follows:
Sec. 1030.12 Producer.
* * * * *
(b) * * *
(5) For any month, any dairy farmer whose milk is received at a
pool plant or by a cooperative association handler described in Sec.
1000.9(c) if the pool plant operator or the cooperative association
caused milk from the same farm to be delivered to any plant as other
than producer milk, as defined under the order in this part or any
other Federal milk order, during the same month or any of the preceding
11 months, unless the equivalent of at least ten days' milk production
has been physically received otherwise as producer milk at a pool plant
during the month.
Proposed by Dean Foods Company:
Proposal No. 4
This proposal to establish a dairy farmer for other markets
provision would require a 2 to 4 month commitment in order for milk to
be pooled.
1. Amend Sec. 1030.12 by adding new paragraphs (b)(5) and (b)(6)
to read as follows:
Sec. 1030.12 Producer.
* * * * *
(b) * * *
(5) For any month of December through June, any dairy farmer whose
milk is received at a pool plant or by a cooperative association
handler described in Sec. 1000.9(c) if the pool plant operator or the
cooperative association caused milk from the same farm to be delivered
to any plant as other than producer milk, as defined under the order in
this part or any other Federal milk order, during the same month, any
of the 3 preceding months, or during any of the preceding months of
July through November, unless the equivalent of at least ten days' milk
production has been physically received otherwise as producer milk at a
pool plant during the month; and
(6) For any month of July through November, any dairy farmer whose
milk is received at a pool plant or by a cooperative association
handler described in Sec. 1000.9(c) if the pool plant operator or the
cooperative association caused milk from the same farm to be delivered
to any plant as other than producer milk, as defined under the order in
this part or any other Federal milk order, during the same or the
preceding month, unless the equivalent of at least ten days' milk
production has been physically received otherwise as producer milk at a
pool plant during the month.
Proposed by Dean Foods Company:
Proposal No. 5
This proposal to establish a dairy farmer for other markets
provision would require that only 115% of a prior month's milk could be
pooled in a subsequent month and be considered pool milk.
1. Amend Sec. 1030.13 by adding a new paragraph (f) to read as
follows:
Sec. 1030.13 Producer Milk.
* * * * *
(f) The quantity of milk reported by a handler pursuant to Sec.
1030.30(a)(1) and/or Sec. 1030.30(c)(1) for July through November may
not exceed 115 percent of the producer milk receipts pooled by the
handler during the prior month. Milk diverted to nonpool plants
reported in excess of this limit shall be removed from the pool by the
market administrator. Milk received at pool plants, other than pool
distributing plants, shall be classified pursuant to Sec.
1000.44(a)(3)(v) and Sec. 1000.44(b)(3)(v). The handler must
designate, by producer pick-up, which milk is to be removed from the
pool. If the handler fails to provide this information, the market
administrator will make the determination. The following provisions
apply:
(1) Milk shipped to and physically received at pool distributing
plants shall not be subject to the 115 percent limitation;
(2) Producer milk qualified pursuant to Sec. ------.13 of any
other Federal Order and continuously pooled in any Federal Order for
the previous six months shall not be included in the computation of the
115 percent limitation;
(3) The market administrator may waive the 115 percent limitation
utilizing;
(i) For a new handler on the order, subject to the provisions of
Sec. 1030.13(f)(3), or
(ii) For an existing handler with significantly changed milk supply
conditions due to unusual circumstances;
(4) The market administrator may increase or decrease the
applicable limitation for a month consistent with the procedures in
Sec. 1030.7(g); and
(5) A bloc of milk may be considered ineligible for pooling if the
market administrator determines that handlers altered the reporting of
such milk for the purpose of evading the provisions of this paragraph.
Proposed by Dean Foods Company:
Proposal No. 6
This proposal would establish a two day touch base requirement
during the shorter months and diversion limitations of 65 and 75
percent.
1. Amend Sec. 1030.13 by adding new paragraphs (d)(1) through (4),
and redesignating paragraph (d)(4) as paragraph (d)(5), to read as
follows:
* * * * *
(d) * * *
(1) Milk of a dairy farmer shall not be eligible for diversion
until milk of such dairy farmer has been physically received as
producer milk at a pool plant and the dairy farmer has continuously
retained producer status since that time. If a dairy farmer loses
producer status under the order in this part (except as a result of a
temporary loss of Grade A approval), the dairy farmer's milk shall not
be eligible for diversion until milk of the dairy farmer has been
physically received as producer milk at a pool plant;
(2) The equivalent of at least two days' milk production is caused
by the handler to be physically received at a pool plant in each of the
months of July through November;
(3) The equivalent of at least two days' milk production is caused
by the handler to be physically received at a pool plant in each of the
months of December through June if the requirement of paragraph (d)(2)
of this section (Sec. 1030.13) in each of the prior months of July
through November is not met, except in the case of dairy farmer who
marketed no Grade A milk during each of the prior months of July
through November.
(4) Of the total quantity of producer milk received during the
month
[[Page 34966]]
(including diversions but excluding the quantity of producer milk
received from a handler described in Sec. 1000.9(c) of this chapter or
which is diverted to another pool plant), the handler diverted to
nonpool plants not more than 65 percent in each of the months of July
through November and 75 percent in each of the months of December
through June.
* * * * *
Proposed by the Upper Midwest Market Administrator:
Proposal No. 7
This proposal would increase the maximum administrative assessment
rate for the Upper Midwest order from 5 cents to 8 cents per
hundredweight.
1. Revise Sec. 1030.85 to read as follows:
Sec. 1030.85 Assessment for order administration.
On or before the payment receipt date specified under Sec.
1030.71, each handler shall pay to the market administrator its pro
rata share of the expense of administration of the order at a rate
specified by the market administrator that is no more than 8 cents per
hundredweight with respect to:
(a) Receipts of producer milk (including the handler's own
production) other than such receipts by a handler described in Sec.
1000.9(c) that were delivered to pool plants of other handlers;
(b) Receipts from a handler described in Sec. 1000.9(c);
(c) Receipts of concentrated fluid milk products from unregulated
supply plants and receipts of nonfluid milk products assigned to Class
I use pursuant to Sec. 1000.43(d) and other source milk allocated to
Class I pursuant to Sec. 1000.44(a)(3) and (8) and the corresponding
steps of Sec. 1000.44(b), except other source milk that is excluded
from the computations pursuant to Sec. 1030.60(h) and (i); and
(d) Route disposition in the marketing area from a partially
regulated distributing plant that exceeds the skim milk and butterfat
subtracted pursuant to Sec. 1000.76(a)(1)(i) and (ii).
Proposed by Dairy Programs, Agricultural Marketing Service:
Proposal No. 8
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 orders may be procured
from the Market Administrator of the aforesaid marketing area, or from
the Hearing Clerk, United States Department of Agriculture, Room 1083--
STOP 9200, 1400 Independence Avenue, SW., Washington, DC 20250-9200, 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 Offices of all Market Administrators.
Procedural matters are not subject to the above prohibition and may
be discussed at any time.
Dated: June 16, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-14059 Filed 6-22-04; 8:45 am]
BILLING CODE 3410-02-P