[Federal Register: September 30, 2004 (Volume 69, Number 189)]
[Proposed Rules]
[Page 58368-58370]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se04-29]
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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 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: Antoinette.Carter@usda.gov.
Persons requiring a sign language interpreter or other special
accommodations should contact Sue L. Mosley, Market Administrator, at
(770) 682-2501; e-mail smosley@fmmatlanta.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
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