[Federal Register Volume 70, Number 19 (Monday, January 31, 2005)]
[Proposed Rules]
[Pages 4932-4955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1410]
[[Page 4931]]
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Part III
Department of Agriculture
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Agricultural Marketing Service
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7 CFR Part 1001
Milk in the Northeast Marketing Area; Decision on Proposed Amendments
to Marketing Agreement and to Order; Proposed Rule
Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 /
Proposed Rules
[[Page 4932]]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1001
[Docket No. AO-14-A70; DA-02-01]
Milk in the Northeast Marketing Area; Decision on Proposed
Amendments to Marketing Agreement and to Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This decision proposes to permanently adopt changes in
provisions of the Northeast marketing area contained in a Recommended
Decision published in the Federal Register on March 25, 2004, with one
minor modification. This document is subject to approval by producers
by referendum.
FOR FURTHER INFORMATION CONTACT: Gino Tosi, Marketing Specialist, Order
Formulation and Enforcement Branch, USDA/AMS/Dairy Programs, STOP
0231--Room 2968, 1400 Independence Avenue, SW., Washington, DC 20250-
0231, (202)690-1366, e-mail [email protected].
SUPPLEMENTARY INFORMATION: This Final Decision proposes to adopt
amendments that would establish year-round supply plant performance
standards, exclude milk received by supply plants from producers not
eligible to be pooled on the Northeast order from supply plant
performance standards, remove the ``split-plant'' provision, establish
a one-day ``touch base'' standard, establish explicit diversion limits
for pool plants, prohibit the ability to pool the same milk on the
Federal milk order and a marketwide pool administered by another
government entity, and grant authority to the Market Administrator to
adjust the touch-base and diversion limit standards as market
conditions warrant. Additional amendments that amend reporting and
payment date provisions, with one minor modification from what was
proposed in the Recommended Decision, are also adopted.
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.
The amendments to the rules adopted 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 of 1937, as amended (7
U.S.C. 601-674), provides that administrative proceedings must be
exhausted before parties may file suit in court. Under section
608c(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.
Regulatory Flexibility Analysis and Paperwork Reduction Act
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the Agricultural Marketing Service has considered the economic
impact of this action on small entities and has certified that this
final decision will not have a significant economic impact on a
substantial number of small entities.
For the purpose of the Regulatory Flexibility Act, a dairy farm is
considered 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. For the purposes of
determining which dairy farms are ``small businesses,'' the $750,000
per year criterion was used to establish a production guideline of
500,000 pounds per month. Although this guideline does not factor in
additional monies that may be received by dairy producers, it should be
an inclusive standard for most ``small'' dairy farmers. For purposes of
determining a handler's size, if the plant is part of a larger company
operating multiple plants that collectively exceed the 500-employee
limit, the plant will be considered a large business even if the local
plant has fewer than 500 employees.
In September 2002, the time of the hearing, there were 16,715
producers pooled on and 143 handlers regulated by the Northeast order.
Of these, 97 percent of the producers and 71 percent of the handlers
would be considered small businesses. The adoption of the amended
pooling standards serve to revise and establish criteria that ensure
the pooling of producers, producer milk, and plants that have a
reasonable association with, and are consistently serving, the fluid
milk needs of the Northeast milk marketing area. Criteria for pooling
milk are established on the basis of performance standards that are
considered adequate to meet the Class I fluid needs of the market and
to determine those that are eligible to share in the revenue that
arises from the classified pricing of milk. Criteria for pooling are
established without regard to the size of any dairy industry
organization or entity. The amendments to the reporting and payment
date provisions serve to streamline and simplify handler payments to
the market administrator. The criteria established in the amended
pooling standards and reporting and payment date provisions are applied
in an equal fashion to both large and small businesses. Therefore, the
Department has determined that the adopted amendments will not have a
significant economic impact on a substantial number of small entities.
A review of reporting requirements was completed under the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was
determined that these adopted amendments would have no impact on
reporting, recordkeeping, or other compliance requirements because they
would remain identical to the current requirements. No new forms are
proposed and no additional reporting requirements would be necessary.
This action does not require additional information collection that
requires clearance by the Office of Management and Budget (OMB) beyond
currently approved information collection. The primary sources of data
used to complete the approved forms are routinely used in most business
transactions. The forms require only a minimal amount of information
which can be supplied without data processing equipment or a trained
statistical staff. Thus, the information collection and reporting
burden is relatively small. Requiring the same reports for all handlers
does not significantly disadvantage any handler that is smaller than
the industry average.
Prior documents in this proceeding:
Notice of Hearing: Issued July 26, 2002; published August 1, 2002
(67 FR 49887).
Supplemental Notice of Hearing: Issued August 14, 2002; published
August 16, 2002 (67 FR 53522).
[[Page 4933]]
Recommended Decision: Issued March 17, 2004; published March 25,
2004 (69 FR 15562)
Preliminary Statement
A public hearing was held on proposed amendments to the marketing
agreement and order regulating the handling of milk in the Northeast
marketing area. The hearing was held, 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), at Alexandria, Virginia, on September 10-13, 2002, pursuant to a
Notice of Hearing issued July 26, 2002, and published August 1, 2002
(67 FR 49887) and a Supplemental Notice of Hearing issued August 14,
2002, and published August 16, 2002 (67 FR 53522).
Upon the basis of the evidence introduced at the hearing and the
record thereof, the Administrator, on March 17, 2004, issued a
Recommended Decision containing notice of the opportunity to file
written exceptions thereto.
The material issues, findings, conclusions, and rulings of the
Recommended Decision, with one minor modification, are hereby approved
and adopted and are set forth herein. The material issues on the record
of the hearing relate to:
1. Reporting and Payment Dates.
2. Pooling standards of the marketing order:
a. Performance standards for supply plants.
b. Unit pooling standards for distributing plants.
c. Standards for producer milk.
3. Marketwide Service Payments.
4. Conforming changes to the order.
Findings and Conclusions
The following findings and conclusions on the material issues are
based on evidence presented at the hearing and the record thereof:
1. Reporting and Payment Dates
Several changes to the reporting and payment date provisions of the
Northeast marketing order are adopted, with one minor variation from
what was proposed in the Recommended Decision. The adopted changes
include: (1) Changing the submission date of monthly handler reports to
on or before the 10th day of the month; (2) Announcing the producer
price differential (PPD) and statistical uniform price on or before the
14th day of the month, but allowing the market administrator additional
days if the 14th falls on a Saturday, Sunday, or national holiday; (3)
Requiring payments to the producer settlement fund (PSF) be received no
later than two days after the announcement of the PPD; (4) Modifying
the date which payments from the PSF are to be disbursed to handlers to
the day after the due date required for payment into the PSF; and (5)
Requiring final payments to producers be made no later than the day
after the required date of payment to handlers from the PSF.
The Recommended Decision would have required partial payments to
producers be made no later than the last day of the month. Upon
consideration of an exception received regarding modification of the
partial payment date, the partial payment to dairy farmers will
continue to be due on or before the 26th day of the month. This issue
is discussed later in this decision. The following table summarizes the
adopted changes:
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Current provision Adopted changes Reason for change
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PROPOSAL 1
Submission of monthly handler reports Due on or before the Due on or before the Allows handlers one
to Market Administrator. 9th day of the month. 10th day of the month. more day to submit
reports to Market
Administrator.
Date of PPD and statistical uniform Announce on or before Announced on or before Maintains the time the
price announcement. the 13th day of the the 14th day of the Market Administrator
month. month, and up to two has to announce the
additional public PPD and statistical
business days uniform price and if
thereafter if the 14th the 14th falls on a
falls on a weekend or weekend or national
national holiday. holiday allows
additional days.
Handler payments to the PSF.......... Payment must be made no Payment must be made no A corresponding change
later than the 15th of later than two days made because of
the month, unless the after the announcement extending the date for
15th falls on a of the PPD and filing Market
weekend or holiday, statistical uniform Administrator reports
where the payment can price, unless the due and the computation of
be delayed until the date falls on a the PPD and
next business day. weekend or holiday, statistical uniform
then the payment can price.
be delayed until the
next business day.
Date when final payments are to be Payment must be Payment must be A corresponding change
disbursed to producers. received by each received the following that adds flexibility
producer no later than month by each producer to the relationship
the day after the 16th no later than the day between the date of
day of the following after the required payment to handlers
month. payment date from the from the PSF and final
PSF unless the day payment to producers.
falls on a weekend or
holiday, then the
payment can be delayed.
PROPOSAL 4
Date on which payments from the PSF Market Administrator Market Administrator Helps to assure that
are disbursed to handlers. must pay each handler must pay each handler producers receive full
the amount owed, if the amount owed, if payment in the event
any, from the PSF no any, no later then the of the late payments
later than the 16th day after handler to the PSF.
after the end of each payments to the PSF
month. are received unless
the day falls on a
weekend or holiday,
then the payment can
be delayed.
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[[Page 4934]]
Currently, a handler's report on milk receipts and utilization is
due to the Market Administrator on or before the 9th day of the month.
Submission of this report triggers a sequence of other reporting and
payment dates. These include: announcement of the PPD and statistical
uniform price on or before the 13th day of the month; handler
obligations to the PSF, due no later than the 15th day of the month but
subject to a delay to the next business day if the day falls on a
weekend or holiday; disbursement of funds from the PSF to handlers, due
no later than the 16th day after the end of each month but also delayed
subject to a weekend or holiday; partial payments from handlers to
producers and cooperative associations, due on or before the 26th day
of the month and again delayed due to a weekend or holiday; and final
payments to producers and cooperative associations, made no later than
the day after payment to handlers from the PSF.
A portion of Proposal 1, submitted by New York State Dairy Foods,
Inc. (NYSDF), Proposal 4, submitted by the Northeast Market
Administrator, the Association of Dairy Cooperatives in the Northeast
(ADCNE) and NYSDF, and Proposal 12, submitted by the Northeast market
administrator, are adopted. All three proposals seek to modify various
reporting and payment provisions of the order. NYSDF is a trade
association representing milk handlers and processors in the Northeast
marketing area. ADCNE represents a number of dairy farmer cooperatives
whose milk is pooled on the Northeast order. Their members include
Agri-Mark, Inc. (Agri-Mark), Dairy Farmers of America, Inc. (DFA),
Dairylea Cooperative Inc. (Dairylea), Land O' Lakes, Inc. (LOL),
Maryland and Virginia Milk Producers Cooperative, Inc. (MVMP), O-AT-KA
Cooperative, Inc. (O-AT-KA), St. Albans Cooperative Creamery, Inc. (St.
Albans), and Upstate Farms Cooperative, Inc. (Upstate). Worcester
Creameries, Elmhurst Dairy, Mountainside Farms, and Steuben Foods also
testified in support of Proposal 1.
Proposal 1 would require monthly handler reports to be received by
the Market Administrator on or before the 10th day of the month. This,
in turn, triggers a sequence of other reporting deadline and payment
date provisions that would be similarly changed. The Recommended
Decision included a provision that would require partial payments to
dairy farmers be made on or before the last day of the month. This
Final Decision, however, will keep the partial payment date as
currently provided by the order. The adopted changes include: (1)
Announcement of the PPD and statistical uniform price a day later--from
the 13th to the 14th day of the month. If the 14th day of the month
falls on a Saturday, Sunday, or national holiday, the Market
Administrator would have up to two additional public business days to
announce the PPD and the statistical uniform price; (2) Handler
payments to the PSF be made no later than two days after the
announcement of the PPD unless the due date falls on a weekend or
holiday, then the payment can be delayed until the next business day;
and (3) Final payments to producers be received no later than the day
after the required date of payment from the PSF unless the due date
falls on a weekend or holiday, then the payment can be delayed until
the next business day. Proposal 4 would modify the day which payments
from the PSF are to be disbursed to handlers from the 16th of the month
to the day after the due date required for payment into the PSF.
Proposal 12 seeks to make a technical correction to the order provision
relating to payments to producers and cooperatives, which will make the
provisions identical to other Federal orders by changing ``pool plant
operator'' to ``handler'' throughout the provisions of the order.
A witness appearing on behalf of NYSDF testified in support of
Proposal 1, stating that its adoption is necessary to correct
unnecessarily burdensome regulations that have resulted from the
reporting and payment date provisions adopted as part of Federal order
reform. According to the witness, the amendments incorporated in
Proposal 1 would essentially restore the reporting and payment dates
specified in the former New York-New Jersey milk marketing order. The
witness indicated that giving an additional day for submitting handler
reports to the Market Administrator would lessen the difficulties milk
handlers are currently experiencing in meeting the current reporting
deadline. The witness explained that milk suppliers have experienced
considerable difficulties in furnishing milk component and billing data
in time for meeting the currently established reporting deadline. This
situation is compounded, the witness explained, when handlers must
account for the co-mingling of tanker loads of milk between cooperative
and independent milk producers. Often, the witness stated, reports to
the Market Administrator contain erroneous and estimated data because
the reporting handler did not receive the correct data in time.
The NYSDF witness also cited testimony from the Northeast Market
Administrator that one third of handler reports are often filed late.
Moving the reporting date from the 9th to the 10th of the month would
give milk suppliers and buyers an additional day to complete their
work, thereby greatly reducing the number of late reports to the Market
Administrator, the witness concluded.
The second proposed change in reporting dates contained in Proposal
1 would maintain the time the Market Administrator has to announce the
PPD and statistical uniform price, and up to two additional public
business days thereafter if the 14th falls on a weekend or national
holiday. According to the NYSDF witness, this portion of the proposal
is consistent with the proposed one-day extension for submission of
handler reports to the Market Administrator and would extend to the
Market Administrator sufficient time to make the necessary price
computations without undue pressure brought about by weekends or
holidays. The witness also noted that while this proposal could give
the Market Administrator up to two additional public business days for
making the price computations, it would not require that the additional
time be used. If the Market Administrator finds it feasible, a price
announcement could come earlier, the witness stated.
The third change in reporting dates offered by the NYSDF witness
would require handler payments to the PSF be made no later than two
days after the announcement of the PPD. According to the witness, this
portion of the proposal is intended primarily as a conforming change
made necessary by the one-day proposed extension in the date for filing
Market Administrator reports and the computation of the PPD and
statistical uniform price. Currently, handler payments to the PSF must
be made no later than the 15th of the month, unless the 15th falls on a
weekend or national holiday where the payment can be delayed until the
following business day, the witness noted. The witness expressed
concern that compliance with the current handler payment deadline was
difficult, and the proposed change would better accommodate the flow of
money from handlers to the PSF. The witness was of the opinion that
this portion of the proposal would provide a more consistent time
interval to gather the Market Administrator classifications on milk
transfers at pool reporting time, giving handlers a more consistent
time frame in which to make necessary money transfers, for example, and
[[Page 4935]]
improve concurrent billings for milk that was transferred or diverted.
The NYSDF witness testified that Proposal 1 would also require
final payments to dairy farmers be disbursed no later than the day
after the required payment date to handlers from the PSF. The primary
purpose of this portion of the proposal, the witness explained, is to
have the date of final payment to dairy farmers conform with other
proposed date changes for the computation of the statistical uniform
price and with when payments are made into and out of the PSF. The
witness stressed that no change in the requirement for ``day-earlier''
payment to cooperatives was proposed, as currently set forth in the
provisions of the order, and the final payment to producers would still
be due the day after payments from the PSF are made by the Market
Administrator. Accordingly, the witness noted, dates of final payment
could move a day or two later, but only if the date of payment from the
PSF were extended by the same number of days. This sequence in the
relationship of ``date of final payment'' to the ``date of payment from
the producer settlement fund'' should be continued, the witness said.
The NYSDF witness testified that the last feature of Proposal 1
modifies the date that partial payments are received by producers to
``on or before the last day of the month'', instead of the current
``26th day of the month''. The witness presented evidence which
demonstrated that a longer spread in days between partial and final
payment exists now than prior to Federal order reform. The witness
testified that making partial payments due ``on or before the last day
of the month'' would conform more closely with the dates previously set
in the respective pre-reform orders and create better ``spacing''
between required pay dates.
The NYSDF witness was of the opinion that adoption of Proposal 1
also would accommodate ``tolled'' bulk milk purchased by milk
distributors for processing and packaging into Class I products at pool
distributing plants. The witness described ``tolling'' as a situation
where a plant is paid to process raw milk, but the processing plant
does not take ownership of the milk or incur a payment obligation to
producers. The witness noted that the Northeast order requires that
tolled milk be purchased on the basis of the PPD and component prices
rather than on the basis of Class I skim value and butterfat prices.
Therefore, the Market Administrator must ``credit'' the handler who
processes cooperative receipts, together with a Market Administrator
assessment on the tolled milk. The tolling processor must then prepare
a billing to the distributor of the tolled milk at the difference
between the Class I cost of the skim and butterfat and also a
cooperative credit from the Market Administrator, including the
associated Market Administrator fee, the witness stated. The NYSDF
witness noted that doing this requires having detailed component values
as well as knowing the final PPD. The billing involved is made after
the PPD announcement and the billing by the Market Administrator of the
handler's pool obligation, the witness said.
In their post-hearing brief, NYSDF emphasized that Proposal 1 takes
the existing payment structure and applies it to the date that the
Market Administrator announces the PPD and statistical uniform price.
NYSDF asserted that Proposal 1 does not set the payment date to the PSF
as the 16th of the month. Rather, they noted, handlers could be making
payment earlier than the 16th of the month if the PPD is announced
before the 14th day of the month. NYSDF was of the opinion that as a
whole, Proposal 1 would allow the Market Administrator to receive more
timely and accurate handler reports and permit earlier price
announcements and earlier payments to and from the PSF. NYSDF concluded
that both dairy farmers and handlers would benefit from more accurate
information that would flow naturally from adoption of Proposal 1.
NYSDF's post-hearing brief concluded that adoption of Proposal 1
would still have producers in the Northeast marketing area receiving a
partial payment for milk 5 days earlier than was the case prior to
Federal order reform.
A witness appearing on behalf of Marcus Dairy (Marcus) testified in
support of Proposal 1. Marcus is a distributing plant which receives
approximately 60 percent of its milk supply from independent dairy
farmers, with the remainder supplied by cooperatives. The witness
indicated support for moving the handler reporting date from the 9th to
the 10th day of the month, noting that an extra day would help in
receiving more accurate information from cooperatives and eliminate the
need to estimate data so that reports can be submitted on time. The
witness also testified that the proposal should be accompanied by the
proposed change to the Market Administrator PPD announcement date from
the 13th to the 14th of the month while providing the flexibility for
the Market Administrator to make announcements later in the event that
the 14th falls on a holiday or weekend. These modifications would also
require a similar change in the date when payment to the PSF is due,
the witness noted. In light of this, the Marcus witness expressed
support for requiring that payments to the PSF be made not more than
two days after the PPD announcement and that final payments to dairy
farmers be received no later than the day after the required date of
payment by the Market Administrator. Marcus also supported moving the
date of partial payment from the ``26th of the month'' to ``on or
before the 30th of the month.'' The witness was of the opinion that
adjusting these payment date provisions would improve the cash flow of
dairy farmers.
A witness appearing on behalf of ADCNE testified in opposition to
Proposal 1. The witness said that dairy farmers, and those persons who
provide services to dairy farmers, are faced with meeting deadlines
that are sometimes difficult or inconvenient. The witness expressed the
opinion that businesses that rely on information from other businesses
do not necessarily have any ability to force those other businesses to
change just because they provide needed information. Accordingly, the
witness said, ADCNE does not view the current reporting dates as
unreasonable or in need of change. Instead, the ADCNE witness suggested
that those involved work together to resolve producer payment issues
instead of seeking a regulatory change that would result in delay of
payments to dairy farmers. Delaying producer payment dates will
unnecessarily impose financial costs to dairy farmers in the Northeast,
the ADCNE witness concluded.
In their post-hearing brief, NYSDF responded to ADCNE's views by
indicating that no amount of overtime worked by employees of NYSDF can
create reports when other entities fail to get needed report
information to handlers in a timely manner. NYSDF's brief also noted
that many of their members are small businesses subject to Regulatory
Flexibility Act analysis and relief as necessary and that undertaking
expensive overtime in order to fill out reports when they do not have
all the necessary information needed from various entities negates the
intent of the Regulatory Flexibility Act.
Exceptions to the Recommended Decision received from ADCNE opposed
adoption of all portions of Proposal 1. ADCNE was of the opinion that
Northeast order milk handlers are fully able to file reports on or
before the 9th of the month, and that moving the reporting date from
the 9th of the month
[[Page 4936]]
to the 10th of the month is unjustified. ADCNE was of the opinion that
the proponents of Proposal 1 did not sufficiently demonstrate how the
lack of timeliness or accuracy of handler reports has affected price
announcements by the Market Administrator, or caused inaccurate or late
payments to dairy farmers. ADCNE also described how moving the
reporting date could possibly delay payments to dairy farmers and have
a negative effect on their cash flow.
ADCNE took particular exception to the proposed change in the date
of partial payment from the 26th day of the month to the last day of
the month. ADCNE argued that postponing the date of partial payment
would provide a financial gain for handlers at the expense of dairy
farmers. ADCNE explained how moving the date of partial payment could
cause financial hardship by requiring dairy farmers to carry more
operating capital debt during the four to seven day period that the
partial payment would be delayed. ADCNE noted that a delayed payment
could increase the exposure of producers to financial losses in the
event of a default by a handler. ADCNE also disputed the assertions
that delaying the partial payment date until the last day of the month
would create better spacing between payment dates to producers and that
moving the partial payment back to a date that was previously
applicable in the pre-reform orders was desirable.
An exception to the Recommended Decision was also received by
Cooperative Milk Producers Association (CMPA). CMPA did not take
exception to a specific proposal but opposed any change in reporting
and payment deadlines that could delay payments to dairy farmers.
The Northeast Market Administrator testified in support of Proposal
4, which seeks to move the date on which payments from the PSF are
dispersed to handlers from the 16th day after the end of the month to
no later than the day after handler payments to the PSF are received.
The Market Administrator explained that a problem arises when late
payments to the PSF result in insufficient funds to make payments out
of the PSF when both payments to and from the PSF fall on the same day.
When this happens, order provisions provide for a pro-rata reduction in
payments to handlers who can, in turn, reduce payments to dairy
farmers, the Market Administrator noted. According to the Market
Administrator, Proposal 4 would allow one extra day for payments from
the PSF and cause dairy farmers to receive their payments one day later
three or four times a year. However, dairy farmers would always be
assured of receiving the full amount owed, the Market Administrator
added.
A witness representing ADCNE also testified in support of Proposal
4. Under current provisions, the ADCNE witness said, the date for
payments to the PSF, the 16th of the month, can sometimes fall on the
same day that payments from the PSF are to be made. In their post-
hearing brief, ADCNE asserted the adoption of Proposal 4 was necessary
for the proper administration of the PSF.
The Northeast Market Administrator also testified in support of
Proposal 12. This proposal seeks to make a technical correction to the
order provisions relating to payments to producers and cooperative
associations and would make the Northeast order's Payments to producers
and to cooperative associations provision identical to other Federal
orders. The Market Administrator explained that the Proposal would
simply amend references to ``pool plant operator'' as ``handler.''
Reporting and payment date provisions of the pre-reform New
England, New York-New Jersey, and Mid-Atlantic orders served the
different needs and marketing conditions of their respective marketing
areas. Provisions adopted under Federal order reform established
reporting and payment dates that were reflective of the three
consolidated orders, while recognizing the need to establish dates that
would be conducive to the marketing conditions of the larger
consolidated Northeast order. The reporting and payment date
requirements adopted for the consolidated Northeast order were intended
to reasonably accommodate historical patterns and practices while
recognizing that fixed dates also needed to be specified. For example,
handler reports to the Market Administrator were due as soon as the 8th
of the month, or as late as the 10th of the month. When the three pre-
reform orders were consolidated to form the Northeast order, the new
handler reporting date was set for the 9th of the month. This was also
the case for the date for the Market Administrator's announcement of
the PPD and statistical uniform price. In the pre-reform New England
and Mid-Atlantic orders, the announcement was on the 13th of the month,
while in the pre-reform New York/New Jersey order the announcement was
on the 14th of the month. Current provisions in the consolidated
Northeast order require the announcement by the 13th of the month.
This decision maintains a change in the deadline for submitting
handler reports to the Market Administrator from the 9th of the month
to the 10th of the month. The exceptions to the Recommended Decision
submitted by ADCNE regarding handler reporting deadlines are not
persuasive. Delaying the deadline for handler reports to the Market
Administrator from the 9th of the month to the 10th of the month is
supported by the hearing record and should reduce the number of late
reports and lessen the number of inaccuracies and estimations contained
therein.
Changing the handler reporting date deadline by one day will also
be accompanied by a change in the date the Market Administrator is to
announce the PPD and statistical uniform price. Also adopted is the
feature of Proposal 1 which specifies that the Market Administrator can
make the PPD and statistical uniform price announcement up to two
public business days later if the 14th falls on a weekend or national
holiday.
The portion of Proposal 1 that specifies handler payments to the
PSF be made no later than two days after the PPD and statistical
uniform price announcement is also adopted. This portion of Proposal 1
is a change made necessary by the proposed one-day extension in the
date for filing handler reports and the computation and announcement of
the PPD and statistical uniform price. The adoption of this portion of
Proposal 1 also adds a measure of flexibility to the payment date
provisions by making the date of handler payments to the PSF dependent
on the date the Market Administrator announces the PPD and statistical
uniform price. It also will provide the opportunity for handlers to
make payments to the PSF earlier than the 16th of the month if the
Market Administrator announcement of the PPD comes before the 14th of
the month.
Payments to handlers from the PSF also necessitates a corresponding
change as a result of the adopted changes for announcement of the PPD
and statistical uniform price and dates for payment to the PSF.
Evidence presented at the hearing demonstrated that sometimes payments
to and from the PSF can fall on the same day and can lead to reduced
payments to dairy farmers because payments are pro-rated. Amending the
date that payments are made from the PSF to handlers from ``the day
after the 16th day of the month'', to the day after handler payments to
the PSF are received will better assure handlers of receiving their
[[Page 4937]]
full payment each month from the PSF. Prompt and complete payments to
dairy farmers are dependant on timely and full payments from the PSF to
milk handlers. However, final payments to dairy farmers should be made
no later than the day after the required payment date from the PSF by
the Market Administrator.
Exceptions to the Recommended Decision received from ADCNE for not
changing the date of partial payment to dairy farmers are persuasive.
The proposed change in the partial payment date is a separate issue
from the reporting dates issue that affects the timing of the
calculation and announcement of the producer price differential and
statistical uniform price. The revised reporting dates, as discussed in
other parts of this decision, affect the timing of the final payment to
producers. ADCNE correctly noted in their exceptions that neither the
Agricultural Marketing Agreement Act nor existing Federal law require
that the monthly partial and final payments to dairy farmers be made on
an evenly spaced basis. ADCNE's comments also clearly reveal the
potential monetary affect on producers of moving the partial payment
date to the last day of the month. Despite the suggested benefit of
more even spacing between payment dates and the explanation that the
later date would be more in line with the pre-order reform date, the
reasons and supporting arguments for keeping the partial payment date
as is are valid and sound. This Final Decision will maintain the
partial payment date as currently specified by the order. The partial
payment to dairy farmers will continue to be due on or before the 26th
of the month. The partial payment is based on the lowest announced
class price for the preceding month. Since that price is already known
to handlers, there is no need to delay partial payments to dairy
farmers because of reporting and payment date changes adopted in the
decision.
Additionally, ADCNE took exception to the use of the term
``conforming change'' in the Recommended Decision. Moving the date of
handler payment to the PSF, the date of partial payment, and the date
of final payment were referred to in the Recommended Decision as
``conforming changes'' resulting from adjusting the date which handler
reports are to be submitted to the Market Administrator. The Department
would like to clarify that the use of the term ``conforming'' in this
case was not intended to reference its traditional use of the term
``conforming change''--a resulting change in order language in one
section of the order stemming from a change in order language in
another. The term was intended to clarify the changes in reporting and
payment dates corresponding to and resulting from moving the due date
of handler reports.
2. Pooling Standards
Summaries of testimony regarding the pooling standards of the
Northeast order are provided individually. The discussion of all
pooling standards and the decision's findings and conclusions regarding
pooling standards is presented immediately after testimony summary for
``c''. below.
a. Performance Standards for Supply Plants
Certain amendments to the Pool plant provision of the Northeast
order are adopted. Specifically, the adopted amendments include: (1)
Establishing a supply plant performance standard of 10 percent of total
milk receipts for each of the months of January through August and
December, and 20 percent of total milk receipts for each of the months
of September through November; (2) Removing the ``split plant''
feature; and (3) excluding milk received from producers not eligible to
be pooled on the Northeast order from the total volume of milk used to
determine the amount of milk that a supply plant needs to deliver to a
distributing plant to become pooled. These recommended changes are
represented in certain features of Proposals 2, 5, and 8.
Proposal 10, which advocates lowering performance standards, was
not included for adoption in the Recommended Decision and is not
adopted in this Final Decision. Furthermore, Proposal 9, which would
credit route distribution from the plant and transfers in the form of
packaged fluid milk products against the supply plant performance
standards, was not included for adoption in the Recommended Decision
and is not adopted in this Final Decision.
Currently, supply plants in the Northeast order need to ship at
least 10 percent of their total milk receipts in the months of August
and December and 20 percent of their total milk receipts in each of the
months of September through November to pool distributing plants in
order to qualify the supply plant and all of its milk receipts for
pooling. A supply plant which meets the performance standard in each of
the months of August through December is automatically considered a
pool plant for each of the months of January through July. Supply
plants that do not qualify as a pool plant in each of the months of
August through December need to ship at least 10 percent of their total
milk receipts to distributing plants during each of the months of
January through July in order to qualify the supply plant and all of
its milk receipts for pooling in each of those months.
The order also currently provides a ``split-plant'' feature to
accommodate a supply plant that has both pool and nonpool facilities.
This feature was adopted during Federal order reform to provide for
more uniform supply plant provisions within the Federal milk order
system. It was not a feature contained in any of the three pre-reform
orders consolidated to form the Northeast order.
Proposal 2, submitted by NYSDF, seeks to amend the Pool plant
provision of the order by: (1) Increasing the supply plant performance
standards by 5 percentage points to 15 percent for the months of August
and December, and by 5 percentage points to 25 percent for each of the
months of September through November; and (2) Removing the split-plant
provision. In their post-hearing brief, NYSDF slightly modified the
months applicable for the proposed increased standards to specify a
performance standard of 15 percent in the month of August and 25
percent for each of the months of September through December.
A witness representing NYSDF testified that after implementation of
Federal milk order reform, milk supplies pooled on the Northeast order
during the fall months have decreased. During these months, the NYSDF
witness said, milk was shipped to areas outside of the order, and it
was difficult for Northeast order fluid milk handlers to acquire an
adequate supply of milk to meet the needs of their customers. Although
there was not as significant a shortage in the first half of 2002 as
there was in 2000 and 2001, the witness predicted that the situation
would change substantially beginning in late 2002 and during 2003.
The NYSDF witness characterized milk shortages in the fall months
for the Northeast marketing area as a long-term problem that requires
long-term action. In this regard, the witness stressed, Proposal 2 is
designed to increase the amount of milk available to fluid milk
handlers during the fall months. The witness said the proposed increase
is similar to provisions previously contained in the pre-reform Middle
Atlantic and New England milk orders and is identical to the
adjustments made to supply plant performance standards by the Market
Administrator in 2000 and 2001 for the months of August through
November.
[[Page 4938]]
The NYSDF witness testified that supply plant performance standards
applicable in the pre-reform orders consolidated to form the current
Northeast milk order enabled cooperatives to pool the milk of their
members separately from the milk of independent producers and small
cooperatives who also supplied fluid milk plants. After implementation
of Federal order reform, the witness said, the new pooling provisions
have allowed cooperatives to pool not only the milk of their members,
but also the milk of other smaller cooperatives and independent
producers. The current pooling provisions, the witness emphasized, are
being used in a way that allows large cooperatives to guarantee
themselves a higher volume of milk pooled as Class I. In their post-
hearing brief, NYSDF added that this arrangement has resulted in an
increased market share of total Class I sales by larger cooperatives
while the total volume of milk available to Class I handlers has
remained unchanged.
Data presented by the NYSDF witness showed that cooperatives now
account for over 80 percent of all milk pooled on the Northeast order.
The witness noted that cooperatives have guaranteed non-members an
outlet to pool their milk and, on average, pool in excess of 100
million pounds of non-member milk each month. The witness concluded
that because cooperatives pool such a large amount of milk,
cooperatives should not have difficulty meeting the proposed five
percentage point performance standard increase for supply plants.
The NYSDF witness emphasized that their greatest concern regarding
supply plant performance standards is the issue of ``guaranteed''
pooling of non-member milk supplies and the lack of diversion limit
standards. The witness was of the opinion that this has enabled milk to
be pooled on the order without bearing any responsibility for serving
the Class I market or being made available as a reserve supply to the
market. The witness was of the opinion that inappropriate pooling has
resulted in the erosion of blend prices paid to producers who do
regularly supply the Class I needs of the market.
The NYSDF witness further testified that the split-plant feature
for supply plants should be removed because the feature does not serve
the purpose for which it is intended. The witness maintained that the
split-plant provision was created to allow a supply plant to have
separate facilities to receive and process Grade B milk. Currently, the
witness said, no handlers located in the Northeast order are using the
split-plant feature. However, if a supply plant chooses to rely on the
feature, it would be able to pool a substantial amount of additional
milk simply by diverting milk to the non-pool side of the plant during
those months when no performance standards or diversion limits are
provided by the order, the witness cautioned.
In conclusion, the NYSDF witness said, it is the Class I market
that generates additional revenues which accrue to all producers whose
milk is pooled on the Northeast marketing area. Accordingly, the
witness maintained, entities that seek to have their milk pooled on the
order should bear some responsibility in actually supplying the Class I
needs of the market. The witness said that Proposal 2 is intended to
end what NYSDF characterized as ``abusive'' pool-riding methods and to
ensure that entities benefitting from revenue generated by Class I
sales have demonstrated service in supplying the Class I market.
A witness appearing on behalf of Marcus also testified in support
of Proposal 2. According to the witness, Marcus Dairy experienced milk
supply shortages during some months since implementation of the
consolidated Northeast milk order. The witness stated that adoption of
Proposal 2 would help alleviate supply shortfalls for the Class I
market during the fall months when the milk is most needed.
A witness representing the ADCNE testified in opposition to that
portion of Proposal 2 that would raise the supply plant performance
standards for the months of August through December. However, the
witness supported the proposal on the need to remove the split-plant
feature. The witness was of the opinion that increasing supply plant
performance standards was unwarranted and could cause disorderly
marketing conditions in the region because some handlers would be
forced to depool a portion of the milk of their producers. The witness
stressed that the Market Administrator already has the authority to
adjust these standards and that this should continue as the way to make
future changes as marketing conditions warrant.
Furthermore, the ADCNE witness emphasized, Proposal 2 does not
specify some level of performance by supply plants during the ``free-
ride'' months of January through July.\1\ According to the witness,
Proposal 2 also does not limit the ability of producers located far
from the Northeast marketing area to be pooled on the order without
maintaining a reasonable association to the market and does not ensure
that Class I distributors will receive additional milk when needed.
---------------------------------------------------------------------------
\1\ The dairy industry term known as a ``free-ride'' period is
often used to describe those time periods when no performance
standard is specified.
---------------------------------------------------------------------------
In their post-hearing brief, ADCNE stressed that no evidence was
presented at the hearing that would warrant a permanent change in
performance standards. ADCNE reiterated their opinion that the current
authority provided to the Market Administrator to make adjustments to
the performance standards was the most appropriate method for the
orderly marketing of milk in the Northeast.
Proposal 5, submitted by ADCNE, also seeks to amend the Pool plant
provision of the order. Specifically the proposal would: (1) Require
supply plants to deliver at least 10 percent of their total milk
receipts to a distributing plant during each of the months of January
through August and December; (2) Grant authority to the Market
Administrator to impose additional shipping requirements on handlers
receiving marketwide service payments; and (3) Eliminate the split-
plant provision.
The ADCNE witness testified that current order provisions have
unintentionally provided the opportunity for milk to be pooled and
priced under the terms of the Northeast order without demonstrating a
reasonable level of service in supplying the Class I needs of the
market. Pooling such milk could result in a lower blend price for all
producers who do regularly supply the fluid needs of the market, the
witness specified. The witness stressed that Proposal 5 is not meant to
eliminate the ability to pool the milk of producers located far from
the Northeast marketing area. Instead, the witness explained, Proposal
5 would assure that all milk pooled on the Northeast order demonstrate
a consistent service to supplying distributing plants and consequently
bear some of the burden of incurring the additional costs of supplying
the Class I needs of the market. According to the witness, there are
two aspects of the Pool plant provision of the Northeast marketing
order that have enabled what the witness described as ``opportunistic
pooling'': The split-plant feature and the current level of supply
plant performance standards.
The ADCNE witness explained that supply plants qualified as split-
plants can engage in opportunistic pooling by receiving milk on the
pool side of the plant and then diverting the milk to the nonpool side
of the plant. Under current provisions, during the months of August and
December a supply plant could divert nine loads of milk to its nonpool
side for every one load of milk it
[[Page 4939]]
receives on its pool side, the witness explained. In addition, the
witness continued, during the months of September through November, the
supply plant could divert eight loads of milk for every two loads it
receives at the pool side of the plant. According to the witness, once
the plant meets the performance standards in each of the months of
August through December, the plant is automatically qualified as a pool
plant in the months of January through July and can divert an unlimited
amount of milk.
Under current supply plant performance standards, the ADCNE witness
said, a pool plant located far from the marketing area could
potentially pool all of the milk located near it during the spring
months by shipping a small amount of its milk supply to a Northeast
order pool plant during the fall months. The lack of a monthly touch-
base standard, the witness also asserted, has facilitated the pooling
of milk located far from the marketing area by allowing producers to
qualify all of their milk for pooling by delivering a minimal amount of
milk to a Northeast order pool plant. During January through July when
no performance standards for supply plants are stipulated, the witness
noted, a plant has the ability to pool all the milk of every producer
who had delivered to the plant throughout the year. According to the
witness, theoretically 100 percent of the pool plant's milk receipts
could be pooled on the Northeast order.
The ADCNE witness presented data estimating the impact of pooling
distant milk on the Northeast order blend price. The witness estimated
that for the period of January 2001 through July 2002, the blend price
was reduced by an average of 16 cents per hundredweight. The witness
was of the opinion that if Proposal 5 is adopted, most of the lost
blend price value would be restored.
The ADCNE witness testified that the free-ride feature is no longer
being used for its intended purpose of allowing producers that had been
historically pooled on the Northeast Order to remain pooled. Instead,
the witness stated, the free-ride feature has created the ability to
pool milk on the order that was never intended to be pooled. The
witness maintained that supply plants that currently meet the
performance standards in September through November would not be
disadvantaged with the new year-round monthly performance standards
because the proposed standards for the months of January through July
are lower than those specified for the fall months.
Comments filed by ADCNE supported adoption of all changes to the
order's pooling standards contained in the Recommended Decision.
A witness testifying on behalf of NYSDF testified in opposition to
Proposal 5. While NYSDF agreed that the order's lack of performance
standards for all months has created opportunities for distant milk to
be pooled on the order, a free-ride feature is important for
maintaining orderly marketing conditions. The NYSDF witness said that
providing for months without performance standards ensures that the
market's reserves have the ability to be pooled on the order during
months of abundant supply.
At the hearing, NYSDF offered a modification to Proposal 5,
proposing that the performance standard during the months of January
through July only apply to supply plants located outside of the States
that comprise the Northeast order. The justification for this
modification, the witness said, is that during the spring months when
additional milk is not usually needed by distributing plants, it
prevents the uneconomic movement of milk by supply plants located
within the marketing area. The NYSDF modification would make Proposal 5
similar to amendments recently adopted by the Mideast order, the
witness noted.
Comments filed on behalf of NYSDF in response to the Recommended
Decision supported most of the proposed amendments to the order's
pooling standards. NYSDF expressed support for the proposed touch-base
standard and monthly diversion limits, and agreed that the proposed
changes will better identify the producers that are ready, willing and
able to serve the fluid market.
NYSDF took exception to the proposed supply plant shipping
standards of 10 percent for the months of January through June. It was
the opinion of NYSDF that this shipping standard would cause
difficulties for small cooperatives, who currently pay fees to larger
cooperatives for pooling, who would then have to pay a fee in every
month of the year to have their milk pooled. NYSDF contended that the
minimum 10 percent shipping standard should apply only to supply plants
that are located outside the states that comprise the Northeast
marketing area. It is the opinion of NYSDF that supply plants from
``distant'' areas must demonstrate that their producer milk is really
serving the market in a reserve supply capacity.
Proposal 8, submitted by Friendship Dairies (Friendship), a
partially regulated handler on the Northeast order, seeks to amend the
order's Pool plant provision by excluding milk received by supply
plants from producers who would not be eligible to be pooled under the
Northeast order and pre-qualified cooperative producer milk from the
total volume of milk used to determine the amount of milk a supply
plant would need to deliver to distributing plants in order to satisfy
the supply plant performance standards.
The Producer provision of the Northeast order describes those
producers who would not be eligible for pooling on the Northeast order.
They include: an entity that operates their own farm and plant at their
sole enterprise and risk, commonly referred to as a producer handler; a
dairy farmer whose milk is received at an exempt plant excluding
producer milk diverted to the exempt plant; a dairy farmer designated
as a producer under another Federal order; a dairy farmer whose milk is
reported as diverted to a plant fully regulated under another Federal
order that is assigned to Class I; or a ``dairy farmer for other
markets,'' which is a dairy farmer whose milk during certain months of
the year is received by a pooling handler and that pooling handler
caused the milk from such dairy farmer to be delivered to any plant as
other than producer milk or delivered to any other Federal milk order.
A witness appearing for Friendship testified that the current
method used in determining if a supply plant has met a performance
standard is examining the total amount of milk received at the plant
and the amount of those receipts shipped to distributing plants. As a
supply plant procures additional milk to offset the milk it transfers
or diverts to distributing plants, the additional milk receipts become
included in the plant's total milk receipts, the witness said. This
increases the quantity of milk that must be transferred or diverted by
the supply plant to distributing plants to meet the performance
standard for pooling purposes, the witness explained. Basing the supply
plant qualification percentage exclusively on the supply plant's
producer milk supply, the witness concluded, would reduce the amount of
milk that Friendship would have to ship every month to pool
distributing plants in order to be pooled under the terms of the order.
Friendship testified that they must include milk received from
cooperatives that has already been qualified for pooling by the
cooperative in the total receipts used to determine the amount of milk
they must ship to meet supply plant performance requirements. The
Friendship witness noted that adoption of Proposal 8 would
[[Page 4940]]
address this by excluding pre-qualified cooperative milk from the
volume of receipts upon which a supply plant must make shipments in
order to be designated as a pool supply plant.
The Friendship witness also noted that excluding milk received from
producers not eligible to be pooled on the Northeast order from the
performance standards for supply plants has been adopted in the pooling
provisions of other Federal orders. The witness clarified that in these
other Federal orders where a similar provision is present, the supply
plant performance standard is based on the amount of milk produced by
dairy farmers that is pooled through association with the supply plant,
regardless of whether or not it was diverted from the plant.
A witness appearing for ADCNE expressed opposition to Proposal 8
noting that it would liberalize supply plant performance standards.
According to the witness, the intent of supply plant pooling provisions
are to qualify both the plant and the operator of the plant. It is
meaningless to qualify a supply plant, the witness noted, in which the
operator does not control the milk of a group of dairy farmers. A
cheese plant operator would never incur the costs to ship milk from the
plant to a distributing plant, the witness offered by example, unless
the plant intended to pool a group of dairy farmers and draw from the
pool.
ADCNE further noted opposition to Proposal 8 in their post-hearing
brief by emphasizing that the operator of a supply plant has an option
of whether or not to be pooled. According to ADCNE, the operator of a
plant can acquire and maintain their own producer milk supply and can
pool the plant by meeting the pooling standards of the order or choose
nonpool status and purchase milk supplies from other pool or non-pool
handlers.
An exception to the Recommended Decision filed by Bongrain Cheese
(Bongrain), a cheese manufacturer in Pennsylvania, supported adoption
of all portions of Proposal 8. Bongrain was of the opinion that the
second portion of Proposal 8 that would deduct the volume of milk
received from cooperatives from the total volume of milk used to
determine the amount of milk a supply plant needs to deliver to
distributing plants in order to satisfy supply plant performance
standards should also be adopted. Bongrain was of the opinion that milk
purchased from cooperatives has already been qualified for pooling, and
that current standards put undue burden on cheese manufacturers to buy
additional milk for the sole purpose of meeting performance standards.
Bongrain noted that excluding pre-qualified cooperative milk from the
volume of receipts upon which a supply plant must make shipments in
order to qualify for pooling would minimize unnecessary movements of
milk.
A proposal, published in the hearing notice as Proposal 9, also
submitted by Friendship, seeking to amend the Pool plant provision was
not recommended for adoption in the Recommended Decision and is not
adopted in this Final Decision. The proposal would credit route
distribution from the plant and transfers in the form of packaged fluid
milk products to distributing plants to the total shipments from a
supply plant in determining if the supply plant has met the performance
standard of the order. Currently, route distribution is not credited
against the total milk receipts in determining if a plant has met the
supply plant performance standard.
The Friendship witness stated that Proposal 9 is meant to address
only Class I products packaged at the Friendship plant and not Class I
products purchased from other plants, which they subsequently
distribute. To exclude the possibility of a partially regulated
distributing plant becoming fully regulated by the adoption of Proposal
9, the Friendship witness modified their proposal at the hearing to
only include route distribution and transfers of packaged fluid milk in
qualifying supply plants whose milk utilization is at least 50 percent
in Class II, Class III, or Class IV products.
The Friendship witness testified that their plant has unique
characteristics--they produce non-fat dry milk (a Class IV product) and
cultured buttermilk (a Class I product). It is the production of
buttermilk, the witness noted, that causes their plant to be designated
as a partially-regulated distributing plant under the consolidated
Northeast order. The witness testified that their plant could not meet
the supply plant performance standards if the amount of milk
distributed on routes in the form of packaged fluid milk products
counted towards pool qualification.
The Friendship witness maintained that the Northeast order's
pooling provisions are unfair because, in their view, buttermilk
satisfies an established Class I demand, but is still factored into
determining if a supply plant has met the order's performance standards
by shipping milk to a distributing plant. The Friendship witness
asserted that currently the only way to qualify their plant is to
fulfill someone else's need for Class I milk without receiving any
credit for its own contribution to the Class I market.
The witness stressed that Proposal 9 is not intended to qualify
previously partially-regulated distributing plants which are not
currently fully regulated on the Northeast order. The witness saw the
potential for a distributing plant who also manufactures products other
than Class I to meet the supply plant performance standards under a
liberal reading of Proposal 9. To address this unintended occurrence,
the witness modified Proposal 9 to apply only to supply plants that
process at least 50 percent of their total physical milk receipts into
products other than Class I. With this modification, the witness noted,
the possibility of distributing plants becoming pooled as supply plants
is eliminated.
A witness appearing on behalf of ADCNE testified in opposition to
Proposal 9. The witness said that the proposal does not specify that
the plant's route distribution be located within the Northeast
marketing area and could have the possible unintended consequence of
pooling partially regulated distributing plants on the order with route
distribution greater than the supply plant performance standard of 10
or 20 percent. Additionally, the ADCNE witness testified that purchases
and transfers of Class I products into and out of manufacturing plants
could occur, which would only serve to circumvent the intent of the
Federal order provisions of requiring a supply plant to actually supply
the Class I market as a condition for pooling its milk supply. The
ADCNE witness was of the opinion that Proposal 9 combines the
characteristics of two different pooling provisions for the benefit of
a few supply plants that may have Class I sales and only serves to
confuse the pooling provisions of the order.
Additionally, ADCNE noted in their post-hearing brief that such a
change could allow nonpool manufacturing plants, currently without
their own producer supply, a means of ``gaming'' the system by
transferring packaged product into and then back out of the plant for
the sole purpose of meeting the supply plant performance standard. Such
a change would be de-stabilizing to the market, lead to disorderly
marketing conditions, and make procurement efforts by Class I
processors more difficult and costly, noted ADCNE.
Proposal 10, also submitted by Friendship, proposed to lower the
supply plant performance standards by 5 percentage points to a new
standard of 5 percent in each of the months of
[[Page 4941]]
August and December and by 10 percentage points to a new level of 10
percent in each of the months of September through November. Proposal
10 was not recommended for adoption in the Recommended Decision and is
not adopted in this Final Decision.
According to the Friendship witness, the objective of the Federal
milk marketing order program is the equitable sharing of Class I
revenue amongst all producers who supply the marketing area. This
objective is defeated, the witness said, when performance standards
result in the exclusion of some producers from the order's marketwide
pool. According to the witness, producers without access to a Class I
outlet have to ``buy'' market access from those producers who dominate
the market's Class I milk supply or move milk not needed for Class I
use over long distances for the sole purpose of meeting a performance
standard. This situation, said the witness, only results in the
displacement of milk supplying other Class I plants and in unwarranted
additional transportation costs to those producers seeking to pool
their milk on the order.
The Friendship witness also testified that the current supply plant
performance standard of 10 percent in the months of August and December
and 20 percent in each of the months of September through November were
chosen in an arbitrary manner to create a ``performance hurdle'' that a
plant must leap in order to participate as a pool supply plant on the
Northeast order. Reducing these performance standards by 5 percentage
points to 5 percent for each of the months of August and December and
by 10 percentage points to 10 percent in each of the months of
September through November would assure sufficient performance in
supplying the Class I market without causing unnecessary milk shipments
solely to meet the pooling standards of the order, the witness said.
b. Unit Pooling Standards for Distributing Plants
A proposal, published in the supplemental hearing notice as
Proposal 14, was recommended for adoption in the Recommended Decision
and is included for adoption in this Final Decision. Specifically,
Proposal 14 amends the Pool plant unit pooling feature by specifying
that a plant of the pool plant unit which is not a distributing plant
must process at least 60 percent of its total producer milk receipts
(including milk received from cooperative handlers) into Class I or
Class II products and that the plant be physically located in the
Northeast marketing area. Accordingly, the non-distributing plant of
the pooling unit would be permitted to process up to 40 percent of its
total producer milk receipts into Class III or IV products. Proposal 14
was offered by NYSDF. A witness representing the H.P. Hood Company
(H.P. Hood), a fully regulated milk handler who pools milk on the
Northeast order, testified on behalf of NYSDF.
The unit pooling provision of the Northeast order currently allows
for two or more plants located in the marketing area and operated by
the same handler to qualify for pooling as a ``unit'' by meeting the
total and in-area route disposition standard as if they were a single
distributing plant. To qualify as a pooling unit, at least one plant of
the unit must qualify as a pool distributing plant on its own standing,
and the other plant(s) of the unit must process only Class I or II milk
products. The pooling unit must also meet the total route distribution
standard of 25 percent, and 25 percent of its route distribution must
be within the marketing area.
The NYSDF witness testified that adoption of Proposal 14 would
allow H.P. Hood and other similarly situated unit-pool handlers greater
flexibility in how they pool their milk on the Northeast order.
According to the witness, present unit pooling standards unduly
restrict milk use at the non-distributing plant(s) of the unit to Class
I or II products. The witness indicated that adoption of Proposal 14
would also aid cooperatives and other plants in how they pool milk
because a pooling unit would be expanded to include milk balancing
operations that produce Class III and Class IV milk products to be the
non-distributing plant(s) of the pooling unit. The disparity in current
provisions, the NYSDF witness stressed, is that the primary plant of a
pooling unit can still produce a limited amount of Class III or IV
products, while the non-distributing plant(s) in the unit cannot.
According to the NYSDF witness, Proposal 14 adds flexibility to current
provisions by allowing the non-distributing plant(s) in the unit to
process up to 40 percent of total producer receipts into Class III or
IV milk products.
Comments submitted by NYSDF supported amending the unit pooling
provision of the order. NYSDF noted adoption of the proposal would make
the unit pooling provision more equitable between handlers.
No testimony was received in opposition to the adoption of Proposal
14.
c. Standards for Producer Milk
Several amendments to the Producer milk provision of the Northeast
order, contained in certain features of both Proposals 3 and 6, were
included for adoption in the Recommended Decision and are adopted in
this Final Decision. Specifically, the following changes to the
Producer milk provision are adopted: (1) Establishing an explicit
standard that one day's milk production of a dairy farmer be received
at a pool plant before the milk of the dairy farmer is eligible for
diversion to non-pool plants; (2) Clarifying that a producer may touch-
base anytime during the month; (3) Eliminating the ability to
simultaneously pool the same milk on the Northeast order and on a
marketwide equalization pool operated by another government entity; (4)
Establishing an explicit diversion limit standard for producer milk of
90 percent in each of the months of January through August and December
and of 80 percent in each of the months of September through November
(Milk in excess of the diversion limits will not be considered as
producer milk, and the pool plant must designate to the Market
Administrator which deliveries are to be de-pooled. Furthermore, milk
diverted in excess of the diversion limit standards will not result in
a loss of producer status under the order.); and (5) Granting authority
to the Market Administrator to adjust the touch-base standard and the
diversion limit standard as market conditions warrant.
The current Producer milk provision of the Northeast order
considers milk of a dairy farmer to be producer milk when the dairy
farmer has delivered milk to a pool plant. This event is commonly
referred to as ``touching-base.'' Once an initial delivery is made, all
the milk of a producer is eligible to be diverted to nonpool plants and
continues to be priced under the terms of the order. While there are no
specific year-round diversion limits for distributing plants, a
diversion limit for supply plants is functionally set at 100 percent
minus the applicable performance standard specified for supply plants.
Therefore, in the months of August and December, a supply plant can
divert no more than 90 percent of its total milk receipts to nonpool
plants. During each of the months of September through November, a
supply plant can currently divert no more than 80 percent of its total
milk receipts to nonpool plants. During each of the months of January
through July, no diversion limits for supply plants are specified.
Additionally, the Northeast order currently does not limit the ability
to
[[Page 4942]]
simultaneously pool the same milk of a producer on the order and on a
marketwide equalization pool operated by another government entity.
Proposal 3, offered by NYSDF, seeks to modify the Producer milk
provision of the order by: (1) Establishing a two-day touch-base
standard in each of the months of August through December; (2) Setting
an explicit limit on the amount of producer milk that can be diverted
from any type of pool plant to nonpool plants at 60 percent of total
receipts in each of the months of August through December, and 75
percent in each of the months of January through July; (3) Clarifying
that any milk diverted in excess of the diversion limits will not be
considered producer milk; and (4) Providing authority to the Market
Administrator to adjust diversion limit standards.
A witness appearing on behalf of NYSDF was of the opinion that
current pooling provisions of the Northeast order are inadequate and
have resulted in milk being pooled on the order that does not
demonstrate regular and consistent performance in supplying the Class I
needs of the market. The witness explained that after a pool plant
receives the milk of a producer, the plant can then divert unlimited
quantities of that producer's milk. The diverted milk need never again
be physically received at a pool plant and need not ever be made
available for satisfying the market's Class I needs, the witness said,
yet such milk would continue to be pooled and receive the blend price
of the Northeast order. Consequently, the witness stated, Northeast
order producers are receiving an otherwise lower blend price because of
the increased quantity of milk being pooled at lower valued uses. The
witness characterized pooling milk in this way as ``artificial
pooling.''
NYSDF offered a modification to Proposal 3 in their post-hearing
brief. The NYSDF modification proposed that diversion limit standards
for supply plants should be 100 percent minus the proposed supply plant
performance standards. Therefore, NYSDF wrote, the diversion limit in
August would be 85 percent, 75 percent in each of the months of
September through November, and 90 percent in the month of December.
The NYSDF witness testified that milk in excess of the proposed
diversion limit standards should not be pooled because the order would
be pooling the excess reserves of another market to the detriment of
those pooled producers whose milk regularly and consistently serves the
Northeast Class I market. According to the witness, during some months
when milk production is plentiful, total pool milk receipts from as
many as 800 producers located far from the marketing area have exceeded
100 million pounds. The NYSDF witness was of the opinion that the milk
of these producers was not only unneeded to supply the Northeast order
fluid needs but a vast majority of the distant milk was never
physically received on a regular or consistent basis at a Northeast
pool plant.
The NYSDF witness testified that milk diverted in excess of the
specified diversion limits should not be considered as producer milk
and therefore should not be pooled on the order. The witness also
emphasized that the Market Administrator should be given the authority
to adjust diversion limits and the touch-base standard as market
conditions warrant.
The NYSDF witness was of the opinion that the two-day touch-base
standard offered in Proposal 3 is reasonable and would eliminate the
ability to artificially pool milk on the order by requiring a producer
to deliver at least two days' milk production to a pool plant in each
of the pool-qualifying months before the milk of that producer would be
eligible for diversion to nonpool plants. The higher touch-base
standard in the months of August through December would also more fully
assure fluid handlers an adequate supply of milk to meet the needs of
their customers when milk supplies are less abundant, the witness
added.
A witness appearing on behalf of ADCNE testified in opposition to
Proposal 3. The witness said that implementation of a two-day touch-
base standard would result in disorderly market conditions because the
cost to producers in meeting this pooling standard could increase
significantly. The witness presented testimony describing the vast
geographic area and other characteristics of the Northeast order that
would give rise to increased costs to producers. The witness explained
that because most Northeast order producers are not located near a
Class I handler, a higher touch-base standard would result in the
uneconomic movement of milk and in higher overall transportation costs.
The witness also suggested that higher transportation costs could
prevent some producers from being able to pool their milk on the order.
The ADCNE witness also expressed opposition to the portion of
Proposal 3 that would lower diversion limit standards. The witness did
agree that the current lack of specific diversion limits could cause
harm in the orderly marketing of milk. In ADCNE's opinion, the proposed
diversion limits for the months of August through December are too
restrictive and could result in disorderly marketing conditions.
Rather, ADCNE was of the opinion that establishing performance
standards for supply plants in each of the months of January through
July was a more appropriate alternative than making restrictive changes
to the order's diversion limit standards.
Proposal 6, offered by ADCNE, also seeks to amend the Producer milk
definition of the Northeast order. Specifically, the proposal seeks to:
(1) Establish year-round diversion limit standards of 80 percent in
each of the months of September through November, and 90 percent in
each of the months of January through August and December; (2) Clarify
that a producer can touch-base anytime during the month to make their
milk eligible for diversion to nonpool plants; (3) Clarify that over-
diverted milk will not result in a dairy farmer losing producer status
on the order; (4) Eliminate the ability to simultaneously pool the same
milk on the Northeast order and on a marketwide equalization pool
operated by another government entity; and (5) Provide authority to the
Market Administrator to adjust diversion limit standards applicable to
those handlers who receive marketwide service payments when warranted.
A witness appearing on behalf of ADCNE testified that the pooling
provisions of the Northeast order need to be considered on an emergency
basis to correct loopholes that could lead to further erosion of blend
prices and disorderly market conditions. The witness also testified
that the lack of specific year-round diversion limit standards for
distributing plants needs to be corrected because the absence of such
standards currently allows distributing plants the ability to pool
large quantities of milk during the spring months when milk supplies
are plentiful through the diversion process. According to the witness,
the only functional restrictions on diversions from a distributing
plant during those months are economic considerations and the amount of
milk that a distributing plant can physically receive. Theoretically,
the witness explained, a single distributing plant could pool all of
the milk in the Northeast Order because no diversion limit is
specified. The witness stressed that if diversion limit standards are
not established for every month, an increase in the amount of milk
pooled on the order could result in significantly lower blend prices
paid to producers.
[[Page 4943]]
The ADCNE witness also explained that a producer should not lose
producer status under the dairy farmer for other markets provision of
the Northeast order in the event that a handler over-diverts the milk
of a producer. In this regard, the witness explained that Proposal 6
would allow for pooling the milk of producers in the following month in
the event that milk of a dairy farmer is over-diverted in the current
month.
The ADCNE witness also testified that while no entities are
currently engaging in the practice of simultaneously pooling the same
milk on the Northeast order and on a marketwide equalization pool
operated by another government entity (commonly referred to as
``double-dipping''), the opportunity for it exists, especially with the
Western New York State Milk Marketing Order that shares a common
milkshed with the Northeast order marketing area. The ADCNE witness
stipulated that eliminating the ability to double-dip would have no
effect on milk priced by State-operated programs that provide for
marketwide pooling of milk pricing premiums such as the Pennsylvania
Milk Marketing Board, the Maine Milk Commission, or the Virginia Milk
Commission.
The pooling standards of all milk marketing orders, including the
Northeast order, are intended to ensure that an adequate supply of milk
is supplied to meet the Class I needs of the market and to provide the
criteria for identifying those who are reasonably associated with the
market as a condition for receiving the order's blend price. The
pooling standards of the Northeast order are represented in the Pool
Plant, Producer, and the Producer milk provisions of the order. Taken
as a whole, these provisions are intended to ensure that an adequate
supply of milk is supplied to meet the Class I needs of the market. In
addition, these provisions provide the criteria for identifying those
producers and plants whose milk is reasonably associated with the
market by supplying the Class I needs and thereby sharing in the
marketwide distribution of proceeds arising primarily from Class I
sales. Pooling standards of the Northeast order are based on
performance, specifying standards that, if met, qualify a producer, the
milk of a producer, or a plant to share in the benefits arising from
the classified pricing of milk.
Pooling standards that are performance-based provide the only
viable method for determining those eligible to share in the marketwide
pool. This is because it is the additional revenue from the Class I use
of milk that adds additional income, and it is reasonable to expect
that only those producers who consistently bear the costs of supplying
the market's fluid needs should be the ones to share in the
distribution of pool proceeds. Pool plant standards therefore are
needed to identify the milk of those producers who are providing
service in meeting the Class I needs of the market. This is important
because producers whose milk is pooled receive the market's blend
price. If the pooling provisions do not reasonably accomplish these
aims, the proceeds that accrue to the marketwide pool from fluid milk
sales are not properly shared with the appropriate producers and can
result in an unwarranted lowering of returns to those producers who
actually incur the costs of supplying the fluid needs of the market.
Similarly, pooling standards for distributing and supply plants
should also provide for those features and accommodations that reflect
the needs of proprietary handlers and cooperatives in providing the
market with fluid milk and dairy products. When a pooling feature can
result in pooling milk which would not reasonably demonstrate serving
the fluid needs of the market, it is appropriate to re-examine the need
for continuing to provide that feature as a necessary component of the
pooling standards of the order. The pooling standards of an order serve
to ensure an adequate supply of fluid milk for the market and the
proper identification of those producers whose milk does serve the
fluid needs of the market. A feature which can diminish these aims
should be considered unnecessary.
The record provides sufficient evidence to conclude that features
of the Pool plant provision are not appropriate given the prevailing
marketing conditions of the Northeast order. The hearing record reveals
that both the lack of supply plant performance standards in every month
and the lack of explicit diversion limit standards for all pool plants
in every month of the year have allowed producers from areas located
far from the marketing area to participate in the distribution of
proceeds from the marketwide pooling of milk without demonstration of a
reasonable level of consistent and regular service in meeting the Class
I needs of the market. Current performance standards have allowed these
producers to receive the Northeast order's blend price by simply making
a one-time delivery of milk to a pool plant and thereafter divert
unlimited quantities of milk to nonpool plants located nearer their
farms and far from the marketing area. Such milk pooled by diversion
cannot reasonably be considered a reserve supply for the marketing
order area because it is never again physically received by pool plants
regulated by the Northeast order. Furthermore, such milk pooled by way
of diversion is not consistently demonstrating performance to serving
the market's Class I needs. The pooling of milk through the diversion
process evidenced by the record increases the total amount of milk
pooled on the order and lowers the blend prices paid to all producers,
especially to those producers who consistently deliver milk to the
order's pool plants.
The record provides evidence to conclude that performance standards
for supply plants should be specified for every month. The performance
standards proposed by the ADCNE are reasonable in light of the
prevailing marketing conditions reflected in the Northeast marketing
area. The concerns of NYSDF, who represented the interests of the many
distributing plants regulated under the terms of the order, make clear
that since the Northeast milk marketing area was created and
implemented as part of Federal milk order reform in January 2000, the
need arose at least twice for the Market Administrator to raise the
performance standards for supply plants. This was done so that
distributing plant bottlers would be assured of sufficient milk
supplies to meet fluid demands.
In this regard, this decision can only conclude that authority
provided to the Market Administrator to make the needed adjustments to
the performance standards as marketing conditions warrant functions
well and as intended. The temporary increase in supply plant
performance standards brought forth the milk supply needed to satisfy
the needs of distributing plants. Accordingly, this Final Decision sees
no compelling reason to adopt the higher supply plant performance
standards offered by NYSDF. To the extent that the needs of
distributing plants have necessitated the need to increase the
availability of supply to meet fluid needs, the order provisions have
done so. It is reasonable to conclude, therefore, that the order will
continue to react as needed to changing marketing conditions into the
future.
Handlers and producers are better served by eliminating the ability
of a supply plant to automatically be a pool plant if the supply plant
had been a pool plant in some prior period as the order currently
provides. The granting of automatic pool plant status to a plant does
not provide the certainty needed by distributing plants for the order
to assure them an adequate supply of milk
[[Page 4944]]
for Class I uses. Together with other pooling standard inadequacies, it
provides an avenue through which more milk can be pooled on the
Northeast order than can be considered as part of the legitimate milk
supply of the pool plant where automatic pool plant status has been
granted. The opportunity to pool milk in this way only serves to
increase the volume of milk pooled (at lowered valued uses) without
that milk either being committed to, or demonstrating, serving the
Class I needs of the market as a condition for receiving the order's
blend price. Therefore, the supply plant performance standards should
be amended to specify performance to the market in every month of the
year. The performance standards of 10 percent in each of the months of
January through August and December and 20 percent in each of the
months of September through November are adopted. Accordingly,
exceptions filed by NYSDF regarding the adoption of year round supply
plant performance standards previously referenced in this decision
offer no persuasive justification in demonstrating how the order's
supply plant performance standards could not be changed by the Market
Administrator when marketing conditions warrant their increase or
decrease.
The pool plant feature contained in the Northeast order for split-
plants should be removed. No similar provision was contained in the
three pre-reform orders consolidated to form the Northeast order. The
split-plant provision was included in the consolidated Northeast order
in an effort to provide for the uniformity of provisions throughout the
reformed Federal milk order system. The provision was established with
the intent to allow handlers the ability to process Grade A milk in the
pool side of the plant and process Grade B milk in the nonpool side of
the plant.
It is clear from the record that handlers in the Northeast
marketing area are not utilizing this feature of the pool plant
provision, and no milk is being pooled on the order in this manner.
However, if utilized, the feature could be used as a mechanism for
pooling milk on the order that would not need to demonstrate a
consistent service to the Class I market. This feature could be used as
a loophole through which deliveries of milk to the pool side of a
split-plant can then be diverted to the nonpool side of the plant. The
diverted milk would never then need to serve the market's Class I
needs. The split-plant feature could unintentionally provide the
opportunity for milk to become pooled on the Northeast order without
that milk demonstrating a reasonable level of service in meeting the
market's fluid needs but would share in the revenue generated from
Class I sales.
The removal of the split-plant feature is broadly supported by the
hearing participants. Since the split-plant feature is not currently
utilized by any Northeast handler, no producers currently serving the
Northeast market would be adversely affected by its removal from the
terms of the order.
The hearing record supports the adoption of certain features of
Proposal 8 offered by Friendship. In simple terms, the proposal calls
for excluding milk received by a supply plant from two sources--milk
received from sources not eligible for pooling (for example, milk
received from a producer handler or from a dairy farmer for other
markets) and from a cooperative association--from the total volume of
milk receipts at the supply plant. By excluding such milk receipts from
the total actual receipts, the proposal essentially lowers the intended
performance standards for supply plants.
As discussed above, the record reveals concern by distributing
plants that the pooling standards of the Northeast order need to
specify higher performance standards for supply plants and the need for
explicit diversion limits and touch-base standards for producer milk.
While the higher performance standards called for in the NYSDF proposal
are not recommended for adoption, the adoption of certain features of
Proposal 8 would essentially reduce the amount of milk that supply
plants ship to distributing plants so that the Class I needs of the
market can be satisfied. The current performance standards for supply
plants are sufficiently liberal, especially in light of the more than
40 percent Class I use of milk in the Northeast marketing area.
The part of Proposal 8 that excludes milk received from producers
not eligible for pooling is adopted in this Final Decision since that
milk is not eligible to be pooled on the Northeast order. It is
reasonable to exclude such receipts for the purposes of determining if
the supply plant has met the intended performance standards because
milk not eligible for pooling should not be used as a factor for
qualification.
The portion of Proposal 8 that is not adopted in this Final
Decision specifically excludes supply plant milk receipts from
cooperatives as a factor for qualification. Exceptions received from
Bongrain Cheese, discussed earlier in this decision, noted support for
adoption of this portion of Proposal 8, and are not persuasive. This
feature is not adopted because it is viewed as having more to do with a
supply plant's ability to draw money from the PSF than it does with
demonstrating a reasonable standard of performance in supplying the
Class I needs of the market as a condition for participation in the
marketwide pool.
As discussed above, the hearing record supports concluding that the
Northeast order is not adequately identifying the milk of those
producers that are actually supplying the Class I needs of the market
on a regular and consistent basis. In this regard, certain changes to
the Producer milk provision are adopted in this Final Decision.
The current touch-base standard of the Northeast order does not
provide detail sufficient to specify the quantity of milk a producer
must deliver to pool plants. Currently the order only indicates that if
a producer delivers milk to a Northeast order pool plant, the milk of
that producer becomes eligible for diversion to nonpool plants.
Generally, milk marketing orders that exhibit lower fluid demands
require fewer physical deliveries to a pool plant, while markets with
higher fluid demands typically specify more frequent deliveries. A
touch-base standard that is too high can result in higher
transportation costs to producers and cause uneconomic shipments of
milk for the sole purpose of meeting a pooling standard. If the
standard is too low, fluid handlers may be less assured of an adequate
supply of fluid milk to meet the demands of the Class I market.
The hearing record supports concluding that the touch-base standard
of the Producer milk provision, together with generally inadequate
diversion limit standards for all pool plants, contributes to the
pooling of milk on the order which does not demonstrate a reasonable
level of service in supplying the Class I needs of the market. There
are competing proposals and views on how the order should rely on both
the touch-base standard and diversion limit standards so that, together
with the performance standards, the Class I needs of the market are
satisfied and the order has appropriately identified the milk of those
producers whose milk actually demonstrates service in meeting the Class
I needs of the market.
The ADCNE proposals place much more weight on the need for explicit
diversion limit standards in each and every month that are applicable
to both supply and distributing plants than on a two-day touch-base
standard proposed by NYSDF. The ADCNE and NYSDF both acknowledge the
need for explicit diversion limit standards for all pool
[[Page 4945]]
plants, although their respective positions of what those standards
should be differ only as to what are the most appropriate levels for
the Northeast order.
This Final Decision adopts a one-day touch-base standard in the
initial pool qualifying month. A touch-base standard that would require
more frequent deliveries is not warranted because it would result in
higher transportation costs to producers and cause uneconomic shipments
of milk for the sole purpose of meeting a pooling standard. A one-day
touch-base standard, together with other adopted changes contained in
this Final Decision, should adequately contribute in identifying the
milk of those producers who regularly supply the market's Class I needs
and therefore can be pooled under the terms of the order. The position
of the ADCNE that the milk of a producer could touch-base anytime
during the initial qualifying month is reasonable and is adopted for
the purpose of clarifying when meeting this standard should occur.
Granting authority to the Market Administrator to adjust the touch-
base standard is also adopted as a key component of the adopted one-day
touch base standard. While this feature of the touch-base standard was
not included in those proposals amending the Producer milk provision of
the Northeast order, the record is specific that this was intended. It
is also consistent with the authority already granted to the Market
Administrator to adjust the performance standards of the order for
supply plants.
Providing for the diversion of milk is a desirable and needed
feature of an order because it facilitates the orderly and efficient
disposition of milk not needed for fluid use. When producer milk is not
needed for Class I use, some provision should be made for milk to be
diverted to nonpool plants for use in manufactured products. However,
it is essential that limits be established to safeguard against
excessive milk supplies becoming associated with the market through the
diversion process.
In the context of this proceeding, milk diverted by distributing
and supply plants is milk not physically received at the plants. While
diverted milk is not physically received, it is nevertheless an
integral part of the milk supply of the diverting plant. If such milk
is not part of the integral supply of the diverting plant, then that
milk should not be associated with the diverting plant and should not
be pooled. Associating more milk than is actually part of the
legitimate reserve supply of the diverting plant can unnecessarily
reduce the blend price paid to dairy farmers who service the market's
Class I needs.
Without reasonable diversion limits, the order's ability to provide
for effective performance standards and orderly marketing is weakened.
Diversion limits that are set too high can open the door for pooling
much more milk on the market than can be reasonably associated with the
reserve supply for the market. The record reveals that unlimited
diversion limits for distributing plants in the Northeast order could
have contributed to the pooling of large volumes of milk that have not
demonstrated performance to the Class I market. The same is also
revealed in the record by the lack of explicit diversion limit
standards for supply plants in every month.
This Final Decision adopts diversion limit standards for all pool
plants as proposed by ADCNE. Specifically, a diversion limit standard
of 90 percent in each of the months of January through August and
December and 80 percent in each of the months of September through
November is adopted. Milk diverted in excess of the standards will not
be considered producer milk and the pool plant must designate to the
Market Administrator which deliveries will be depooled. If the pool
plant fails to make a designation, the Market Administrator can depool
all of that month's diversions to nonpool plants. As also proposed by
ADCNE, this decision can find no reason to cause the loss of producer
status under the order in the event a producer's milk is caused to be
over diverted. Accordingly, the proviso that a producer will not lose
producer status under the order in the event that the milk of a
producer is over diverted is adopted.
To the extent that these diversion limits may warrant future
adjustments, this Final Decision adopts explicit authority to the
Market Administrator to adjust the diversion limit standards when
needed. In practice, such authority has already been given to the
Market Administrator in that current supply plant diversion limits are
functionally set at 100 percent minus the applicable performance
standard. In past actions undertaken by the Market Administrator to
change supply plant performance standards, the applicable diversion
limit was also functionally changed as higher performance standards
adopted temporarily also changed supply plant diversion limits.
Therefore, providing authority to change the order's diversion limit
standards in the way presented in this Final Decision merely serves to
clarify an authority already granted to the Market Administrator.
Since the 1960s, the Federal milk order program has recognized the
harm and disorder that results to both producers and handlers when the
same milk of a producer is simultaneously pooled on more than one
Federal order, commonly referred to as ``double-dipping.'' In the past,
this situation caused disparate prices between producers while handlers
were not assured of uniform prices, which gave rise to competitive
equity issues.
The need to prevent ``double-dipping'' became critically important
as distribution areas expanded and orders merged. The issue of
``double-dipping'' on a marketwide equalization pool operated by
another government entity and a Federal order can, for all intents and
purposes, have the same undesirable outcomes that Federal orders once
experienced and subsequently corrected. While ``double-dipping'' is not
presently occurring in the Northeast order, it is clear that the
Northeast order should be amended to prevent the ability to pool the
same milk on both a Federal order and a marketwide equalization pool
operated by another government entity. This action is consistent with
other recent Federal order amendatory actions regarding simultaneous
pooling on a Federal order and on another government operated program.
The hearing record does not support the adoption of Proposal 9,
which seeks to exclude a supply plant's route distribution of packaged
fluid milk products from the total volume of milk that it would need to
deliver to a distributing plant for the purpose of meeting the order's
performance standards. As implied in the name, a supply plant is a
supplier of bulk milk to distributing plants. Supply plant performance
standards are intended, in part, to ensure that distributing plants are
supplied with enough fluid milk to meet their needs. A plant's route
sales in the marketing area are used to determine the pool status of
fully or partially regulated distributing plants, not of supply plants.
The hearing record supports the adoption of Proposal 14 because it
serves to provide milk processors in the Northeast with the more
orderly marketing of unit-pooled milk without compromising the order's
intent to ensure that the Class I needs of the marketing area are
satisfied. Unit pooling serves to provide a degree of regulatory
flexibility for handlers by recognizing specialization of plant
operations and to minimize the uneconomical and inefficient movement
[[Page 4946]]
of milk for the sole purpose of meeting or retaining pool status.
If a plant has combined Class I and II receipts of 60 percent or
more, including milk received from cooperative handlers and milk
diverted from the plant, and is physically located in the Northeast
marketing area, it is reasonable to conclude that the unit's plant does
contribute in making milk available on a regular and consistent basis
for meeting the fluid needs of the order. Therefore, its adoption is
included in this Final Decision provided all other standards and
conditions for unit pooling are met. This should provide for greater
flexibility in the types of products a pooling unit may produce, such
as Class III or Class IV dairy products, in a unit pooled plant.
Additionally, providing for the secondary unit-pooled facility to be
located within the Northeast marketing area, as well as being primarily
involved in producing Class I or Class II milk products, retains
safeguards that would prevent the pooling of milk that may be located
far from the marketing area which would not demonstrate the standards
of performance in servicing the Class I needs of the market.
A proposal published in the hearing notice as Proposal 11, seeking
to amend the dairy farmer for other markets feature of the Producer
provision, was withdrawn at the hearing by the proponent. No further
reference to this proposal will be made.
3. Marketwide Service Payments
A proposal, published in the hearing notice as Proposal 7, seeking
to establish a 6-cent per hundredweight (cwt) marketwide service
payment in the form of a market ``balancing'' credit to handlers was
not included for adoption in the Recommended Decision is not adopted in
this Final Decision. As proposed, a balancing credit would be provided
if the handler pools at least a million pounds of milk per month,
provided less than 65 percent of such pooled milk is shipped to
distributing plants for Class I use or represents at least three
percent of the total volume of milk pooled on the Northeast order.
In the context of this proceeding, ``balancing'' refers to those
actions performed by handlers that add or remove milk from their supply
to accommodate the fluctuating needs of Class I. The Northeast order
does not currently contain a marketwide service payment provision.
Proposal 7 was offered by ADCNE and has received additional support
or endorsement in writing from the National Milk Producers Federation
(NMPF) and the New York State Farm Bureau Federation.
A form of a marketwide service payment was available to certain
cooperative handlers in the pre-reform New York-New Jersey milk
marketing order. That order was combined with the Middle Atlantic and
New England orders to form the consolidated Northeast order. The
service payment of the New York-New Jersey order consisted of two
components: a cooperative service payment and a balancing payment. The
balancing component was far smaller than the proposed six cents per cwt
credit under consideration in this proceeding. The cooperative service
payment could total up to three cents per cwt. An additional ``up to''
one cent was provided for balancing. By comparison, the marketwide
service payment proposal considered in this proceeding is dedicated
entirely to compensating eligible handlers for balancing functions.
The ADCNE's rationale for balancing payments rests on the argument
that the Northeast order has a large number of independent milk
producers (dairy farmers who are not members of a cooperative) who
avoid incurring the costs of operating and maintaining facilities that
provide outlets for milk when not needed for fluid use. In this regard,
they assert that the independent producers essentially receive a higher
blend price for their milk because they avoid the costs of balancing
which are largely absorbed by dairy farmer cooperatives that own
manufacturing plants. As a matter of equity, ADCNE is of the opinion
that the entire market, rather than only cooperatives, should share in
bearing the costs that arise from providing these market balancing
operations and facilities.
In post hearing briefs, support for Proposal 7 was completely
withdrawn by Agrimark, a major participant and member of ADCNE who
provided testimony at the hearing in favor of adopting a marketwide
service payment for balancing. In addition, LOL, also a member of
ADCNE, indicated their change to a neutral and uncommitted position for
the adoption of a balancing credit.\2\
Testimony advancing the adoption of Proposal 7 was provided by
representatives of three members of ADCNE. The majority of their
testimony relied on research conducted by USDA's Rural Cooperative
Business Service (RCBS), which examined market balancing activities in
the Northeast milk marketing area. The research was performed at the
request of ADCNE.
An RCBS witness, who participated in conducting the market
balancing research, provided testimony concerning the study's
methodology, underlying assumptions, and findings. The witness
emphasized that the research performed and testimony given was offered
as a service to the industry and interested parties and was not in
support of, or opposition to, any proposal under consideration in the
proceeding.
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\2\ After the deadline for submitting post-hearing briefs and
the publication of the Recommended Decision, LOL, in correspondence
to the Department, iterated that the Final Decision should be based
on the record of the proceeding.
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The RCBS witness testified that the study provided a framework that
can be used to estimate the costs associated with balancing the Class I
needs of the Northeast marketing area by examining the costs associated
with unused milk manufacturing capacity at butter-powder plants located
within the marketing area. According to the witness, unused milk
manufacturing capacity results from increases or decreases in the
demand for fluid milk by Class I handlers given the available milk
supply associated with the marketing area. The witness explained that
the study also estimated changes in costs associated with different
hypothetical levels of idled butter-powder plant capacity when
subjected to seasonal variations in milk supplies that caused
fluctuations in the amount of milk manufactured at butter-powder
plants. The witness indicated that the plant capacity data originated
from cooperatives that operated butter-powder plants in the pre-reform
orders consolidated to form the Northeast marketing area.
The RCBS witness explained that the study results are theoretical
and do not represent actual or existing conditions in the Northeast
marketing area. According to the witness, the balancing study employed
a comparative static methodology. For the purposes of the study, the
witness explained, the research defined the necessary reserve milk
supply requirements of the market as the amount of milk required to
meet daily operating fluctuations among distributing plants (operating
reserves) and seasonal fluctuations (seasonal reserves). According to
the witness, during periods of abundant milk supply in the Northeast
marketing area, such reserve milk is used for Class IV manufacturing
purposes, specifically for the manufacture of nonfat dry milk (NFDM).
According to the RCBS witness, the study suggests that seasonal
variations in the demand for fluid milk cause variations in the supply
of milk that
[[Page 4947]]
would otherwise be used in manufacturing. As a result, milk available
for the manufacturing of NFDM fluctuates inversely with the milk
supplies needed to meet fluid milk demand, the witness noted. The
witness said that as demand for milk for fluid use increases, supplies
of milk for manufacturing tend to decline. According to the witness,
changes in Class I (fluid) demand change the amount of unused butter-
powder plant capacity and such unused capacity has associated costs.
The RCBS witness explained that the balancing study was conducted
using two different scenarios. The witness said the first scenario
assumes an operating reserve of milk needed to balance the regions'
needs at 10 percent of total fluid demand. The second scenario assumes,
according to the witness, an operating reserve of 20 percent. The
witness testified that operating costs were compared under these two
differing scenarios while other factors were held constant. The witness
noted that while the study focuses on estimating costs and changes in
estimated costs, the study did not address methods by which to recover
or offset costs typically associated with balancing services and
operations. The witness indicated that cost recovery methods might
include some form of marketwide service payments formalized under the
term of a milk marketing order, ``give-up'' charges (a charge by a
supplier for making milk available, for example, to a distributing
plant), balancing or diversion fees (a charge for accepting milk at a
balancing facility when not needed by a Class I bottler), ``over-
order'' premiums (a price charged for milk above those minimum prices
set under the terms of a milk marketing order), or by pricing formulae
included in the classified prices established under a milk marketing
order.
A witness from Dairylea, a farmer-owned agricultural marketing and
service organization, appeared on behalf of the ADCNE and testified in
support of Proposal 7. The witness described the Northeast marketing
area as a milk ``megamarket'' characterized by high population and milk
production density that requires marketwide service payments for
balancing the market's fluid needs. The witness asserted that the Class
I needs of the Northeast market are so large and unique among Federal
milk orders that without compensation for the costs incurred for
balancing, such activities might not otherwise be provided. The witness
asserted that there is no other viable market mechanism through which
excess milk supplies can be adequately disposed of other than through
the butter-powder balancing facilities of the region's six largest
cooperative handlers. The witness did note, however, that all
manufacturing handlers operating in the Northeast marketing area also
perform balancing functions by simply procuring milk from the area's
producers.
The Dairylea witness characterized the Northeast as a unique milk-
producing region because nearly 25 percent of farmers supplying the
market are independent producers and not members of cooperatives. The
witness characterized the Northeast's independent producers as largely
serving the needs of Class I handlers and as generally not involved in
providing balancing facilities and services for the market.
Additionally, the witness testified that the marketing area contains
nearly 40 percent of all dairy farmer cooperatives in the United
States. In comparing outlets for milk, the witness testified that the
Northeast marketing area is represented by 32 proprietary handlers and
259 milk plants.
The witness for Dairylea was of the opinion that the unique
characteristics and size of the marketing area together with the sheer
volume of milk required to supply the fluid needs of the marketing area
make it imperative that marketwide service payments be provided to
compensate the largest cooperative handlers for the costs that they
incur for balancing the market. According to the witness, without
cooperatives performing this service, some milk production in the
marketing area would not clear the market. The witness did note that
some milk produced within the boundaries of the Northeast marketing
area is not pooled on the order because it is delivered south to other
marketing areas where it receives a higher blend price. The witness
similarly acknowledged that milk produced west of the marketing area is
delivered to the Northeast marketing area butter-powder plants because
being pooled on the Northeast order often commands a higher blend
price.
The Dairylea witness also acknowledged that other plants located
within the Northeast marketing area (some 184 nonpool plants, many of
which are proprietary) also perform significant balancing functions.
The witness was of the opinion that no single nonpool plant could
individually provide significant market balancing services, however,
taken as a whole, these plants do provide and perform balancing
functions.
The Dairylea witness testified that the members of ADCNE had
advanced a conceptually similar marketwide service payment proposal for
balancing during the Federal milk order reform effort. The witness
testified that Federal order reform provided public debate and analysis
on the need for a marketwide service payment for balancing. The witness
explained that USDA rejected the marketwide service payment proposal in
the Federal milk order reform Recommended Decision of 1998 and the
Final Decision of 1999 because the proposed balancing credit level
sought had not been adequately explained.
A witness from Agrimark, also appearing on behalf of ADCNE,
testified that the Food Security Act of 1985 (commonly referred to as
the 1985 Farm Bill) provided authority for Federal milk marketing
orders to allow handlers to collect for services rendered that are of
benefit to all the market's participants. The witness asserted that the
disposal of surplus milk (milk not needed for fluid use) and the
procurement of supplemental milk supplies for fluid handlers are
specifically identified in the provisions of the 1985 Farm Bill as
being of marketwide benefit. The witness also asserted that payments
for reimbursing handlers who provide services of marketwide benefit may
be made from the total sums payable by all handlers for milk--the costs
of which are paid from the total value of milk pooled before the
computation of the blend price.
In the opinion of the Agrimark witness, such payments would be made
on a uniform basis by all pool participants and thereby all would
equitably share in the cost associated with balancing. According to the
witness, because independent producers do not operate balancing
facilities or perform balancing functions, they have avoided the burden
of incurring balancing costs while receiving the benefit of the blend
price.
Testimony of the Agrimark witness reinforced the opinion of the
Dairylea witness that cooperatives perform the bulk of market balancing
functions in the Northeast marketing area throughout the year. As an
example, the witness cited data originating from the Market
Administrator's office illustrating that during 2001, cooperative-
supplied milk satisfied market shortfalls during those months when milk
production was at its lowest in the region. In addition, the witness
noted that cooperatives accommodated surplus milk diversions from the
Class I market when milk production in the area was higher. The witness
stressed that the volume of
[[Page 4948]]
deliveries to Class I bottlers by cooperatives varied inversely with
the delivery volumes by independent milk producers.
According to the Agrimark witness, during November 2001, receipts
by Class I handlers from cooperative suppliers were more than double
the level of receipts from independent producers. In contrast, the
witness testified that receipts by Class I handlers from cooperative
suppliers reached their low point during July 2001, a period of the
year when overall milk production in the Northeast was highest.
According to the witness, milk deliveries by cooperatives during
November to the Class I market were 29 percent above those for July.
This data clearly shows, the witness asserted, that milk supplied by
cooperatives provided a larger share of market balancing than did
independent producer milk.
Relying on data supplied by the Market Administrator, the Agrimark
witness testified there are approximately 4,000 independent producers
who pool their milk on the Northeast order. The witness indicated that
these producers account for approximately 6 billion pounds of milk per
year pooled on the order. Of this milk volume, the witness asserted,
some 80 percent is supplied for fluid uses in a market whose total
Class I use is only 45 percent of the total volume of milk pooled. The
witness testified that while independent producer milk is not refused
by distributing plants from their producers during slack demand months
of the year, cooperative-producer milk is sometimes diverted from Class
I use by distributing plants for use in manufacturing. According to the
witness, this further demonstrates that it is cooperatives who own
manufacturing plants that provide the majority of balancing services
for the market.
The witness was of the opinion that cooperative producers are
receiving a lower price because cooperatives have absorbed the costs
associated with market balancing, and as such, balancing costs are not
equitably shared among all the market's producers. In addition, the
witness expressed the opinion that milk supplied by cooperatives is
more likely to be the milk that is diverted away from Class I use than
is milk supplied by independent producers. Diversions tend to be made,
according to the witness, to cooperatives that operate butter-powder
plants. The witness testified that all costs and risks of operating
such balancing plants accrue only to the cooperatives while such costs
and risks are essentially avoided by independent producers.
The Agrimark witness testified that excess manufacturing plant
capacity occurring during high fluid demand months causes losses for
large cooperative handlers that operate balancing plants. According to
the witness, Agrimark may be reaching a point where it can no longer
operate their balancing plants because of excessive operating costs
arising from idled plant processing capacity. High operating costs
occur, according to the witness, because there is insufficient milk
volume for the plants to operate profitably at certain times of the
year.
The Agrimark witness testified that revenue from the manufacture
and distribution of Class IV products and sales of Class I and II
products essentially subsidize the balancing operations and activities
of cooperatives. In the opinion of the witness, these subsidies are
required because the balancing costs they incur are not recoverable
from the marketplace. The witness also provided information relating to
one of their specific plants for comparison with the RCBS study in
order to validate the RCBS study cost estimates. For example, the
witness indicated that a butter-powder plant, owned and operated by
Agrimark, was built in 1919 and has been refurbished on a number of
occasions. The witness indicated that while their plant costs and the
cost estimates in the RCBS study differ on a number of factors, the
RCBS study nevertheless can be relied upon in its totality as an
accurate reflection of Agrimark's own plant costs.
A witness from LOL, also appearing on behalf of ADCNE, testified
that marketwide service payments are needed for the Northeast milk
order to keep balancing plants operating, thus benefitting all market
participants. According to the LOL witness, only cooperatives incur the
brunt of balancing costs and bear the burden of receiving lower blend
prices than would be the case if balancing costs were more equitably
shared by all producers who pool milk on the Northeast order. Members
of cooperatives are therefore at a disadvantage in the marketplace as
compared to independent producers who do not pay for balancing through
cooperative membership dues or reduced revenues, the witness concluded.
The LOL witness testified that ADCNE cooperatives provided
balancing services for as much as 21.8 million pounds of milk per day
during peak milk production months during 2001. The witness testified
that this evidence was based on a survey that LOL conducted using data
received from ADCNE member butter-powder plants for the months of May
and November of that year. In addition, the witness noted, as did the
Agrimark witness, data presented by the Market Administrator indicated
that 80 percent of independent producer milk is delivered directly to
distributing plants for Class I use even though milk supplied by
cooperatives represented the bulk of reserve milk pooled on the
Northeast order.
Relying on Market Administrator data and the methodology for
estimating balancing costs from the RCBS study, the witness asserted
that to properly balance the Northeast marketing area, the cooperatives
operating butter-powder plants must operate with a 20 percent operating
reserve of milk during all seasons. According to the witness, during
months of high fluid milk demand, draws on milk supplies from butter-
powder plants for delivery to the Class I market resulted in unused
butter-powder capacity of as much as 11.5 million pounds in a single
month. Accordingly, the witness asserted, the cooperative's butter-
powder plants should receive compensation for the cost of maintaining
this available but unused processing capacity. According to the
witness, the existence of such capacity benefits all producers and
handlers participating in the Northeast marketing area and provides a
needed alternative outlet for milk.
The LOL witness noted that the balancing cost estimation developed
in the RCBS study suggests that four modern, efficient, optimally
located, three-million pounds per day butter-powder plants would
efficiently balance the Northeast market even though there are seven
actual plants located in the marketing area. Nevertheless, the witness
was of the opinion that the RCBS study of four theoretical
manufacturing plants is an appropriate proxy for all butter-powder
plants currently operating in the Northeast region. The witness
asserted that LOL's own data and analysis validates the RCBS study's
methodology. According to the witness, because the theory so accurately
reflects actual marketing conditions, the operators of the seven
butter-powder plants have a sound basis to justify a marketwide service
payment for unrecovered costs incurred by balancing the market.
Testimony offered in opposition to the marketwide service payment
proposal and the need in general for a balancing credit was advanced by
representatives of NYSDF, representatives from the International Dairy
Foods Association (IDFA), several proprietary handlers including
[[Page 4949]]
Friendship Dairy, Queensboro Farms, Marcus Dairy, and Worcester
Creameries, Dean Foods, H.P. Hood, and two independent dairy farmers.
Representatives for the proprietary handlers testified and all
maintained that if a balancing credit feature were adopted, they would
not be eligible to receive the proposed marketwide service payments
even though they too incur costs for performing market balancing
functions. These witnesses also testified that if Proposal 7 were
adopted, they would be placed at a competitive disadvantage in
procuring milk when compared to large cooperative handlers because they
would need to pay a higher effective price for milk. In this regard,
the witnesses indicated that as small businesses they would be treated
unfairly. Each of the proprietary handlers pointedly observed that the
benefit of marketwide service payments would accrue only to the large-
scale butter-powder processors located in the Northeast marketing area.
A witness for Queensboro Farms testified that as an operator of a
supply plant, the company provides balancing services for the market
that are similar to those performed by large-scale NFDM plants and
accordingly should receive compensation for providing balancing
services if a balancing credit for the order is adopted. However, the
witness emphasized and asserted that the proposal unfairly excludes
proprietary handlers on the basis of the milk volume eligibility
criteria. The witness said that as a matter of fairness and competitive
equity, no handler should receive a balancing credit if it is made
available only to the largest handlers.
Witnesses appearing on behalf of Marcus Dairy and Worcester
Creameries provided testimony supporting the Queensboro Farms witness.
The witness for Marcus Dairy noted that the company's cost of sourcing
milk would be higher, thus the prices paid to farmers by them would be
lower than prices paid by the largest cooperative handlers who would be
eligible to receive a marketwide service payment. However, because
Marcus Dairy is a small business entity, it would not be eligible for
receiving a payment. Similarly, witnesses for Worcester Creameries and
Friendship Dairy, both proprietary handlers and small businesses,
provided supporting testimony concluding that adoption of a balancing
credit, limited to criteria that only a large cooperative could meet,
would needlessly harm them by increasing their milk procurement costs.
A witness testifying on behalf of NYSDF noted that every handler in
the Northeast marketing area performs some market balancing functions
and therefore should be eligible to receive a credit if the decision is
to adopt a balancing credit feature for the Northeast milk order. The
witness asserted that if the largest handlers received marketwide
service payments, then smaller handlers would face relatively higher
costs and would therefore be placed at a competitive disadvantage in
the price they pay for a supply of milk.
A consultant witness for NYSDF testified that adoption of Proposal
7 would serve to unduly enhance the power of larger cooperatives at the
expense of smaller cooperatives. The witness asserted that smaller
cooperatives pooling milk on the Northeast order whose monthly milk
receipts are not sufficient to meet the proposed criteria for receiving
a balancing credit might be forced to affiliate with a larger
cooperative eligible to receive marketwide balancing credits. The
witness speculated that although smaller cooperatives might receive
partial benefit from the credits through affiliation, they also might
be absorbed into a larger cooperative's milk marketing operations as
the price for receiving this benefit. This witness was also of the
opinion that the members of ADCNE have failed to reveal or consider
that handlers are charged over-order premiums, give-up fees, or other
variously named charges that are essentially already compensating for
balancing costs.
A witness appearing on behalf of Dean Foods testified that surplus
milk from the Northeast marketing area could at times be shipped to the
fluid milk deficit markets of the Southeast and Florida marketing
areas. According to the witness, satisfying the demand for fluid milk
of the southern marketing areas could serve the same balancing function
for the Northeast market's producers seeking compensation to recover
costs arising from operating butter-powder plants.
Two independent dairy farmers, one from western New York State and
another from Pennsylvania, testified that dairy farmers already pay for
balancing as part of the expenses deducted from their milk checks by
handlers. The dairy farmers testified that while no specific fee is
explicitly itemized as a market balancing charge, they viewed the
deduction as a cost they pay for balancing. They testified that they
and other producers have been informed by their cooperative handlers,
who market their milk, that the cost of balancing is a component of the
handling charges that are deducted from their milk checks.
A witness representing IDFA testified in opposition to Proposal 7.
The witness noted that the costs of balancing the Northeast milk market
are already recovered through revenues received in over-order premiums
charged for milk diverted from Class IV to Class I use. In addition,
the witness pointed out that the Class IV product pricing formula make
allowance factors include balancing costs in determining the Class IV
milk price. In this regard, the IDFA witness viewed Proposal 7 as
requiring handlers to essentially pay anew for a function already
accounted for in market prices.
In addition, the IDFA witness expressed the opinion that
consideration of a marketwide service payment proposal to compensate
certain handlers for market balancing services should be heard on a
national basis instead of on a limited basis for only the Northeast
milk order. The IDFA witness stated that adopting Proposal 7 would have
multi-regional impacts and perhaps national impacts.
The IDFA witness noted that USDA had previously rejected proposals
for marketwide service payments for balancing advanced by ADCNE
cooperatives for the Northeast order as part of Federal milk order
reform. According to the IDFA witness, USDA rejected these proposals,
in part because the make allowances for Class IV products already
included a factor for balancing cost recovery and that the resulting
Class IV prices would be at market-clearing levels. The witness
concluded that this negates the need for additional compensation for
costs already compensated.
Exceptions to the Recommended Decision from ADCNE argued that the
Department did not accept the fundamental reasoning behind the
marketwide service payment proposal--that Class I balancing should be
paid for by all market participants. ADCNE took specific exception to
five separate issues raised by the Recommended Decision.
ADCNE first suggested that the Recommended Decision emphasized non-
record evidence more so than record testimony. Specifically, it was the
opinion of ADCNE that the Recommended Decision put more weight on
Agrimark and LOL's change of position after the close of the hearing
than it did on record testimony and evidence received at the hearing.
ADCNE also argued that balancing costs of ADCNE cooperatives were
sufficiently documented at the hearing. ADCNE was of the opinion that
the Dairylea, Agrimark and LOL witnesses
[[Page 4950]]
appearing on their behalf sufficiently proved that the costs of
operating balancing plants in the Northeast were far greater than the
lowest cost figures contained in the RCBS study, but were ignored since
the Recommended Decision failed to acknowledge the study as a lowest
cost Class I balancing model. ADCNE emphasized that their member
cooperatives lose money by providing balancing services to the
Northeast market, and the equity positions of cooperative members is
put at risk in doing so. ADCNE inferred that since the costs of owning
and operating butter powder manufacturing facilities reduce the
proceeds to ADCNE cooperative members, the milk of ADCNE cooperatives
and cooperative members should receive preferential treatment over milk
shipped to proprietary plants.
ADCNE took exception to the consideration of plant revenues and
profitability in the Recommended Decision. ADCNE was of the opinion
that profitability should not be used to determine the need for a
marketwide service payment.
ADCNE also argued that the make allowance factor in the formula
used to compute the price for milk used in Class IV is not a substitute
for a marketwide service payment, and that the Class III/IV Interim
Decision was not specific as to the intended definition of
``balancing''.
The Agricultural Marketing Agreement Act of 1937 (AMAA), as
amended, provides authority for milk marketing orders to contain
provisions for marketwide service payments. In this context, a
marketwide service payment is a charge to all producers of milk,
irrespective of the use classification of such milk, that is deducted
before computing the order's statistical uniform price. The AMAA
specifically identifies the types of services that may be of marketwide
benefit. They include, but are not limited to: (1) Providing facilities
to furnish additional supplies of milk needed by handlers and to handle
and dispose of milk supplies in excess of quantities needed by
handlers; (2) handling on specific days quantities of milk that exceed
quantities needed by handlers; and (3) transporting milk from one
location to another for the purpose of fulfilling requirements for milk
of a higher use classification or for providing a market outlet for
milk of any use classification.
A current example of Federal milk marketing orders that provides
for marketwide service payments is the transportation funds for
qualified handlers in the Southeast and Appalachian milk marketing
orders. In these marketing orders, handlers pay an assessment on
producer milk assigned to Class I each month into separate
transportation credit balancing funds maintained and operated by the
Market Administrator for each order. These funds, originally
established in four pre-reform milk orders, were carried into these two
consolidated milk marketing orders as a result of the need to import
milk into the southeastern regions of the country from other areas
during certain times of the year. The provisions provide payments from
the funds to handlers who import supplemental milk for fluid use during
the generally low milk production months of July through December. The
provisions restrict the payments to milk received from other plants or
farms located outside of the marketing areas.
Another example of a marketwide service payment provision includes
the transportation credits and assembly credits employed in the Upper
Midwest milk marketing order. Unlike the marketwide service payments of
the Appalachian and Southeast orders, the Upper Midwest order's
marketwide service payment provides credits to handlers for their total
class use value before the blend price is calculated. Because the
credits reduce the total dollar value of the pool, it results in a
lower blend price to all producers.
In the pre-reform New York-New Jersey milk marketing order, a
payment was available to certain cooperative handlers in the form of a
cooperative service payment and a balancing payment. These provisions
predate the AMAA's amendment by the 1985 Farm Bill. Under the pre-
reform New York-New Jersey order, qualified cooperatives could receive
up to three cents per cwt on the amount of milk pooled on the order in
the form of a cooperative service payment. Plus, there was a component
for a balancing payment that could have been up to one cent per cwt
provided a cooperative association operated a manufacturing facility.
By comparison, the marketwide service payment proposal considered in
this proceeding is dedicated entirely to compensating eligible handlers
for balancing functions and the rate of compensation at six cents per
cwt is much higher.
In testimony offered by proponents and opponents, as well as in the
data supplied for the record by the Market Administrator, it is evident
that the Northeast order has certain unique characteristics and
marketing conditions. The Northeast marketing area is the single
largest marketing area for Class I milk. Approximately 75 percent of
the milk pooled on the order is from members of cooperatives with the
remainder supplied by independent producers. In this regard, the
Northeast marketing area has the largest base of independent producers
that pool milk on the order relative to the other 9 Federal milk
marketing orders. The marketing area's independent producers tend to be
the predominant suppliers of the Class I needs of the marketing area as
revealed by evidence showing that some 80 percent of independent milk
supplies are pooled by a Class I handler in comparison to cooperative
milk supplies. Cooperative milk supplies for the Northeast marketing
area supply the vast majority of the marketing area's milk used in
Class III and Class IV dairy products.
The Northeast's market structure also is unique given the large use
of milk for Class II products such as ice cream, sour cream, yogurt,
and cottage cheese. The marketing area can also be characterized as
unique by the relatively large number of proprietary handlers, many of
whom are manufacturing entities. These handlers provide dairy farmers
with alternative outlets for their milk. None of the handlers
individually provide balancing services on the scale offered at the
plants owned and operated by the large cooperative members of the
ADCNE. However, taken as a whole, these plants do provide real and
important balancing services that are similar to those provided by the
member cooperatives of ADCNE.
As noted in the Recommended Decision, the basis of the argument
advanced by the proponents of Proposal 7 is that without marketwide
service payments, balancing functions are unprofitable and cost
recovery is not otherwise supported by market forces. The underpinning
of identifying costs relies on the theoretical results of a RCBS study
that examined the costs of balancing incurred by cooperatives that
operate butter-powder plants in the Northeast by placing a value on
unused plant processing capacity. The optimal cost structure for
balancing the Northeast marketing area is presented by the proponents
as an accurate reflection of the existing structure of the regional
milk market. However, actual costs, together with the profitability or
lack of profitability of these butter-powder plants, are never
adequately addressed. Profitability is important to the issue as it can
speak directly to whether or not a marketwide service payment can be
justified. This is important because it is the position of the
proponents that balancing activities might not otherwise be provided to
the marketplace and because there are no
[[Page 4951]]
other viable market mechanisms through which excess milk supplies can
be adequately disposed of other than through the butter-powder
balancing facilities of the region's six largest cooperative handlers.
Typically, a review of the profitability would include a
presentation and discussion of actual costs and revenues. In this
proceeding, neither actual costs nor actual revenues generated from the
sale of Class IV products or other methods used to generate revenue are
addressed. The record does not contain information regarding revenues
for Class IV products generated by the butter-powder operations or
related joint-product production processes from some plants that
produce NFDM.
Regarding costs, the proponents preferred to rely on a theoretical
cost estimating framework rather than on actual costs incurred in
performing balancing services. Without actual revenues and costs
available for review, it is impossible to credibly assess whether
balancing costs are inequitably shared. Similarly, without historical
cost and revenue data series, it is not possible to reasonably consider
how the profitability of these operations has changed over time under
prevailing and/or changing marketing conditions. It is therefore not
possible on the basis of the record to determine if there is a credible
need to compensate cooperatives for balancing the market through the
use of marketwide service payments.
The record does not support adoption of a marketwide service
payment provision for balancing services for the Northeast milk
marketing order. As noted in the Recommended Decision, arguments
contained in the record in support of Proposal 7 have focused on the
need to share the costs that are not recoverable from the marketplace
for balancing the Class I needs of the Northeast marketing area more
equitably with all producers who pool their milk on the order. Costs
have been explained primarily by attempting to place a value on unused
butter-powder manufacturing plant capacity where unused plant capacity
is caused by seasonal fluctuations in the relative demands for fluid
milk given available milk supplies. Proponents have relied primarily on
a theoretical framework developed in an RCBS study, and to a much more
limited extent, actual plant replacement cost data to estimate the
costs they incur for balancing the market. A balancing cost estimate is
derived in the RCBS study from an analysis of competing milk uses that
cause butter-powder plants to be operated at less than full capacity
which, in turn, is caused by seasonal fluctuations in the demand for
Class I milk.
ADCNE commented that the Recommended Decision overlooked the RCBS
study as a lowest-cost model. This argument is not persuasive. The RCBS
study provided an excellent model of market balancing activities in the
Northeast on the basis of unused plant capacity. As previously
mentioned, the RCBS study is theoretical and does not represent actual
or existing costs and conditions in the Northeast marketing area.
Therefore, the RCBS study could not be relied upon as the underpinning
of the ADCNE's proposal alone, or as a basis to explain how the
requested rate of six cents per cwt is derived. It is clear that the
RCBS study focused on manufacturing facilities that produce butter and
powder, which cost far less to produce than cheese. Denial of the
marketwide service payment proposal is explained in the Recommended
Decision and in this Final Decision.
For all intents and purposes, butter-powder plants operated in the
Northeast milk marketing area are owned and operated by members of
ADCNE and provide balancing services. The ADCNE member proponents argue
that a significant share of independent producers (dairy farmers who
are not members of cooperatives), do not bear the cost burdens that
cooperative members (producers) bear by operating and maintaining
butter-powder plants. ADCNE insists that these butter-powder plants
provide a market outlet for cooperatives and independent milk when not
needed for the fluid market and that such outlets provide a service
that is of marketwide benefit. Proponents for adoption of Proposal 7
maintain that the blend price received by independent producers is
higher than it would otherwise be if independent producers had the
burden of maintaining and providing services that balance the market.
The central discussion of the proposal to establish a marketwide
service payment by proponents is long on articulating costs associated
with balancing. However, the discussion of the role and adequacy of
revenues generated from providing balancing related activities or
revenue generated in the marketplace from the sale of Class IV products
is nearly absent. For example, proponent testimony is nearly silent
concerning the roles of over-order premiums, give-up charges, make
allowances already a part of the pricing formulae of the order, and
other charges that generate revenue to offset costs incurred and
characterized as associated with providing balancing functions.
Nevertheless, it is clear from the testimony that producers and
proprietary handlers pay charges and fees for either a supplemental
supply of milk or for the removal of milk when not needed for fluid
use. Producers and proprietary handlers have had it explained, in
varying ways, that such charges and fees are due to costs associated
with balancing--that is--supplying additional milk to meet fluid demand
or the removal of milk for surplus disposal when not needed by
distributing plants.
In their exceptions to the Recommended Decision, ADCNE again
suggested that their members are operating at a loss from the operation
and maintenance of their balancing plants. This argument is not
persuasive. As already noted, no record evidence adequately
demonstrates that ADCNE cooperatives are operating at a loss as a
result of owning and operating balancing facilities. A balancing
facility does not necessarily need to experience losses to warrant a
marketwide service payment. However, some measure of the revenues and
costs associated with the procurement, production and sale of all milk
associated with the plant, at the minimum, is necessary if for no other
reason to explain or justify the proposed rate of six cents per cwt.
Opponents, including proprietary handlers and independent dairy
farmers, also argue that balancing costs have already been recouped by
the large cooperatives in various ways. The record reveals that
proprietary handlers pay give-up charges and over order premiums to
cooperative suppliers to obtain milk for Class I use when needed. Costs
also are recouped by the imposition of variously-named charges and fees
incurred by Class I handlers diverting some of their independent milk
supply to a butter-powder plant when not needed for fluid use and in
fees deducted from independent producer milk checks that have been
explained in various ways to be fees charged for balancing.
Opponents correctly note that the costs of balancing have already
been considered and are accounted for in the Class IV product-price
formula make allowance used in all Federal milk marketing orders for
establishing the Class IV milk price. ADCNE, however, commented that
the make allowance in the Class IV product price formula does not
adequately cover balancing costs. The Class III/IV pricing formulae
adopted in the Class III/IV Interim Decision (65 FR 768832, published
December 7, 2002) included a factor to offset the cost of balancing
performed by butter-powder manufacturing plants. Official notice is
hereby taken of the
[[Page 4952]]
Class III/IV Final Decision (67 FR 67906, published November 7, 2002).
The Class III/IV Final Decision that adopted product price formulas for
all Federal milk marketing orders, including the Northeast order, gave
specific recognition to costs associated with balancing in the make
allowance factor in setting the Class III and Class IV milk price.
ADCNE's exception is not persuasive. As already stated, the Class III/
IV pricing formulae include a factor to offset the cost of balancing
performed by butter-powder manufacturing plants. The Class III/IV
pricing formulae, together with factors discussed herein all speak to
the issue of the inadequacy of cost and revenue evidence that would
tend to explain a requested marketwide service payment rate of six
cents per cwt.
Proprietary handlers also stress their opposition to adoption of
Proposal 7 on the basis that they would be excluded from receiving a
balancing credit, not because they do not provide balancing services
but because of their size. These plants provide balancing services
through the production of Class II and III products. ADCNE's proposal
would provide a balancing payment to plants that pool over a million
pounds per month, thus eliminating all but the large ADCNE member
butter-powder plants from receiving any money. The exclusion of small
businesses creates inequity among handlers in the price they pay for
their milk supply. Small handlers should not need to pay higher prices
for milk relative to large cooperative handlers who would be eligible
to receive a balancing credit. Independent of the other reasons
discussed for not adopting a marketwide service payment for balancing,
neither the Recommended Decision nor this Final Decision can find
record evidence that adequately addresses why business size should have
a bearing on the exclusion of small handlers who clearly perform
balancing functions or are charged for balancing services but would not
be eligible for a balancing credit.
None of the witnesses appearing on behalf of ADCNE would provide
information for the record concerning fees charged to distributing
plants and other commercial customers from whom cooperative handlers
receive payments to compensate for, or to offset, balancing costs. But
the record is clear, however, that such fees are charged in various
ways and forms. Because balancing costs are recoverable and, in fact,
are recovered in various ways, the record cannot support the notion
that whatever cost burden is being borne by any financially interested
business entity is so inequitable that it necessitates having the
Federal government establish a provision to supervise the transfer of
funds from one set of business entities to another.
Conversely, the record contains evidence that investments by the
large cooperatives in balancing facilities have taken place. For
example, testimony by the LOL witness for ADCNE reveals that balancing
services and plant expansion for balancing operations took place
repeatedly at their Carlisle, PA, facility over the period of 1984-
2000, a time span during which no marketwide service payment was
provided under the terms of then Middle Atlantic milk marketing order.
Testimony by the Agrimark witness appearing on behalf of the ADCNE
similarly reveals repeated investment in their butter-powder plant at
Springfield, MA, at a time when no marketwide service payment was
provided under the terms of the New England milk marketing order.
In post hearing briefs and comments, support for Proposal 7 was
completely withdrawn by Agrimark, one of the cooperatives comprising
ADCNE. In addition, LOL, another cooperative member of the ADCNE,
changed their position from support to a neutral position. After the
deadline for submission of post-hearing briefs and publication of the
Recommended Decision, LOL submitted a letter changing their support
from a neutral position to asking that the Final Decision be based on
the record of the proceeding.
ADCNE commented that the Recommended Decision relied more on non-
record positions than on evidence received at the hearing. This claim
is unfounded. The Recommended Decision indicated that two major hearing
participants appearing on behalf of the ADCNE, who are also
representatives of three ADCNE member cooperatives, had changed their
individual positions on the marketwide service payment proposal. The
Recommended Decision made note of the change in position by Agrimark
and LOL as factual information as does this Final Decision. With regard
to LOL's plea that the Department rely on the record of this
proceeding, it is the record of this proceeding alone that provides the
basis for not adopting the marketwide service payment provision.
As noted in the Recommended Decision, the record contains no
persuasive argument or compelling evidence to find that there are cost
inequities between cooperative dairy farmers and independent dairy
farmers that would warrant adoption of a provision providing payments
from one group of producers to another. The applicable Class III and
Class IV pricing formulae and other free market transactions charged by
the large cooperatives with balancing facilities sufficiently offset
balancing costs and are adequate to sustain existing balancing
facilities and operations. Additionally, the Northeast order Class I
price is sufficiently high to ensure that a sufficient supply of milk
for fluid use, together with the Class IV price as established under
the order, will provide for the orderly disposal of milk when not
needed for fluid use. The Northeast order already provides for cost
equity in the minimum pricing mechanisms and the marketplace is
providing the ability for transactions outside the terms of the order
that currently do not exhibit the need for additional regulation.
The record also does not support adoption of Proposal 7 on the
basis of strictly theoretical costs. Offsetting costs by providing a
balancing payment must be based on evidence of actual costs incurred
for two reasons. First, an estimate of actual costs serves to provide
and define a reasonable basis from which to determine a total value of
the service being provided and corresponding rate at which
reimbursement should be made. Secondly, it is real dollars that will be
transferred from one group of producers to another. Accordingly, it is
reasonable to suppose that those who will have their blend price
reduced have an adequate and supportable explanation why, in the
interest of producer and handler equity, their revenue should be
reduced. In this regard, the record does not provide any indication,
other than proponent assertions, that the revenues generated are
insufficient to offset inequitably borne costs. Because actual costs
are not provided, a finding cannot be made to determine whether or not
the proposed balancing credit rate of six cents per cwt is reasonable.
There is no evidence to suggest that milk of producers pooled on
the Northeast order will be unable to find markets without the
establishment of a balancing credit. The record is clear in
demonstrating that balancing functions and services are performed by
large cooperatives and they are able to recover costs from those they
serviced without government intervention. The record does not reveal or
contain evidence demonstrating disorderly marketing conditions
occurring because balancing facilities and services are not
sufficiently recovering their costs.
This decision concludes that the qualification criteria of Proposal
7 for receipt of a balancing credit would
[[Page 4953]]
unduly disadvantage handlers who perform a balancing function for the
market, but for no reason other than their size renders them ineligible
to recover balancing costs by receipt of a credit. These handlers would
suffer adverse business consequences from the higher effective prices
they would need to pay to procure a supply of milk. The record does not
reveal any justification that explains why other handlers should be
denied a credit for performing a similar service. Accordingly, this
decision concludes that the eligibility criteria of Proposal 7 would
have an adverse impact on these businesses in the Northeast marketing
area.
Rulings on Proposed Findings and Conclusions
Briefs and proposed findings and conclusions were filed on behalf
of certain interested parties. These briefs, proposed findings and
conclusions, and the evidence in the record were considered in making
the findings and conclusions set forth above. To the extent that the
suggested findings and conclusions filed by interested parties are
inconsistent with the findings and conclusions set forth herein, the
requests to make such findings or reach such conclusions are denied for
the reasons previously stated in this decision.
General Findings
The findings and determinations hereinafter set forth supplement
those that were made when the Northeast order was first issued and when
it was amended. The previous findings and determinations are hereby
ratified and confirmed, except where they may conflict with those set
forth herein.
(a) The tentative marketing agreement and the order, as hereby
proposed to be amended, and all of the terms and conditions thereof,
will tend to effectuate the declared policy of the Act;
(b) The parity prices of milk as determined pursuant to section 2
of the Act are not reasonable in view of the price of feeds, available
supplies of feeds, and other economic conditions which affect market
supply and demand for milk in the marketing area, and the minimum
prices specified in the tentative marketing agreement and the order, as
hereby proposed to be amended, are such prices as will reflect the
aforesaid factors, insure a sufficient quantity of pure and wholesome
milk, and be in the public interest; and
(c) The tentative marketing agreement and the order, as hereby
proposed to be amended, will regulate the handling of milk in the same
manner as, and will be applicable only to persons in the respective
classes of industrial and commercial activity specified in, the
marketing agreement upon which a hearing has been held.
Rulings on Exceptions
In arriving at the findings and conclusions, and the regulatory
provisions of this decision, each of the exceptions received was
carefully and fully considered in conjunction with the record evidence.
To the extent that the findings and conclusions and the regulatory
provisions of this decision are at variance with any of the exceptions,
such exceptions are hereby overruled for the reasons previously stated
in this decision.
Marketing Agreement and Order
Annexed hereto and made a part hereof are two documents, a
Marketing Agreement regulating the handling of milk, and an Order
amending the order regulating the handling of milk in the Northeast
marketing area, which has been decided upon as the detailed and
appropriate means of effectuating the foregoing conclusions.
It is hereby ordered that this entire decision and the two
documents annexed hereto be published in the Federal Register.
Referendum Order To Determine Producer Approval; Determination of
Representative Period; and Designation of Referendum Agent
It is hereby directed that a referendum be conducted and completed
on or before the 30th day from the date this decision is published in
the Federal Register, in accordance with the procedure for the conduct
of referenda [7 CFR 900.300-311], to determine whether the issuance of
the order as amended and hereby proposed to be amended, regulating the
handling of milk in the Northeast marketing area is approved or favored
by producers, as defined under the terms of the order, as amended and
as hereby proposed to be amended, who during such representative period
were engaged in the production of milk for sale within the aforesaid
marketing area.
The representative period for the conduct of such referendum is
hereby determined to be July 2004.
The agent of the Secretary to conduct such referendum is hereby
designated to be Erik Rasmussen, the Northeast Market Administrator.
List of Subjects in 7 CFR Part 1001
Milk marketing orders.
Dated: January 14, 2005.
A. J. Yates,
Administrator, Agricultural Marketing Service.
Order Amending the Order Regulating the Handling of Milk in the
Northeast Marketing Area
(This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and marketing
orders have been met.)
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the order was first issued and when it was
amended. The previous findings and determinations are hereby ratified
and confirmed, except where they may conflict with those set forth
herein.
(a) Findings. A public hearing was held upon certain proposed
amendments to the tentative marketing agreement and to the order
regulating the handling of milk in the Northeast marketing area. The
hearing was held 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 (7 CFR Part 900).
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The said order as hereby amended, and all of the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) The parity prices of milk, as determined pursuant to Section 2
of the Act, are not reasonable in view of the price of feeds, available
supplies of feeds, and other economic conditions which affect market
supply and demand for milk in the aforesaid marketing area. The minimum
prices specified in the order as hereby amended are such prices as will
reflect the aforesaid factors, insure a sufficient quantity of pure and
wholesome milk, and be in the public interest; and
(3) The said order as hereby amended regulates the handling of milk
in the same manner as, and is applicable only to persons in the
respective classes of industrial or commercial activity specified in, a
marketing agreement upon which a hearing has been held.
Order Relative to Handling
It is therefore ordered, that on and after the effective date
hereof, the handling of milk in the Northeast marketing area shall be
in conformity to and in compliance with the terms and
[[Page 4954]]
conditions of the order, as amended, and as hereby amended, as follows:
The provisions of the order amending the order contained in the
Recommended Decision issued by the Administrator, Agricultural
Marketing Service, on March 17, 2004, and published in the Federal
Register on March 25, 2004 (69 FR 15562), are adopted with one minor
change and shall be the terms and provisions of this order. The revised
order follows.
Authority: 7 U.S.C. 601-674.
PART 1001--MILK IN THE NORTHEAST MARKETING AREA
1. The authority citation for 7 CFR part 1001 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 1001.7 is amended by:
a. Revising paragraphs (c)(1) and (c)(2);
b. Removing paragraph (c)(3);
c. Redesignating paragraphs (c)(4) and (c)(5) as (c)(3) and (c)(4);
d. Revising paragraphs (e)(1) and (e)(2); and
e. Removing paragraph (h)(7).
The revisions read as follows:
Sec. 1001.7 Pool plant.
* * * * *
(c) * * *
(1) In each of the months of January through August and December,
such shipments and transfers to distributing plants must not equal less
than 10 percent of the total quantity of milk (except the milk of a
producer described in Sec. 1001.12(b)) that is received at the plant
or diverted from it pursuant to Sec. 1001.13 during the month.
(2) In each of the months of September through November, such
shipments and transfers to distributing plants must equal not less than
20 percent of the total quantity of milk (except the milk of a producer
described in Sec. 1001.12(b)) that is received at the plant or
diverted from it pursuant to Sec. 1001.13 during the month.
* * * * *
(e) * * *
(1) At least one of the plants in the unit qualifies as a pool
distributing plant pursuant to paragraph (a) of this section;
(2) Other plants in the unit must process at least 60 percent of
monthly receipts of producer milk, including cooperative 9(c) milk,
only as Class I or Class II products and must be located in the
Northeast marketing area, as defined in Sec. 1001.2, in a pricing zone
providing the same or a lower Class I price than the price applicable
at the distributing plant(s) included in the unit; and
* * * * *
3. Section 1001.13 is amended by:
a. Revising paragraph (d)(1);
b. Redesignating paragraph (d)(2) as paragraph (d)(3); and
c. Adding paragraphs (d)(2), (d)(4), (d)(5) and (e).
The revision and additions read as follows:
Sec. 1001.13 Producer milk.
* * * * *
(d) * * *
(1) Milk of a dairy farmer shall not be eligible for diversion
unless one day's milk production of such dairy farmer was physically
received as producer milk 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 unless milk of the dairy farmer has been
physically received as producer milk at a pool plant during the month;
(2) Of the total quantity of producer milk received during the
month (including diversion but excluding the quantity of producer milk
received from a handler described in Sec. 1000.9(c) or which is
diverted to another pool plant), the handler diverted to nonpool plants
not more than 80 percent during each of the months of September through
November and 90 percent during each of the months of January through
August and December. In the event that a handler causes the milk of a
producer to be over diverted, a dairy farmer will not lose producer
status;
(3) * * *
(4) Any milk diverted in excess of the limits set forth in
paragraph (d)(2) of this section shall not be producer milk. The
diverting handler shall designate the dairy farmer deliveries that
shall not be producer milk. If the handler fails to designate the dairy
farmer deliveries which are ineligible, producer milk status shall be
forfeited with respect to all milk diverted to nonpool plants by such
handler; and
(5) The delivery day requirement and the diversion percentages in
paragraphs (d)(1) and (d)(2) of this section may be increased of
decreased by the Market Administrator if the Market Administrator finds
that such revision is necessary to assure orderly marketing and
efficient handling of milk in the marketing area. Before making such a
finding, the Market Administrator shall investigate the need for the
revision either on the Market Administrator's own initiative or at the
request of interested persons if the request is made in writing at
least 15 days prior to the month for which the requested revision is
desired to be effective. If the investigation shows that a revision
might be appropriate, the Market Administrator shall issue a notice
stating that the revision is being considered and inviting written
data, views, and arguments. Any decision to revise an applicable
percentage or delivery day requirement must be issued in writing at
least one day before the effective date.
(e) Producer milk shall not include milk of a producer that is
subject to inclusion and participation in a marketwide equalization
pool under a milk classification and pricing program imposed under the
authority of another government entity.
4. Section 1001.30 is amended by revising the introductory text to
read as follows:
Sec. 1001.30 Reports of receipts and utilization.
Each handler shall report monthly so that the Market
Administrator's office receives the report on or before the 10th day
after the end of the month, in the detail and on prescribed forms, as
follows:
* * * * *
5. Section 1001.62 is amended by:
a. Revising introductory text; and
b. Adding paragraph (h).
The revision and addition reads as follows:
Sec. 1001.62 Announcement of producer prices.
On of before the 14th day after the end of the month, the Market
Administrator shall announce the following prices and information:
* * * * *
(h) If the 14th falls on a Saturday, Sunday, or national holiday,
the Market Administrator may have up to two additional business days to
announce the producer price differential and the statistical uniform
price.
6. Section 1001.71 is amended by revising the introductory text to
read as follows:
Sec. 1001.71 Payments to the producer-settlement fund.
Each handler shall make payment to the producer-settlement fund in
a manner that provides receipt of the funds by the Market Administrator
no later than two days after the announcement of the producer price
differential and the statistical uniform price pursuant to Sec.
1001.62 (except as provided for in Sec. 1000.90). Payment shall be the
amount, if any, by which the amount specified in paragraph (a) of this
section exceeds the amount
[[Page 4955]]
specified in paragraph (b) of this section:
* * * * *
7. Section 1001.72 is revised to read as follows:
Sec. 1001.72 Payments from the producer-settlement fund.
No later than the day after the due date required for payment to
the Market Administrator pursuant to Sec. 1001.71 (except as provided
in Sec. 1001.90), the Market Administrator shall pay to each handler
the amount, if any, by which the amount computed pursuant to Sec.
1001.71(b) exceeds the amount computed pursuant to Sec. 1001.71(a).
If, at such time, the balance in the producer-settlement fund is
insufficient to make all payments pursuant to this section, the Market
Administrator shall reduce uniformly such payments and shall complete
the payments as soon as the funds are available.
8. Section 1001.73 is amended by revising paragraphs (a)(2) and (e)
introductory text to read as follows:
Sec. 1001.73 Payments to producers and to cooperative associations.
* * * * *
(a) * * *
(2) Final payment. For milk received during the month, payment
shall be made during the following month so it is received by each
producer no later than the day after the required date of payment by
the Market Administrator, pursuant to Sec. 1001.72, in an amount
computed as follows:
* * * * *
(e) In making payments to producers pursuant to this section, each
handler shall furnish each producer (except for a producer whose milk
was received from a cooperative association handler described in Sec.
1000.9(a) or 9(c)), a supporting statement in such form that it may be
retained by the recipient which shall show:
* * * * *
Marketing Agreement Regulating the Handling of Milk in the Northeast
Marketing Area
The parties hereto, in order to effectuate the declared policy
of the Act, and in accordance with the rules of practice and
procedure effective thereunder (7 CFR part 900), desire to enter
into this marketing agreement and do hereby agree that the
provisions referred to in paragraph I hereof as augmented by the
provisions specified in paragraph II hereof, shall be and are the
provisions of this marketing agreement as if set out in full herein.
I. The findings and determinations, order relative to handling,
and the provisions of Sec. Sec. 1001.1 to 1001.86 all inclusive, of
the order regulating the handling of milk in the Northeast marketing
area (7 CFR 1001 which is annexed hereto); and
II. The following provisions: Record of milk handled and
authorization to correct typographical errors.
(a) Record of milk handled. The undersigned certifies that he/
she handled during the month of July, 2004, ---- hundredweight of
milk covered by this marketing agreement.
(b) Authorization to correct typographical errors. The
undersigned hereby authorizes the Deputy Administrator, or Acting
Deputy Administrator, Dairy Programs, Agricultural Marketing
Service, to correct any typographical errors which may have been
made in this marketing agreement.
Effective date. This marketing agreement shall become effective
upon the execution of a counterpart hereof by the Department in
accordance with Section 900.14(a) of the aforesaid rules of practice
and procedure.
In witness whereof, the contracting handlers, acting under the
provisions of the Act, for the purposes and subject to the
limitations herein contained and not otherwise, have hereunto set
their respective hands and seals.
Signature
By (Name)-------------------------------------------------------------
(Title)---------------------------------------------------------------
(Address)-------------------------------------------------------------
(Seal)
Attest
[FR Doc. 05-1410 Filed 1-28-05; 8:45 am]
BILLING CODE 3410-02-P