[Federal Register: April 12, 2005 (Volume 70, Number 69)]
[Proposed Rules]
[Page 19012-19015]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ap05-15]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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[[Page 19012]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1000, 1001, 1005, 1006, 1007, 1030, 1032, 1033, 1124,
1126, and 1131
[Docket No. AO-14-A73, et al.; DA-03-10]
Milk in the Northeast and Other Marketing Areas; Notice of
Hearing on Proposed Amendments to Tentative Marketing Agreements and
Orders
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7 CFR part Marketing area AO Nos.
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1001............... Northeast............... AO-14-A73
1005............... Appalachian............. AO-388-A14
1006............... Florida................. AO-356-A37
1007............... Southeast............... AO-366-A43
1030............... Upper Midwest........... AO-361-A38
1032............... Central................. AO-313-A47
1033............... Mideast................. AO-166-A71
1124............... Pacific Northwest....... AO-368-A34
1126............... Southwest............... AO-231-A67
1131............... Arizona Las-Vegas....... AO-271-A39
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AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule; Notice of public hearing on proposed rulemaking.
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SUMMARY: A national public hearing is being held to consider proposals
seeking to amend the Class I fluid milk product definition of all
Federal milk marketing orders.
DATES: The hearing will convene at 8 a.m. on Monday, June 20, 2005.
ADDRESSES: The hearing will be held at Sheraton Station Square Hotel,
300 West Station Square Drive, Pittsburgh, PA 15219-1122. Telephone
Number: (412) 261-2000.
FOR FURTHER INFORMATION CONTACT: Gino M. Tosi, Marketing Specialist,
USDA/AMS/Dairy Programs, Order Formulation and Enforcement Branch, Stop
0231-Room 2971, 1400 Independence Avenue, SW., Washington, DC 20250-
0231, (202) 690-1366, e-mail address: gino.tosi@usda.gov.
Persons requiring a sign language interpreter or other special
accommodations should contact David Z. Walker, Market Administrator, at
(330) 225-4758; email address: dwalker@fmmaclev.com before the hearing
begins.
SUPPLEMENTARY INFORMATION: This administrative action is governed by
the provisions of sections 556 and 557 of Title 5 of the United States
Code and, therefore, is excluded from the requirements of Executive
Order 12866.
Notice is hereby given of a public hearing to be held at Sheraton
Station Square Hotel, 300 West Station Square Drive, Pittsburgh,
Pennsylvania beginning at 8 a.m., on Monday, June 20, 2005, with
respect to proposed amendments to the tentative marketing agreements
and to the orders regulating the handling of milk in the Northeast and
other marketing areas.
The hearing is called pursuant to the provisions of the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), and the applicable rules of practice and procedure governing the
formulation of marketing agreements and marketing orders (7 CFR Part
900).
The purpose of the hearing is to receive evidence with respect to
the economic and marketing conditions which relate to the proposed
amendments, hereinafter set forth, and any appropriate modifications
thereof, to the tentative marketing agreements and to the orders.
Actions under the Federal milk order program are subject to the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This Act seeks to
ensure that, within the statutory authority of a program, the
regulatory and informational requirements are tailored to the size and
nature of small businesses. For the purpose of the Act, a dairy farm is
a ``small business'' if it has an annual gross revenue of less than
$750,000, and a dairy products manufacturer is a ``small business'' if
it has fewer than 500 employees. Most parties subject to a milk order
are considered as a small business. Accordingly, interested parties are
invited to present evidence on the probable regulatory and
informational impact of the hearing proposals on small businesses.
Also, parties may suggest modifications of these proposals for the
purpose of tailoring their applicability to small businesses.
The amendments to the rules proposed herein have been reviewed
under Executive Order 12988, Civil Justice Reform. They are not
intended to have a retroactive effect. If adopted, the proposed
amendments would not preempt any state or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Agricultural Marketing Agreement Act provides that
administrative proceedings must be exhausted before parties may file
suit in court. Under section 8c(15)(A) of the Act, any handler subject
to an order may request modification or exemption from such order by
filing with the Department of Agriculture (Department) a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with the law.
A handler is afforded the opportunity for a hearing on the petition.
After a hearing, the Department would rule on the petition. The Act
provides that the district court of the United States in any district
in which the handler is an inhabitant, or has its principal place of
business, has jurisdiction in equity to review the Department's ruling
on the petition, provided a bill in equity is filed not later than 20
days after the date of the entry of the ruling.
Interested parties who wish to introduce exhibits should provide
the Presiding Officer at the hearing with (6) copies of such exhibits
for the Official Record. Also, it would be helpful if additional copies
are available for the use of other participants at the hearing.
List of Subjects in 7 CFR Parts 1000, 1001, 1005, 1006, 1007, 1030,
1032, 1033, 1124, 1126, and 1131
Milk marketing orders.
PARTS 1000, 1001, 1005, 1006, 1007, 1030, 1032, 1033, 1124, 1126,
AND 1131--[AMENDED]
The authority citation for 7 CFR Parts 1000, 1001, 1005, 1006,
1007, 1030, 1032, 1033, 1124, 1126, and 1131 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
The proposed amendments, as set forth below, have not received the
approval of the Department.
[[Page 19013]]
Proposed by Dairy Farmers of America, Inc.
Proposal No. 1
This proposal seeks to amend the fluid milk product definition to
include products formulated using milk or milk solids for beverage
consumption by removing the 6.5 percent nonfat milk solids standard.
1. Amend Sec. 1000.15 by revising paragraphs (a) and (b)(1), to
read as follows:
Sec. 1000.15 Fluid milk product.
(a) Except as provided in paragraph (b) of this section, fluid milk
product means any product containing milk or milk products in fluid or
frozen form containing less than 9 percent butterfat that are intended
to be used as beverages, including any beverage products that are
flavored, cultured, modified with added nonfat solids, sterilized,
concentrated, or reconstituted. As used in this part, the term
concentrated milk means milk that contains not less than 25.5 percent,
and not more than 50 percent, total milk solids.
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use (meal replacement) that are packaged in
hermetically-sealed containers, and whey; and
* * * * *
Proposal No. 2
This proposal seeks to amend the fluid milk product definition to
include any dairy ingredient, including whey, when calculating the milk
contained in a product on a protein-equivalent or nonfat solids
equivalent basis.
Proposed by O-AT-KA Milk Products Cooperative, Inc.
Proposal No. 3
This proposal seeks to amend the fluid milk product definition by
adding a true-protein standard. In determining the protein content and
milk equivalent of a product, the proposal seeks to include all dairy
solids--such as caseinates, milk protein concentrates and whey
protein--and non-dairy sources while pricing only the milk equivalent
of the dairy solids. Furthermore, this proposal seeks to add exemptions
for alcoholic beverages containing dairy ingredients and formulas
prepared for dietary use (meal replacements or nutritional supplements)
having a true-protein content from any source greater than 6.2 percent
on a protein-equivalent basis.
1. Amend Sec. 1000.15 by revising paragraph (b)(1), redesignating
paragraph (b)(2) as paragraph (b)(4), and adding new paragraphs (b)(2)
and (b)(3) to read as follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk and sweetened
condensed milk/skim milk,
(2) The following products packaged in containers that are shelf
stable at ambient temperatures:
(i) Formulas especially prepared for infant feeding;
(ii) Formulas especially prepared for meal replacement and contain
at least 25 percent of the Daily Values per serving reference amounts
defined by the Food and Drug Administration in 21 CFR 101.9 for
calories and protein and at least 16 of the 25 listed vitamins and
minerals.
(iii) Formulas especially prepared for high protein drinks and have
a true protein solids content greater than 8 percent.
(iv) Beverages that contain alcohol and are licensed by the Federal
Tax and Trade Bureau, U.S. Department of the Treasury, and
(v) Packaged milk products that are specifically formulated and
labeled for animal use.
(3) Any product that contains by weight less than 6.5 percent
nonfat milk solids and 2.24 percent true protein. Provided further that
all protein sources (including non-dairy sources) will be included in
establishing the true protein content of the beverage product.
* * * * *
Proposed by Select Milk Producers Inc. and Continental Dairy Products,
Inc.
Proposal No. 4
This proposal seeks to amend the fluid milk product definition by
including only stand-alone beverages that are determined by a skim-
equivalent standard, removing the 6.5 percent nonfat milk solids
standard, and excluding other dairy products in fluid form that are not
intended to be used as stand-alone beverages.
1. Amend Sec. 1000.15 by revising paragraphs (a) and (b)(1),
redesignating paragraph (b)(2) as paragraph (b)(3), and adding new
paragraphs (b)(2) and (c), to read as follows:
Sec. 1000.15 Fluid milk product.
(a) Except as provided in paragraph (b) of this section, fluid milk
product means any product containing milk or milk products in fluid or
frozen form that is intended to be used as a stand-alone beverage.
Fluid milk product includes any beverage products that are flavored,
cultured, modified with added nonfat solids, sterilized, concentrated,
or reconstituted. As used in this part, the term concentrated milk
means milk that contains not less than 25.5 percent and not more than
50 percent total milk solids.
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use (meal replacement) that are packaged in
hermetically-sealed containers, and whey;
(2) Products such as half-and-half, light cream, heavy cream, and
whipping creams which, although fluid in form, are not intended for use
as stand-alone beverages; and
(3) * * *
(c) The quantity of milk that is used in a product defined in
paragraph (a) of this section shall be determined on a skim-equivalent
basis.
Proposed by H.P. Hood LLC
Proposal No. 5
This proposal seeks to amend the fluid milk product definition to
include any product that, based upon substantial evidence as determined
by the Department, directly competes with other fluid milk products and
whose classification would enhance producer revenues.
1. Amend Sec. 1000.15 by revising paragraph (b)(2), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(2) The quantity of skim milk equivalent in any modified product
specified in paragraph (a) of this section that is greater than an
equal volume of an unmodified product of the same nature and butterfat
content, provided that any product that would otherwise be excluded
from the fluid milk product definition because it contains by weight
less than 6.5 percent nonfat milk solids will nonetheless be deemed a
fluid milk product if the Department makes a written determination,
based on substantial evidence, that:
(i) The product directly competes with other fluid milk products;
and
(ii) Treating the product as a fluid milk product will enhance
producer revenues under the orders, taking into account both the
revenues generated by the minimum class price resulting from that
classification and the impact of that class price on consumer demand
for the
[[Page 19014]]
product and the substitution of non-dairy ingredients.
Proposal No. 6
As an alternative to Proposal 5, this proposal seeks to amend the
fluid milk product definition by authorizing, but not requiring, the
Department to determine a product's nonfat milk solids content by
applying only a skim milk equivalent standard with respect to any dried
dairy ingredient.
1. Amend Sec. 1000.15 by revising paragraph (b)(2), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(2) The quantity of skim milk equivalent in any modified product
specified in paragraph (a) of this section that is greater than an
equal volume of an unmodified product of the same nature and butterfat
content, provided that, in determining whether a product contains by
weight less than 6.5 percent nonfat milk solids, the Department shall
be authorized, but not required to apply that test on a skim milk
equivalent basis only with respect to any dairy ingredient utilized in
dried form.
Proposed by National Milk Producers Federation
Proposal No. 7
This proposal seeks to amend the fluid milk product definition by
removing the reference to the 6.5 percent nonfat milk solids standard
and whey, and adopting a milk protein standard.
1. Amend Sec. 1000.15 by revising paragraph (b)(1), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use (meal replacement) that are packaged in
hermetically-sealed containers, and any product that contains by weight
less than 2.25 percent milk protein; and
* * * * *
Proposed by The Dannon Company Inc.
Proposal No. 8
This proposal seeks to amend the fluid milk product definition by
excluding yogurt-containing beverages.
1. Amend Sec. 1000.15 by revising paragraph (b)(1), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use (meal replacement) that are packaged in
hermetically-sealed containers, yogurt-containing beverages, any
product that contains by weight less than 6.5 percent nonfat milk
solids, and whey; and
* * * * *
Proposed by General Mills, Inc.
Proposal No. 9
This proposal seeks to amend the fluid milk product definition to
exclude drinkable food products with no more than 2.2 percent skim milk
protein provided the product contains at least 20 percent yogurt
(nonfat yogurt, lowfat yogurt or yogurt) by weight.
Proposed by Novartis Nutrition Corporation
Proposal No. 10
This proposal seeks to amend the fluid milk product definition to
exclude formulas prepared for dietary use by removing the words ``(meal
replacement) that are packaged in hermitically-sealed containers.'' The
proposal removes the 6.5 percent nonfat milk solids standard.
1. Amend Sec. 1000.15 by revising paragraph (b)(1), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use, and whey; and
* * * * *
Proposed by Hormel Foods, LLC
Proposal No. 11
This proposal seeks to amend the fluid milk product definition and
the corresponding classification of milk utilization provision to
exclude health-care beverages as fluid milk products.
1. Amend Sec. 1000.15 by revising paragraph (b)(1) to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding, nutrient enhanced (fortified) formulas especially prepared for
the health care industry or dietary use (meal replacement) that are
packaged in hermetically-sealed containers, any product that contains
by weight less than 6.5 percent nonfat milk solids, and whey; and
* * * * *
2. Amend Sec. 1000.40 by revising paragraph (b)(2)(vi) to read as
follows:
Sec. 1000.40 Classes of utilization.
* * * * *
(b) * * *
(2) * * *
(vi) Formulas especially prepared for infant feeding; nutrient
enhanced (fortified) formulas especially prepared for the health care
industry, or dietary use (meal replacement) that are packaged in
hermetically-sealed containers;
* * * * *
Proposed by Dairy Programs, Agricultural Marketing Service
Proposal No. 12
For all Federal Milk Marketing Orders, make such changes as may be
necessary to make the entire marketing agreements and the orders
conform with any amendments thereto that may result from this hearing.
Copies of this notice of hearing and the orders may be procured
from the Market Administrator of each of the aforesaid marketing areas,
or from the Hearing Clerk, United States Department of Agriculture,
STOP 9200--Room 1083, 1400 Independence Avenue, SW., Washington, DC
20250-9200, or may be inspected there.
Copies of the transcript of testimony taken at the hearing will not
be available for distribution through the Hearing Clerk's Office. If
you wish to purchase a copy, arrangements may be made with the reporter
at the hearing.
From the time that a hearing notice is issued and until the
issuance of a final decision in a proceeding, Department employees
involved in the decision-making process are prohibited from discussing
the merits of the hearing issues on an ex parte basis with any person
having an interest in the proceeding. For this particular proceeding,
the prohibition applies to employees in the following organizational
units:
Office of the Secretary of Agriculture;
Office of the Administrator, Agricultural Marketing Service;
Office of the General Counsel; and
Dairy Programs, Agricultural Marketing Service (Washington office)
and the Offices of all Market Administrators.
Procedural matters are not subject to the above prohibition and may
be discussed at any time.
[[Page 19015]]
Dated: April 6, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-7271 Filed 4-11-05; 8:45 am]
BILLING CODE 3410-02-P