[Code of Federal Regulations]
[Title 7, Volume 9]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR1033.7]

[Page 150-152]
 
                          TITLE 7--AGRICULTURE
 
  CHAPTER X--AGRICULTURAL MARKETING SERVICE (Marketing Agreements and 
                 Orders; Milk) DEPARTMENT OF AGRICULTURE
 
PART 1033_MILK IN THE MIDEAST MARKETING AREA--Table of Contents
 
                    Subpart_Order Regulating Handling
 
Sec. 1033.7  Pool plant.

    Pool plant means a plant, unit of plants, or a system of plants as 
specified in paragraphs (a) through (f) of this section, but excluding a 
plant specified in paragraph (h) of this section. The pooling standards 
described in paragraphs (c) through (f) of this section are subject to 
modification pursuant to paragraph (g) of this section:
    (a) A distributing plant, other than a plant qualified as a pool 
plant pursuant to paragraph (b) of this section or Sec. --------.7(b) 
of any other Federal milk order, from which during the month 30 percent 
or more of the total quantity of fluid milk products physically received 
at the plant (excluding concentrated milk received from another plant by 
agreement for other than Class I use) are disposed of as route 
disposition or are transferred in the form of packaged fluid milk 
products to other distributing plants. At least 25 percent of such route 
disposition and transfers must be to outlets in the marketing area.
    (b) Any distributing plant located in the marketing area which 
during the month processed at least 30 percent of the total quantity of 
fluid milk products physically received at the plant (excluding 
concentrated milk received from another plant by agreement for other 
than Class I use) into ultra-pasteurized or aseptically-processed fluid 
milk products.
    (c) A supply plant from which the quantity of bulk fluid milk 
products shipped to, received at, and physically unloaded into plants 
described in paragraph (a) or (b) of this section as a percent of the 
Grade A milk received at the plant from dairy farmers (except dairy 
farmers described in Sec. 1033.12(b)) and handlers described in Sec. 
1033.9(c), as reported in Sec. 1033.30(a), is not less than 30 percent 
of the milk received from dairy farmers, including milk diverted 
pursuant to Sec. 1033.13, subject to the following conditions:
    (1) Qualifying shipments pursuant to this paragraph may be made to 
the following plants, except whenever the authority provided in 
paragraph (g) of this section is applied to increase the shipping 
requirements specified in this section, only shipments to pool plants 
described in Sec. 1033.7(a) and (b), shall count as qualifying 
shipments for the purpose of meeting the increased shipments:
    (i) Pool plants described in Sec. 1033.7(a) and (b);
    (ii) Plants of producer-handlers;
    (iii) Partially regulated distributing plants, except that credit 
for such shipments shall be limited to the amount of such milk 
classified as Class I at the transferee plant.
    (2) The operator of a supply plant located within the marketing area 
may include deliveries to pool distributing plants directly from farms 
of producers pursuant to Sec. 1033.13(c) as up to 90 percent of the 
supply plant's qualifying shipments. Handlers may not use shipments 
pursuant to Sec. 1033.13(c) to qualify plants located outside the 
marketing area.
    (3) Concentrated milk transferred from the supply plant to a 
distributing plant for an agreed-upon use other than Class I shall be 
excluded from the

[[Page 151]]

supply plant's shipments in computing the supply plant's shipping 
percentage.
    (4) Shipments used in determining qualifying percentages shall be 
milk transferred or diverted and physically received by pool 
distributing plants, less any transfers or diversions of bulk fluid milk 
products from such pool distributing plants.
    (5) A supply plant that does not meet the minimum delivery 
requirements specified in this paragraph to qualify for pool status in 
the current month because a distributing plant to which the supply plant 
delivered its fluid milk products during such month failed to qualify as 
a pool plant pursuant to paragraph (a) or (b) of this section shall 
continue to be a pool plant for the current month if such supply plant 
qualified as a pool plant in the 3 immediately preceding months.
    (d) A plant operated by a cooperative association if, during the 
month, 30 percent or more of the producer milk of members of the 
association is delivered to a distributing pool plant(s) or to a nonpool 
plant(s), and classification other than Class I is not requested. 
Deliveries for qualification purposes may be made directly from the farm 
or by transfer from such association's plant, subject to the following 
conditions:
    (1) The cooperative requests pool status for such plant;
    (2) The 30 percent delivery requirement may be met for the current 
month or it may be met on the basis of deliveries during the preceding 
12-month period ending with the current month.
    (3) The plant is approved by a duly constituted regulatory authority 
to handle milk for fluid consumption; and
    (4) The plant does not qualify as a pool plant under paragraph (a), 
(b), or (c) of this section or under the similar provisions of another 
Federal order applicable to a distributing plant or supply plant.
    (e) A plant located inside the marketing area which has been a pool 
plant under this order for twelve consecutive months, but is not 
otherwise qualified under this paragraph, if it has a marketing 
agreement with a cooperative association and it fulfills the following 
conditions:
    (1) The aggregate monthly quantity supplied by all parties to such 
an agreement as a percentage of the producer milk receipts included in 
the unit during the month is not less than 35 percent; and
    (2) Shipments for qualification purposes shall include both 
transfers from supply plants to plants described in paragraph (c)(1) of 
this section, and deliveries made direct from the farm to plants 
qualified under paragraph (a) of this section.
    (f) A system of supply plants may qualify for pooling if 2 or more 
plants operated by one or more handlers meet the applicable percentage 
requirements of paragraph (c) of this section in the same manner as a 
single plant subject to the following additional requirements:
    (1) Each plant in the system is located within the marketing area, 
or was a pool supply plant for each of the 3 months immediately 
preceding the effective date of this paragraph so long as it continues 
to maintain pool status. Cooperative associations may not use shipments 
pursuant to Sec. 1033.9(c) to qualify plants located outside the 
marketing area;
    (2) A written notification to the market administrator listing the 
plants to be included in the system and the handler that is responsible 
for meeting the performance requirements of this paragraph under a 
marketing agreement certified to the market administrator by the 
designated handler and any others included in the system, and the period 
during which such consideration shall apply. Such notice, and notice of 
any change in designation, shall be furnished on or before the 5th 
working day following the month to which the notice applies. The listed 
plants included in the system shall also be in the sequence in which 
they shall qualify for pool plant status based on the minimum deliveries 
required. If the deliveries made are insufficient to qualify the entire 
system for pooling, the last listed plant shall be excluded from the 
system, followed by the plant next-to-last on the list, and continuing 
in this sequence until remaining listed plants have met the minimum 
shipping requirements; and

[[Page 152]]

    (3) Each plant that qualifies as a pool plant within a system shall 
continue each month as a plant in the system unless the plant 
subsequently fails to qualify for pooling, or the responsible handler 
submits a written notification to the market administrator prior to the 
first day of the month that the plant is to be deleted from the system, 
or that the system is to be discontinued. In any month of March through 
August, a system shall not contain any plant which was not qualified 
under this paragraph, either individually or as a member of a system, 
during the previous September through February.
    (g) The applicable shipping percentages of paragraphs (c) through 
(f) of this section may be increased or decreased by the market 
administrator if the market administrator finds that such adjustment is 
necessary to encourage needed shipments or to prevent uneconomic 
shipments. Before making such a finding, the market administrator shall 
investigate the need for adjustment either on the market administrator's 
own initiative or at the request of interested parties if the request is 
made in writing at least 15 days prior to the month for which the 
requested revision is desired effective. If the investigation shows that 
an adjustment of the shipping percentages might be appropriate, the 
market administrator shall issue a notice stating that an adjustment is 
being considered and invite data, views and arguments. Any decision to 
revise an applicable shipping percentage must be issued in writing at 
least one day before the effective date.
    (h) The term pool plant shall not apply to the following plants:
    (1) A producer-handler as defined under any Federal order;
    (2) An exempt plant as defined in Sec. 1000.8(e);
    (3) A plant located within the marketing area and qualified pursuant 
to paragraph (a) of this section that meets the pooling requirements of 
another Federal order, and from which more than 50 percent of its route 
disposition has been in the other Federal order marketing area for 3 
consecutive months;
    (4) A plant located outside any Federal order marketing area and 
qualified pursuant to paragraph (a) of this section that meets the 
pooling requirements of another Federal order and has had greater route 
disposition in such other Federal order's marketing area for 3 
consecutive months;
    (5) A plant located in another Federal order marketing area and 
qualified pursuant to paragraph (a) of this section that meets the 
pooling requirements of such other Federal order and does not have a 
majority of its route distribution in this marketing area for 3 
consecutive months or if the plant is required to be regulated under 
such other Federal order without regard to its route disposition in any 
other Federal order marketing area;
    (6) A plant qualified pursuant to paragraph (c) of this section that 
also meets the pooling requirements of another Federal order and from 
which greater qualifying shipments are made to plants regulated under 
the other Federal order than are made to plants regulated under the 
order in this part, or the plant has automatic pooling status under the 
other Federal order.
    (i) Any plant that qualifies as a pool plant in each of the 
immediately preceding 3 months pursuant to paragraph (a) of this section 
or the shipping percentages in paragraph (c) of this section that is 
unable to meet such performance standards for the current month because 
of unavoidable circumstances determined by the market administrator to 
be beyond the control of the handler operating the plant, such as a 
natural disaster (ice storm, wind storm, flood), fire, breakdown of 
equipment, or work stoppage, shall be considered to have met the minimum 
performance standards during the period of such unavoidable 
circumstances, but such relief shall not be granted for more than 2 
consecutive months.

[64 FR 47991, Sept. 1, 1999, as amended at 67 FR 48744, July 26, 2002; 
69 FR 34555, June 22, 2004]