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.

Proposed Rules Federal Register

58368

Vol. 69, No. 189

Thursday, September 30, 2004

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 1005, 1006 and 1007 

[Docket No. AO–388–A16, AO–356–A38 and 

AO–366–A45; DA–04–07] 

Milk in the Appalachian, Florida and 

Southeast Marketing Areas; Notice of 

Hearing on Proposed Amendments to 

Tentative Marketing Agreements and 

Orders

AGENCY: Agricultural Marketing Service, 

USDA.

ACTION: Proposed rule; notice of public 

hearing on proposed rulemaking. 

SUMMARY: A public hearing is being 

held, on an emergency basis, to consider 

a proposal submitted by Dairy Farmers 

of America, Inc., Lone Star Milk 

Producers Inc., Maryland & Virginia 

Milk Producers Cooperative 

Association, Inc., and Southeast Milk, 

Inc. The proposal would implement a 

temporary supplemental charge on Class 

I milk that would be disbursed through 

a marketwide service payment provision 

in the Appalachian, Florida and 

Southeast orders. The proposal would 

provide for emergency payments to 

reimburse handlers the cost of 

additional transportation expenses 

incurred as a result of disruptions 

occurring from several hurricanes in the 

Southeastern United States.

DATES: The hearing will convene at 9 

a.m. on Thursday, October 7, 2004.

ADDRESSES: The hearing will be held at 

the Sheraton Gateway Atlanta Airport 

Hotel, 1900 Sullivan Road, Atlanta, 

Georgia 30337; (770) 997–1100.

FOR FURTHER INFORMATION CONTACT:

Antoinette M. Carter, Marketing 

Specialist, Order Formulation and 

Enforcement, USDA/AMS/Dairy 

Programs, Room 2971 Stop 0231, 1400 

Independence Avenue, SW., 

Washington, DC 20250–0231, (202) 690–

3465, e-mail address: 

Antoinette.Carter@usda.gov. 

Persons requiring a sign language 

interpreter or other special 

accommodations should contact Sue L. 

Mosley, Market Administrator, at (770) 

682–2501; e-mail 

smosley@fmmatlanta.com before the 

hearing begins.

SUPPLEMENTARY INFORMATION: This 

administrative action is governed by the 

provisions of sections 556 and 557 of 

Title 5 of the United States Code and, 

therefore, is excluded from the 

requirements of Executive Order 12866. 

Notice is hereby given of a public 

hearing to be held at the Sheraton 

Gateway Atlanta Airport Hotel, 1900 

Sullivan Road, Atlanta, Georgia 30337; 

(770) 997–1100, beginning at 9 a.m. on 

October 7, 2004, with respect to 

proposed amendments to the tentative 

marketing agreements and to the orders 

regulating the handling of milk in the 

Appalachian, Florida and Southeast 

milk marketing areas. 

The hearing is called pursuant to the 

provisions of the Agricultural Marketing 

Agreement Act of 1937, as amended (7 

U.S.C. 601–674), and the applicable 

rules of practice and procedure 

governing the formulation of marketing 

agreements and marketing orders (7 CFR 

part 900). 

The purpose of the hearing is to 

receive evidence with respect to the 

economic and marketing conditions that 

relate to the proposed amendments, 

hereinafter set forth, and any 

appropriate modifications thereof, to the 

tentative marketing agreements and to 

the orders. 

Actions under the Federal milk order 

program are subject to the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

This Act seeks to ensure that, within the 

statutory authority of a program, the 

regulatory and informational 

requirements are tailored to the size and 

nature of small businesses. For the 

purpose of the Act, a dairy farm is a 

‘‘small business’’ if it has an annual 

gross revenue of less than $750,000, and 

a dairy products manufacturer is a 

‘‘small business’’ if it has fewer than 500 

employees. Most parties subject to a 

milk order are considered as a small 

business. Accordingly, interested parties 

are invited to present evidence on the 

probable regulatory and informational 

impact of the hearing proposals on 

small businesses. Also, parties may 

suggest modifications of these proposals 

for the purpose of tailoring their 

applicability to small businesses. 

The amendments to the rules 

proposed herein have been reviewed 

under Executive Order 12988, Civil 

Justice Reform. They are not intended to 

have a retroactive effect. If adopted, the 

proposed amendments would not 

preempt any State or local laws, 

regulations, or policies, unless they 

present an irreconcilable conflict with 

this rule. 

The Agricultural Marketing 

Agreement Act provides that 

administrative proceedings must be 

exhausted before parties may file suit in 

court. Under section 8c(15)(A) of the 

Act, any handler subject to an order may 

request modification or exemption from 

such order by filing with the 

Department of Agriculture (Department) 

a petition stating that the order, any 

provision of the order, or any obligation 

imposed in connection with the order is 

not in accordance with the law. A 

handler is afforded the opportunity for 

a hearing on the petition. After a 

hearing, the Department would rule on 

the petition. The Act provides that the 

district court of the United States in any 

district in which the handler is an 

inhabitant, or has its principal place of 

business, has jurisdiction in equity to 

review the Department’s ruling on the 

petition, provided a bill in equity is 

filed not later than 20 days after the date 

of the entry of the ruling. 

This public hearing is being 

conducted to collect evidence for the 

record concerning the need for 

emergency payments to reimburse 

handlers the cost of additional 

transportation expenses incurred as a 

result of disruptions occurring from 

several hurricanes in the Southeastern 

United States. The payments would be 

dispursed during the period of January 

2005 through March 2005 based on 

transportation expenses incurred by 

handlers transporting milk to or from 

the Appalachian, Florida, and Southeast 

milk marketing areas, or any 

combination of the above. 

Proposal two was submitted by Dairy 

Programs, Agricultural Marketing 

Service, to make such changes as may 

be necessary to make the entire 

marketing agreement and the order 

conform with any amendments thereto 

that may result from this hearing. 

Evidence also will be taken at the 

hearing to determine whether 

Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 58369

emergency marketing conditions exist 

that would warrant omission of a 

recommended decision under the rules 

of practice and procedure (7 CFR 

900.12(d)) with respect to any proposed 

amendments.

Interested parties who wish to 

introduce exhibits should provide the 

Presiding Officer at the hearing with (4) 

copies of such exhibits for the Official 

Record. Also, it would be helpful if 

additional copies are available for the 

use of other participants at the hearing.

List of Subjects in 7 CFR Parts 1005, 

1006 and 1007. 

Milk marketing orders.

The authority citation for 7 CFR parts 

1005, 1006 and 1007 continues to read 

as follows:

Authority: 7 U.S.C. 601–674.

The proposed amendment, as set forth 

below, have not received the approval of 

the Department. 

Proposal No. 1 

Proposed by Dairy Farmers of America, 

Inc., Lone Star Milk Producers Inc., 

Maryland & Virginia Milk Producers 

Cooperative Association, Inc., and 

Southeast Milk, Inc. 

The proposal would provide for 

emergency payments to reimburse 

handlers the cost of additional 

transportation expenses incurred as a 

result of disruptions occurring from 

several hurricanes in the Southeastern 

United States. 

1. Section 1005.60 is amended by: 

(a) Revising paragraph (a); 

(b) Adding a new paragraph (g). 

The revisions and additions read as 

follows:

§ 1005.60 Handler’s value of milk.

* * * * *

(a) Multiply the pounds of skim milk 

and butterfat in producer milk that were 

classified in each class pursuant to 

§ 1000.44(c) by the applicable skim milk 

and butterfat prices, and add the 

resulting amounts; except that for the 

months of January 2005 through March 

2005, the Class I skim milk price for this 

purpose shall be the Class I skim milk 

price as determined in § 1000.50(b) plus 

$0.04 per hundredweight, and the Class 

I butterfat price for this purpose shall be 

the Class I butterfat price as determined 

in § 1000.50(c) plus $0.0004 per pound. 

The adjustments to the Class I skim milk 

and butterfat prices provided herein 

may be reduced by the market 

administrator for any month if the 

market administrator determines that 

the payments yet unpaid computed 

pursuant to (g)(1) through (4) and (g)(6) 

of this section will be less than the 

amount computed pursuant to section 

(g)(5) of this section. The adjustments to 

the Class I skim milk and butterfat 

prices provided herein during the 

months of January 2005 through March 

2005 shall be announced along with the 

prices announced in § 1000.53(b);

* * * * *

(g) For the months of January 2005 

through March 2005 for handlers who 

have submitted proof satisfactory for the 

market administrator to determine 

eligibility for reimbursement of 

transportation costs of marketwide 

benefit, subtract an amount equal to: 

(1) The cost of transportation on loads 

of producer milk delivered or rerouted 

to a pool distributing plant, which were 

delivered as a result of hurricanes 

Charley, Frances, Ivan and Jeanne. 

(2) The cost of transportation on loads 

of producer milk delivered or rerouted 

to a pool supply plant which was then 

transferred to a pool distributing plant, 

which were delivered as a result of 

hurricanes Charley, Frances, Ivan and 

Jeanne, and; 

(3) The cost of transportation on loads 

of bulk milk delivered or rerouted to a 

pool distributing plant from a pool 

supply plant, which were delivered as 

a result of hurricanes Charley, Frances, 

Ivan and Jeanne. 

(4) The cost of transportation on loads 

of bulk milk delivered or rerouted to a 

pool distributing plant from an other 

order plant, which were delivered as a 

result of hurricanes Charley, Frances, 

Ivan and Jeanne. 

(5) The total amount of payment to all 

handlers under this section shall be 

limited during the month to an amount 

determined by multiplying the total 

Class I producer milk for all handlers 

pursuant to § 1000.44(c) times $0.09 per 

hundredweight. 

(6) If the cost of transportation 

computed pursuant to (g)(1) through (4) 

of this section exceeds the amount 

computed pursuant to (g)(5), the market 

administrator shall prorate such 

payments to each handler based on each 

handler’s proportion of transportation 

costs submitted pursuant to (g)(1) 

through (4). Transportation costs 

submitted pursuant to (g)(1) through (4) 

which are not paid as a result of such 

a proration shall be included in each 

subsequent month’s transportation costs 

submitted pursuant to (g)(1) through (4) 

until paid, or until the time period for 

such payments is concluded. 

(7) The reimbursement of 

transportation costs of marketwide 

benefit pursuant to this section shall be 

the actual demonstrated cost of such 

transportation of bulk milk delivered or 

rerouted as described in (g)(1) through 

(4) of this subsection, or the miles of 

transportation on loads of bulk milk 

delivered or rerouted as described in 

(g)(1) through (4) of this subsection 

multiplied by $2.25 per loaded mile, 

whichever is less.

* * * * *

2. Section 1006.60 is amended by: 

(a) Revising paragraph (a); 

(b) Adding a new paragraph (g). 

The revisions and additions read as 

follows:

§ 1006.60 Handler’s value of milk.

* * * * *

(a) Multiply the pounds of skim milk 

and butterfat in producer milk that were 

classified in each class pursuant to 

§ 1000.44(c) by the applicable skim milk 

and butterfat prices, and add the 

resulting amounts; except that for the 

months of January 2005 through March 

2005, the Class I skim milk price for this 

purpose shall be the Class I skim milk 

price as determined in § 1000.50(b) plus 

$0.04 per hundredweight, and the Class 

I butterfat price for this purpose shall be 

the Class I butterfat price as determined 

in § 1000.50(c) plus $0.0009 per pound. 

The adjustments to the Class I skim milk 

and butterfat prices provided herein 

may be reduced by the market 

administrator for any month if the 

market administrator determines that 

the payments yet unpaid computed 

pursuant to (g)(1) through (4) and (g)(6) 

of this section will be less than the 

amount computed pursuant to section 

(g)(5) of this section. The adjustments to 

the Class I skim milk and butterfat 

prices provided herein during the 

months of January 2005 through March 

2005 shall be announced along with the 

prices announced in § 1000.53(b);

* * * * *

(g) For the months of January 2005 

through March 2005 for handlers who 

have submitted proof satisfactory for the 

market administrator to determine 

eligibility for reimbursement of 

transportation costs of marketwide 

benefit, subtract an amount equal to: 

(1) The cost of transportation on loads 

of producer milk delivered or rerouted 

to a pool distributing plant, which were 

delivered as a result of hurricanes 

Charley, Frances, Ivan and Jeanne. 

(2) The cost of transportation on loads 

of producer milk delivered or rerouted 

to a pool supply plant which was then 

transferred to a pool distributing plant, 

which were delivered as a result of 

hurricanes Charley, Frances, Ivan and 

Jeanne, and; 

(3) The cost of transportation on loads 

of bulk milk delivered or rerouted to a 

pool distributing plant from a pool 

supply plant, which were delivered as 

58370 Federal Register / Vol. 69, No. 189 / Thursday, September 30, 2004 / Proposed Rules 

a result of hurricanes Charley, Frances, 

Ivan and Jeanne. 

(4) The cost of transportation on loads 

of bulk milk delivered or rerouted to a 

pool distributing plant from an other 

order plant, which were delivered as a 

result of hurricanes Charley, Frances, 

Ivan and Jeanne. 

(5) The total amount of payment to all 

handlers under this section shall be 

limited during the month to an amount 

determined by multiplying the total 

Class I producer milk for all handlers 

pursuant to § 1000.44(c) times $0.09 per 

hundredweight. 

(6) If the cost of transportation 

computed pursuant to (g)(1) through (4) 

of this section exceeds the amount 

computed pursuant to (g)(5), the market 

administrator shall prorate such 

payments to each handler based on each 

handler’s proportion of transportation 

costs submitted pursuant to (g)(1) 

through (4). Transportation costs 

submitted pursuant to (g)(1) through (4) 

which are not paid as a result of such 

a proration shall be included in each 

subsequent month’s transportation costs 

submitted pursuant to (g)(1) through (4) 

until paid, or until the time period for 

such payments is concluded. 

(7) The reimbursement of 

transportation costs of marketwide 

benefit pursuant to this section shall be 

the actual demonstrated cost of such 

transportation of bulk milk delivered or 

rerouted as described in (g)(1) through 

(4) of this subsection, or the miles of 

transportation on loads of bulk milk 

delivered or rerouted as described in 

(g)(1) through (4) of this subsection 

multiplied by $2.25 per loaded mile, 

whichever is less.

* * * * *

3. Section 1007.60 is amended by: 

(a) Revising paragraph (a); 

(b) Adding a new paragraph (g). 

The revisions and additions read as 

follows:

§ 1007.60 Handler’s value of milk.

* * * * *

(a) Multiply the pounds of skim milk 

and butterfat in producer milk that were 

classified in each class pursuant to 

§ 1000.44(c) by the applicable skim milk 

and butterfat prices, and add the 

resulting amounts; except that for the 

months of January 2005 through March 

2005, the Class I skim milk price for this 

purpose shall be the Class I skim milk 

price as determined in § 1000.50(b) plus 

$0.04 per hundredweight, and the Class 

I butterfat price for this purpose shall be 

the Class I butterfat price as determined 

in § 1000.50(c) plus $0.0004 per pound. 

The adjustments to the Class I skim milk 

and butterfat prices provided herein 

may be reduced by the market 

administrator for any month if the 

market administrator determines that 

the payments yet unpaid computed 

pursuant to (g)(1) through (4) and (g)(6) 

of this section will be less than the 

amount computed pursuant to section 

(g)(5) of this section. The adjustments to 

the Class I skim milk and butterfat 

prices provided herein during the 

months of January 2005 through March 

2005 shall be announced along with the 

prices announced in § 1000.53(b);

* * * * *

(g) For the months of January 2005 

through March 2005 for handlers who 

have submitted proof satisfactory for the 

market administrator to determine 

eligibility for reimbursement of 

transportation costs of marketwide 

benefit, subtract an amount equal to: 

(1) The cost of transportation on loads 

of producer milk delivered or rerouted 

to a pool distributing plant, which were 

delivered as a result of hurricanes 

Charley, Frances, Ivan and Jeanne. 

(2) The cost of transportation on loads 

of producer milk delivered or rerouted 

to a pool supply plant which was then 

transferred to a pool distributing plant, 

which were delivered as a result of 

hurricanes Charley, Frances, Ivan and 

Jeanne, and; 

(3) The cost of transportation on loads 

of bulk milk delivered or rerouted to a 

pool distributing plant from a pool 

supply plant, which were delivered as 

a result of hurricanes Charley, Frances, 

Ivan and Jeanne. 

(4) The cost of transportation on loads 

of bulk milk delivered or rerouted to a 

pool distributing plant from an other 

order plant, which were delivered as a 

result of hurricanes Charley, Frances, 

Ivan and Jeanne. 

(5) The total amount of payment to all 

handlers under this section shall be 

limited during the month to an amount 

determined by multiplying the total 

Class I producer milk for all handlers 

pursuant to § 1000.44(c) times $0.04 per 

hundredweight. 

(6) If the cost of transportation 

computed pursuant to (g)(1) through (4) 

of this section exceeds the amount 

computed pursuant to (g)(5), the market 

administrator shall prorate such 

payments to each handler based on each 

handler’s proportion of transportation 

costs submitted pursuant to (g)(1) 

through (4). Transportation costs 

submitted pursuant to (g)(1) through (4) 

which are not paid as a result of such 

a proration shall be included in each 

subsequent month’s transportation costs 

submitted pursuant to (g)(1) through (4) 

until paid, or until the time period for 

such payments is concluded. 

(7) The reimbursement of 

transportation costs of marketwide 

benefit pursuant to this section shall be 

the actual demonstrated cost of such 

transportation of bulk milk delivered or 

rerouted as described in (g)(1) through 

(4) of this subsection, or the miles of 

transportation on loads of bulk milk 

delivered or rerouted as described in 

(g)(1) through (4) of this subsection 

multiplied by $2.25 per loaded mile, 

whichever is less.

* * * * *

Proposal No. 2 

Proposed by Dairy Programs, 

Agricultural Marketing Service 

For all Federal Milk Marketing 

Orders, make such changes as may be 

necessary to make the entire marketing 

agreements and the orders conform with 

any amendments thereto that may result 

from this hearing. 

Copies of this notice of hearing and 

the orders may be procured from the 

Market Administrator of each of the 

aforesaid marketing areas, or from the 

Hearing Clerk, Room 1083, South 

Building, United States Department of 

Agriculture, Washington, DC 20250, or 

may be inspected there. 

Copies of the transcript of testimony 

taken at the hearing will not be available 

for distribution through the Hearing 

Clerk’s Office. If you wish to purchase 

a copy, arrangements may be made with 

the reporter at the hearing. 

From the time that a hearing notice is 

issued and until the issuance of a final 

decision in a proceeding, Department 

employees involved in the 

decisionmaking process are prohibited 

from discussing the merits of the 

hearing issues on an ex parte basis with 

any person having an interest in the 

proceeding. For this particular 

proceeding, the prohibition applies to 

employees in the following 

organizational units: 

Office of the Secretary of Agriculture 

Office of the Administrator, 

Agricultural Marketing Service 

Office of the General Counsel 

Dairy Programs, Agricultural 

Marketing Service (Washington office) 

and the Offices of all Market 

Administrators. 

Procedural matters are not subject to 

the above prohibition and may be 

discussed at any time.

Dated: September 28, 2004. 

Kenneth C. Clayton, 

Associate Administrator, Agricultural 

Marketing Service.

[FR Doc. 04–22055 Filed 9–28–04; 1:18 pm] 

BILLING CODE 3410–02–P