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[Federal Register Volume 76, Number 174 (Thursday, September 8, 2011)]
[Proposed Rules]
[Pages 55608-55609]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22945]

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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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Federal Register / Vol. 76, No. 174 / Thursday, September 8, 2011 / 
Proposed Rules

[[Page 55608]]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1033

[Docket No. AO-11-0333; AMS-DA-11-0067; DA-11-04]

Milk in the Mideast Marketing Area; Notice of Hearing on Proposed 
Amendments to Tentative Marketing Agreement and Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice of public hearing on proposed rulemaking.

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SUMMARY: A public hearing is being held to consider and take evidence 
on a proposal to modify the Pool Plant Definition in the Mideast Milk 
Marketing Order.

DATES: The hearing will convene at 8 a.m. on Tuesday, October 4, 2011.

ADDRESSES: The hearing will be held at the Westin Cincinnati Hotel, 21 
E 5th Street, Cincinnati, Ohio 45202, (513) 621-7700.

FOR FURTHER INFORMATION CONTACT: William Francis, Director, Order 
Formulation and Enforcement Division, USDA/AMS/Dairy Programs, Stop 
0231-Room 2971-S, 1400 Independence Avenue, SW., Washington, DC 20250-
0231, (202) 720-7183, e-mail: William.Francis@ams.usda.gov.
    Persons requiring a sign language interpreter or other special 
accommodations should contact Paul Huber, Market Administrator, before 
the hearing begins at (330) 225-4758 or e-mail: phuber@fmmaclev.com.

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 Westin 
Cincinnati Hotel, Cincinnati, Ohio beginning at 8 a.m. on Tuesday, 
October 4, 2011, with respect to a proposed amendment to the tentative 
marketing agreement and to the order regulating the handling of milk in 
the Mideast marketing area.
    The hearing is called pursuant to the provisions of the 
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674) (Act), 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 agreement and to the order.
    Evidence also will be taken to determine whether 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.
    Actions under the Federal milk order program are subject to the 
Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA). The RFA seeks to 
ensure that, within the statutory authority of a program, the 
regulatory and information collection requirements are tailored to the 
size and nature of small businesses. For the purpose of the RFA, 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 (13 CFR 121.201). 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.
    The 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 
(USDA) 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 USDA 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, has its 
principal place of business, has jurisdiction in equity to review the 
USDA'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 Administrative Law Judge at the hearing with (4) copies of such 
exhibits for the Official Record. Additional copies should be made 
available for use by other hearing participants. Any party that has 
submitted a proposal notice herein, when participating as a witness, is 
required to make their testimony--if prepared as an exhibit--and any 
other exhibits, available to USDA officials prior to the start of the 
hearing on the day of their appearance. Individual dairy farmers are 
not subject to this requirement.
    The hearing will continue until such time as determined to have 
ended by the presiding Administrative Law Judge. If necessary, the 
schedule for the next session will be announced at the time of 
adjournment. Such reconvening date and time will also be posted on the 
AMS-Dairy Programs Web site at: http:[sol][sol]www.ams.usda.gov/dairy.
    The proposed amendments, as set forth below, have not received the 
approval of the Department.

List of Subjects in 7 CFR Part 1033

    Milk marketing orders.

    The authority citations for 7 CFR part 1033 read as follows:

    Authority:  7 U.S.C. 601-674, and 7253.

[[Page 55609]]

Proposed by Foremost Farms USA Cooperative, Inc.; National Farmers 
Organization, Inc.; Dairy Farmers of America, Inc.; Michigan Milk 
Producers Association; Dairylea Cooperative, Inc.; and Continental 
Dairy Products, Inc.

Proposal 1

    This proposal seeks to alter the definition of a pool distributing 
plant within the Mideast Milk Marketing Order. Specifically, the 
proposal recommends that a distributing plant, which is physically 
located within the Mideast Milk Marketing Order, be regulated by that 
order if half of its total route disposition is within Federal Milk 
Marketing Area boundaries and its sales patterns are such that no one 
Order has more than 25% of its sales volume. This proposed change would 
only affect the Mideast Milk Marketing Order.
    1. Amend Sec.  1033.7 by revising paragraph (a) to read as follows:

Sec.  1033.7  Pool plant

* * * * *
    (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. Plants located within the marketing area with combined route 
disposition and transfers of at least 50% into Federal Order marketing 
areas but without 25% of route disposition and transfers into any one 
Federal Order will be regulated as a distributing plant in this Order.
* * * * *

Proposed by Dairy Programs, Agricultural Marketing Service

Proposal 2

    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.
    Copies of this notice of hearing and the order may be procured from 
the Market Administrator of the Mideast Marketing Area, or from the 
Hearing Clerk, United States Department of Agriculture, STOP 9200--Room 
1031, 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. Copies of the transcript will also be made available 
online at: http://www.ams.usda.gov/dairy.
    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, 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 2, 2011.
David R. Shipman,
Acting Administrator.
[FR Doc. 2011-22945 Filed 9-7-11; 8:45 am]
BILLING CODE 3410-02-P
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