[Federal Register Volume 61, Number 87 (Friday, May 3, 1996)]
[Proposed Rules]
[Pages 19861-19862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11170]



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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. 61, No. 87 / Friday, May 3, 1996 / Proposed 
Rules

[[Page 19861]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 1005, 1007, 1011 and 1046

[Docket No. AO-388-A9, et al.; DA-96-08]


Milk in the Carolina and Certain Other Marketing Areas; Notice of 
Hearing on Proposed Amendments to Tentative Marketing Agreements and 
Orders

------------------------------------------------------------------------
    7 CFR part            Marketing area               Docket No.       
------------------------------------------------------------------------
1005..............  Carolina.................  AO-388-A9                
1007..............  Southeast................  AO-366-A38               
1011..............  Tennessee Valley.........  AO-251-A40               
1046..............  Louisville-Lexington-      AO-123-A67               
                     Evansville.                                        
------------------------------------------------------------------------

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice of public hearing on proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: A public hearing is being held in response to industry 
requests to amend four Southeastern Federal milk marketing orders. One 
proposal would provide transportation credits for bulk milk that is 
imported into these markets for fluid use. Mid-America Dairymen, Inc., 
the proponent of the proposed amendments, has requested that this issue 
be handled on an emergency basis. A second proposal by Milkco, Inc., 
and Hunter Farms, Inc., would specify, in each of the four orders, 
those costs which are the responsibility of the plant operator and that 
may not, accordingly, be passed on to producers in any manner.

DATES: The hearing will convene at 9:00 a.m. on May 15, 1996.

ADDRESSES: The hearing will be held at the Sheraton Airport Plaza 
Hotel, 3315 South I-85 at Bill Graham Parkway, Charlotte, North 
Carolina, 28208. (Telephone: 704/392-1200).

FOR FURTHER INFORMATION CONTACT: Nicholas Memoli, Marketing Specialist, 
Order Formulation Branch, USDA/AMS/Dairy Division, Room 2971, South 
Building, P.O. Box 96456, Washington, DC 20090-6456, (202) 690-1932.

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 Airport Plaza Hotel, 3315 South I-85 at Bill Graham Parkway, 
Charlotte, North Carolina, 28208 beginning at 9:00 a.m., on May 15, 
1996, with respect to proposed amendments to the tentative marketing 
agreements and to the orders regulating the handling of milk in the 
Carolina and certain 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.
    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 proposal number one. Since this proposal will be 
handled on an emergency basis, it is necessary to provide interested 
parties with less than 15 days notice of the public hearing to ensure 
that the proposed amendments, if found to be appropriate, will be 
effective by July 1, 1996.
    Actions under the Federal milk order program are subject to the 
Regulatory Flexibility Act (Pub. L. 96-354). 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 $500,000, 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 12778, 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 file 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 and 
requesting a modification of an order or to be exempted from the order. 
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.
    Interested parties who wish to introduce exhibits should provide 
the Presiding Officer at the hearing with four 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, 1007, 1011, and 1046

    Milk marketing orders.

    The authority citation for 7 CFR Parts 1005, 1007, 1011, and 1046 
continues to read as follows:

[[Page 19862]]

PARTS 1005, 1007, 1011, 1046--[AMENDED]

    Authority: 7 U.S.C. 601-674.

    The proposed amendments, as set forth below, have not received the 
approval of the Secretary of Agriculture.

Proposed by Mid-America Dairymen, Inc.

    Proposal No. 1: Amend 7 CFR Parts 1005, 1007, 1011, and 1046 as 
follows:
    a. Amend Sec. 10XX.61 of each order by redesignating paragraph 
(a)(4) as paragraph (a)(5), paragraph (a)(5) as paragraph (a)(6), 
paragraph (b)(5) as paragraph (b)(6), paragraph (b)(6) as paragraph 
(b)(7), and adding new paragraphs (a)(4) and (b)(5) to read as follows:
* * * * *
    (a) * * *
    (4) Deduct the amount by which the amount due to be paid from the 
Hauling Credit Balancing Fund pursuant to Sec. 10XX.82 exceeds the 
available balance in the Hauling Credit Balancing Fund pursuant to 
Sec. 10XX.80.
* * * * *
    (b) * * *
    (5) Deduct the amount by which the amount due to be paid from the 
Hauling Credit Balancing Fund pursuant to Sec. 10XX.82 exceeds the 
available balance in the Hauling Credit Balancing Fund pursuant to 
Sec. 10XX.80.
* * * * *
    b. Add new Secs. 10XX.80, 10XX.81, and 10XX.82 to each order to 
read as follows:


Sec. 10XX.80  Hauling credit balancing fund.

    The market administrator shall maintain a separate fund known as 
the Hauling Credit Balancing Fund into which he shall deposit the 
payments made pursuant to the hauling credit balancing adjustment 
specified in Sec. 10XX.82; Provided, That the market administrator 
shall offset the payment due to a handler against payments due from 
such handler.


Sec. 10XX.81  Payments to the hauling credit balancing fund.

    (a) On or before the 12th day after the end of the month, each 
handler shall pay to the market administrator the value, if any, of the 
hauling credit balancing adjustment determined by multiplying the 
pounds of Class I milk assigned pursuant to Sec. 10XX.44 by $0.03 per 
hundredweight hauling credit balancing adjustment; Provided, That for 
any of the months of July through December in which the balance in the 
Hauling Credit Balancing Fund for the second preceding month is less 
than the total value of the hauling credit balancing adjustments 
applicable for the previous six months, then the hauling credit 
balancing adjustment shall be $0.06 per hundredweight; Provided 
Further, That for any of the months of January through June the hauling 
credit balancing adjustment shall be zero for any month in which the 
balance in the Hauling Credit Balancing Fund for the second preceding 
month is greater than the total value of the hauling credit balancing 
adjustments applicable during the previous six months.
    (b) On or before the 13th day after the end of the month, the 
market administrator shall credit the Hauling Credit Balancing Fund, 
from the Producer Settlement Fund, any amount deducted pursuant to 
Sec. 10XX.61 (a)(4) or (b)(5).


Sec. 10XX.82  Payments from the hauling credit balancing fund.

    On or before the 13th day after the end of each of the months of 
July through December, and any other month in which the classification 
of producer milk allocated to Class I pursuant to Sec. 10XX.44 exceeds 
80 percent, subtract the amount obtained by multiplying the pounds of 
bulk fluid milk products that were transferred to the handler's pool 
plant from an other order plant and allocated to Class I milk, by a 
rate equal to 3.9 cents per hundredweight for each 10 miles or fraction 
thereof less any difference (positive only) between the Class I 
differential applicable at the receiving plant less the Class I 
differential applicable at the shipping plant. Provided, That payments 
may be assigned to any cooperative association which provides written 
notice to the market administrator prior to the date payment is due.

Proposed by Milkco, Inc., and Hunter Farms, Inc.

    Proposal No. 2: Amend Sec. 10XX.73 of 7 CFR Parts 1005, 1007, 1011, 
and 1046 by adding a new paragraph (e) to read as follows:


Sec. 10XX.73  Payments to producers and to cooperative associations.

* * * * *
    (e) A handler may not reduce its obligations hereunder to producers 
or cooperatives by permitting producers or cooperatives to provide 
``services which are the responsibility of the handler. The services 
which are the responsibilities of the handler are:
    (1) Preparation of producer payroll;
    (2) Conduct of screening tests of tanker loads of milk required by 
duly constituted regulatory authorities before milk may be transferred 
to the plant's holding tanks and any other tanker load tests required 
to establish the quantity and quality of milk received; and
    (3) Any services for processing of raw milk or marketing of 
packaged milk by the handler.

Proposed by the Dairy Division, Agricultural Marketing Service

    Proposal No. 3: 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 regulating the 
aforesaid marketing areas may be inspected at or procured from the 
Hearing Clerk, Room 1083, South Building, United States Department of 
Agriculture, Washington, DC 20250, or from the following market 
administrators: Sue L. Mosley, Market Administrator, P.O. Box 1208, 
Norcross, GA 30091-1208 (Tel: 770/448-1194); or Arnold M. Stallings, 
Market Administrator, P.O. Box 18030, Louisville, KY 40261-0030 (Tel: 
502-499-0040).
    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;
Dairy Division, Agricultural Marketing Service (Washington office); and
Offices of the Market Administrators of the orders involved in this 
proceeding.

    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.

    Dated: May 1, 1996.
Lon Hatamiya,
Administrator.
[FR Doc. 96-11170 Filed 5-2-96; 8:45 am]
BILLING CODE 3410-02-P