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

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 To

Reopen 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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1005.............. Carolina................. AO-388-A9

1007.............. Southeast................ AO-366-A38

1011.............. Tennessee Valley......... AO-251-A40

1046.............. Louisville-Lexington- AO-123-A67

Evansville.

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AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice to reopen public hearing on proposed rulemaking.

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SUMMARY: This notice announces a reopening of the hearing initially

held on May 15-16, 1996, in Charlotte, North Carolina, to consider

supplemental testimony and record evidence regarding the proposal to

incorporate transportation credits for bulk milk that is imported for

fluid use into 4 Southeastern milk orders. The reopened hearing, to be

held on December 17, 1996, in Atlanta, Georgia, will receive

supplementary data, testimony, and arguments concerning the operation

and impact of the interim amendments since their inception on August

10, 1996, in the 4 orders.

The Department has received many comments from dairy farmers who

have expressed concerns about the impact of the currently implemented

transportation credits. Any changes to the interim amendments resulting

from the impact of the credits must be based upon evidence placed in

the record of the hearing. Accordingly, the Department has decided to

reopen the hearing to receive such evidence.

Testimony on a related proposal submitted by Carolina-Virginia Milk

Producers' Association (CVMPA) and Mid-America Dairymen, Inc., to

incorporate a ``dairy farmer for other markets'' provision to help

ensure an adequate milk supply for the seasonally-deficit markets of

the southeastern United States will also be heard.

DATES: The hearing will convene at 9:00 a.m. on December 17, 1996.

ADDRESSES: The hearing will be held at the Hilton Airport Hotel, 1031

Virginia Avenue, Atlanta, Georgia 30354, telephone (404) 767-9000.

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 reopened public hearing to be held at

the Hilton Airport Hotel, 1031 Virginia Avenue, Atlanta, Georgia,

beginning at 9:00 a.m. on December 17, 1996, with respect to proposed

amendments to the tentative marketing agreements and to the orders

regulating the handling of milk in the Carolina, Southeast, Tennessee

Valley, and Louisville-Lexington-Evansville 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 reopened hearing is to receive supplemental

testimony and evidence with respect to the economic and marketing

conditions which relate to the interim amendments, one new proposed

amendment, hereinafter set forth, and any appropriate modifications of

these amendments 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

$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 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 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. 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.

A public hearing was held to consider proposed amendments to the

marketing agreements and the orders regulating the handling of milk in

the aforesaid marketing areas. The hearing was held 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 (7

[[Page 59844]]

CFR Part 900), in Charlotte, North Carolina, on May 15-16, 1996. Notice

of such hearing was issued on May 1, 1996, and published May 3, 1996

(61 FR 19861).

Interested parties were given until May 28, 1996, to file post-

hearing briefs on the proposals as published in the Federal Register

and as modified at the hearing. Information also was requested on

whether the proposals should be considered on an emergency basis.

Based upon the record of this hearing, an emergency tentative

decision was issued on July 12, 1996, proposing amendments to the 4

orders. The amendments provided transportation credits for handlers to

offset costs in importing supplemental milk for fluid use to these

seasonally deficit markets. Having been approved by more than two-

thirds of the producers in each of the respective marketing areas, the

amendments became effective on an interim basis on August 10, 1996. The

initial comment period for filing exceptions to the tentative decision

was extended twice, based upon industry requests, and is now set to

expire on November 30, 1996.

The Department has decided to reopen the hearing in this matter on

December 17, 1996. Based upon the comments that it has already

received, the Department is reasonably certain that it will be asked to

modify the interim amendments based upon experience with these

provisions during the past 3 months. Any modifications to the interim

amendments may be based only on factual information that is in the

hearing record of this proceeding. In view of these considerations, the

Department sees no point in waiting until the expiration of the current

comment period to call for a reopened hearing.

Interested parties who are planning to make an appearance at the

reopened hearing need not send in written comments by November 30,

1996, as requested in the Department's tentative decision and the two

subsequent extensions of time, but instead should enter their

statements into the record of the hearing. Although written comments

may still be submitted concerning this matter, interested parties

should understand that the Department cannot make any changes to the

interim amendments based upon events that have occurred while the

interim amendments were in effect unless the events are documented in

the hearing record.

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.

The May 15-16 hearing also considered a second proposal which

concerned costs which are the responsibility of the plant operator.

That proposal, and any modifications thereof, is being considered on a

non-emergency basis and there is no indication that further evidence

needs to be received on that issue. Hence, that issue will be outside

the scope of the reopened hearing.

Prior Documents in This Proceeding

Notice of Hearing: Issued May 1, 1996; published May 3, 1996 (61 FR

19861).

Tentative Decision: Issued July 12, 1996; published July 18. 1996

(61 FR 37628).

Interim Amendment of Rules: Issued August 2, 1996; published August

9, 1996 (61 FR 41488).

Notice of Extension of Time for Filing Comments to Tentative

Partial Decision: Issued August 16, 1996; published August 23, 1996 (61

FR 43474).

Notice of Extension of Time for Filing Comments to Tentative

Partial Decision: Issued October 18, 1996; published October 25, 1996

(61 FR 55229).

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:

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

In addition to receiving testimony concerning the interim

amendments, the Department will hear the following related proposal

submitted by Carolina-Virginia Milk Producers' Association. This

proposal, as set forth below, has not received the approval of the

Secretary of Agriculture.

Proposed by Carolina-Virginia Milk Producers' Association and Mid-

America Dairymen, Inc.: Proposal #4

Add a new subparagraph to paragraph 100X.12(b) of each of the four

orders to read as follows:

100X.12 Producer

* * * * *

(b) Producer shall not include:

* * * * *

( ) Any person with respect to milk produced by him during the

months of February through May that is caused to be delivered to a pool

plant by a cooperative association or a pool plant operator if during

the immediately preceding months of July through November more than 40

percent of the milk from the same farm was caused by such cooperative

association or pool plant operator to be delivered to plants as other

than producer milk (except milk that is not producer milk as a result

of a temporary loss of grade A approval or the application of Section

100X.13), unless such pool plant was a nonpool plant during any of such

immediately preceding months. Provided however, that for the purpose of

determining the percentage of a person's milk that was pooled during

the previous months of August through November, deliveries of the

person's milk to plants as producer milk under Federal orders 100X,

100X or 100X shall be considered as deliveries of producer milk under

this order.

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 Division, 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: November 19, 1996.

Lon Hatamiya,

Administrator.

[FR Doc. 96-30034 Filed 11-22-96; 8:45 am]

BILLING CODE 3410-02-P