[Federal Register Volume 60, Number 183 (Thursday, September 21, 1995)]
[Proposed Rules]
[Pages 48924-48935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23194]
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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. 60, No. 183 / Thursday, September 21, 1995 /
Proposed Rules
[[Page 48924]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1004
[Docket No. AO-160-A71; DA-93-30]
Milk in the Middle Atlantic Marketing Area; Decision on Proposed
Amendments to Tentative Marketing Agreement and To Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This document adopts changes in some provisions of the Middle
Atlantic milk marketing order based on industry proposals considered at
a public hearing. The changes will reduce the standards for regulating
distributing plants and cooperative reserve processing plants and
increase the amount of producer milk that can be diverted to nonpool
plants. Additional changes will authorize the market administrator to
adjust pool plant qualification standards and producer milk diversion
limits to reflect changes in marketing conditions. Also, the decision
provides that a pool distributing plant that meets the pooling
standards of more than one Federal order should continue to be
regulated under this order for two consecutive months before regulation
can shift to the other order. A decision on a proposal that would
utilize only a route disposition standard to determine under which
Federal order a plant should be regulated cannot be made on the basis
of the hearing record, and therefore is not adopted.
FOR FURTHER INFORMATION CONTACT: Gino M. Tosi, Marketing Specialist,
USDA/AMS/Dairy Division, Order Formulation Branch, Room 2971, South
Building, P.O. Box 96456, Washington, DC 20090-6456, (202) 690-1366.
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.
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires the
Agency to examine the impact of a proposed rule on small entities.
Pursuant to 5 U.S.C. 605(b), the Administrator of the Agricultural
Marketing Service has certified that this rule will not have a
significant economic impact on a substantial number of small entities.
The amended order will promote more orderly marketing of milk by
producers and regulated handlers.
These proposed amendments have been reviewed under Executive Order
12778, Civil Justice Reform. This rule is not intended to have a
retroactive effect. If adopted, this proposed rule will not preempt any
state or local laws, regulations, or policies, unless they present an
irreconcilable conflict with this rule.
The Agricultural Marketing Agreement Act of 1937, as amended (7
U.S.C. 601-674), provides that administrative proceedings must be
exhausted before parties may file suit in court. Under section
608c(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.
Prior documents in this proceeding:
Notice of Hearing: Issued February 25, 1994; published March 4,
1994 (59 FR 10326).
Recommended Decision: Issued July 10, 1995; published July 14, 1995
(60 FR 36239).
Preliminary Statement
A public hearing was held upon proposed amendments to the tentative
marketing agreement and the order regulating the handling of milk in
the Middle Atlantic marketing area. 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 and
procedure governing the formulation of marketing agreements and
marketing orders (7 CFR Part 900), at the Holiday Inn-Independence
Mall, 400 Arch Street, Philadelphia, Pennsylvania, on May 3, 1994.
Notice of such hearing was issued on February 25, 1994, and published
March 4, 1994 (59 FR 10326).
Upon the basis of the evidence introduced at the hearing and the
record thereof, the Administrator, on July 10, 1995, issued a
recommended decision containing notice of the opportunity to file
written exceptions thereto.
The material issues, findings and conclusions, rulings, and general
findings of the recommended decision are hereby approved and adopted
and are set forth in full herein. No exceptions regarding the findings
and conclusions of the recommended decision were received.
The material issues on the record of the hearing relate to:
1. Pool plant definitions and qualifications;
2. Diversions of milk to nonpool plants;
3. Regulation of distributing plants that meet the pooling
standards of more than one Federal order.
4. Discretionary authority to revise pooling standards and producer
milk diversion limits.
Findings and Conclusions
The following findings and conclusions on the material issues are
based on evidence presented at the hearing and the record thereof:
1. Pool Plant Definitions and Qualifications
Two proposals that would modify the pool plant definition of the
order should be adopted. One proposal would exclude diversions of
producer milk from a pool distributing plant's receipts in determining
whether or not the plant satisfies the pool plant definition standard.
Currently, the order's pool plant definition includes diverted producer
milk as a receipt at a distributing plant in determining whether the
plant has a sufficient proportion of its receipts in Class I use to
qualify as a pool plant. The other proposal would reduce the percentage
[[Page 48925]]
of a cooperative association's member milk that must be transferred to
pool distributing plants from 30 percent to 25 percent of receipts for
a reserve processing plant to qualify as a pool plant.
Pennmarva, a federation of certain Middle Atlantic marketing area
dairy cooperatives, and Atlantic Processing, Inc., an association of
cooperatives, proposed the changes to the pool plant definition of the
order which were published as Proposal No. 1 and Proposal No. 4 in the
hearing notice. Pennmarva's members include Atlantic Dairy Cooperative;
Dairymen Incorporated (Middle Atlantic Division); Maryland and Virginia
Milk Producers' Cooperative Association; and Valley of Virginia Co-
operative Milk Producers Association--associations that market more
than 90 percent of the producer milk associated with the order.
Atlantic Processing, Inc., members include Mount Joy Milk Producers
Cooperative and Cumberland Valley Milk Producers Cooperative.
According to the Pennmarva witness, changing the distributing plant
pooling standard (Proposal No. 1) is a more comprehensive solution to
past informal rulemaking actions which suspended the requirement that
40 percent of a pool plant's receipts be disposed of as Class I milk
during the months of September through February. These suspension
actions were taken because of the decline of Class I use in the Order 4
marketplace and because of a shift in regulation of two plants that
were regulated under the order.
Pennmarva testified that a more permanent change to the pool plant
definition is warranted because: (1) The Order 4 market is primarily
serviced by cooperatives in a system-wide fashion and that accounting
for diversions at the individual plant level given this cooperatively-
supplied nature of the Order 4 market is burdensome; (2) there is a
lack of complete knowledge by the servicing cooperative of the total
receipts and Class I sales of the pool distributing plants from which
the cooperative diverts milk; and (3) continued association of diverted
milk on the order would still be provided for because of the producer
definition of the order.
Cooperatives in Order 4 attempt to market milk, said Pennmarva, in
a manner that will minimize the overall transportation costs. Pennmarva
said that accounting for diversions at the individual plant level
places an unnecessary and costly burden on cooperatives. Pennmarva also
noted that to a pool handler who buys his/her entire milk supply from a
cooperative, there are no market-disruptive consequences if milk is
over-diverted. According to Pennmarva, handlers continue to pay the
appropriate class price for the milk when an excess amount of milk is
diverted from the plant. However, the cooperative supplying milk must
reduce the volume of milk from the pool when it over-diverts milk
shipments so that the plant will continue to qualify as a pool plant.
Additionally, Pennmarva testified that the lack of complete
knowledge of a pool distributing plant's other milk supplies makes it
unnecessarily difficult to effectively operate under the current
requirements of the pool plant definition. No supplier knows either the
total receipts of the distributing plant or the Class I disposition of
the plant, said Pennmarva. Similarly, Pennmarva testified, suppliers of
a pool distributing plant have no knowledge of the plant's in-area
Class I sales. This lack of knowledge by the supplying cooperative is
especially important, according to Pennmarva, because the ``lock-in''
provisions of the pool plant definition do not apply to the requirement
that 15 percent of the plant's sales must be within the marketing area.
Pennmarva testified that deleting diversions from a plant's
receipts in determining its regulatory status would have limited
effects given present marketing conditions within the order. According
to Pennmarva, plants that meet the 15 percent in-area sales and 40
percent Class I disposition pooling standard in the months of September
through February, and 30 percent Class I disposition during the
remainder of the year, will continue to be pooled under the order.
According to Pennmarva, diversions from such plants either by a
cooperative or by a handler with a non-member supply will continue to
be regulated through the producer definition of the order. Pennmarva
also indicated that both the producer definition and the pool reserve
processing plant definition will continue to encourage deliveries of
cooperative and non-member milk supplies to Order 4 pool plants in
meeting priority Class I needs of the market while decreasing the
uneconomic movement of milk.
No opposition to excluding diverted milk as a receipt at a
distributing plant for determining pool plant status (Proposal No. 1)
was received.
Currently, a cooperative must ship a minimum of 30 percent of its
member milk to an Order 4 pool distributing plant in order for its milk
to be pooled. Pennmarva proposed to reduce the minimum percentage to 25
percent as published in the hearing notice as Proposal No. 4. Pennmarva
testified that this reduction is needed to continue the pooling of
Order 4 producers historically associated with the market and is
preferable to suspension of such provisions.
Pennmarva testified that this change is warranted because of recent
changes in the market. Pennmarva cited that between 1990 and 1992, the
level of Class I sales has remained unchanged, while producer receipts
expanded. The expansion of producer receipts caused a reduction of the
Class I utilization for the market, according to published statistics.
Class I use dropped from 53.1 percent in 1990, to 50.7 percent in 1991,
and to 48.0 percent in 1992. Level Class I sales and expanding
production in Order 4 between 1990 and 1992, said Pennmarva, reduced
the proportion of Order 4 milk delivered to pool distributing plants by
cooperatives operating reserve processing plants.
Pennmarva also testified that in 1993, both Class I and producer
receipts declined. According to market administrator statistics,
production decreased by 162.3 million pounds and Class I sales fell by
265.6 million pounds--resulting in a Class I utilization percentage of
45.1 percent.
According to Pennmarva, the reduction of Class I use in Order 4
during 1993 was partially attributable to a shifting of an Order 4-
regulated distributing plant located in Lansdale, PA, in November 1992
and another distributing plant located in Reading, PA, in January 1993
to regulation under another Federal order. Pennmarva said this had the
effect of reducing the Order 4 pool plant deliveries required by
reserve processing plants to maintain pool status.
Pennmarva maintained that the shifting of regulation of these two
plants has had a dramatic effect. In a one-year period from October
1992 to October 1993, Atlantic Dairy Cooperative, which operates a pool
reserve processing plant, delivered 13.3 percent less milk to a
Lansdale, PA, distributing plant. Between December 1992 and December
1993 Maryland and Virginia Milk Producers Cooperative Association,
which also operates a pool reserve processing plant, experienced a 14
percent reduction in deliveries to a Reading, PA, distributing plant.
Pennmarva noted other changes in the Order 4 market, including the
closing of a distributing plant in Harrisburg, PA, and a change in the
product mix of two large Order 4 distributing plants that eliminated
yogurt and cottage cheese production. Pennmarva said this loss of Class
II business at distributing plants caused a reduction in the amount of
[[Page 48926]]
pool-qualifying milk deliveries for the cooperative supplying milk to
these plants. Additionally, Pennmarva made note of previous suspension
actions to extend the period of automatic pool plant status for supply
and reserve processing plants.
No opposition to reducing the shipping standard (Proposal No. 4)
was received.
Regarding Proposal No. 1, the record is clear that cooperatives
play a dominant role in servicing the Middle Atlantic marketing area,
accounting for some 90 percent of milk deliveries to pool distributing
plants. While accounting for diversions on an individual plant basis
has merit, good reason exists to conclude that in this market,
retaining individual plant accounting for the purposes of diversions
does place a burden and costs on cooperatives who seek to deliver milk
to where it is needed in the most economic fashion. This is especially
important and justified due to the changing marketing conditions of
declining Class I use in the marketing area.
As indicated by the testimony and in a brief filed by Pennmarva,
distributing plants generally have more than one supplier, and such
suppliers generally do not know the plant's total receipts and Class I
disposition. This makes it difficult to determine what milk can be
diverted from any single pool plant in a given month. Inadvertent over-
diversions of milk will result in milk not being eligible for pooling
and the benefits that accrue from such pooling.
Part of the Order 4 pooling provisions rests on a 15 percent route
disposition standard. Adoption of Proposal No. 1 would enable
cooperatives supplying the market to more economically move milk
without undermining this standard or other pool plant definition
standards.
Regarding Proposal No. 4, changing marketing conditions, namely
expanding producer receipts and a decline in the Class I utilization of
the market, provide support for changing the pooling requirements for
reserve processing plants operated by a cooperative, without negating
the demands of the Class I market. Such prevailing marketing conditions
have in the past resulted in the suspension of certain pooling
provisions of reserve processing plants operated by cooperatives so
that producer milk normally associated with the Order 4 market would
remain pooled under the order. Proposal No. 4 offers a more permanent
and reasonable solution to potentially repetitive requests by Order 4
producers for suspension of such pooling standards by easing the
shipping standard by 5 percentage points.
2. Diversions of Milk to Nonpool Plants
Two proposals that would increase the permissible percentage of
milk deliveries for both cooperative (or federation of cooperative
associations) and non-cooperative (nonmember) milk that may be diverted
under the producer definition of the order should be adopted. The
proposal for increasing the permissible percentage of cooperative milk
that can be diverted to nonpool plants was proposed by Pennmarva and
was Proposal No. 7 as published in the hearing notice. The proposal for
increasing the permissible percentage of nonmember milk that can be
diverted to nonpool plants was proposed by Johanna Dairies, Inc.
(Johanna), a handler regulated under both the Middle Atlantic and New
York-New Jersey marketing orders and was Proposal No. 9 as published in
the hearing notice.
Another proposal by Pennmarva--intended to more clearly define the
pooling requirements for producer deliveries to pool plants and the
status of producers whose marketing is interrupted by compliance with
health regulations under the producer definition of the order--was
abandoned and received no evidence or testimony at the hearing. This
proposal was Proposal No. 6 as published in the hearing notice.
In Proposal No. 7, Pennmarva recommended increasing the permissible
percentage of milk that can be diverted to nonpool plants to a maximum
volume of 55 percent of receipts instead of the current 50 percent
maximum. For nonmember milk, Johanna proposed increasing the maximum
allowable deliveries from the current 40 percent to a new maximum of 45
percent.
Citing statistics prepared by the market administrator, the
Pennmarva witness observed that over the three-year period of 1991 to
1993, producer receipts under Order 4 increased by 158.8 millions
pounds, while Class I disposition fell by 277.3 million pounds.
Similarly, over the same three-year period, the witness also noted the
annual Class I utilization of the market fell from 50.7 percent in
1991, to 48 percent in 1992, and to 45.1 percent in 1993. This witness
testified that because the market's Class I use decreased, diversions
to nonpool plants increased. According to Pennmarva, such a situation
makes it difficult to keep producers historically associated with the
market pooled under the order.
Johanna provided similar testimony and indicated that there is no
equitable basis why diversions of nonmember milk should not similarly
be increased from the current 40 percent of receipts for nonmember milk
to a maximum of 45 percent of receipts. Johanna testified that the
producer definition historically has offered disparate treatment
between member (cooperative) and nonmember milk in terms of the
allowable percentage of milk that can be diverted to nonpool plants and
still be priced under the order. Johanna noted that the incremental
difference between the two has consistently been 10 percentage points,
and that if the allowable percentage of member deliveries can be
increased by 5 percentage points, nonmember milk should similarly be
increased by the same amount.
Johanna also supported Pennmarva's observations of the market
administrator statistics that show the steadily declining percentage of
Class I milk receipts within the order's pool. The same statistics,
Johanna said, support the adoption of their proposal.
No opposition to the adoption of Proposals Nos. 7 and 9 was
received.
Regarding Proposal No. 7, changing marketing conditions, namely
increasing producer receipts and declining Class I use, provide support
for adoption of this proposal to increase the percentage of milk of
cooperative members which may be diverted to non-pool plants during the
months of September through February. This proposal offers a reasonable
unopposed solution for more orderly marketing and to keep milk pooled
under the order that has historically been associated with the market.
Regarding Proposal No. 9, the record does not reveal any reason to
not similarly increase the permissible diversion limit by handlers with
non-cooperative member milk supplies for the same reasons already
indicated regarding Proposal No. 7.
3. Regulation of Distributing Plants That Meet the Pooling Standards of
More Than One Federal Order
a. A proposal to leave the determination of which order regulates a
plant with pool-qualifying disposition in more than one Federal order
to the provisions of Sec. 1004.7(f)(1) cannot be decided upon on the
basis of the hearing record. The provisions of Sec. 1004.7(f)(1)
requires that if a pool plant qualifies as a pool plant in another
order, the plant will be regulated under that order unless the plant
has a greater volume of Class I dispositions in the Order 4 marketing
area. Currently, this order provision is subordinated by an
[[Page 48927]]
additional provision in Sec. 1004.7(f)(2) that yields a plant's pool
status to another order whenever such plant qualifies as a pool plant
under the other order. It is this subordinating provision that is
proposed to be deleted from the order (Proposal No. 3 as published in
the hearing notice). In other words, Proposal No. 3, offered by
Pennmarva, would determine the regulation of a plant under the order on
the basis of where the plant has its greatest Class I route disposition
in the event that a plant qualifies as a pool plant under another
order.
According to Pennmarva, the yield provision contained in
Sec. 1004.7(f)(2) unnecessarily subordinates the Middle Atlantic milk
order to the provisions of another Federal order. Such subordination is
not needed, said Pennmarva, because the provisions of Sec. 1004.7(f)(1)
defines a comprehensive and adequate standard for determining whether a
pool plant should be regulated under Order 4.
Pennmarva testified that two pool plants, one located in Lansdale,
PA (Lansdale), and the other located in Reading, PA (Reading), have
changed from being regulated under Order 4 to Order 2. These changes,
said Pennmarva, have had the effect of depressing the Order 4 blend
price relative to the blend price of Order 2. According to Pennmarva,
the New York-New Jersey 1992 average blend price was $0.68 per
hundredweight less than the Order 4 blend price for the same time
period. Similarly, Pennmarva indicated that for 1993, the Order 2 blend
price was $0.50 per cwt. less than in Order 4.
Pennmarva testified that between 1992 and 1993 there also were
changes in Class I receipts and utilization between Order 4 and Order
2. During this time period, Class I receipts of producer milk in Order
4 fell by 265,613,000 pounds while in Order 2 they rose by 170,765,660
pounds, said Pennmarva. During this same time period, the Class I
utilization of Order 4 shrank by nearly 3 percentage points to a total
of 45.1 percent, while the Order 2 Class I utilization grew by one
percentage point to a total of 40.3 percent. Pennmarva attributed these
changes partly to the change in regulation of the already-noted plants.
Pennmarva also testified that the exchange of milk between Orders 2
and 4 has historically been equal. However, according to Pennmarva,
this relationship changed greatly in the past year. Citing Order 4
market administrator published statistics (the volume of packaged fluid
sales from Order 2 into the Order 4 marketing area in 1993), Pennmarva
indicated that 327.3 million pounds of pooled and priced Order 2 milk
was disposed of in the Order 4 marketing area, up by 134.7 million
pounds from 1992--an increase of 70 percent. However, Order 4 priced
and pooled milk in the Order 2 marketing area over the same time period
increased by only 12.1 percent to a total of 238.0 million pounds. This
change of the historical balance was attributed by Pennmarva to the
shifting of regulation of the Lansdale pool plant in November 1992 and
the Reading pool plant in January 1993 to regulation under Order 2.
Even though these plants became regulated under the New York-New Jersey
milk order, Pennmarva said, these plants continued to have significant
Class I route disposition in the Order 4 marketing area.
Pennmarva also justified using the measure of greatest Class I
route sales as the basis for deciding where a plant should be pooled by
citing the provisions of nearby orders that provide for this
measurement; specifically, the Carolina (Order 5) and the Eastern Ohio-
Western Pennsylvania (Order 36) milk orders. However, noted Pennmarva,
the New York-New Jersey order provides a different measure.
Pennmarva noted differences between Order 4 and Order 2 pooling
provisions. Order 2 allows for transfers of bulk fluid milk (classified
as Class I-A) between plants, while Order 4 specifically excludes
deliveries to a plant, said Pennmarva. This difference in order
provisions may result in a situation where a plant may have a greater
in-area packaged route disposition in Order 4, but, testified
Pennmarva, because Order 2 allows for plant transfers of bulk fluid
milk (milk classified as Class I-A), such bulk transfers may cause the
plant to have greater total Class I assignments in Order 2 than in
Order 4. In this event, said Pennmarva, the subordinating language of
Sec. 1004.7(f)(2) causes the plant to be regulated as an Order 2 pool
plant, even though it may have more packaged Class I route distribution
in the Order 4 marketing area.
Pennmarva said this proposal would not change the pool plant
definition of the New York-New Jersey order. According to Pennmarva, a
plant which qualifies as a pool plant in either order prior to the
adoption of this proposal will continue to qualify as a pool plant.
Significant opposition testimony was received regarding Proposal
No. 3. Johanna testified that Proposal No. 3 seems intended to prevent
them from pooling the milk from its Lansdale plant under the New York-
New Jersey milk order despite the fact that the greater percentage of
such milk ultimately is distributed as Class I milk in that area. To
the best of its knowledge, Johanna said, Proposal No. 3 would have no
effect on any other handler. Moreover, the requirement that milk
received at Johanna's Lansdale plant be pooled in Order 4 yields no
material benefit to Order 4 producers.
According to Johanna, Proposal No. 3 fails to recognize the close
relationship between the Order 2 and Order 4 markets and would be
counterproductive to the goals of the Federal milk marketing scheme.
Johanna contended that milk which is received and separated at one
plant, and then shipped as bulk milk for subsequent packaging and Class
I distribution by another plant, is most clearly associated with the
market in which the milk ultimately is distributed on fluid routes.
Johanna also asserted that if more than half of a plant's receipts from
producers are regularly shipped to another plant for packaging and
Class I disposition in another order, the plant initially receiving the
milk, and those farmers who supply such milk, should be associated with
and pooled under the order where those later fluid Class I sales are
made.
Johanna testified that its Lansdale plant became pooled under Order
2 for legitimate business reasons and not for the purpose of
circumventing where it is regulated. The reason for the switch in
regulation from Order 4 to Order 2 was the cessation of milk processing
at another Johanna plant located in Flemington, New Jersey
(Flemington). Prior to this plant's closure, Johanna said, the
Flemington plant had been distributing some 677 million pounds of Class
I milk annually in the Order 2 market and had been an Order 2 pool
plant for more than 15 years.
Upon closing the Flemington plant, Johanna indicated that the
greatest majority of its milk business was relocated to its Lansdale
operation, with the greatest majority of its Class I sales in Order 2.
Johanna said there was no change in Class I disposition in either Order
2 or Order 4 by virtue of the movement of that milk. Johanna asserted
again that the combining of operations of the two plants at Lansdale
was a business decision and not an attempt at manipulating order
provisions.
Johanna testified that producers in Pennsylvania's milkshed
typically supply large quantities of milk to handlers in both Orders 2
and 4. Further, said Johanna, it is unrealistic to view the
Pennsylvania milkshed as somehow geographically linked to the Order 4
market. The overlapping nature of this milkshed between the two
[[Page 48928]]
orders, said Johanna, supports Order 2 regulation of a Pennsylvania
plant that distributes the majority of its fluid milk within the Order
2 marketing area.
Johanna emphasized that the Lansdale plant is a ``designated''
Order 2 pool plant, and therefore is relied upon by the performance
standards of such designation to provide support for Class I sales
within the marketing area. The presence of such plants, said Johanna,
supports the blend price which accommodates the large amount of
manufacturing milk pooled in the New York-New Jersey order.
No appreciable adverse effect on the Order 4 blend price would
result from the inclusion of the Lansdale plant under Order 2,
according to Johanna's analysis. The effect on the Order 4 blend price
using 1993 averages, said Johanna, amounts to about a three-cent
reduction. Johanna also indicated that pooling the milk under Order 4
would have had a slightly smaller reduction in the blend price received
by Order 2 producers.
Johanna concluded that any justification for adopting Proposal No.
3 upon a supposed improvement in the blend price by pooling the
Lansdale plant under Order 4 fails to account for the effect upon the
blend price in Order 2. At most, said Johanna, classification of the
plant's milk with one order or the other would represent an
insignificant adjustment in the movement, up or down, of blend prices
in either order.
Johanna also testified that Proposal No. 3 seems intended to
eliminate the applicable location differential as an Order 2 plant.
Because of the Lansdale's route distribution in Order 2, the existing
location differential is fair, said Johanna. Adoption of Proposal No.
3, according to Johanna, would place them at a competitive disadvantage
against other Order 2 handlers competing in the market for fluid sales.
Johanna noted that there is a 24.5-cent difference in the location
differential in Order 2 between the Lansdale plant's applicable zone
(the 71-75 mile zone) and the next nearer zone (the 61-70 mile zone).
If Proposal No. 3 is intended to alter the location differentials of
Order 2 because of some perceived unfairness, such changes to the Order
2 pricing structure should be addressed through proposed amendments to
the New York-New Jersey order and not this proceeding, said Johanna.
Johanna asserted that the 24.5-cent location adjustment between the
two zones was properly factored into Order 2's location differential
scheme based upon the historical mechanism of transporting distant milk
to the urban market through the use of receiving stations. Johanna
added that the 24.5-cent difference equalizes the price, for
competitive purposes, of milk brought into the Order 2 market from more
distant locations. The witness said that as milk had to be shipped from
more distant locations, receiving stations collected the milk from
dispersed producers. At the time the Order 2 location differential
applicable to the Lansdale operation was adopted, said Johanna, the
location adjustment difference was intended to allow handlers to recoup
the fixed costs associated with the creation and maintenance of
receiving stations. At the same time, Johanna added, the location
adjustment difference between zones was intended to not affect any
Order 2 plant then in existence.
A witness from Dairylea Cooperative, Inc. (Dairylea), of Syracuse,
New York, also testified in opposition to Proposal No. 3. Dairylea is a
dairy farmer cooperative comprised of some 2,200 members throughout the
northeast of the United States who produce milk regulated under Federal
Orders 1, 2, 4, and 36. This witness testified Order 4 provisions
currently recognizes its interdependence with Order 2. When there is a
dispute over which order a particular plant should be pooled under,
Dairylea said, there is recognition by Order 4 provisions of the
historical uniqueness of Order 2 in terms of its use of upcountry
plants to separate farm milk into skim milk that is shipped hundreds of
miles to city bottling plants, while leaving the cream fraction of the
raw milk in the up-country plants for processing into Class II or Class
III products. Dairylea said this is part of a sound economic system
that has developed over many years.
According to Dairylea, adoption of Proposal No. 3 would set up a
direct conflict between Order 4 and Order 2 pooling provisions because
adopting it would tend to amend the application of Order 2's pooling
provisions. Dairylea was of the opinion that Proposal No. 3 appeared to
be based solely on the goal of enhancing a single group's economic
interest without regard to the potential of injury to another order's
system of milk sales that developed over many years.
Opposition testimony was also received from a witness on behalf of
Clover Farms Dairy Company (Clover Farms), located in Reading, PA.
Clover Farms testified that adoption of Proposal No. 3 would lead to
irreconcilable conflict with the provisions of the New York-New Jersey
order.
Clover Farms testified that the most basic provisions of any milk
marketing order are those that determine which plants are to be
regulated. These provisions, Clover Farms said, often differ from one
order to another because they are designed to meet the varying
characteristics of the marketing areas involved. According to Clover
Farms, because an individual plant serving a diverse market may meet
the pooling requirements of more than one Federal order, each order
must specify how such a situation is to be resolved. Moreover, said
Clover Farms, the resolution as determined by each order involved must
lead to the same conclusion, otherwise no guidance will be given either
to the Department of Agriculture or to the courts in resolving the
conflict.
Clover Farms testified that Proposal No. 3 would eliminate the
basis for deciding which order takes precedence when a plant would
otherwise be subject to the classification and pricing provisions of
both Order 4 and another Federal order. Leaving the determination on
which order has the greater volume of Class I milk disposed of on
routes in its marketing area from the plant might work, said Clover
Farms, provided the other order has a provision that provides the same
conclusion. This could not work in the case of Order 4 and Order 2,
Clover Farms indicated, because the provisions of the New York-New
Jersey order bases the decision on which order has the larger portion
of disposition of Class I-A milk, which includes bulk shipments of milk
assigned to Class I, in its marketing area. Since Order 4 does not
recognize the role of bulk shipments in its calculation, said Clover
Farms, adoption of Proposal No. 3 would provide no basis upon which to
resolve the conflict between the two orders when a plant meets the
pooling provisions of both.
The opposition testimony of the Clover Farms witness was supported
in testimony by a witness who testified on behalf of Eastern Milk
Producers Cooperative Association, a dairy farmer cooperative having
some 2,400 members that ship milk to Orders 1,2,4, and 36.
A brief filed by Pennmarva noted that while Johanna agrees that a
plant should be pooled under the order in which most Class I sales are
made, Johanna provided no evidence to support the claim that fluid milk
transfers from the Lansdale plant were in fact distributed on routes in
the Order 2 marketing area, thereby meeting a defacto route disposition
test. Pennmarva argues here that if, in fact, the Lansdale plant has
greater route disposition in Order 2 than it has in Order 4, the
adoption of Proposal No. 3 will have no effect on the plant. Pennmarva
further argues that even if the plant did not now have
[[Page 48929]]
greater route disposition in Order 2, operators of the plant could
implement the changes necessary to ensure greater route sales in Order
2.
To illustrate the need for adopting Proposal No. 3, the Pennmarva
brief noted that in 1993, the Lansdale plant had 224 millions pounds of
Class I disposition in Order 4 and 245 million pounds of Class I
disposition in Order 2, for a total of 469 million pounds. Of that 469
million pounds, Pennmarva indicated that at least 10 percent (46.9
million pounds) of its milk was transferred in bulk or packaged form
from Lansdale to other plants. According to Pennmarva, Lansdale
consequently distributed on routes no more than 198.1 million pounds in
the Order 2 marketing area. Thus, Pennmarva claims that the Lansdale
plant distributed 198.1 million pounds of Class I milk on routes in
Order 2 versus 224 million pounds of Class I milk in Order 4, clearly
revealing that there is more route disposition under Order 4. However,
because of the yield provision contained in Sec. 1004.7(f)(2),
according to Pennmarva, the Lansdale plant is regulated under Order 2.
The Pennmarva brief contends that Johanna's testimony that the
Lansdale Class I-A milk transfers were ultimately distributed on routes
in Order 2 is in error. Pennmarva noted that the definition of Class I-
A milk under Order 2 is ``as route disposition in an other order
marketing area'' as delineated in Sec. 1002.41(a)(1)(ii) of the New
York-New Jersey order. Thus, according to Pennmarva, a plant which
otherwise qualifies as an Order 2 pool plant can dispose of milk on
routes in the Order 4 marketing area, and such dispositions are
classified under Order 2 as Class I-A. Pennmarva indicated that once
classified as Class I-A, no further distinction is made regarding the
ultimate destination of route sales.
The Pennmarva brief also challenged the Johanna witness' assertion
that all of its transferred milk was ultimately distributed on routes
in the Order 2 marketing area. Pennmarva noted that transfers were made
between Lansdale, PA, and Reddington Farms (an Order 2 pool plant) and
that market administrator statistics indicate that Reddington Farms
enjoyed Class I route disposition in the Order 4 marketing area in
every month between 1991 and 1994.
In response to the Clover Farms' testimony that adoption of
Proposal No. 3 would lead to irreconcilable conflict with Order 2 and
that such conflict would need to be addressed by the Dairy Division,
Pennmarva cited an example of how, through administrative
determination, a pooling issue such as this might be handled. The
Pennmarva brief asserted that it is within the purview of the Act for
proponent cooperatives, which represent volumes in excess of 90 percent
of the Order 4 market, to delete provisions which subjugate the order
to all other orders and to rely on a route disposition test in
determining where a plant should be pooled when it also qualifies for
pooling under another order.
According to the Pennmarva brief, orderly marketing within Order 4
should not be hinged on an accommodation to another order. Pennmarva
does concede that the interplay of adjoining markets, such as Order 2
and 4, must be considered in maintaining orderly marketing but
indicated there is nothing in the record which provides a reason why
Order 4 should be subordinated to Order 2 or any other order. This is
important, according to Pennmarva, because of the economic hardship
brought about through depressed blend prices. Pennmarva indicates that
there is no benefit to Order 4 producers from the application of the
provisions of Sec. 1004.7(f)(2) and that its elimination will not
change the pooling standards of any other Federal order.
In defense of the adequacy of using a route disposition test, the
Pennmarva brief cited a recommended decision applicable to another
Federal order in which a plant that qualifies under more than one order
is regulated under the order which it enjoys the greatest route
disposition. This recommended decision indicated that such application
normally assures that all handlers having principal sales in a market
are subject to the same pricing and other regulatory requirements.
Official Notice is taken of the Final Decision (59 FR 26603, published
May 23, 1994) for the Southern Michigan marketing area in which no
changes were made regarding this issue from the recommended decision.
According to Pennmarva, such an example speaks to a fundamental intent
of milk marketing orders--to regulate handlers that compete for sales
within the specific geographic definition of the marketing area.
A brief filed by Johanna reiterated their opposition to the
adoption of Proposal No. 3.
Reply briefs filed by both Pennmarva and Johanna similarly
reiterated their positions given in testimony and in submitted briefs.
However, Johanna's reply brief takes objection to Pennmarva's
suggestion that Johanna should simply effectuate changes in its
Lansdale operations so as to convert its bulk shipments of fluid milk
to Order 2 into route disposition and thereby preserve the plant as an
Order 2 plant under the strictures of Sec. 1004.7(f)(1). According to
Johanna, this suggestion does not take into account the impracticality
and costs to Johanna of pooling the Lansdale plant to accommodate the
packaging requirements of multiple wholesale customers who presently
receive bulk shipments from the Lansdale plant for packaging and
ultimate route disposition in Order 2.
Johanna also counters the Pennmarva's reference to another
rulemaking proceeding and recommended decision involving a pooling
issue of a Ultra High Temperature (UHT) plant in another Federal order.
While Pennmarva cited this recommended decision as an example of how
administrative intervention could be used to determine where a plant
should be regulated, Johanna views this recommended decision as
providing certainty and orderly conditions for the UHT plant and its
producers on where it will be pooled. In this example, Johanna notes
that the route disposition test, as a single criteria for pooling, is
rejected because of the unique aspects of the marketing conditions
faced by the UHT plant. Such uniqueness should also be recognized for
the Lansdale plant, said Johanna, because it makes Class I bulk
shipments to an order which does not rely solely on a route
distribution pooling test.
At issue regarding Proposal No. 3 is where a plant should be pooled
and regulated when it meets the pooling standards of more than one
order. Both the proponent and opponents to Proposal No. 3 agree that
the market in which fluid sales distributed on routes are greatest is
where a plant should be regulated. Where a plant should be regulated is
a most important feature of all Federal milk orders. The basis upon
which a marketing area is determined is founded on the basis of where
handlers compete with each other for fluid sales. An important
determinant of handlers competing with each other for sales is
generally made through a measurement of the route disposition of fluid
milk. For the Middle Atlantic marketing area, the order clearly defines
route disposition, and its measurement can be made with exacting
precision every month. However, the New York-New Jersey marketing order
differs from Order 4 in that it provides for the bulk transfers of
fluid milk between plants that are classified as Class I-A milk. Order
4 specifically excludes such transfers between plants from meeting its
route disposition test.
[[Page 48930]]
Opponents of Proposal No. 3 assert, in part, that bulk transfers of
Class I-A between plants are an important feature of the Order 2
marketing area because of the market structure that evolved there over
time. The basis of providing for bulk transfers of Class I-A milk
between plants recognized the market structure and conditions in that
order. Opponent witnesses describe ``up-country'' plants that assemble
and separate the skim fraction of producer milk for subsequent transfer
to ``city'' bottling plants for eventual distribution to retail
outlets, while leaving the cream fraction in country plants to be
further processed into Class II and Class III products, as a unique
characteristic of the Order 2 marketplace.
On its face, it is difficult to conclude that adoption of Proposal
No. 3 somehow threatens the above described market structure that Order
2 handlers have relied upon for a long period of time. Both the
proponent and opponents of Proposal No. 3 recognize and describe
similarly the close relationship between Order 2 and Order 4. The
record reveals that both orders share, to a significant extent, a
common milkshed. The record also reveals that milk movements between
orders have been historically equal until the Lansdale plant switched
regulation from Order 4 to Order 2. The change in the regulatory and
pool status of the Lansdale plant was due to Order 2 allowing for bulk
transfers of Class I-A milk as a fluid use which brought the total
Class I disposition of the plant to have more milk associated with the
New York-New Jersey marketing area than it had with the Middle Atlantic
marketing area. This allowance for bulk transfers under the New York-
New Jersey order, together with the subordinating language of Order 4,
required the regulatory and pool status of the Lansdale plant to shift
to Order 2 even if the Lansdale plant may have had more route sales in
Order 4.
The Lansdale plant is physically located within the Order 4
marketing area and until recently had historically been pooled as an
Order 4 pool distributing plant. Further, the Lansdale plant is clearly
a fluid distributing plant that competes with other handlers for fluid
sales in Order 4. In the New York-New Jersey order, it seems to enjoy,
from the testimony of some opponent witnesses, the status of a
distributing plant while at the same time was inferred to be a
``country'' plant. Nevertheless, Order 2 recognizes the Lansdale plant
as a fluid milk distributing plant with the transferring of milk as a
secondary operation. This distinction is made here because Order 2 also
recognizes processing plants with manufacturing as a secondary
operation. Simply put, the Lansdale plant's primary enterprise is as a
fluid distributing plant.
The effect of the New York-New Jersey order provision of allowing
for bulk transfers of Class I-A milk and its lack of a route
disposition test makes it difficult to determine precisely where the
majority of Landsdale's Class I sales take place that includes the bulk
transferred milk. The record reveals, in testimony by Johanna, that
bulk transfers of Class I-A milk end up eventually as route
disposition, although the record does not reveal how much of such milk
is distributed on routes within Order 2 or in another marketing area.
Pennmarva makes a case from the record evidence that suggests that
there is more route disposition in Order 4. In this regard, Johanna's
claim that fluid milk transfers from the Lansdale plant were in fact
distributed on routes in Order 2 might not be totally accurate on basis
of the record evidence. This conclusion is further supported by
examining the Order 2 provision of what constitutes Class I-A milk,
namely, inclusion of milk distributed on routes in another marketing
area. This decision agrees with Pennmarva that a plant which otherwise
qualifies as an Order 2 pool plant can dispose of milk on routes in the
Order 4 marketing area with such disposition classified as Class I-A,
and then once so classified, no further distinction as to the ultimate
route disposition is made through the transfer chain.
In summary, a conclusion on the basis of the record of where the
greatest route sales of fluid milk are made by Johanna's Lansdale plant
cannot be determined. This is problematic because both proponent and
opponent witnesses indicate that a plant should be pooled where it
enjoys the majority of its Class I disposition, but Order 2 and Order 4
each rely on different forms of measuring this outcome. Due recognition
of the regulatory impact on a plant that meets the pooling standards of
the New York-New Jersey order is warranted because the plant has met
that order's standards. At the same time, Order 4 producers are
required by their order to yield to the pricing provisions of another
order on the terms of measurement that are not its own.
This decision agrees with an opponent witness' testimony that each
marketing order should specify how to resolve differences and conflicts
that arise in the regulation and pooling of plants. In this regard,
opponents to Proposal No. 3 voiced concern that its adoption would lead
to irreconcilable conflict with the provisions of the New York-New
Jersey order. Such conflict probably would not be the case if an
identical definition and standard of measurement, that is route
disposition, existed for both orders.
In short, adoption of Proposal No. 3 would leave determination of
the regulatory and pool status of the Lansdale plant solely to the
Order 4 route disposition test. However, adoption of this proposal has
the effect of causing a change to the New York-New Jersey order which
was not open or noticed in this proceeding. Adoption of Proposal No. 3
provides neither clarity nor a basis, at least with respect to the
relationship between Order 4 and Order 2, to determine in which order a
plant should be pooled.
The apparent intent of Pennmarva's Proposal No. 3 seems clear and
consistent with how milk is regulated and pooled throughout the Federal
milk order system. In this regard, Pennmarva is asking that milk
distributed on routes be the sole test for determining where a plant
should be pooled. Proponents and opponents agree that where a plant has
most of its sales is the most appropriate basis for making such a
determination. Unfortunately, Proposal No. 3 falls short of being able
to accomplish this without causing a change to the New York-New Jersey
order.
The Johanna witness testified that, in part, the purpose of
Proposal No. 3 appeared intended to eliminate the location differential
as an Order 2 plant. This would obviously place Johanna at a
competitive disadvantage against other Order 2 handlers competing in
the market for fluid sales in the Order 2 marketing area. The witness
observed correctly that there is a 24.5-cent difference in the location
adjustment in Order 2 between the Lansdale plant's applicable zone (the
71-75 mile zone) and the nearer zone (the 61-70 mile zone). On this
point, an examination of the Class I price at the Lansdale location
reveals a disparate price difference between being regulated under
Order 2 or Order 4. Under the provisions of the Middle Atlantic order,
the Class I price applicable at Lansdale is $0.345 more than what the
applicable Class I price would be if it were regulated under the New
York-New Jersey order.
This disparate price difference suggests that the Class I price, at
least at the Lansdale location, could be better aligned. To the extent
that a $0.345 price difference between the pricing provisions of two
adjoining orders may be sufficient to encourage bulk Class I-A milk
transfers, that, together with other forms of milk disposition in the
New York-New Jersey order, provides the Lansdale plant the economic
[[Page 48931]]
incentive to meet the pooling standards and pricing provisions of Order
2. If the Class I price at Lansdale were in better alignment, it is
reasonable to suppose that Johanna would likely be indifferent on which
order they sought pricing and regulatory status. On the one hand,
Landsdale is able to attract an adequate supply of fluid milk at a
price lower than what would be applicable if regulated under Order 4.
Further, adoption of Proposal No. 3 would likely cause a shift in the
regulatory status of the Lansdale plant back to Order 4, causing their
cost of milk to increase when they meet the pooling standards of
another order. On the other hand, if the Lansdale plant enjoys its
greatest route disposition in the Order 4 marketing area, they enjoy a
sales advantage against other Order 4 regulated handlers that pay more
for their milk.
It is because of the above discussion of this issue that a
recommendation for or denial of Proposal No. 3 cannot be made on the
basis of this record. Adoption of Proposal No. 3 would have the effect
of causing a change to another order which cannot be accomplished
without a hearing that includes the other order. Further, the apparent
disparate price difference between the pricing provisions of the Middle
Atlantic and New York-Jersey orders suggests that the pooling question
at issue is perhaps a pricing issue. As such, it is not appropriate to
attempt correction of a pricing problem by changing pooling provisions.
Notice is given that the Department expects that interested parties
will investigate and offer proposals that address the Class I price
alignment structure between Order 2 and Order 4. Other features of
marketing order differences, such as that exhibited on the issue
regarding Proposal No. 3, should similarly be considered with the view
to facilitating more orderly marketing conditions.
Written comments received on the recommended decision from Dairylea
and Pennmarva support the conclusions discussed above regarding
Proposal No. 3.
b. A second proposal that would eliminate the exemption of a pool
plant's regulation under Order 4 when such a plant meets the pool plant
definition of another order from the pool plant definition of the order
should be adopted. This was proposed by Pennmarva (Proposal No. 2 as
published in the hearing notice).
Currently, an Order 4 pool plant can continue to be regulated under
the order as a pool plant for two succeeding months after it fails to
meet certain pooling standards, unless it simultaneously meets the
pooling provisions of another Federal order. This feature of the order
is commonly referred to as the ``lock-in'' provision.
Pennmarva testified that in the recent past, two Order 4 pool
distributing plants changed their status from being regulated under the
Middle Atlantic marketing order to the New York-New Jersey marketing
order (Order 2). In both cases, Pennmarva said, notice of the change of
regulation was provided to cooperative suppliers in a timely fashion so
that the appropriate logistical arrangements could be made. According
to Pennmarva, an important logistical item attended to was the
reassociation of the market's producers whose last shipment to a pool
distributing plant was to one of these plants. Pennmarva said
accomplishing this task was exacting and time consuming.
Pennmarva testified that there is no requirement or certainty for a
handler to give adequate notice to its cooperative suppliers of milk.
Further, said Pennmarva, cooperative suppliers have no independent
knowledge that a plant may change from regulation under the order to
another order. In a worst case scenario, Pennmarva said, a cooperative
supplying milk to a handler changing regulation would not discover this
change until ten days into the following month. Pennmarva indicated the
intent of this proposed amendment is to enhance orderly marketing
rather than keeping a plant pooled permanently under Order 4.
Opposition to Proposal No. 2 was voiced by Dairylea. According to
Dairylea, Proposal No. 2 has no economic or substantive basis. This
witness drew attention to the timely notification to suppliers by the
two plants that shifted regulation to the New York-New Jersey order as
an indicator of the well-functioning current provision of the order.
Thus, Dairylea concluded that the order therefore does not require a
modification to address the issue.
In the interest of promoting more orderly marketing conditions,
Proposal No. 2 has merit because it mitigates a cooperative's lack of
knowledge of a distributing plant's dispositions. Such knowledge is
needed in order for the cooperative to know where a plant is pooled or
when a plant's pool status may change in any given month. It is
reasonable to expect that when a distributing plant does change its
regulatory status under the order, producers supplying the plant should
have the time to make the business changes and adjustments they deem
necessary without the loss of the certainty of where their milk will be
pooled. The record reveals that advance notification was provided to
cooperative suppliers prior to changes of where certain plants would be
regulated in some instances. This is commendable and speaks well to the
interactions between cooperative suppliers of milk and handlers.
However, such notification is clearly voluntary when requiring it would
offer clear advantages without being burdensome. The merit in requiring
advance notification stems from the very real and reasonable need of
cooperatives to have such prior knowledge of where their milk will be
pooled and priced. Finding out after-the-fact that a plant's regulatory
status has changed is tantamount to denying producers access to an
intended market. For this reason, the objections by the opposition
witness from Dairylea have little merit. It also places an unreasonable
economic burden on Order 4 producers because of the order's requirement
to re-associate producer milk in the marketing area so that producers
may enjoy the benefits from being pooled in Order 4.
Because a decision regarding Proposal No. 3 cannot be made on the
basis of this record, the proposed deletion of Sec. 1004.7(a)(4) as
proposed by Pennmarva would not accomplish implementing the intent of
this proposal (Proposal No. 2). Accordingly, this decision modifies the
language of Sec. 1004.7(a)(4) to ensure that the two month ``lock-in''
provisions (as contained in Sec. 1004.7(a)(3)) will apply to plants
that may, in the future, shift regulation to another Federal order or
become a nonpool plant.
In written comments to the recommended decision, Pennmarva offered
more specific order language that clarifies the terms of the ``lock-
in'' provision. This clarifying language should be reflected in the
provisions of Sec. 1004.7(a)(4) so as to insure a two-month ``lock-in''
refers to consecutive months. Therefore the language of
Sec. 1004.7(a)(4) has been modified.
4. Discretionary Authority To Revise Pooling Requirements and Producer
Milk Diversion Limits
Two proposals offered by Pennmarva that would provide discretionary
authority for the market administrator to revise pooling requirements
and producer milk diversion limits should be adopted. Proposal No. 5,
as published in the hearing notice, would provide the market
administrator the authority to raise or lower the applicable pooling
standards for distributing plants, supply plants, and reserve
processing plants. Proposal No. 8, as published in the Notice of
Hearing,
[[Page 48932]]
would similarly provide the market administrator the authority to raise
or lower the applicable diversion limits for cooperative associations,
federations of cooperative associations, and handlers with non-member
milk supplies. Adoption of these provisions will provide a procedure
for the order to be modified in a more responsive manner to changes in
marketing conditions than is currently the case. Modification can be
made to encourage the shipment of additional supplies of milk for fluid
use or to prevent the uneconomic shipments of milk that are in excess
of fluid needs.
The order does not currently provide for such discretionary
authority for the market administrator to change pooling requirements
or diversion limitations. Typically, pooling standards may be
temporarily revised or suspended administratively through informal
rulemaking by the Department at a petitioner's request. The Department
investigates the request and determines the need to temporarily revise
or suspend pooling standards. Permanent changes or amendments to
Federal order provisions, as in this proceeding, are accomplished
through formal rulemaking procedures based on a public hearing.
The pool plant definition of Order 4 currently requires that in
meeting pool plant qualification status, a plant must have a Class I
disposition of at least 40 percent of its receipts in the months of
September through February and 30 percent in the months of March
through August. Additionally, at least 15 percent of receipts must be
within the marketing area. Any plant that does not meet this criteria
for pool plant status can still be a pool plant if at least a specified
percentage of its milk receipts are moved during the month to a
plant(s) that meets the Class I disposition requirements and volume of
route disposition within the marketing area indicated above. The
applicable percentage for the months of September through February is
50 percent of receipts; for the months of March through August, the
applicable percentage is 40 percent. A reserve processing plant
operated by a cooperative association or by a federation of cooperative
associations is a pool plant provided, in part, that at least 30
percent of the total milk receipts of member producers during the month
is moved to and physically received at a plant that meets the Class I
disposition standards.
The producer definition of Order 4 currently provides that dairy
farmers can be producers under the order even though their milk is
moved from the farm to nonpool plants for manufacturing purposes rather
than to plants for fluid use. Diversion limits apply to handlers
marketing dairy farmer's milk such as cooperative associations,
federations of cooperatives, and handlers marketing non-member milk.
The diversion limit for a cooperative association or a federation of
cooperatives is restricted to 50 percent of the volume of milk of all
members of a cooperative association or federation delivered to, or
diverted from, pool plants during the month. The diversion limit for
handlers with non-member milk supplies is restricted to 40 percent of
the total of non-member milk for which a pool plant operator is the
handler during the month.
Pennmarva testified that granting the market administrator the
authority to raise or lower pooling standards and diversion limits will
enhance orderly marketing by either encouraging needed milk shipments
or preventing the uneconomic movement of milk. Pennmarva indicated that
such administrative authority is granted to market administrators in
other markets, noting for example that the market administrator in the
Upper Midwest marketing area (Order 68) has similar authority.
Before making any revision to the pooling standard or diversion
limits established by the order, Pennmarva offered a specific procedure
that would govern the conditions under which revisions might be
warranted. The procedure offered specifies that the market
administrator may increase or decrease the applicable percentages of
either the pool plant definition section or the producer definition
section of the order (Sections 1004.7 and 1004.12 respectively) if a
revision is necessary to encourage needed shipments or to prevent
uneconomic shipments of milk. Before making such a finding, the order
procedure requires the market administrator to investigate the need for
revision either on the market administrator's own initiative, or at the
request of interested parties. If the investigation shows that a
revision might be appropriate, the proposed order language requires the
market administrator to issue a notice stating that a revision is being
considered and invite data, views, and arguments on whether a revision
is necessary. The procedure also specifies that any request for
revisions be filed with the market administrator no later than the 15th
day of the month prior to the month for which the requested revision is
desired to be effective.
Pennmarva testified that this amendment would provide for more
timely decisions on factors affecting the pool status of dairy farmers.
It was Pennmarva's opinion that the market administrator and staff are
fully appraised of the market conditions in the Middle Atlantic market.
Such working knowledge, said Pennmarva, can decrease the time and
expense needed to respond to a changing market and improve regulatory
efficiency.
Pennmarva maintains that this process is superior to the process
currently used to affect needed changes in pooling standards and
diversion limitations. Pennmarva noted that the Department can
effectuate suspension actions of order provisions that remove
regulatory language, thus reducing the burden on handlers. However, the
witness indicated that deletions of language by informal rulemaking
procedures is too limiting to address changes in marketing conditions.
Pennmarva said that providing the market administrator with a procedure
to make specific percentage changes, either up or down, would be a more
flexible way of changing shipping requirements or diversion limits.
Opposition testimony was received from Dairylea for granting such
discretionary authority to the market administrator for revising
shipping requirements (Proposal No. 5). Dairylea said that while they
have significant faith in market administrators, they see no reason to
abandon long-term practices of having a public hearing or meeting to
discuss the merits of changing applicable shipping standards within an
order. Dairylea is of the view that Proposal No. 5 does not provide for
a public meeting forum but rather simply written arguments almost after
the fact. Dairylea indicated that shipping standards can have a
profound economic impact of farmers, cooperatives, processors and
consumers, and, in fact, are the very essence of the market order
structure. The witness said that changing these standards without
public scrutiny in the form of a public meeting or hearing should not
be allowed. The witness feared that a simple request for a written
response would leave many people out of the discussion and
decisionmaking process.
A witness for Clover Farms testified in opposition to both Proposal
Nos. 5 and 8. Clover Farms opposes these two proposals unless provision
is made for a public forum to aid in the decision making process of the
market administrator.
A witness for Eastern Milk Producers Cooperative Association
(Eastern) also testified in opposition to Proposal Nos. 5 and 8.
Eastern indicated that it makes sense to provide a degree of
administrative discretion to the market
[[Page 48933]]
administrator to resolve the problems that may arise as a result of
changes in supply and demand conditions in the marketplace that would
warrant adjustment of shipping percentages. Nevertheless, before such
discretion is exercised, Eastern maintained that there be notice to the
industry and preferably that there be an opportunity for a public
meeting for interested parties to bring evidence in aiding the market
administrator to make a proper decision. Eastern noted that the
``call'' provision of the New York-New Jersey marketing order, which
requires the market administrator to conduct a public meeting in
setting performance standards on handlers to ensure that the fluid
market needs are adequately served, works well. Eastern indicated
support for a proposal that would be similar in scope for the Middle
Atlantic order.
At issue on the part of those who oppose granting administrative
discretion to the market administrator in adjusting shipping
requirements and diversion limitations is the lack of a public meeting.
Opponents have firm opinions that the public and interested parties
should have a greater degree of participation in the decisional process
than the proposed administrative proceeding would require. However,
opponents take no issue on the ability, impartiality or integrity of
the market administrator to make appropriate administrative decisions
regarding adjustments to shipping requirements and diversion limits.
The issue here is one of procedure.
The informal rulemaking procedure is routinely used for making
temporary suspensions or revisions to pool plant shipping requirements
and diversion limitations. The procedure of public notice and comment
before deciding on the appropriate course of action that is proposed in
Proposals Nos. 5 and 8 follow in identical fashion the procedures
followed by the Department. This informal rulemaking procedure does not
include reliance on public hearings or meetings because of the need for
urgent and expeditious action to address rapidly changing market
conditions. Nevertheless, any interested party has the opportunity to
have their views included in the decision making process.
As the record reveals, such a procedure has been used in the Upper
Midwest Marketing Area since 1990. Since the record does not reveal any
lack of confidence in the ability of market administrators (who are
entrusted with great responsibility in administering the order) to
effectively carry out this duty, it is reasonable to conclude that on
the basis of the broad authorities already entrusted to the market
administrator to provide for the effective administration of the order,
such discretionary authority that would be granted with the adoption of
Proposals Nos. 5 and 8 are consistent with those already given.
Furthermore, these two proposals have the broad support of producers
who represent some 90 percent of the milk associated with the market.
Rulings on Proposed Findings and Conclusions
Briefs and proposed findings and conclusions were filed on behalf
of certain interested parties. These briefs, proposed findings and
conclusions, and the evidence in the record were considered in making
the findings and conclusions set forth above. To the extent that the
suggested findings and conclusions filed by interested parties are
inconsistent with the findings and conclusions set forth herein, the
requests to make such findings or reach such conclusions are denied for
the reasons previously stated in this decision.
General Findings
The findings and determinations hereinafter set forth supplement
those that were made when the Middle Atlantic order was first issued
and when it was amended. The previous findings and determinations are
hereby ratified and confirmed, except where they may conflict with
those set forth herein.
(a) The tentative marketing agreement and the order, as hereby
proposed to be amended, and all of the terms and conditions thereof,
will tend to effectuate the declared policy of the Act;
(b) The parity prices of milk as determined pursuant to section 2
of the Act are not reasonable in view of the price of feeds, available
supplies of feeds, and other economic conditions which affect market
supply and demand for milk in the marketing area, and the minimum
prices specified in the tentative marketing agreement and the order, as
hereby proposed to be amended, are such prices as will reflect the
aforesaid factors, insure a sufficient quantity of pure and wholesome
milk, and be in the public interest; and
(c) The tentative marketing agreement and the order, as hereby
proposed to be amended, will regulate the handling of milk in the same
manner as, and will be applicable only to persons in the respective
classes of industrial and commercial activity specified in a marketing
agreement upon which a hearing has been held.
Rulings on Exceptions
No exceptions to the findings and conclusions of the recommended
decision were received.
Marketing Agreement and Order
Annexed hereto and made a part hereof are two documents, a
Marketing Agreement regulating the handling of milk, and an Order
amending the order regulating the handling of milk in the Middle
Atlantic marketing area, which have been decided upon as the detailed
and appropriate means of effectuating the foregoing conclusions.
It is hereby ordered that this entire decision and the two
documents annexed hereto be published in the Federal Register.
Determination of Producer Approval and Representative Period
May 1995 is hereby determined to be the representative period for
the purpose of ascertaining whether the issuance of the order, as
amended and as hereby proposed to be amended, regulating the handling
of milk in the Middle Atlantic marketing area is approved or favored by
producers, as defined under the terms of the order as amended and as
hereby proposed to be amended, who during such representative period
were engaged in the production of milk for sale within the aforesaid
marketing area.
List of Subjects in 7 CFR Part 1004
Milk marketing orders.
Dated: September 13, 1995.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Regulatory Programs.
Order Amending the Order Regulating the Handling of Milk in the Middle
Atlantic Marketing Area
(This order shall not become effective unless and until the
requirements of Sec. 900.14 of the rules of practice and procedure
governing proceedings to formulate marketing agreements and marketing
orders have been met.)
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the order was first issued and when it was
amended. The previous findings and determinations are hereby ratified
and confirmed, except where they may conflict with those set forth
herein.
(a) Findings. A public hearing was held upon certain proposed
amendments to the tentative marketing agreement and to the order
regulating the handling of milk in the Middle
[[Page 48934]]
Atlantic marketing area. 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 and
procedure (7 CFR Part 900).
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The said order as hereby amended, and all of the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) The parity prices of milk, as determined pursuant to section 2
of the Act, are not reasonable in view of the price of feeds, available
supplies of feeds, and other economic conditions which affect the
market supply and demand for milk in the aforesaid marketing area. The
minimum prices specified in the order as hereby amended are such prices
as will reflect the aforesaid factors, insure a sufficient quantity of
pure and wholesome milk, and be in the public interest; and
(3) The said order as hereby amended regulates the handling of milk
in the same manner as, and is applicable only to persons in the
respective classes of industrial or commercial activity specified in, a
marketing agreement upon which a hearing has been held.
Order Relative To Handling
It is therefore ordered, that on and after the effective date
hereof, the handling of milk in the Middle Atlantic marketing area
shall be in conformity to and in compliance with the terms and
conditions of the order, as amended, and as hereby amended, as follows:
The provisions of the proposed marketing agreement and order
amending the order contained in the recommended decision issued by the
Administrator, Agricultural Marketing Service, on July 10, 1995, and
published in the Federal Register on July 14, 1995 (60 CFR 36239),
except for the clarifying change being made to Sec. 1004.7(a)(4), shall
be and are the terms and provisions of this order, amending the order,
and are set forth in full herein.
PART 1004--MILK IN THE MIDDLE ATLANTIC MARKETING AREA
1. The authority citation for 7 CFR Part 1004 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. Section 1004.7 is amended by revising paragraphs (a)(1) and
(a)(4); revising paragraph (d)(1); and by adding a new paragraph (g),
to read as follows:
Sec. 1004.7 Pool plant.
* * * * *
(a) * * *
(1) Milk received at such plant directly from dairy farmers
(excluding milk diverted as producer milk pursuant to Sec. 1004.12, by
either the plant operator or by a cooperative association, and also
excluding the milk of dairy farmers for other markets) and from a
cooperative in its capacity as a handler pursuant to Sec. 1004.9(c); or
* * * * *
(4) A plant's status as an other order plant pursuant to paragraph
(f) of this section will become effective beginning the third
consecutive month in which a plant is subject to the classification and
pricing provisions of another order.
* * * * *
(d) * * *
(1) A reserve processing plant operated by a cooperative
association at which milk from dairy farmers is received if the total
of fluid milk products (except filled milk) transferred from such
cooperative association plant(s) to, and the milk of member producers
physically received at, pool plants pursuant to Sec. 1004.7(a) is not
less than 25 percent of the total milk of member producers during the
month.
* * * * *
(g) The applicable shipping percentage of paragraphs (a) and (b) or
(d) of this section may be increased or decreased by the market
administrator if the market administrator finds that such revision is
necessary to encourage needed shipments or to prevent uneconomic
shipments. Before making such a finding, the market administrator shall
investigate the need for revision either on the market administrator's
own initiative or at the request of interested parties. If the
investigation shows that a revision of the shipping percentages might
be appropriate, the market administrator shall issue a notice stating
that the revision is being considered and invite data, views and
arguments. Any request for revision of shipping percentages shall be
filed with the market administrator no later than the 15th day of the
month prior to the month for which the requested revision is desired
effective.
3. Section 1004.12 is amended by revising paragraphs (d)(2)(i) and
(d)(2)(ii); and by adding a new paragraph (g), to read as follows:
Sec. 1004.12 Producer.
* * * * *
(d) * * *
(2) * * *
(i) All of the diversions of milk of members of a cooperative
association or a federation of cooperative associations to nonpool
plants are for the account of such cooperative association or
federation, and the amount of member milk so diverted does not exceed
55 percent of the volume of milk of all members of such cooperative
association or federation delivered to or diverted from pool plants
during the month.
(ii) All of the diversions of milk of dairy farmers who are not
members of a cooperative association diverting milk for its own account
during the month are diversions by a handler in his capacity as the
operator of a pool plant from which the quantity of such nonmember milk
so diverted does not exceed 45 percent of the total of such nonmember
milk for which the pool plant operator is the handler during the month.
* * * * *
(g) The applicable percentages in paragraphs (d)(2)(i) and
(d)(2)(ii) may be increased or decreased by the market administrator if
the market administrator finds that such revision is necessary to
encourage needed shipments or to prevent uneconomic shipments. Before
making such a finding, the market administrator shall investigate the
need for revision either on the market administrator's own initiative
or at the request of interested parties. If the investigation shows
that a revision of the diversion limit percentages might be
appropriate, the market administrator shall issue a notice stating that
the revision is being considered and invite data, views and arguments.
Any request for revision of the diversion limit percentages shall be
filed with the market administrator no later than the 15th day of the
month prior to the month for which the requested revision is desired
effective.
Appendix to the Proposed Rule
Marketing Agreement Regulating the Handling of Milk in Middle Atlantic
Marketing Area
The parties hereto, in order to effectuate the declared policy
of the Act, and in accordance with the rules of practice and
procedure effective thereunder (7 CFR Part 900), desire to enter
into this marketing agreement and do hereby agree that the
provisions referred to in paragraph I hereof as augmented by the
provisions specified in paragraph II hereof, shall be and are the
provisions of this marketing agreement as if set out in full herein.
I. The findings and determinations, order relative to handling,
and the provision of Secs. 1004.1 to 1004.95, all inclusive, of the
order regulating the handling of milk in the Middle Atlantic
marketing area (7 CFR Part 1004) which is annexed hereto; and
II. The following provisions:
Sec. 1004.96 Record of milk handled and authorization to
correct typographical errors.
(a) Record of milk handled. The undersigned certifies that he/
she handled
[[Page 48935]]
during the month of May 1995, ____________ hundredweight of milk
covered by this marketing agreement.
(b) Authorization to correct typographical errors. The
undersigned hereby authorizes the Director, or Acting Director,
Dairy Division, Agricultural Marketing Service, to correct any
typographical errors which may have been made in this marketing
agreement.
Sec. 1004.97 Effective date. This marketing agreement shall
become effective upon the execution of a counterpart hereof by the
Secretary in accordance with Section 900.14(a) of the aforesaid
rules of practice and procedure.
In Witness Whereof, The contracting handlers, acting under the
provisions of the Act, for the purposes and subject to the
limitations herein contained and not otherwise, have hereunto set
their respective hands and seals.
Signature
By (Name)--------------------------------------------------------------
(Title)----------------------------------------------------------------
(Address)--------------------------------------------------------------
(Seal)
Attest
[FR Doc. 95-23194 Filed 9-20-95; 8:45 am]
BILLING CODE 3410-02-P
