Proposed Rule2023-01459
Milk in the Appalachian, Southeast, and Florida Areas; Notice of Hearing on Proposed Amendments to Marketing Agreements and Orders
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 30, 2023
Issuing agencies
Agriculture DepartmentAgricultural Marketing Service
Abstract
A public hearing is being held to consider and take evidence on proposals to amend the inter-market transportation credits in the Appalachian and Southeast Federal milk marketing orders (FMMOs) and adopt distributing plant delivery credits (intra-market transportation credits) in the Appalachian, Southeast, and Florida FMMOs.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 19 (Monday, January 30, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 19 (Monday, January 30, 2023)]
[Proposed Rules]
[Pages 5800-5810]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-01459]
========================================================================
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.
========================================================================
Federal Register / Vol. 88, No. 19 / Monday, January 30, 2023 /
Proposed Rules
[[Page 5800]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1005, 1006, and 1007
[Docket No. 23-J-0019; AMS-DA-23-0003]
Milk in the Appalachian, Southeast, and Florida Areas; Notice of
Hearing on Proposed Amendments to Marketing Agreements and Orders
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Notice of public hearing on proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: A public hearing is being held to consider and take evidence
on proposals to amend the inter-market transportation credits in the
Appalachian and Southeast Federal milk marketing orders (FMMOs) and
adopt distributing plant delivery credits (intra-market transportation
credits) in the Appalachian, Southeast, and Florida FMMOs.
DATES: The hearing will convene at 9 a.m. on Tuesday, February 28,
2023.
ADDRESSES: The hearing will be held at the Franklin Marriott Cool
Springs Hotel, 700 Cool Springs Blvd., Franklin, Tennessee 37067.
Telephone (615) 261-6100.
Copies of this notice of hearing and the respective orders may be
procured from the Market Administrator of the Appalachian, Florida, and
Southeast marketing areas, or from the Hearing Clerk, United States
Department of Agriculture, STOP 9200--Room 1031, 1400 Independence
Avenue SW, Washington, DC 20250-9200.
Copies of the transcript will be made available online at: <a href="https://www.ams.usda.gov/rules-regulations/moa/dairy">https://www.ams.usda.gov/rules-regulations/moa/dairy</a>.
FOR FURTHER INFORMATION CONTACT: Erin Taylor, Director, Order
Formulation and Enforcement Division, USDA/AMS/Dairy Programs, Stop
0225--Room 2530, 1400 Independence Avenue SW, Washington, DC 20250-
0225, (202) 720-7311, email: <a href="/cdn-cgi/l/email-protection#f8bd8a9196d6ac998194978ab88d8b9c99d69f978e"><span class="__cf_email__" data-cfemail="682d1a0106463c091104071a281d1b0c09460f071e">[email protected]</span></a>.
Persons requiring a sign language interpreter or other special
accommodations should contact Jason Nierman, Market Administrator, a
minimum of three days before the start of the hearing at (502) 499-0040
ext. 2222, or email: <a href="/cdn-cgi/l/email-protection#fa94939f88979b94ba979b96958f93898c9396969fd4999597"><span class="__cf_email__" data-cfemail="c1afa8a4b3aca0af81aca0adaeb4a8b2b7a8adada4efa2aeac">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This administrative action is governed by
the provisions of 5 U.S.C. 556 and 557 and, therefore, is excluded from
the requirements of Executive Order 12866.
Notice is hereby given of a public hearing to be held at the
Franklin Marriott Cool Springs Hotel, Franklin, Tennessee, beginning at
9 a.m. on Tuesday, February 28, 2023, with respect to proposed
amendments to the orders regulating the handling of milk in the
Appalachian, Southeast and Florida 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) (Act), and the applicable rules of practice and procedure
governing amendments to marketing agreements and marketing orders (7
CFR part 900).
The purpose of the hearing is to receive evidence with respect to
the economic and marketing conditions which relate to the proposed
amendments, hereinafter set forth, and any appropriate modifications
thereof, to the marketing orders.
Evidence also will be taken to determine whether emergency
marketing conditions exist that would warrant omission of a recommended
decision under the rules of practice and procedure (7 CFR 900.12(d))
with respect to any proposed amendments.
Actions under the FMMO program are subject to the Regulatory
Flexibility Act (5 U.S.C. 601-612) (RFA). The RFA seeks to ensure that,
within the statutory authority of a program, the regulatory and
information collection requirements are tailored to the size and nature
of small businesses. For the purpose of the RFA, a dairy farm is a
``small business'' if it has an annual gross revenue of $3.75 million
\1\ or less, and a dairy products manufacturer is a ``small business''
if it has no more than the number of employees listed in the chart
below (13 CFR 121.201):
---------------------------------------------------------------------------
\1\ The Small Business Administration has issued a final rule,
effective December 19, 2022, increasing the size of a small business
dairy farm to an annual gross revenue of less than $3.75 million.
See: <a href="https://www.federalregister.gov/documents/2022/11/17/2022-24595/small-business-size-standards-adjustment-of-monetary-based-size-standards-disadvantage-thresholds">https://www.federalregister.gov/documents/2022/11/17/2022-24595/small-business-size-standards-adjustment-of-monetary-based-size-standards-disadvantage-thresholds</a>.
------------------------------------------------------------------------
Size standards in
NAICS code NAICS U.S. industry number of
title employees
------------------------------------------------------------------------
311511........................ Fluid Milk 1,000
Manufacturing.
311512........................ Creamery Butter 750
Manufacturing.
311513........................ Cheese Manufacturing. 1,250
311514........................ Dry, Condensed, and 750
Evaporated Dairy
Product
Manufacturing.
------------------------------------------------------------------------
Most parties subject to a FMMO are considered 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.
AMS is committed to complying with the E-Government Act to promote
the use of the internet and other information technologies, to provide
increased opportunities for citizen
[[Page 5801]]
access to Government information and services, and for other purposes.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under sec. 8c(15)(A) of the Act,
any handler subject to an order may request modification or exemption
from such order by filing with the U.S. Department of Agriculture
(USDA) a petition stating that the order, any provision of the order,
or any obligation imposed in connection with the order is not in
accordance with the law. A handler is afforded the opportunity for a
hearing on the petition. After a hearing, the USDA would rule on the
petition. The Act provides that the United States District Court in any
district in which the handler is an inhabitant or has its principal
place of business, has jurisdiction to review USDA's ruling on the
petition, provided an appeal is filed not later than 20 days after the
ruling is issued.
Interested parties who wish to introduce exhibits at the hearing
should provide the Administrative Law Judge with (4) copies of such
exhibits for the Official Record. Additional copies should be made
available for use by other hearing participants. Any party that has
submitted a proposal noticed herein, when participating as a witness,
is required to make their testimony--if prepared as an exhibit--and any
other exhibits, available to USDA officials prior to the start of the
hearing on the day of their appearance. Individual dairy farmers are
not subject to this requirement.
The hearing will continue until such time as determined to have
ended by the presiding Administrative Law Judge. If necessary, the
schedule for the next session will be announced at the time of
adjournment. Such reconvening date and time will also be posted on the
AMS-Dairy Programs website at: <a href="https://www.ams.usda.gov/rulesregulations/moa/dairy">https://www.ams.usda.gov/rulesregulations/moa/dairy</a>.
Testimony is invited on the following proposals or appropriate
modifications to such proposals.
Proposal 1 (Sec. Sec. 1005.81 Through 1005.83, Excluding Sec.
1005.82(c)): Submitted by the Dairy Cooperative Marketing Association
This proposal seeks to update the transportation credit provisions
in the Appalachian milk marketing order. Specifically, the proposal
recommends increasing the maximum assessment rate on Class I milk,
updating the components of the mileage rate calculation with current
costs, revising the months of mandatory and discretionary payment, and
revising the non-reimbursed mileage factor. These proposed changes
would be mirrored in the Southeast milk marketing order (see Proposal
2).
Proposal 2 (Sec. Sec. 1007.81 Through 1007.83, Excluding Sec.
1005.82(c)): Submitted by the Dairy Cooperative Marketing Association
This proposal seeks to update the transportation credit provisions
in the Southeast milk marketing order. Specifically, the proposal
recommends increasing the maximum assessment rate on Class I milk,
updating the components of the mileage rate calculation with current
costs, revising the months of mandatory and discretionary payment, and
revising the non-reimbursed mileage factor. These proposed changes
would be mirrored in the Appalachian milk marketing order (see Proposal
1).
Proposal 3 (Sec. Sec. 1005.30, 1005.32, and 1005.84): Submitted by the
Dairy Cooperative Marketing Association
This proposal seeks to establish distributing plant delivery
credits (intra-market transportation credits) in the Appalachian milk
marketing order. Specifically, the proposal recommends establishing a
Distributing Plant Delivery Credit Fund (DPDCF) and payment program,
setting an initial and a maximum assessment rate for the DPDCF,
granting the Market Administrator authority to adjust the assessment
rate, establishing geographical eligibility criteria, establishing a
reimbursement rate, establishing a range for the reimbursed portion of
the farm to plant mileage, setting an initial reimbursed mileage
percentage, and establishing monitoring requirements for the Market
Administrator. These proposed changes would be mirrored in the Florida
and Southeast milk marketing orders (see Proposals 4 and 5).
Proposal 4 (Sec. Sec. 1006.30, 1006.32, and 1006.84): Submitted by the
Dairy Cooperative Marketing Association
This proposal seeks to establish distributing plant delivery
credits (intra-market transportation credits) in the Florida milk
marketing order. Specifically, the proposal recommends establishing a
Distributing Plant Delivery Credit Fund and payment program, setting an
initial and a maximum assessment rate for the DPDCF, granting the
Market Administrator authority to adjust the assessment rate,
establishing geographical eligibility criteria, establishing a
reimbursement rate, establishing a range for the reimbursed portion of
the farm to plant mileage, setting an initial reimbursed mileage
percentage, and establishing monitoring requirements for the Market
Administrator. These proposed changes would be mirrored in the
Appalachian and Southeast Milk marketing orders (see Proposals 3 and
5).
Proposal 5 (Sec. Sec. 1007.30, 1007.32, and 1007.84): Submitted by the
Dairy Marketing Cooperative Association
This proposal seeks to establish distributing plant delivery
credits (intra-market transportation credits) in the Southeast milk
marketing order. Specifically, the proposal recommends establishing a
Distributing Plant Delivery Credit Fund and payment program, setting an
initial and a maximum assessment rate for the DPDCF, granting the
Market Administrator authority to adjust the assessment rate,
establishing geographical eligibility criteria, establishing a
reimbursement rate, establishing a range for the reimbursed portion of
the farm to plant mileage, setting an initial reimbursed mileage
percentage, and establishing monitoring requirements for the Market
Administrator. These proposed changes would be mirrored in the
Appalachian and Florida milk marketing orders (see Proposals 3 and 4).
Proposal 6 (Sec. Sec. 1005.xx Through 1005.xx): Submitted by Prairie
Farms Dairy, Inc.
This proposal seeks to establish an Assembly Performance Credit in
the Appalachian milk marketing order. Specifically, the proposal
recommends establishing an Assembly Performance Credit Fund (APCF) to
provide assistance for the assembly, dispatch, and delivery of producer
milk to fluid plants. The Assembly Performance Credit would be
uniformly shared with all producer milk delivered to a pool
distributing plant regulated by the Order. Distributing plants would
contribute to the APCF based on Class I volume. Payment from the fund
would be per hundredweight and would be the same for every pound of
milk that delivered to the fluid plant. Similar credits are proposed to
be adopted in the Florida and Southeast Milk marketing orders (see
Proposals 7 and 8).
Proposal 7 (Sec. Sec. 1006.xx Through 1006.xx): Submitted by Prairie
Farms Dairy, Inc.
This proposal seeks to establish an Assembly Performance Credit in
the Florida milk marketing order. Specifically, the proposal
recommends:
[[Page 5802]]
establishing an Assembly Performance Credit Fund (APCF) to provide
assistance for the assembly, dispatch, and delivery of producer milk to
fluid plants. The Assembly Performance Credit would be uniformly shared
with all producer milk delivered to a pool distributing plant regulated
by the Order. Distributing plants would contribute to the APCF based on
Class I volume. Payment from the fund would be per hundredweight and
would be the same for every pound of milk that delivered to the fluid
plant. Similar credits are proposed to be adopted in the Appalachian
and Southeast milk marketing orders (see Proposals 6 and 8).
Proposal 8 (Sec. Sec. 1007.xx Through 1007.xx): Submitted by Prairie
Farms Dairy, Inc.
This proposal seeks to establish an Assembly Performance Credit in
the Southeast milk marketing order. Specifically, the proposal
recommends establishing an Assembly Performance Credit Fund (APCF) to
provide assistance for the assembly, dispatch, and delivery of producer
milk to fluid plants. The Assembly Performance Credit would be
uniformly shared with all producer milk delivered to a pool
distributing plant regulated by the Order. Distributing plants would
contribute to the APCF based on Class I volume. Payment from the fund
would be per hundredweight and would be the same for every pound of
milk that delivered to the fluid plant. Similar credits are proposed in
the Appalachian and Florida milk marketing orders (see Proposals 6 and
7).
Proposal 9 (Sec. 1005.82(c)(2)): Submitted by Prairie Farms Dairy,
Inc.
This proposal seeks to amend the transportation credit provisions
of the Appalachian milk marketing order. Specifically, the proposal
recommends expanding geographic eligibility for transportation credits
to milk produced inside the marketing area and expanding eligibility
for transportation credits to a producer located outside the marketing
area if more than 50 percent (50%) of their milk from March to May is
delivered to a pool distributing plant within the Order, or if more
than 45 days of that producer's milk is delivered to a pool
distributing plant within the Order. These proposed changes would be
mirrored in the Southeast milk marketing order (see Proposal 10).
Proposal 10 (Sec. 1007.82(c)(2)): Submitted by Prairie Farms Dairy,
Inc.
This proposal seeks to amend the transportation credit provisions
of the Southeast milk marketing order. Specifically, the proposal
recommends: expanding geographic eligibility for transportation credits
to inside the marketing area and expanding eligibility for
transportation credits to a producer located outside the marketing area
if more than 50% of their milk from March to May is delivered to a pool
distributing plant within the Order, or if more than 45 days of that
producer's milk is delivered to a pool distributing plant within the
Order. These proposed changes would be mirrored in the Appalachian milk
marketing order (see Proposal 9).
Proposal 11: Submitted by Michael P. Sumners, Dairy Farmer
This proposal seeks to prohibit the diversion of milk to nonpool
plants from milk delivered to a pool distributing plant and receiving
any form of transportation credits. The prohibition would apply in the
Appalachian, Florida, and Southeast milk marketing orders.
Proposal 12: Submitted by Dairy Programs, Agricultural Marketing
Service
Make such changes as may be necessary to make the respective
marketing orders conform with any amendments thereto that may result
from this hearing.
As referenced in each of the above proposals, the regulatory text
pertaining to each proposal is provided sequentially by marketing order
in the section below and will be addressed individually by proposal at
the hearing.
Copies of this notice of hearing and the respective orders may be
procured from the Market Administrator of the Appalachian, Florida, and
Southeast marketing areas, or from the Hearing Clerk, United States
Department of Agriculture, STOP 9200--Room 1031, 1400 Independence
Avenue SW, Washington, DC 20250-9200.
Copies of the transcript of testimony taken at the hearing will not
be available for distribution through the Hearing Clerk's Office. If
you wish to purchase a copy, arrangements may be made with the reporter
at the hearing. Copies of the transcript will also be made available
online at: <a href="https://www.ams.usda.gov/rules-regulations/moa/dairy">https://www.ams.usda.gov/rules-regulations/moa/dairy</a>.
From the time that a hearing notice is issued and until the
issuance of a final decision in a proceeding, USDA employees involved
in the decision-making process are prohibited from discussing the
merits of the hearing issues on an ex parte basis with any person
having an interest in the proceeding. For this particular proceeding,
the prohibition applies to employees in the following organizational
units:
Office of the Secretary of Agriculture
Office of the Administrator, Agricultural Marketing Service
Office of the General Counsel
Dairy Program, Agricultural Marketing Service (Washington, DC,
Office and the Offices of all Market Administrators)
Procedural matters are not subject to the above prohibition and may
be discussed at any time.
List of Subjects in 7 CFR Parts 1005, 1006, and 1007
Milk marketing orders.
The proposed amendments to 7 CFR parts 1005, 1006, and 1007, as set
forth below, have not received the approval of the USDA.
PART 1005--MILK IN THE APPALACHIAN MARKETING AREA
0
1. The authority citation for part 1005 continues to read as follows:
Authority: 7 U.S.C. 601-674, and 7253.
0
2. Amend Sec. 1005.30 by:
0
a. Redesignating paragraphs (a)(5) through (9) as paragraphs (a)(7)
through (11);
0
b. Adding new paragraphs (a)(5) and (6);
0
c. Redesignating paragraph (c)(3) as (c)(4) and revising it; and
0
d. Adding new paragraph (c)(3).
The additions and revision read as follows:
Sec. 1005.30 Reports of receipts and utilization.
(a) * * *
(5) Receipts of producer milk described in Sec. 1005.84(e),
including the identity of the individual producers whose milk is
eligible for the distributing plant delivery credit pursuant to that
paragraph and the date that such milk was received;
(6) For handlers submitting distributing plant delivery credit
requests, transfers of bulk unconcentrated milk to nonpool plants,
including the dates that such milk was transferred;
* * * * *
(c) * * *
(3) With respect to milk for which a cooperative association is
requesting a distributing plant delivery credit pursuant to Sec.
1005.84, all of the information required in paragraphs (a)(5) and (6)
of this section.
(4) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1005.82, all of
the information
[[Page 5803]]
required in paragraphs (a)(7) through (9) of this section.
* * * * *
0
3. Revise Sec. 1005.32 (a) to read as follows:
Sec. 1005.32 Other reports.
(a) On or before the 20th day after the end of each month, each
handler described in Sec. 1000.9(a) and (c) of this chapter shall
report to the market administrator any adjustments to distributing
plant delivery credit requests as reported pursuant to Sec.
1005.30(a)(5) and (6), and any adjustments to transportation credit
requests as reported pursuant to Sec. 1005.30(a)(7), (8), and (9).
* * * * *
0
4. Amend Sec. 1005.81 by revising the first sentence of paragraph (a)
to read as follows:
Sec. 1005.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month (except as
provided in Sec. 1000.90 of this chapter), each handler operating a
pool plant and each handler specified in Sec. 1000.9(c) of this
chapter shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I producer milk assigned pursuant to Sec. 1005.44 by $0.30 per
hundredweight or such lesser amount as the market administrator deems
necessary to maintain a balance in the fund equal to the total
transportation credits disbursed during the prior June-February period.
* * *
* * * * *
0
5. Amend Sec. 1005.82 by:
0
a. Revising the first sentence of paragraph (a)(1), the first sentence
of paragraph (b), and paragraphs (c)(2) and (d)(3)(iii); and
0
b. Adding paragraph (d)(3)(viii).
The revisions and addition read as follows:
Sec. 1005.82 Payments from the transportation credit balancing fund.
(a) * * *
(1) On or before the 13th day (except as provided in Sec. 1000.90
of this chapter) after the end of each of the months of January, and
July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1005.30(a)(5), bulk milk transferred from a
plant fully regulated under another Federal order as described in
paragraph (c)(1) of this section or that received, and reported
pursuant to Sec. 1005.30(a)(6), milk directly from producers' farms as
specified in paragraph (c)(2) of this section, a preliminary amount
determined pursuant to paragraph (d) of this section to the extent that
funds are available in the transportation credit balancing fund. * * *
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to the month of February or June if a written request to do so
is received fifteen (15) days prior to the beginning of the month for
which the request is made and, after conducting an independent
investigation, finds that such extension is necessary to assure the
market of an adequate supply of milk for fluid use. * * *
(c) * * *
(2) Bulk milk received directly from the farms of dairy farmers at
pool distributing plants.
(d) * * *
(3) * * *
(iii) Subtract 15 percent (15%) of the miles from the mileage so
determined;
* * * * *
(viii) The market administrator may revise the factor described in
paragraph (d)(3)(iii) of this section (the mileage adjustment factor)
if a written request to do so is received fifteen (15) days prior to
the beginning of the month for which the request is made and, after
conducting an independent investigation, finds that such revision is
necessary to assure orderly marketing, efficient handling of milk in
the marketing area, and an adequate supply of milk for fluid use. The
market administrator may increase the mileage adjustment factor by as
much as ten percent (10%) up to twenty-five percent (25%) or decrease
it by as much as ten percent (10%), to a minimum of five percent (5%).
Before making such a finding, the market administrator shall notify the
Deputy Administrator of Dairy Programs and all handlers in the market
that a revision is being considered and invite written data, views, and
arguments. Any decision to revise the mileage rate factor must be
issued in writing prior to the first day of the month for which the
revision is to be effective.
0
6. Amend Sec. 1005.83 by revising paragraphs (a)(2) through (5) to
read as follows:
Sec. 1005.83 Mileage rate for the transportation credit balancing
fund.
(a) * * *
(2) From the result in paragraph (a)(1) of this section subtract
$2.26 per gallon;
(3) Divide the result in paragraph (a)(2) of this section by 6.2,
and round down to three decimal places to compute the fuel cost
adjustment factor;
(4) Add the result in paragraph (a)(3) of this section to $3.67;
(5) Divide the result in paragraph (a)(4) of this section by 497;
* * * * *
0
7. Add Sec. 1005.84 to read as follows:
Sec. 1005.84 Distributing plant delivery credits.
(a) The Distributing Plant Delivery Credit Fund. The market
administrator shall maintain a separate fund known as the Distributing
Plant Delivery Credit Fund into which shall be deposited the payments
made by handlers pursuant to Sec. 1005.84(b) and out of which shall be
made the payments due handlers pursuant to Sec. 1005.84(d). Payments
due a handler shall be offset against payments due from the handler.
(b) Payments to the distributing plant delivery credit fund. On or
before the 12th day after the end of the month (except as provided in
Sec. 1000.90 of this chapter), each handler operating a pool plant and
each handler specified in Sec. 1000.9(c) of this chapter shall pay to
the market administrator a distributing plant delivery credit fund
assessment determined by multiplying the pounds of Class I producer
milk assigned pursuant to Sec. 1005.84 by a per hundredweight
assessment rate of $0.55 and thereafter not greater than $0.60 as the
market administrator deems necessary to maintain a balance in the fund
equal to the total distributing plant delivery credit disbursed during
the prior calendar year. If the distributing plant delivery credit fund
is in an overfunded position, the market administrator may completely
waive the distributing plant delivery credit assessment for one or more
months. In determining the distributing plant delivery credit
assessment rate, in the event that during any month of that previous
calendar year the fund balance was insufficient to cover the amount of
credits that were due, the assessment should be based upon the amount
of credits that would have been disbursed had the fund balance been
sufficient.
(c) The market administrator shall announce publicly on or before
the 23rd day of the month (except as provided in Sec. 1000.90 of this
chapter), the assessment rate per hundredweight pursuant to paragraph
(b) of this section for the following month.
(d) Payments from the distributing plant delivery credit fund.
Payments from the distributing plant delivery credit fund to handlers
and cooperative associations requesting distributing plant delivery
credits shall be made as follows:
[[Page 5804]]
(1) On or before the 13th day (except as provided in Sec. 1000.90
of this chapter) after the end of each month, the market administrator
shall pay to each handler that received, and reported pursuant to Sec.
1005.30(a)(5), bulk unconcentrated milk directly from producers' farms,
or receipts of bulk unconcentrated milk by transfer from a pool supply
plant, a preliminary amount determined pursuant to paragraph (f) of
this section to the extent that funds are available in the distributing
plant delivery credit fund. If an insufficient balance exists to pay
all of the credits computed pursuant to this section, the market
administrator shall distribute the balance available in the
distributing plant delivery credit fund by reducing payments pro rata
using the percentage derived by dividing the balance in the fund by the
total credits that are due for the month. The amount of credits
resulting from this initial proration shall be subject to audit
adjustment pursuant to paragraph (d)(3) of this section.
(2) The market administrator shall accept adjusted requests for
distributing plant delivery credits on or before the 20th day of the
month following the month for which such credits were requested
pursuant to Sec. 1005.32(a). After such date, a preliminary audit will
be conducted by the market administrator, who will recalculate any
necessary proration of distributing plant delivery credit payments for
the preceding month pursuant to the process provided in paragraph
(d)(1) of this section. Handlers will be promptly notified of an
overpayment of credits based upon this final computation and remedial
payments to or from the distributing plant delivery credit fund will be
made on or before the next payment date for the following month.
(3) Distributing plant delivery credits paid pursuant to paragraphs
(d)(1) and (2) of this section shall be subject to final verification
by the market administrator pursuant to Sec. 1000.77 of this chapter.
Adjusted payments to or from the distributing plant delivery credit
fund will remain subject to the final proration established pursuant to
paragraph (d)(2) of this section.
(4) In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1005.30(c)(3) prior to the date payment is due, the
distributing plant delivery credits for such milk computed pursuant to
this section shall be made to such cooperative association rather than
to the operator of the pool plant at which the milk was received.
(5) The Market Administrator shall provide monthly, to producers
who are not members of a qualified cooperative association, a statement
of the amount per hundredweight of distributing plant delivery credit
which the distributing plant handler receiving their milk is entitled
to claim.
(e) Distributing plant delivery credits shall apply to the
following milk:
(1) Bulk unconcentrated fluid milk received at a pool distributing
plant as producer milk directly from dairy farms located within the
marketing areas of Federal Orders 5 and 7; in the following counties in
the Commonwealth of Virginia: Albemarle, Amelia, Appomattox, Charlotte,
Clarke, Culpeper, Cumberland, Fauquier, Frederick, Goochland, Greene,
Hanover, James City, King and Queen, King William, Madison, Nottoway,
Orange, Page, Prince Edward, and Shenandoah; and in the counties of
Berkeley and Monroe in the state of West Virginia. The Market
Administrator may add Virginia and West Virginia counties (not in a
federal order marketing area) to this list upon the request of a pool
handler and provision of proof satisfactory that the county is a source
of regular supply of milk to order distributing plants. The quantity of
milk described herein shall be reduced by the quantity of any bulk
unconcentrated fluid milk products transferred from a pool distributing
plant to a nonpool plant or transferred to a pool supply plant on the
same calendar day as producer milk was received at such plant for which
a distributing plant delivery credit is requested.
(2) Bulk unconcentrated fluid milk transferred from a pool plant
regulated pursuant to Sec. 1005.7(c) or (d) to a pool distributing
plant regulated pursuant to Sec. 1005.7(a) or (b). The quantity of
milk described herein shall be reduced by the quantity of any bulk
unconcentrated fluid milk products transferred from a pool distributing
plant to a nonpool plant or transferred to a pool supply plant on the
same calendar day as milk was received by transfer from a pool supply
plant at such pool distributing plant for which a distributing plant
delivery credit is requested.
(3) The market administrator shall regularly monitor and evaluate
the requests for distributing plant delivery credits to determine that
such credits are not encouraging uneconomic movements of milk, and that
the credits continue to assure orderly marketing and efficient handling
of milk in the marketing area. In making such determinations, the
market administrator will include in the evaluation the general supply
and demands for milk. If the market administrator finds that uneconomic
movements are occurring, and such movements are persistent and
pervasive, or are not being made in a way that assures orderly
marketing and efficient handling of milk in the marketing area, after
good cause shown, the market administrator may disallow the payments of
distributing plant delivery credit on such milk. Before making such a
finding, the market administrator shall give the handler on such milk
sufficient notice that an investigation is being considered, and shall
provide notice that the handler has the opportunity to explain why such
movements were necessary, or the opportunity to correct such movements
prior to the disallowance of any distributing plant delivery credits.
Any disallowance of distributing plant delivery credit pursuant to this
provision shall remain confidential between the market administrator
and the handler.
(f) Distributing plant delivery credits shall be computed as
follows:
(1) With respect to milk delivered directly from the farm to a
distributing plant:
(i) Determine the shortest hard-surface highway distance between
the shipping farm and the receiving plant, and multiply the miles by an
adjustment rate of not greater than ninety-five percent (95%) and not
less than seventy-five percent (75%).
(ii) Subtract the Class I price specified in Sec. 1000.50(a) of
this chapter for the county in which the shipping farm is located from
the Class I price applicable for the county in which the receiving pool
distributing plant is located.
(iii) Multiply the adjusted miles so computed in paragraph
(f)(1)(i) of this section by the monthly mileage rate factor for the
month computed pursuant to Sec. 1005.84(h).
(iv) Subtract any positive difference in Class I prices computed in
paragraph(f)(1)(ii) of this section from the rate determined in
paragraph (f)(1)(iii) of this section.
(v) Multiply the remainder computed in paragraph (f)(1)(iv) of this
section by the hundredweight of milk described in paragraph (e)(1) of
this section.
(2) With respect to milk delivered from a pool supply plant to a
distributing plant:
(i) Determine the shortest hard-surface highway distance between
the transferring pool plant and the receiving plant, and multiply the
miles by an adjustment rate of an adjustment rate not greater than
ninety-five percent (95%) and not less than seventy-five percent (75%);
and
[[Page 5805]]
(ii) Subtract the Class I price specified in Sec. 1000.50(a) of
this chapter for the transferring pool plant from the Class I price
applicable for the county in which the receiving pool distributing
plant is located.
(iii) Multiply the adjusted miles so computed in paragraph
(f)(2)(i) of this section by the mileage rate factor for the month
computed pursuant to Sec. 1005.84(h);
(iv) Subtract any positive difference in Class I prices computed in
paragraph (f)(2)(ii) of this section from the rate determined in
paragraph (f)(2)(iii) of this section.
(v) Multiply the remainder computed in paragraph (f)(2)(iv) of this
section by the hundredweight of milk described in paragraph (e)(2) of
this section.
(g) The monthly percentage rate adjustment within the range of
permissible percentage adjustments provided in paragraphs (f)(1)(i) and
(f)(2)(i) of this section shall be determined by the market
administrator, and publicly announced prior to the month for which
effective. In determining the percentage adjustment to the actual
mileages of milk delivered from farms and milk transferred from pool
plants the market administrator shall evaluate the general supply and
demand for milk in the marketing area, any previous occurrences of
sustained uneconomic movements of milk, and the balances in the
distributing plant delivery credit fund. The adjustment percentage
pursuant to paragraphs (f)(1) and (6) of this section to the actual
miles used for computing pool distributing plant credits and announced
by the market administrator shall always be the same percentage.
(h) Mileage rate for the distributing plant delivery credit fund.
The mileage rate for the distributing plant delivery credit fund shall
be the mileage rate computed by the market administrator pursuant to
Sec. 1005.83.
(i) The market administrator shall announce publicly on or before
the 23rd day of the month (except as provided in Sec. 1000.90 of this
chapter), the mileage rate factor pursuant to paragraph (h) of this
section for the following month.
0
8. Add Sec. 1005.xx to read as follows:
Sec. 1005.xx Assembly performance credit fund.
The market administrator shall maintain a separate fund known as
the Assembly Performance Credit Fund into which shall be deposited the
payments made by handlers pursuant to Sec. 1005.xx and out of which
shall be made the payments due handlers pursuant to Sec. 1005.xx.
Payments due a handler shall be offset against payments due from the
handler.
0
9. Add Sec. 1005.xx to read as follows:
Sec. 1005.xx Payments to the assembly performance credit fund.
(a) On or before the 12th day after the end of the month (except as
provided in Sec. 1000.90 of this chapter), each handler operating a
pool plant and each handler specified in Sec. 1000.9(c) of this
chapter shall pay to the market administrator an assembly performance
credit fund assessment determined by multiplying the pounds of Class I
producer milk assigned pursuant to Sec. 1005.44 by $0.50 per
hundredweight.
(b) The market administrator may increase or decrease by up to
$0.20 the payment rate specified in paragraph (a) of this section if
the market administrator finds that such revision is necessary to
assure orderly marketing and efficient handling of milk in the
marketing area. Before making such a finding, the market administrator
shall investigate the need for the revision either on the market
administrator's own initiative or at the request of interested persons.
If the investigation shows that a revision might be appropriate, the
market administrator shall issue a notice stating that the revision is
being considered and inviting written data, views, and arguments. Any
decision to revise an applicable payment rate must be issued in writing
at least fifteen days before the effective date.
0
10. Add Sec. 1005.xx to read as follows:
Sec. 1005.xx Payments from the assembly performance credit fund.
(a) Payments from the assembly performance credit fund to handlers
and cooperative associations shall be made as follows:
(1) On or before the 13th day (except as provided in Sec.
1000.90), the market administrator shall pay to each handler that
received milk directly from producers' farms as specified in paragraph
(b) of this section.
(2) The market administrator shall distribute the balance available
in the assembly performance credit fund to all producer milk delivered
to pool distributing plants on a pro rata basis using the rate derived
by dividing the balance in the fund by the total producer milk
delivered to pool distributing plants regulated under the Order.
(3) In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1005.30(c)(3) prior to the date payment is due, the
assembly performance credits for such milk computed pursuant to this
section shall be made to such cooperative association rather than to
the operator of the pool plant at which the milk was received.
(b) Assembly performance credits shall apply to bulk milk received
directly from the farms of dairy farmers at pool distributing plants.
PART 1006--MILK IN THE FLORIDA MARKETING AREA
0
11. The authority citation for part 1006 continues to read as follows:
Authority: 7 U.S.C. 601-674, and 7253.
0
12. Amend Sec. 1006.30 by:
0
a. Redesignating paragraphs (a)(5) through (9) as (a)(7) through (11);
0
b. Adding new paragraphs (a)(5) and (6); and
0
c. Adding paragraph (c)(3).
Sec. 1006.30 Reports of receipts and utilization.
(a) * * *
(5) Receipts of producer milk described in Sec. 1006.84(e),
including the identity of the individual producers whose milk is
eligible for the distributing plant delivery credit pursuant to that
paragraph and the date that such milk was received;
(6) For handlers submitting distributing plant delivery credit
requests, transfers of bulk unconcentrated milk to nonpool plants,
including the dates that such milk was transferred;
* * * * *
(c) * * *
(3) With respect to milk for which a cooperative association is
requesting a distributing plant delivery credit pursuant to Sec.
1006.84, all of the information required in paragraphs (a)(5) and (6)
of this section.
* * * * *
0
13. Revise Sec. 1006.32 to read as follows:
Sec. 1006.32 Other reports.
(a) On or before the 20th day after the end of each month, each
handler described in Sec. 1000.9(a) and (c) of this chapter shall
report to the market administrator any adjustments to distributing
plant delivery credit requests as reported pursuant to Sec.
1006.30(a)(5) and (6).
(b) In addition to the reports required pursuant to Sec. Sec.
1006.30, 1006.31, and 1006.32(a), each handler shall report any
information the market administrator deems necessary to verify or
establish each handler's obligation under the order.
[[Page 5806]]
0
14. Add Sec. 1006.84 to read as follows:
Sec. 1006.84 Distributing plant delivery credits.
(a) The Distributing Plant Delivery Credit Fund. The market
administrator shall maintain a separate fund known as the Distributing
Plant Delivery Credit Fund into which shall be deposited the payments
made by handlers pursuant to paragraph (b) of this section and out of
which shall be made the payments due handlers pursuant to paragraph (d)
of this section. Payments due a handler shall be offset against
payments due from the handler.
(b) Payments to the distributing plant delivery credit fund. On or
before the 12th day after the end of the month (except as provided in
Sec. 1000.90 of this chapter), each handler operating a pool plant and
each handler specified in Sec. 1000.9(c) of this chapter shall pay to
the market administrator a distributing plant delivery credit fund
assessment determined by multiplying the pounds of Class I producer
milk assigned pursuant to Sec. 1006.44 by a per hundredweight
assessment rate of $0.80 and thereafter not greater than $0.85 as the
market administrator deems necessary to maintain a balance in the fund
equal to the total distributing plant delivery credit disbursed during
the prior calendar year. If the distributing plant delivery credit fund
is in an overfunded position, the market administrator may completely
waive the distributing plant delivery credit assessment for one or more
months. In determining the distributing plant delivery credit
assessment rate, in the event that during any month of that previous
calendar year the fund balance was insufficient to cover the amount of
credits that were due, the assessment should be based upon the amount
of credits that would have been disbursed had the fund balance been
sufficient.
(c) The market administrator shall announce publicly on or before
the 23rd day of the month (except as provided in Sec. 1000.90 of this
chapter) the assessment rate per hundredweight pursuant to paragraph
(b) of this section for the following month.
(d) Payments from the distributing plant delivery credit fund.
Payments from the distributing plant delivery credit fund to handlers
and cooperative associations requesting distributing plant delivery
credits shall be made as follows:
(1) On or before the 13th day (except as provided in Sec. 1000.90
of this chapter) after the end of each month, the market administrator
shall pay to each handler that received, and reported pursuant to Sec.
1006.30(a)(5), bulk unconcentrated milk directly from producers' farms,
or receipts of bulk unconcentrated milk by transfer from a pool supply
plant, a preliminary amount determined pursuant to paragraph (f) of
this section to the extent that funds are available in the distributing
plant delivery credit fund. If an insufficient balance exists to pay
all of the credits computed pursuant to this section, the market
administrator shall distribute the balance available in the
distributing plant delivery credit fund by reducing payments pro rata
using the percentage derived by dividing the balance in the fund by the
total credits that are due for the month. The amount of credits
resulting from this initial proration shall be subject to audit
adjustment pursuant to paragraph (d)(3) of this section.
(2) The market administrator shall accept adjusted requests for
distributing plant delivery credits on or before the 20th day of the
month following the month for which such credits were requested
pursuant to Sec. 1006.32(a). After such date, a preliminary audit will
be conducted by the market administrator, who will recalculate any
necessary proration of distributing plant delivery credit payments for
the preceding month pursuant to the process provided in paragraph
(d)(1) of this section. Handlers will be promptly notified of an
overpayment of credits based upon this final computation and remedial
payments to or from the distributing plant delivery credit fund will be
made on or before the next payment date for the following month.
(3) Distributing plant delivery credits paid pursuant to paragraphs
(d)(1) and (2) of this section shall be subject to final verification
by the market administrator pursuant to Sec. 1000.77 of this chapter.
Adjusted payments to or from the distributing plant delivery credit
fund will remain subject to the final proration established pursuant to
paragraph (d)(2) of this section.
(4) In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1006.30(c)(3) prior to the date payment is due, the
distributing plant delivery credits for such milk computed pursuant to
this section shall be made to such cooperative association rather than
to the operator of the pool plant at which the milk was received.
(5) The Market Administrator shall provide monthly to producers who
are not members of a qualified cooperative association a statement of
the amount per hundredweight of distributing plant delivery credit
which the distributing plant handler receiving their milk is entitled
to claim.
(e) Distributing plant delivery credits shall apply to the
following milk:
(1) Bulk unconcentrated fluid milk received at a pool distributing
plant as producer milk directly from dairy farms located within the
marketing area; or located within the Georgia counties of Appling,
Atkinson, Bacon, Baker, Ben Hill, Berrien, Brooks, Calhoun, Charlton,
Chattahoochee, Clay, Clinch, Coffee, Cook, Colquitt, Crisp, Decatur,
Dodge, Dooley, Doughtery, Early, Echols, Grady, Irwin, Lanier, Lee,
Lowndes, Jeff Davis, Macon, Marion, Miller, Mitchell, Pierce, Pulaski,
Quitman, Randolph, Schley, Seminole, Stewart, Sumter, Telfair, Terrel,
Thomas, Tift, Turner, Ware, Webster, Wilcox, and Worth, and received at
pool distributing plants. The quantity of milk described herein shall
be reduced by the quantity of any bulk unconcentrated fluid milk
products transferred from a pool distributing plant to a nonpool plant
or transferred to a pool supply plant on the same calendar day as
producer milk was received at such plant for which a distributing plant
delivery credit is requested.
(2) Bulk unconcentrated fluid milk transferred from a pool plant
regulated pursuant to Sec. 1006.7(c) or (d) to a pool distributing
plant regulated pursuant to Sec. 1006.7(a) or (b). The quantity of
milk described herein shall be reduced by the quantity of any bulk
unconcentrated fluid milk products transferred from a pool distributing
plant to a nonpool plant or transferred to a pool supply plant on the
same calendar day as milk was received by transfer from a pool supply
plant at such pool distributing plant for which a distributing plant
delivery credit is requested.
(3) The market administrator shall regularly monitor and evaluate
the requests for distributing plant delivery credits to determine that
such credits are not encouraging uneconomic movements of milk, and the
credits continue to assure orderly marketing and efficient handling of
milk in the marketing area. In making such determinations the market
administrator will include in the evaluation the general supply and
demands for milk. If the market administrator finds that uneconomic
movements are occurring, and such movements are persistent and
pervasive, or are not being made in a way that assures orderly
marketing and efficient handling of milk in the marketing area, after
good cause shown, the market administrator may disallow the payments of
distributing plant delivery credit on such milk. Before making such a
finding, the market
[[Page 5807]]
administrator shall give the handler on such milk sufficient notice
that an investigation is being considered, and shall provide notice
that the handler has the opportunity to explain why such movements were
necessary, or the opportunity to correct such movements prior to the
disallowance of any distributing plant delivery credits. Any
disallowance of distributing plant delivery credit pursuant to this
provision shall remain confidential between the market administrator
and the handler.
(f) Distributing plant delivery credits shall be computed as
follows:
(1) With respect to milk delivered directly from the farm to a
distributing plant:
(i) Determine the shortest hard-surface highway distance between
the shipping farm and the receiving plant, and multiply the miles by an
adjustment rate of not greater than ninety-five percent (95%) and not
less than seventy-five percent (75%).
(ii) Subtract the Class I price specified in Sec. 1000.50(a) of
this chapter for the county in which the shipping farm is located from
the Class I price applicable for the county in which the receiving pool
distributing plant is located.
(iii) Multiply the adjusted miles so computed in (f)(1)(i) of this
section by the monthly mileage rate factor for the month computed
pursuant to Sec. 1006.84(h).
(iv) Subtract the difference in Class I prices computed in
paragraph (f)(1)(ii) of this section from the rate determined in
paragraph (f)(1)(iii) of this section.
(v) Multiply the remainder computed in paragraph (f)(1)(iv) of this
section by the hundredweight of milk described in paragraph (e)(1) of
this section.
(2) With respect to milk delivered from a pool supply plant to a
distributing plant:
(i) Determine the shortest hard-surface highway distance between
the transferring pool plant and the receiving plant, and multiply the
miles by an adjustment rate of not greater than ninety-five percent
(95%) and not less than seventy-five percent (75%);
(ii) Subtract the Class I price specified in Sec. 1000.50(a) of
this chapter for the transferring pool plant from the Class I price
applicable for the county in which the receiving pool distributing
plant is located.
(iii) Multiply the adjusted miles so computed in (f)(2)(i) of this
section by the mileage rate factor for the month computed pursuant to
Sec. 1006.84(h);
(iv) Subtract any positive difference in Class I prices computed in
paragraph (f)(2)(ii) of this section from the rate determined in
paragraph (f)(2)(iii) of this section.
(v) Multiply the remainder computed in paragraph (f)(2)(iv) of this
section by the hundredweight of milk described in paragraph (e)(2) of
this section.
(g) The monthly percentage rate adjustment within the range of
permissible percentage adjustments provided in paragraphs (f)(1)(i) and
(f)(2)(i) of this section shall be determined by the market
administrator, and publicly announced prior to the month for which
effective. In determining the percentage adjustment to the actual
mileages of milk delivered from farms and milk transferred from pool
plants the market administrator shall evaluate the general supply and
demand for milk in the marketing area, any previous occurrences of
sustained uneconomic movements of milk, and the balances in the
distributing plant delivery credit fund. The adjustment percentage
pursuant to paragraphs (f)(1) and (2) to of this section the actual
miles used for computing pool distributing plant credits and announced
by the market administrator shall always be the same percentage.
(h) Mileage rate for the distributing plant delivery credit fund.
The market administrator shall compute a mileage rate factor each month
as follows:
(1) Compute the simple average rounded down to three decimal places
for the most recent four (4) weeks of the Diesel Price per Gallon as
reported by the Energy Information Administration of the United States
Department of Energy for the Lower Atlantic and Gulf Coast Districts
combined.
(2) From the result in paragraph (h)(1) of this section subtract
$2.26 per gallon;
(3) Divide the result in paragraph (h)(2) of this section by 6.2,
and round down to three decimal places to compute the fuel cost
adjustment factor;
(4) Add the result in paragraph (h)(3) of this section to $3.67;
(5) Divide the result in paragraph (h)(4) of this section by 497;
(6) Round the result in paragraph (h)(5) of this section down to
five decimal places to compute the mileage rate.
(i) The market administrator shall announce publicly on or before
the 23rd day of the month (except as provided in Sec. 1000.90 of this
chapter), the mileage rate factor pursuant to paragraph (h) of this
section for the following month.
0
15. Add Sec. 1006.xx to read as follows:
Sec. 1006.xx Assembly performance credit fund.
The market administrator shall maintain a separate fund known as
the Assembly Performance Credit Fund into which shall be deposited the
payments made by handlers pursuant to Sec. 1006.xx and out of which
shall be made the payments due handlers pursuant to Sec. 1006.xx.
Payments due a handler shall be offset against payments due from the
handler.
0
16. Add Sec. 1006.xx to read as follows:
Sec. 1006.xx Payments to the assembly performance credit fund.
(a) On or before the 12th day after the end of the month (except as
provided in Sec. 1000.90 of this chapter), each handler operating a
pool plant and each handler specified in Sec. 1000.9(c) of this
chapter shall pay to the market administrator an assembly performance
credit fund assessment determined by multiplying the pounds of Class I
producer milk assigned pursuant to Sec. 1006.44 by $0.50 per
hundredweight.
(b) The market administrator may increase or decrease by up to
$0.20 the payment rate specified in paragraph (a) of this section if
the market administrator finds that such revision is necessary to
assure orderly marketing and efficient handling of milk in the
marketing area. Before making such a finding, the market administrator
shall investigate the need for the revision either on the market
administrator's own initiative or at the request of interested persons.
If the investigation shows that a revision might be appropriate, the
market administrator shall issue a notice stating that the revision is
being considered and inviting written data, views, and arguments. Any
decision to revise an applicable payment rate must be issued in writing
at least fifteen days before the effective date.
0
17. Add Sec. 1006.xx to read as follows:
Sec. 1006.xx Payments from the assembly performance credit fund.
(a) Payments from the assembly performance credit fund to handlers
and cooperative associations shall be made as follows:
(1) On or before the 13th day (except as provided in Sec.
1000.90), the market administrator shall pay to each handler that
received milk directly from producers' farms as specified in paragraph
(b) of this section;
(2) The market administrator shall distribute the balance available
in the assembly performance credit fund to all producer milk delivered
to pool distributing plants on a pro rata basis using the rate derived
by dividing the balance in the fund by the total producer milk
delivered to pool distributing plants regulated under the Order.
(3) In the event that a qualified cooperative association is the
[[Page 5808]]
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1006.30(c)(3) prior to the date payment is due, the
assembly performance credits for such milk computed pursuant to this
section shall be made to such cooperative association rather than to
the operator of the pool plant at which the milk was received.
(b) Assembly performance credits shall apply to bulk milk received
directly from the farms of dairy farmers at pool distributing plants.
PART 1007--MILK IN THE SOUTHEAST MARKETING AREA
0
18. The authority citation for part 1007 continues to read as follows:
Authority: 7 U.S.C. 601-674, and 7253.
0
19. Amend Sec. 1007.30 by:
0
a. Redesignating paragraphs (a)(5) through (9) as paragraphs (a)(7)
through (11);
0
b. Adding new paragraphs (a)(5) and (6);
0
c. Redesignating paragraph (c)(3) as (c)(4) and revising it; and
0
d. Adding new paragraph (c)(3).
The revisions and additions read as follows.
Sec. 1007.30 Reports of receipts and utilization.
(a) * * *
(5) Receipts of producer milk described in Sec. 1007.84(e),
including the identity of the individual producers whose milk is
eligible for the distributing plant delivery credit pursuant to that
paragraph and the date that such milk was received;
(6) For handlers submitting distributing plant delivery credit
requests, transfers of bulk unconcentrated milk to nonpool plants,
including the dates that such milk was transferred;
* * * * *
(c) * * *
(3) With respect to milk for which a cooperative association is
requesting a distributing plant delivery credit pursuant to Sec.
1007.84, all of the information required in paragraphs (a)(5) and (6)
of this section.
(4) With respect to milk for which a cooperative association is
requesting a transportation credit pursuant to Sec. 1007.82, all of
the information required in paragraphs (a)(7), (8), and (9) of this
section.
* * * * *
0
20. Revise Sec. 1007.32(a) to read as follows:
Sec. 1007.32 Other reports.
(a) On or before the 20th day after the end of each month, each
handler described in Sec. 1000.9(a) and (c) of this chapter shall
report to the market administrator any adjustments to distributing
plant delivery credit requests as reported pursuant to Sec.
1007.30(a)(5) and (6).
* * * * *
0
21. Amend Sec. 1007.81 by revising the first sentence of paragraph (a)
to read as follows:
Sec. 1007.81 Payments to the transportation credit balancing fund.
(a) On or before the 12th day after the end of the month (except as
provided in Sec. 1000.90 of this chapter), each handler operating a
pool plant and each handler specified in Sec. 1000.9(c) of this
chapter shall pay to the market administrator a transportation credit
balancing fund assessment determined by multiplying the pounds of Class
I producer milk assigned pursuant to Sec. 1007.44 by $0.60 per
hundredweight or such lesser amount as the market administrator deems
necessary to maintain a balance in the fund equal to the total
transportation credits disbursed during the prior June through February
period to reflect any changes in the current mileage rate versus the
mileage rate(s) in effect during the prior June through February
period. * * *
* * * * *
0
22. Amend Sec. 1007.82 by:
0
a. Revising the first sentence of paragraph (a)(1), the first sentence
of paragraph (b), and paragraph s (c)(2) and (d)(3)(iii); and
0
b. Adding paragraph (d)(3)(viii).
The revisions and addition read as follows:
Sec. 1007.82 Payments from the transportation credit balancing fund.
(a) * * *
(1) On or before the 13th day (except as provided in Sec. 1000.90
of this chapter) after the end of each of the months of January, and
July through December and any other month in which transportation
credits are in effect pursuant to paragraph (b) of this section, the
market administrator shall pay to each handler that received, and
reported pursuant to Sec. 1007.30(a)(5), bulk milk transferred from a
plant fully regulated under another Federal order as described in
paragraph (c)(1) of this section or that received, and reported
pursuant to Sec. 1007.30(a)(6), milk directly from producers' farms as
specified in paragraph (c)(2) of this section, a preliminary amount
determined pursuant to paragraph (d) of this section to the extent that
funds are available in the transportation credit balancing fund. * * *
(b) The market administrator may extend the period during which
transportation credits are in effect (i.e., the transportation credit
period) to the month of February or June if a written request to do so
is received fifteen (15) days prior to the beginning of the month for
which the request is made and, after conducting an independent
investigation, finds that such extension is necessary to assure the
market of an adequate supply of milk for fluid use. * * *
(c) * * *
(2) Bulk milk received directly from the farms of dairy farmers at
pool distributing plants.
(d) * * *
(3) * * *
(iii) Subtract 15 percent (15%) of the miles from the mileage so
determined;
* * * * *
(viii) The market administrator may revise the factor described in
(d)(3)(iii) of this paragraph (the mileage adjustment factor) if a
written request to do so is received fifteen (15) days prior to the
beginning of the month for which the request is made and, (15) days
prior to the beginning of the month for which the request is made and,
after conducting an independent investigation, finds that such revision
is necessary to assure orderly marketing, efficient handling of milk in
the marketing area, and an adequate supply of milk for fluid use. The
market administrator may increase the mileage adjustment factor by as
much as ten percent (10%) up to twenty-five percent (25%) or decrease
it by as much as ten percent (10%), to a minimum of five percent (5%).
Before making such a finding, the market administrator shall notify the
Deputy Administrator of Dairy Programs and all handlers in the market
that a revision is being considered and invite written data, views, and
arguments. Any decision to revise the mileage rate factor must be
issued in writing prior to the first day of the month for which the
revision is to be effective.
0
23. Amend Sec. 1007.83 by revising paragraphs (a)(2) through (5) to
read as follows:
Sec. 1007.83 Mileage rate for the transportation credit balancing
fund.
(a) * * *
(2) From the result in paragraph (a)(1) of this section subtract
$2.26 per gallon;
(3) Divide the result in paragraph (a)(2) of this section by 6.2,
and round down to three decimal places to compute the fuel cost
adjustment factor;
[[Page 5809]]
(4) Add the result in paragraph (a)(3) of this section to $3.67;
(5) Divide the result in paragraph (a)(4) of this section by 497;
* * * * *
0
24. Add Sec. 1007.84 to read as follows:
Sec. 1007.84 Distributing plant delivery credits.
(a) The Distributing Plant Delivery Credit Fund. The market
administrator shall maintain a separate fund known as the Distributing
Plant Delivery Credit Fund into which shall be deposited the payments
made by handlers pursuant to Sec. 1007.84(b) and out of which shall be
made the payments due handlers pursuant to Sec. 1007.84(d). Payments
due a handler shall be offset against payments due from the handler.
(b) Payments to the distributing plant delivery credit fund. On or
before the 12th day after the end of the month (except as provided in
Sec. 1000.90 of this chapter), each handler operating a pool plant and
each handler specified in Sec. 1000.9(c) of this chapter shall pay to
the market administrator a distributing plant delivery credit fund
assessment determined by multiplying the pounds of Class I producer
milk assigned pursuant to Sec. 1007.44 by a per hundredweight
assessment rate of $0.45 and thereafter not greater than $0.50 as the
market administrator deems necessary to maintain a balance in the fund
equal to the total distributing plant delivery credit disbursed during
the prior calendar year. If the distributing plant delivery credit fund
is in an overfunded position, the market administrator may completely
waive the distributing plant delivery credit assessment for one or more
months. In determining the distributing plant delivery credit
assessment rate, in the event that during any month of that previous
calendar year the fund balance was insufficient to cover the amount of
credits that were due, the assessment should be based upon the amount
of credits that would have been disbursed had the fund balance been
sufficient.
(c) The market administrator shall announce publicly on or before
the 23rd day of the month (except as provided in Sec. 1000.90 of this
chapter), the assessment rate per hundredweight pursuant to paragraph
(b) of this section for the following month.
(d) Payments from the distributing plant delivery credit fund.
Payments from the distributing plant delivery credit fund to handlers
and cooperative associations requesting distributing plant delivery
credits shall be made as follows:
(1) On or before the 13th day (except as provided in Sec. 1000.90
of this chapter) after the end of each month, the market administrator
shall pay to each handler that received, and reported pursuant to Sec.
1007.30(a)(5), bulk unconcentrated milk directly from producers' farms,
or receipts of bulk unconcentrated milk by transfer from a pool supply
plant, a preliminary amount determined pursuant to paragraph (f) of
this section to the extent that funds are available in the distributing
plant delivery credit fund. If an insufficient balance exists to pay
all of the credits computed pursuant to this section, the market
administrator shall distribute the balance available in the
distributing plant delivery credit fund by reducing payments pro rata
using the percentage derived by dividing the balance in the fund by the
total credits that are due for the month. The amount of credits
resulting from this initial proration shall be subject to audit
adjustment pursuant to paragraph (d)(3) of this section.
(2) The market administrator shall accept adjusted requests for
distributing plant delivery credits on or before the 20th day of the
month following the month for which such credits were requested
pursuant to Sec. 1007.32(a). After such date, a preliminary audit will
be conducted by the market administrator, who will recalculate any
necessary proration of distributing plant delivery credit payments for
the preceding month pursuant to the process provided in paragraph
(d)(1) of this section. Handlers will be promptly notified of an
overpayment of credits based upon this final computation and remedial
payments to or from the distributing plant delivery credit fund will be
made on or before the next payment date for the following month.
(3) Distributing plant delivery credits paid pursuant to paragraphs
(d)(1) and (2) of this section shall be subject to final verification
by the market administrator pursuant to Sec. 1000.77 of this chapter.
Adjusted payments to or from the distributing plant delivery credit
fund will remain subject to the final proration established pursuant to
paragraph (d)(2) of this section.
(4) In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1007.30(c)(3) prior to the date payment is due, the
distributing plant delivery credits for such milk computed pursuant to
this section shall be made to such cooperative association rather than
to the operator of the pool plant at which the milk was received.
(5) The Market Administrator shall provide monthly to producers who
are not members of a qualified cooperative association a statement of
the amount per hundredweight of distributing plant delivery credit
which the distributing plant handler receiving their milk is entitled
to claim.
(e) Distributing plant delivery credits shall apply to the
following milk:
(1) Bulk unconcentrated fluid milk received at a pool distributing
plant as producer milk directly from dairy farms located within the
marketing areas defined in 7 CFR 1005.2 and 1007.2. The quantity of
milk described herein shall be reduced by the quantity of any bulk
unconcentrated fluid milk products transferred from a pool distributing
plant to a nonpool plant or transferred to a pool supply plant on the
same calendar day as producer milk was received at such plant for which
a distributing plant delivery credit is requested.
(2) Bulk unconcentrated fluid milk transferred from a pool supply
plant regulated pursuant to Sec. 1007.7(c) or (d) to a pool
distributing plant regulated pursuant to Sec. 1007.7(a) or (b). The
quantity of milk described herein shall be reduced by the quantity of
any bulk unconcentrated fluid milk products transferred from a pool
distributing plant to a nonpool plant or transferred to a pool supply
plant on the same calendar day as milk was received by transfer from a
pool supply plant at such pool distributing plant for which a
distributing plant delivery credit is requested.
(3) The market administrator shall regularly monitor and evaluate
the requests for distributing plant delivery credits to determine that
such credits are not encouraging uneconomic movements of milk, and the
credits continue to assure orderly marketing and efficient handling of
milk in the marketing area. In making such determinations the market
administrator will include in the evaluation the general supply and
demands for milk. If the market administrator finds that uneconomic
movements are occurring, and such movements are persistent and
pervasive, or are not being made in a way that assures orderly
marketing and efficient handling of milk in the marketing area, after
good cause shown, the market administrator may disallow the payments of
distributing plant delivery credit on such milk. Before making such a
finding, the market administrator shall give the handler on such milk
sufficient notice that an investigation is being considered, and shall
provide notice that the handler has the opportunity to explain why such
movements were necessary, or the opportunity to correct such movements
[[Page 5810]]
prior to the disallowance of any distributing plant delivery credits.
Any disallowance of distributing plant delivery credit pursuant to this
provision shall remain confidential between the market administrator
and the handler.
(f) Distributing plant delivery credits shall be computed as
follows:
(1) With respect to milk delivered directly from the farm to a
distributing plant:
(i) Determine the shortest hard-surface highway distance between
the shipping farm and the receiving plant, and multiply the miles by an
adjustment rate of not greater than ninety-five percent (95%) and not
less than seventy-five percent (75%);
(ii) Determine the absolute value of the per hundredweight
difference between the Class I price specified in Sec. 1000.50(a) of
this chapter for the county in which the shipping farm is located and
the Class I price applicable for the county in which the receiving pool
distributing plant is located.
(iii) Multiply the adjusted miles so computed in (f)(1) of this
section by the monthly mileage rate factor for the month computed
pursuant to Sec. 1007.84(h).
(iv) Subtract any positive difference in Class I prices computed in
paragraph (f)(1)(ii) of this section from the rate determined in
paragraph (f)(1)(iii) of this section.
(v) Multiply the remainder computed in paragraph (f)(1)(iv) of this
section by the hundredweight of milk described in paragraph (e)(1) of
this section.
(2) With respect to milk delivered from a pool supply plant to a
distributing plant:
(i) Determine the shortest hard-surface highway distance between
the transferring pool plant and the receiving plant, and multiply the
miles by an adjustment rate of not greater than ninety-five percent
(95%) and not less than seventy-five percent (75%);
(ii) Subtract the Class I price specified in Sec. 1000.50(a) of
this chapter for the transferring pool plant from the Class I price
applicable for the county in which the receiving pool distributing
plant is located.
(iii) Multiply the adjusted miles so computed in paragraph
(f)(2)(i) of this section by the mileage rate factor for the month
computed pursuant to Sec. 1005.84(h);
(iv) Subtract any positive difference in Class I prices computed in
paragraph (f)(2)(ii) of this section from the rate determined in
paragraph (f)(3)(iii) of this section.
(v) Multiply the remainder computed in paragraph (f)(2)(iv) of this
section by the hundredweight of milk described in paragraph (e)(2) of
this section.
(g) The monthly percentage rate adjustment within the range of
permissible percentage adjustments provided in paragraphs (f)(1)(i) and
(f)(2)(i) of this section shall be determined by the market
administrator, and publicly announced prior to the month for which
effective. In determining the percentage adjustment to the actual
mileages of milk delivered from farms and milk transferred from pool
plants the market administrator shall evaluate the general supply and
demand for milk in the marketing area, any previous occurrences of
sustained uneconomic movements of milk, and the balances in the
distributing plant delivery credit fund. The adjustment percentage
pursuant to (f)(1) and (2) of this section to the actual miles used for
computing pool distributing plant credits and announced by the market
administrator shall always be the same percentage.
(h) Mileage rate for the distributing plant delivery credit fund.
The mileage rate for the distributing plant delivery credit fund shall
be the mileage rate computed by the market administrator pursuant to
Sec. 1007.83.
(i) The market administrator shall announce publicly on or before
the 23rd day of the month (except as provided in Sec. 1000.90 of this
chapter), the mileage rate factor pursuant to paragraph (h) of this
section for the following month.
0
25. Add Sec. 1007.xx to read as follows:
Sec. 1007.xx Assembly performance credit fund.
The market administrator shall maintain a separate fund known as
the Assembly Performance Credit Fund into which shall be deposited the
payments made by handlers pursuant to Sec. 1007.xx and out of which
shall be made the payments due handlers pursuant to Sec. 1007.xx.
Payments due a handler shall be offset against payments due from the
handler.
0
26. Add Sec. 1007.xx to read as follows:
Sec. 1007.xx Payments to the assembly performance credit fund.
(a) On or before the 12th day after the end of the month (except as
provided in Sec. 1000.90 of this chapter), each handler operating a
pool plant and each handler specified in Sec. 1000.9(c) of this
chapter shall pay to the market administrator an assembly performance
credit fund assessment determined by multiplying the pounds of Class I
producer milk assigned pursuant to Sec. 1007.44 by $0.50 per
hundredweight.
(b) The market administrator may increase or decrease by up to
$0.20 the payment rate specified in paragraph (a) of this section if
the market administrator finds that such revision is necessary to
assure orderly marketing and efficient handling of milk in the
marketing area. Before making such a finding, the market administrator
shall investigate the need for the revision either on the market
administrator's own initiative or at the request of interested persons.
If the investigation shows that a revision might be appropriate, the
market administrator shall issue a notice stating that the revision is
being considered and inviting written data, views, and arguments. Any
decision to revise an applicable payment rate must be issued in writing
at least fifteen days before the effective date.
0
27. Add Sec. 1007.xx to read as follows:
Sec. 1007.xx Payments from the assembly performance credit fund.
(a) Payments from the assembly performance credit fund to handlers
and cooperative associations shall be made as follows:
(1) On or before the 13th day (except as provided in Sec. 1000.90
of this chapter), the market administrator shall pay to each handler
that received milk directly from producers' farms as specified in
paragraph (b) of this section;
(2) The market administrator shall distribute the balance available
in the assembly performance credit fund to all producer milk delivered
to pool distributing plants on a pro rata basis using the rate derived
by dividing the balance in the fund by the total producer milk
delivered to pool distributing plants regulated under the Order.
(3) In the event that a qualified cooperative association is the
responsible party for whose account such milk is received and written
documentation of this fact is provided to the market administrator
pursuant to Sec. 1007.30(c)(3) prior to the date payment is due, the
assembly performance credits for such milk computed pursuant to this
section shall be made to such cooperative association rather than to
the operator of the pool plant at which the milk was received.
(b) Assembly performance credits shall apply to bulk milk received
directly from the farms of dairy farmers at pool distributing plants.
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-01459 Filed 1-27-23; 8:45 am]
BILLING CODE 3410-02-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on January 30, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.