[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1998 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
7
Agriculture
PARTS 1000 TO 1199
Milk Orders
Revised as of January 1, 1998
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1998
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
Subtitle B--Regulations of the Department of
Agriculture--Continued:
Chapter X--Agricultural Marketing Service (Marketing
Agreements and Orders; Milk), Department of
Agriculture........................................... 5
Finding Aids:
Table of CFR Titles and Chapters.......................... 901
Alphabetical List of Agencies Appearing in the CFR........ 917
List of CFR Sections Affected............................. 927
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Cite this Code: CFR
To cite the regulations in this volume use title, part and
section number. Thus, 7 CFR 1000.1 refers to title 7, part
1000, section 1.
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[[Page v]]
EXPLANATION
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The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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[[Page vii]]
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January 1, 1998.
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1899, 1900-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 1998.
The Food and Consumer Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199. Part 900--General Regulations is carried as a note in the
volume containing parts 1000-1199, as a convenience to the user.
Redesignation tables appear in the Finding Aids section of the
volumes containing parts 210-299 and parts 1600-1899.
For this volume, Gwendolyn J. Henderson was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 1000 to 1199)
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Part
SUBTITLE B--Regulations of the Department of Agriculture-- Continued:
Chapter X--Agricultural Marketing Service (Marketing
Agreements and Orders; Milk), Department of Agriculture... 1000
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 4]]
[GRAPHIC] [TIFF OMITTED] TC18SE91.000
[[Page 5]]
CHAPTER X--AGRICULTURAL MARKETING SERVICE
(Marketing Agreements and Orders; Milk)
DEPARTMENT OF AGRICULTURE
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Part Page
900 General regulations [Note].................. 7
1000 General provisions of Federal milk marketing
orders.................................. 36
1001 Milk in the New England marketing area...... 39
1002 Milk in New York-New Jersey marketing area.. 69
1004 Milk in the Middle Atlantic marketing area.. 109
1005 Milk in the Carolina marketing area......... 138
1006 Milk in Upper Florida marketing area........ 166
1007 Milk in the Southeast marketing area........ 189
1011 Milk in the Tennessee Valley marketing area. 219
1012 Milk in Tampa Bay marketing area............ 220
1013 Milk in Southeastern Florida marketing area. 242
1030 Milk in Chicago Regional marketing area..... 265
1032 Milk in Southern Illinois-Eastern Missouri
marketing area.......................... 294
1033 Milk in the Ohio Valley marketing area...... 318
1036 Milk in the Eastern Ohio-Western
Pennsylvania marketing area............. 347
1040 Milk in Southern Michigan marketing area.... 375
1044 Milk in Michigan Upper Peninsula marketing
area.................................... 402
1046 Milk in Louisville-Lexington-Evansville
marketing area.......................... 419
1049 Milk in the Indiana marketing area.......... 447
1050 Milk in Central Illinois marketing area..... 477
1051-1063
[Reserved]
1064 Milk in the Greater Kansas City marketing
area.................................... 501
1065 Milk in the Nebraska-Western Iowa marketing
area.................................... 525
1068 Milk in the Upper Midwest marketing area.... 555
1076 Milk in Eastern South Dakota marketing area. 584
1079 Milk in the Iowa marketing area............. 609
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1093-1097
[Reserved]
1106 Milk in Southwest Plains marketing area..... 637
1108-1120
[Reserved]
1124 Milk in the Pacific Northwest marketing area 667
1125
[Reserved]
1126 Milk in the Texas marketing area............ 696
1131 Milk in Central Arizona marketing area...... 725
1132
[Reserved]
1134 Milk in the Western Colorado marketing area. 749
1135 Milk in the Southwestern Idaho-Eastern
Oregon marketing area................... 772
1136
[Reserved]
1137 Milk in the Eastern Colorado marketing area. 796
1138 Milk in the New Mexico-West Texas marketing
area.................................... 820
1139 Milk in the Great Basin marketing area...... 846
1150 Dairy promotion program..................... 873
1151-1159
[Reserved]
1160 Fluid milk promotion program................ 884
1161-1199
[Reserved]
[[Page 7]]
NOTE
CFR part 900, the general regulations with respect to marketing
agreements and orders, is herein set forth for convenience of users of
this volume.
PART 900--GENERAL REGULATIONS
Subpart--Rules of Practice and Procedure Governing Proceedings to
Formulate Marketing Agreements and Marketing Orders
Sec.
900.1 Words in the singular form.
900.2 Definitions.
900.3 Proposals.
900.4 Institution of proceeding.
900.5 Docket number.
900.6 Judges.
900.7 Motions and requests.
900.8 Conduct of the hearing.
900.9 Oral and written arguments.
900.10 Certification of the transcript.
900.11 Copies of the transcript.
900.12 Administrator's recommended decision.
900.13 Submission to Secretary.
900.13a Decision by Secretary.
900.14 Execution of and issuance of marketing agreements and marketing
orders.
900.15 Filing; extensions of time; effective date of filing; and
computation of time.
900.16 Ex Parte communications.
900.17 Additional documents to be filed with hearing clerk.
900.18 Hearing before Secretary.
Subpart--Rules of Practice Governing Proceedings on Petitions To Modify
or To Be Exempted From Marketing Orders
900.50 Words in the singular form.
900.51 Definitions.
900.52 Institution of proceeding.
900.52a Answer to petition.
900.52b Amended pleadings.
900.53 Withdrawal of petition.
900.54 Docket number.
900.55 Judges.
900.56 Consolidated hearings.
900.57 Intervention.
900.58 Prehearing conferences.
900.59 Motions and requests.
900.60 Oral hearings before judge.
900.61 Depositions.
900.62 Subpenas.
900.63 Fees and mileage.
900.64 The Administrative Law Judge's Decision.
900.65 Appeals to Secretary: transmittal of record.
900.66 Consideration of appeal by the Secretary and issuance of final
order.
900.67 [Reserved]
900.68 Applications for reopening hearings; for rehearings or
rearguments of proceedings; or for reconsideration of orders.
900.69 Filing; service; extensions of time; effective date of filing;
and computation of time.
900.70 Applications for interim relief.
900.71 Hearing before Secretary.
Subpart--Supplemental Rules of Practice for Marketing Orders, Marketing
Agreements, and Requirements Issued Pursuant to 7 U.S.C. 608b(b) and 7
U.S.C. 608e Covering Fruits, Vegetables, and Nuts
900.80 Words in the singular form.
900.81 Definitions.
900.82 Stipulation procedures.
Subpart--Procedure Governing Meetings To Arbitrate and Mediate Disputes
Relating to Sales of Milk or Its Products
900.100 Words in the singular form.
900.101 Definitions.
900.102 Filing of applications for mediation or arbitration.
900.103 Application for mediation.
900.104 Inquiry by the Administrator.
900.105 Notification.
900.106 Assignment of mediator.
900.107 Meetings.
900.108 Mediator's report.
900.109 Mediation agreement.
900.110 Application for arbitration.
900.111 Inquiry by the Administrator.
900.112 Notification.
900.113 Submission.
900.114 Designation of arbitrator.
900.115 Hearing.
900.116 Award.
900.117 Approval of award.
900.118 Costs.
Subpart--Miscellaneous Regulations
900.200 Definitions.
900.201 Investigation and disposition of alleged violations.
900.210 Disclosures of information.
900.211 Penalties.
Subpart--Procedure for Conduct of Referenda to Determine Producer
Approval of Milk Marketing Orders To Be Made Effective Pursuant to
Agricultural Marketing Agreement Act of 1937, as Amended
900.300 General.
900.301 Definitions.
900.302 Associations eligible to vote.
900.303 Conduct of referendum.
900.304 Who may vote.
900.305 Duties of referendum agent.
900.306 Notice of the referendum.
[[Page 8]]
900.307 Time for voting.
900.308 Tabulation of ballots.
900.309 Confidential information.
900.310 Supplementary instructions.
900.311 Submittals or requests.
Subpart--Procedure for Determining the Qualification ofCooperative Milk
Marketing Associations
900.350 General statement.
900.351 Applications for qualification.
900.352 Confidential information.
900.353 Qualification standards.
900.354 Inspection and investigation.
900.355 Annual reporting.
900.356 Listing of qualified associations.
900.357 Denial of application; suspension or revocation of
determination of qualification.
Subpart--Procedure for the Conduct of Referenda in Connection With
Marketing Orders for Fruits, Vegetables, and Nuts Pursuant to the
Agricultural Marketing Agreement Act of 1937, as Amended
900.400 General.
900.401 Definitions.
900.402 Voting.
900.403 Instructions.
900.404 Subagents.
900.405 Ballots.
900.406 Referendum report.
900.407 Confidential information.
Subpart--Public Information
Availability of Program Information, Staff Manuals and Instructions, and
Related Material
900.500 General.
900.501 Public inspection and copying.
900.502 Indexes.
900.503 Requests for records.
900.504 Appeals.
Subpart--Information Collection
900.600 General.
900.601 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
Source: 25 FR 5907, June 28, 1960, unless otherwise noted.
Subpart--Rules of Practice and Procedure Governing Proceedings to
Formulate Marketing Agreements and Marketing Orders
Authority: Sec. 10, 48 Stat. 37, as amended; 7 U.S.C. 610.
Sec. 900.1 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 900.2 Definitions.
As used in this subpart, the terms as defined in the Act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term Act means Public Act No. 10, 73d Congress (48 Stat.
31), as amended and as reenacted and amended by the Agricultural
Marketing Agreement Act of 1937 (50 Stat. 246), as amended.
(b) The term Department means the United States Department of
Agriculture.
(c) The term Secretary means the Secretary of Agriculture of the
United States, or any officer or employee of the Department to whom
authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in his stead.
(d) The terms Administrative Law Judge or Judge means any
administrative law judge appointed pursuant to 5 U.S.C. 3105, and
assigned to conduct the proceeding.
(e) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(f) [Reserved]
(g) The term ``Federal Register'' means the publication provided for
by the Act of July 26, 1935 (49 Stat. 500), and acts supplementary
thereto and amendatory thereof.
(h) The term hearing means that part of the proceeding which
involves the submission of evidence.
(i) The term marketing agreement means any marketing agreement or
any amendment thereto which may be entered into pursuant to section 8b
of the Act.
(j) The term marketing order means any order or any amendment
thereto which may be issued pursuant to section 8c of the Act, and after
notice and hearing as required by said section.
(k) The term proceeding means a proceeding upon the basis of which a
marketing agreement may be entered into or a marketing order may be
issued.
(l) The term hearing clerk means the hearing clerk, United States
Department of Agriculture, Washington, DC.
[25 FR 5907, June 28, 1960, as amended at 26 FR 7796, Aug. 22, 1961; 28
FR 579, Jan. 23, 1963; 37 FR 8059, Apr. 25, 1972; 38 FR 29798, Oct. 29,
1973]
Sec. 900.3 Proposals.
(a) A marketing agreement or a marketing order may be proposed by
the Secretary or by any other person. If any person other than the
Secretary proposes a marketing agreement or marketing order, he shall
file with the Administrator a written application, together with at
least four copies of the proposal, requesting the Secretary to hold a
[[Page 9]]
hearing upon the proposal. Upon receipt of such proposal, the
Administrator shall cause such investigation to be made and such
consideration thereof to be given as, in his opinion, are warranted. If
the investigation and consideration lead the Administrator to conclude
that the proposed marketing agreement or marketing order will not tend
to effectuate the declared policy of the Act, or that for other proper
reasons a hearing should not be held on the proposal, he shall deny the
application, and promptly notify the applicant of such denial, which
notice shall be accompanied by a brief statement of the grounds for the
denial.
(b) If the investigation and consideration lead the Administrator to
conclude that the proposed marketing agreement or marketing order will
tend to effectuate the declared policy of the Act, or if the Secretary
desires to propose a marketing agreement or marketing order, he shall
sign and cause to be served a notice of hearing, as provided in this
subpart.
Sec. 900.4 Institution of proceeding.
(a) Filing and contents of the notice of hearing. The proceeding
shall be instituted by filing the notice of hearing with the hearing
clerk. The notice of hearing shall contain a reference to the authority
under which the marketing agreement or marketing order is proposed;
shall define the scope of the hearing as specifically as may be
practicable; shall contain either the terms or substance of the proposed
marketing agreement or marketing order or a description of the subjects
and issues involved and shall state the industry, area, and class of
persons to be regulated, the time and place of such hearing, and the
place where copies of such proposed marketing agreement or marketing
order may be obtained or examined. The time of the hearing shall not be
less than 15 days after the date of publication of the notice in the
Federal Register, as provided in this subpart, unless the Administrator
shall determine that an emergency exists which requires a shorter period
of notice, in which case the period of notice shall be that which the
Administrator may determine to be reasonable in the circumstances:
Provided, That, in the case of hearings on amendments to marketing
agreements or marketing orders, the time of the hearing may be less than
15 days but shall not be less than 3 days after the date of publication
of the notice in the Federal Register.
(b) Giving notice of hearing and supplemental publicity. (1) The
Administrator shall give or cause to be given notice of hearing in the
following manner:
(i) By publication of the notice of hearing in the Federal Register;
(ii) By mailing a true copy of the notice of hearing to each of the
persons known to the Administrator, to be interested therein;
(iii) By issuing a press release containing the complete text or a
summary of the contents of the notice of hearing and making the same
available to such newspapers in the area proposed to be subjected to
regulation as reasonably will tend to bring the notice to the attention
of the persons interested therein;
(iv) By forwarding copies of the notice of hearing addressed to the
governors of such of the several States of the United States and to
executive heads of such of the Territories and possessions of the United
States as the Administrator, having due regard for the subject matter of
the proposal and the public interest, shall determine, should be
notified.
(2) Legal notice of the hearing shall be deemed to be given if
notice is given in the manner provided by paragraph (b)(1)(i) of this
section; and failure to give notice in the manner provided in paragraph
(b)(1)(ii), (iii), and (iv) of this section shall not affect the
legality of the notice.
(c) Record of notice and supplemental publicity. There shall be
filed with the hearing clerk or submitted to the judge at the hearing an
affidavit or certificate of the person giving the notice provided in
(b)(1)(iii) and (iv) of this section. In regard to the provisions
relating to mailing in (b)(1)(ii) of this section, a determination by
the Administrator that such provisions have been complied with shall be
filed with the hearing clerk or submitted to the judge at the hearing.
In the alternative, if notice is not given in the manner provided in
(b)(1)(ii), (iii), and (iv) of this section there shall be filed with
the hearing clerk or submitted to the judge at the hearing a
determination by the Administrator that such notice is impracticable,
unnecessary, or contrary to the public interest with a brief statement
of the reasons for such determination. Determinations by the
Administrator as herein provided shall be final.
Sec. 900.5 Docket number.
Each proceeding, immediately following its institution, shall be
assigned a docket number by the hearing clerk and thereafter the
proceeding may be referred to by such number.
Sec. 900.6 Judges.
(a) Assignment. No judge who has any pecuniary interest in the
outcome of a proceeding shall serve as judge in such proceeding.
(b) Powers of judges. Subject to review by the Secretary, as
provided elsewhere in this subpart, the judge, in any proceeding, shall
have power to:
(1) Rule upon motions and requests;
(2) Change the time and place of hearing, and adjourn the hearing
from time to time or from place to place;
(3) Administer oaths and affirmations and take affidavits;
[[Page 10]]
(4) Examine and cross-examine witnesses and receive evidence;
(5) Admit or exclude evidence;
(6) Hear oral argument on facts or law;
(7) Do all acts and take all measures necessary for the maintenance
of order at the hearing and the efficient conduct of the proceeding.
(c) Who may act in absence of judge. In case of the absence of the
judge or his inability to act, the powers and duties to be performed by
him under this part in connection with a proceeding may, without
abatement of the proceeding unless otherwise ordered by the Secretary,
be assigned to any other judge.
(d) Disqualification of judge. The judge may at any time withdraw as
judge in a proceeding if he deems himself to be disqualified. Upon the
filing by an interested person in good faith of a timely and sufficient
affidavit of personal bias or disqualification of a judge, the Secretary
shall determine the matter as a part of the record and decision in the
proceeding, after making such investigation or holding such hearings, or
both, as he may deem appropriate in the circumstances.
Sec. 900.7 Motions and requests.
(a) General. All motions and requests shall be filed with the
hearing clerk, except that those made during the course of the hearing
may be filed with the judge or may be stated orally and made a part of
the transcript.
Except as provided in Sec. 900.15(b) such motions and requests shall
be addressed to, and ruled on by, the judge if made prior to his
certification of the transcript pursuant to Sec. 900.10 or by the
Secretary if made thereafter.
(b) Certification to Secretary. The judge may in his discretion
submit or certify to the Secretary for decision any motion, request,
objection, or other question addressed to the judge.
Sec. 900.8 Conduct of the hearing.
(a) Time and place. The hearing shall be held at the time and place
fixed in the notice of hearing, unless the judge shall have changed the
time or place, in which event the judge shall file with the hearing
clerk a notice of such change, which notice shall be given in the same
manner as provided in Sec. 900.4 (relating to the giving of notice of
the hearing): Provided, That, if the change in time or place of hearing
is made less than 5 days prior to the date previously fixed for the
hearing, the judge, either in addition to or in lieu of causing the
notice of the change to be given, shall announce, or cause to be
announced, the change at the time and place previously fixed for the
hearing.
(b) Appearances--(1) Right to appear. At the hearing, any interested
person shall be given an opportunity to appear, either in person or
through his authorized counsel or representative, and to be heard with
respect to matters relevant and material to the proceeding. Any
interested person who desires to be heard in person at any hearing under
these rules shall, before proceeding to testify, state his name,
address, and occupation. If any such person is appearing through a
counsel or representative, such person or such counsel or representative
shall, before proceeding to testify or otherwise to participate in the
hearing, state for the record the authority to act as such counsel or
representative, and the names and addresses and occupations of such
person and such counsel or representative. Any such person or such
counsel or representative shall give such other information respecting
his appearance as the judge may request.
(2) Debarment of counsel or representative. Wherever, while a
proceeding is pending before him, the judge finds that a person, acting
as counsel or representative for any person participating in the
proceeding, is guilty of unethical or unprofessional conduct, the judge
may order that such person be precluded from further acting as counsel
or representative in such proceeding. An appeal to the Secretary may be
taken from any such order, but the proceeding shall not be delayed or
suspended pending disposition of the appeal: Provided, That the judge
may suspend the proceeding for a reasonable time for the purpose of
enabling the client to obtain other counsel or other representative.
In case the judge has ordered that a person be precluded from
further acting as counsel or representative in the proceeding, the
judge, within a reasonable time thereafter shall submit to the Secretary
a report of the facts and circumstances surrounding such order and shall
recommend what action the Secretary should take respecting the
appearance of such person as counsel or representative in other
proceedings before the Secretary. Thereafter the Secretary may, after
notice and an opportunity for hearing, issue such order, respecting the
appearance of such person as counsel or representative in proceedings
before the Secretary, as the Secretary finds to be appropriate.
(3) Failure to appear. If any interested person fails to appear at
the hearing, he shall be deemed to have waived the right to be heard in
the proceeding.
(c) Order of procedure. (1) The judge shall, at the opening of the
hearing prior to the taking of testimony, have noted as part of the
record the notice of hearing as filed with the Office of the Federal
Register and the affidavit or certificate of the giving of notice or the
determination provided for in Sec. 900.4(c).
(2) Evidence shall then be received with respect to the matters
specified in the notice of the hearing in such order as the judge shall
announce.
(d) Evidence--(1) In general. The hearing shall be publicly
conducted, and the testi
[[Page 11]]
mony given at the hearing shall be reported verbatim.
Every witness shall, before proceeding to testify, be sworn or make
affirmation. Cross-examination shall be permitted to the extent required
for a full and true disclosure of the facts.
When necessary, in order to prevent undue prolongation of the
hearing, the judge may limit the number of times any witness may testify
to the same matter or the amount of corroborative or cumulative
evidence.
The judge shall, insofar as practicable, exclude evidence which is
immaterial, irrelevant, or unduly repetitious, or which is not of the
sort upon which responsible persons are accustomed to rely.
(2) Objections. If a party objects to the admission or rejection of
any evidence or to any other ruling of the judge during the hearing, he
shall state briefly the grounds of such objection, whereupon an
automatic exception will follow if the objection is overruled by the
judge. The transcript shall not include argument or debate thereon
except as ordered by the judge. The ruling of the judge on any objection
shall be a part of the transcript.
Only objections made before the judge may subsequently be relied
upon in the proceeding.
(3) Proof and authentication of official records or documents. An
official record or document, when admissible for any purpose, shall be
admissible as evidence without the production of the person who made or
prepared the same. Such record or document shall, in the discretion of
the judge, be evidenced by an official publication thereof or by a copy
attested by the person having legal custody thereof and accompanied by a
certificate that such person has the custody.
(4) Exhibits. All written statements, charts, tabulations, or
similar data offered in evidence at the hearing shall, after
identification by the proponent and upon satisfactory showing of the
authenticity, relevancy, and materiality of the contents thereof, be
numbered as exhibits and received in evidence and made a part of the
record. Such exhibits shall be submitted in quadruplicate and in
documentary form. In case the required number of copies is not made
available, the judge shall exercise his discretion as to whether said
exhibits shall, when practicable, be read in evidence or whether
additional copies shall be required to be submitted within a time to be
specified by the judge. If the testimony of a witness refers to a
statute, or to a report or document (including the record of any
previous hearing) the judge, after inquiry relating to the
identification of such statute, report, or document, shall determine
whether the same shall be produced at the hearing and physically be made
a part of the evidence as an exhibit, or whether it shall be
incorporated into the evidence by reference. If relevant and material
matter offered in evidence is embraced in a report or document
(including the record of any previous hearing) containing immaterial or
irrelevant matter, such immaterial or irrelevant matter shall be
excluded and shall be segregated insofar as practicable, subject to the
direction of the judge.
(5) Official notice. Official notice may be taken of such matters as
are judicially noticed by the courts of the United States and of any
other matter of technical, scientific or commercial fact of established
character: Provided, That interested persons shall be given adequate
notice, at the hearing or subsequent thereto, of matters so noticed and
shall be given adequate opportunity to show that such facts are
inaccurate or are erroneously noticed.
(6) Offer of proof. Whenever evidence is excluded from the record,
the party offering such evidence may make an offer of proof, which shall
be included in the transcript. The offer of proof shall consist of a
brief statement describing the evidence to be offered. If the evidence
consists of a brief oral statement or of an exhibit, it shall be
inserted into the transcript in toto. In such event, it shall be
considered a part of the transcript if the Secretary decides that the
judge's ruling in excluding the evidence was erroneous. The judge shall
not allow the insertion of such evidence in toto if the taking of such
evidence will consume a considerable length of time at the hearing. In
the latter event, if the Secretary decides that the judge erred in
excluding the evidence, and that such error was substantial, the hearing
shall be reopened to permit the taking of such evidence.
[25 FR 5907, June 28, 1960, as amended at 37 FR 1103, Jan. 25, 1972]
Sec. 900.9 Oral and written arguments.
(a) Oral argument before judge. Oral argument before the judge shall
be in the discretion of the judge. Such argument, when permitted, may be
limited by the judge to any extent that he finds necessary for the
expeditious disposition of the proceeding and shall be reduced to
writing and made part of the transcript.
(b) Briefs, proposed findings and conclusions. The judge shall
announce at the hearing a reasonable period of time within which
interested persons may file with the hearing clerk proposed findings and
conclusions, and written arguments or briefs, based upon the evidence
received at the hearing, citing, where practicable, the page or pages of
the transcript of the testimony where such evidence appears. Factual
material other than that adduced at the hearing or subject to official
notice shall not be alluded to therein, and, in any case, shall not be
considered in the formulation of the marketing agreement
[[Page 12]]
or marketing order. If the person filing a brief desires the Secretary
to consider any objection made by such person to a ruling of the judge,
as provided in Sec. 900.8(d), he shall include in the brief a concise
statement concerning each such objection, referring where practicable,
to the pertinent pages of the transcript.
Sec. 900.10 Certification of the transcript.
The judge shall notify the hearing clerk of the close of a hearing
as soon as possible thereafter and of the time for filing written
arguments, briefs, proposed findings and proposed conclusions, and shall
furnish the hearing clerk with such other information as may be
necessary. As soon as possible after the hearing, the judge shall
transmit to the hearing clerk an original and three copies of the
transcript of the testimony and the original and all copies of the
exhibits not already on file in the office of the hearing clerk. He
shall attach to the original transcript of testimony his certificate
stating that to the best of his knowledge and belief, the transcript is
a true transcript of the testimony given at the hearing except in such
particulars as he shall specify; and that the exhibits transmitted are
all the exhibits as introduced at the hearing with such exceptions as he
shall specify. A copy of such certificate shall be attached to each of
the copies of the transcript of testimony. In accordance with such
certificate the hearing clerk shall note upon the official record copy,
and cause to be noted on other copies, of the transcript each correction
detailed therein by adding or crossing out (but without obscuring the
text as originally transcribed) at the appropriate place any words
necessary to make the same conform to the correct meaning, as certified
by the judge. The hearing clerk shall obtain and file certifications to
the effect that such corrections have been effected in copies other than
the official record copy.
Sec. 900.11 Copies of the transcript.
(a) During the period in which the proceeding has an active status
in the Department, a copy of the transcript and exhibits shall be kept
on file in the office of the hearing clerk, where it shall be available
for examination during official hours of business. Thereafter said
transcript and exhibits shall be made available by the hearing clerk for
examination during official hours of business after prior request and
reasonable notice to the hearing clerk.
(b) If a personal copy of the transcript is desired, such copy may
be obtained upon written application filed with the reporter and upon
payment of fees at the rate (if any) provided in the contract between
the reporter and the Secretary.
Sec. 900.12 Administrator's recommended decision.
(a) Preparation. As soon as practicable following the termination of
the period allowed for the filing of written arguments or briefs and
proposed findings and conclusions the Administrator shall file with the
hearing clerk a recommended decision.
(b) Contents. The Administrator's recommended decision shall
include: (1) A preliminary statement containing a description of the
history of the proceedings, a brief explanation of the material issues
of fact, law, or discretion presented on the record, and proposed
findings and conclusions with respect to such issues as well as the
reasons or basis therefor; (2) A ruling upon each proposed finding or
conclusion submitted by interested persons; and (3) An appropriate
proposed marketing agreement or marketing order effectuating his
recommendations.
(c) Exceptions to recommended decision. Immediately following the
filing of his recommended decision, the Administrator shall give notice
thereof, and opportunity to file exceptions thereto by publication in
the Federal Register. Within a period of time specified in such notice
any interested person may file with the hearing clerk exceptions to the
Administrator's proposed marketing agreement or marketing order, or
both, as the case may be, and a brief in support of such exceptions.
Such exceptions shall be in writing, shall refer, where practicable, to
the related pages of the transcript and may suggest appropriate changes
in the proposed marketing agreement or marketing order.
(d) Omission of recommended decision. The procedure provided in this
section may be omitted only if the Secretary finds on the basis of the
record that due and timely execution of his functions imperatively and
unavoidably requires such omission.
Sec. 900.13 Submission to Secretary.
Upon the expiration of the period allowed for filing exceptions or
upon request of the Secretary, the hearing clerk shall transmit to the
Secretary the record of the proceeding. Such record shall include: all
motions and requests filed with the hearing clerk and rulings thereon;
the certified transcripts; any proposed findings or conclusions or
written arguments or briefs that may have been filed; the
Administrator's recommended decision, if any, and such exceptions as may
have been filed.
Sec. 900.13a Decision by Secretary.
After due consideration of the record, the Secretary shall render a
decision. Such decision shall become a part of the record and shall
include (a) a statement of his findings and conclusions, as well as the
reasons or basis therefor, upon all the material issues of fact, law or
discretion presented on the
[[Page 13]]
record, (b) a ruling upon each proposed finding and proposed conclusion
not previously ruled upon in the record, (c) a ruling upon each
exception filed by interested persons and (d) either (1) a denial of the
proposal to issue a marketing agreement or marketing order or (2) a
marketing agreement and, if the findings upon the record so warrant, a
marketing order, the provisions of which shall be set forth directly or
by reference, regulating the handling of the commodity or product in the
same manner and to the same extent as such marketing agreement, which
order shall be complete except for its effective date and any
determinations to be made under Sec. 900.14(b) or Sec. 900.14(c):
Provided, That such marketing order shall not be executed, issued, or
made effective until and unless the Secretary determines that the
requirements of Sec. 900.14(b) or Sec. 900.14(c) have been met.
Sec. 900.14 Execution and issuance of marketing agreements and
marketing orders.
(a) Execution and issuance of marketing agreement. If the Secretary
has approved a marketing agreement, as provided in Sec. 900.13a, the
Administrator shall cause copies thereof to be distributed for execution
by the handlers eligible to become parties thereto. If and when such
number of the handlers as the Secretary shall deem sufficient shall have
executed the agreement, the Secretary shall execute the agreement. After
execution of a marketing agreement, such agreement shall be filed with
the hearing clerk, and notice thereof, together with notice of the
effective date, shall be given by publication in the Federal Register.
The marketing agreement shall not become effective less than 30 days
after its publication in the Federal Register, unless the Secretary,
upon good cause found and published with the agreement, fixes an earlier
effective date therefor: Provided, That no marketing agreement shall
become effective as to any person signatory thereto before either (1) it
has been filed with the Office of the Federal Register, or (2) such
person has received actual notice that the Secretary has executed the
agreement and the effective date of the marketing agreement.
(b) Issuance of marketing order with marketing agreement. Whenever,
as provided in paragraph (a) of this section, the Secretary executes a
marketing agreement, and handlers also have executed the same as
provided in section 8c(8) of the Act, he shall, if he finds that it will
tend to effectuate the purposes of the Act, issue and make effective the
marketing order, if any, which was filed as a part of his decision
pursuant to Sec. 900.13a: Provided, That the issuance of such order
shall have been approved or favored by producers as required by section
8c(8) of the act.
(c) Issuance of marketing order without marketing agreement. If,
despite the failure or refusal of handlers to sign the marketing
agreement, as provided in section 8c(8) of the Act, the Secretary makes
the determinations required under section 8c(9) of the Act, the
Secretary shall issue and make effective the marketing order, if any,
which was filed as a part of his decision pursuant to Sec. 900.13a.
(d) Effective date of marketing order. No marketing order shall
become effective less than 30 days after its publication in the Federal
Register, unless the Secretary, upon good cause found and published with
the order, fixes an earlier effective date therefor: Provided, That no
marketing order shall become effective as to any person sought to be
charged thereunder before either (1) it has been filed with the Office
of the Federal Register, or (2) such person has received actual notice
of the issuance and terms of the marketing order.
(e) Notice of issuance. After issuance of a marketing order, such
order shall be filed with the hearing clerk, and notice thereof,
together with notice of the effective date, shall be given by
publication in the Federal Register. (7 U.S.C. 610(c).)
[25 FR 5907, June 28, 1960, as amended at 53 FR 15659, May 3, 1988]
Sec. 900.15 Filing; extensions of time; effective date of filing; and
computation of time.
(a) Filing, number of copies. Except as is provided otherwise in
this subpart, all documents or papers required or authorized by the
foregoing provisions of this subpart to be filed with the hearing clerk
shall be filed in quadruplicate. Any document or paper, so required or
authorized to be filed with the hearing clerk, shall, during the course
of an oral hearing, be filed with the judge. The provisions of this
subpart concerning filing with the hearing clerk of hearing notices,
recommended and final decisions, marketing agreements and orders, and
all documents described in Sec. 900.17 shall be met by filing a true
copy thereof with the hearing clerk.
(b) Extensions of time. The time for the filing of any document or
paper required or authorized by the foregoing provisions of this subpart
to be filed may be extended by the judge (before the record is certified
by the judge) or by the Administrator (after the record is so certified
by the judge but before it is transmitted to the Secretary), or by the
Secretary (after the record is transmitted to the Secretary) upon
request filed, and if, in the judgment of the judge, Administrator, or
the Secretary, as the case may be, there is good reason for the
extension. All rulings made pursuant to this paragraph shall be filed
with the hearing clerk.
(c) Effective date of filing. Any document or paper required or
authorized by the foregoing provisions of this subpart to be filed shall
be deemed to be filed when it is postmarked or when it is received by
the hearing clerk.
[[Page 14]]
(d) Computation of time. Sundays and Federal holidays shall be
included in computing the time allowed for the filing of any document or
paper: Provided, That, when such time expires on a Sunday or legal
holiday, such period shall be extended to include the next following
business day.
[25 FR 5907, June 28, 1960, as amended at 30 FR 254, Jan. 9, 1965]
Sec. 900.16 Ex parte communications.
(a) At no stage of the proceeding following the issuance of a notice
of hearing and prior to the issuance of the Secretary's decision therein
shall an employee of the Department who is or may reasonably be expected
to be involved in the decisional process of the proceeding discuss ex
parte the merits of the proceeding with any person having an interest in
the proceeding or with any representative of such person: Provided, That
procedural matters and status reports shall not be included within this
limitation; and Provided further, That an employee of the Department who
is or may reasonably be expected to be involved in the decisional
process of the proceeding may discuss the merits of the proceeding with
such a person if all parties known to be interested in the proceeding
have been given notice and an opportunity to participate. A memorandum
of any such discussion shall be included in the record of the
proceeding.
(b) No person interested in the proceeding shall make or knowingly
cause to be made to an employee of the Department who is or may
reasonably be expected to be involved in the decisional process of the
proceeding an ex parte communication relevant to the merits of the
proceeding except as provided in paragraph (a) of this section.
(c) If an employee of the Department who is or may reasonably be
expected to be involved in the decisional process of the proceeding
receives or makes a communication prohibited by this section, the
Department shall place on the public record of the proceeding:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral communications;
and
(3) All written responses, and memoranda stating the substance of
all oral responses thereto.
(d) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section, the
Department may, to the extent consistent with the interest of justice
and the policy of the underlying statute, take whatever steps are deemed
necessary to nullify the effect of such communication.
(e) For the purposes of this section, ex parte communication means
an oral or written communication not on the public record with respect
to which reasonable prior notice to all interested parties is not given,
but which shall not include requests for status reports (including
requests on procedural matters) on any proceeding.
[42 FR 10833, Feb. 24, 1977]
Sec. 900.17 Additional documents to be filed with hearing clerk.
In addition to the documents or papers required or authorized by the
foregoing provisions of this subpart to be filed with the hearing clerk,
the hearing clerk shall receive for filing and shall have custody of all
papers, reports, records, orders, and other documents which relate to
the administration of any marketing agreement or marketing order and
which the Secretary is required to issue or to approve.
Sec. 900.18 Hearing before Secretary.
The Secretary may act in the place and stead of a judge in any
proceeding under this subpart. When he so acts the hearing clerk shall
transmit the record to the Secretary at the expiration of the period
provided for the filing of proposed findings of fact, conclusions and
orders, and the Secretary shall thereupon, after due consideration of
the record, issue his final decision in the proceeding: Provided, That
he may issue a tentative decision in which event the parties shall be
afforded an opportunity to file exceptions before the issuance of the
final decision.
Subpart--Rules of Practice Governing Proceedings on Petitions To Modify
or To Be Exempted From Marketing Orders
Authority: Sec. 5, 49 Stat. 753, as amended; 7 U.S.C. 608c.
Sec. 900.50 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 900.51 Definitions.
As used in this subpart, the terms as defined in the Act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term Act means Public Act No. 10, 73d Congress, as amended
and as reenacted and amended by the Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. and Sup. 601);
(b) The term Department means the United States Department of
Agriculture;
(c) The term Secretary means the Secretary of Agriculture of the
United States, or any officer or employee of the Department to whom
authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in his stead;
[[Page 15]]
(d) The terms administrative law judge or judge means any
Administrative Law Judge, appointed pursuant to 5 U.S.C. 3105, and
assigned to the proceeding involved;
(e) The term administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(f) [Reserved]
(g) The term ``Federal Register'' means the publication provided for
by the Act of July 26, 1935 (49 Stat. 500), and acts supplementary
thereto and amendatory thereof;
(h) The term marketing order means any order or any amendment
thereto which may be issued pursuant to section 8c of the Act;
(i) The term handler means any person who, by the terms of a
marketing order, is subject thereto, or to whom a marketing order is
sought to be made applicable;
(j) The term proceeding means a proceeding before the Secretary
arising under subsection (15)(A) of section 8c of the Act;
(k) The term hearing means that part of the proceeding which
involves the submission of evidence;
(l) The term party includes the Department;
(m) The term hearing clerk means the hearing clerk, United States
Department of Agriculture, Washington, DC;
(n) [Reserved]
(o) The term decision means the judge's initial decision in
proceedings subject to 5 U.S.C. 556 and 557, and includes the judge's
(1) findings of fact and conclusions with respect to all material issues
of fact, law or discretion as well as the reasons or basis thereof, (2)
order, and (3) rules on findings, conclusions and orders submitted by
the parties;
(p) The term petition includes an amended petition.
[25 FR 5907, June 28, 1960, as amended at 26 FR 7796, Aug. 22, 1961, 28
FR 579, Jan. 23, 1963; 37 FR 8059, Apr. 25, 1972; 38 FR 29798, Oct. 29,
1973]
Sec. 900.52 Institution of proceeding.
(a) Filing and service of petition. Any handler desiring to complain
that any marketing order or any provision of any such order or any
obligation imposed in connection therewith is not in accordance with
law, shall file with the hearing clerk, in quadruplicate, a petition in
writing addressed to the Secretary. Promptly upon receipt of the
petition, the hearing clerk shall transmit a true copy thereof to the
Administrator and the General Counsel, respectively.
(b) Contents of petition. A petition shall contain:
(1) The correct name, address, and principal place of business of
the petitioner. If petitioner is a corporation, such fact shall be
stated, together with the name of the State of incorporation, the date
of incorporation, and the names, addresses, and respective positions
held by its officers; if an unincorporated association, the names and
addresses of its officers, and the respective positions held by them; if
a partnership, the name and address of each partner;
(2) Reference to the specific terms or provisions of the order, or
the interpretation or application thereof, which are complained of;
(3) A full statement of the facts (avoiding a mere repetition of
detailed evidence) upon which the petition is based, and which it is
desired that the Secretary consider, setting forth clearly and concisely
the nature of the petitioner's business and the manner in which
petitioner claims to be affected by the terms or provisions of the order
or the interpretation or application thereof, which are complained of;
(4) A statement of the grounds on which the terms or provisions of
the order, or the interpretation or application thereof, which are
complained of, are challenged as not in accordance with law;
(5) Prayers for the specific relief which the petitioner desires the
Secretary to grant;
(6) An affidavit by the petitioner, or if the petitioner is not an
individual, by an officer of the petitioner having knowledge of the
facts stated in the petition, verifying the petition and stating that it
is filed in good faith and not for purposes of delay.
(c) Motion to dismiss petition--(1) Filing, contents, and responses
thereto. If the Administrator is of the opinion that the petition, or
any portion thereof, does not substantially comply, in form or content,
with the act or with the requirements of paragraph (b) of this section,
or is not filed in good faith, or is filed for purposes of delay, he
may, within thirty days after the filing of the petition, file with the
Hearing Clerk a motion to dismiss the petition, or any portion thereof,
on one or more of the grounds stated in this paragraph. Such motion
shall specify the grounds of objection to the petition and if based, in
whole or in part, on an allegations of fact not appearing on the face of
the petition, shall be accompanied by appropriate affidavits or
documentary evidence substantiating such allegations of fact. The motion
may be accompanied by a memorandum of law. Upon receipt of such motion,
the Hearing Clerk shall cause a copy thereof to be served upon the
petitioner, together with a notice stating that all papers to be
submitted in opposition to such motion including any memorandum of law,
must be filed by the petitioner with the Hearing Clerk not later than 20
days after the service of such notice upon the petitioner. Upon the
expiration of the time specified in such notice, or upon receipt of such
papers from the petitioner, the Hearing Clerk shall transmit all
[[Page 16]]
papers which have been filed in connection with the motion to the Judge
for his consideration.
(2) Decision by Administrative Law Judge. The Judge, after due
consideration, shall render a decision upon the motion stating the
reasons for his action. Such decision shall be in the form of an order
and shall be filed with the Hearing Clerk who shall cause a copy thereof
to be served upon the petitioner and a copy thereof to be transmitted to
the Administrator. Any such order shall be final unless appealed
pursuant to Sec. 900.65: Provided, That within 20 days following the
service upon the petitioner of a copy of the order of the Judge
dismissing the petition, or any portion thereof, on the ground that it
does not substantially comply in form and content with the act or with
paragraph (b) of this section, the petitioner shall be permitted to file
an amended petition.
(3) Oral argument. Unless a written application for oral argument is
filed by a party with the hearing clerk not later than the time fixed
for filing papers in opposition to the motion, it shall be considered
that the party does not desire oral argument. The granting of a request
to make oral argument shall rest in the discretion of the Judge.
[25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973]
Sec. 900.52a Answer to petition.
(a) Time of filing. Within 30 days after the filing of the petition,
the Administrator shall file an answer thereto: Provided, That if a
motion to dismiss the petition, in whole or in part, is made pursuant to
Sec. 900.52(c), the answer shall be filed within 15 days after the
filing of an order of the administrative law judge denying the motion or
granting the motion with respect to only a portion of the petition. The
answer shall be filed with the hearing clerk who shall cause a copy
thereof to be served promptly upon the petitioner.
(b) Contents. The answer shall specify which of the material
allegations of fact or of law in the petition are controverted and which
are not controverted. The answer also may contain affirmative
allegations of fact constituting separate defenses and statements of
objections to the sufficiency of the whole or any part of the petition.
[25 FR 5907, June 28, 1960]
Sec. 900.52b Amended pleadings.
At any time before the close of the hearing the petition or answer
may be amended, but the hearing shall, at the request of the adverse
party, be adjourned or recessed for such reasonable time as the judge
may determine to be necessary to protect the interests of the parties.
Amendments subsequent to the first amendment or subsequent to the filing
of an answer may be made only with leave of the judge or with the
written consent of the adverse party.
Sec. 900.53 Withdrawal of petition.
If, at any time after the petition is filed, the petitioner desires
to withdraw the same, he shall file with the hearing clerk (or, if filed
during the course of a hearing, with the judge) a written request for
permission to withdraw. The judge may, in his discretion, thereupon
dismiss the petition without further procedure: Provided, That, if the
request to withdraw is filed after a hearing has been opened, permission
to withdraw shall be granted only in exceptional circumstances.
Sec. 900.54 Docket number.
Each proceeding, immediately following its institution, shall be
assigned a docket number by the hearing clerk and thereafter the
proceeding may be referred to by such number.
Sec. 900.55 Judges.
(a) Assignment. No judge who has any pecuniary interest in the
outcome of the proceeding, or who has participated in any investigation
preceding the institution of the proceeding, shall serve as judge in
such proceeding.
(b) Conduct. The judge shall conduct the proceeding in a fair and
impartial manner and shall not discuss ex parte the merits of the
proceeding with any person who is or who has been connected in any
manner with the proceeding in an advocative or investigative capacity.
(c) Powers of judges. Subject to review by the Secretary, as
provided elsewhere in this subpart, the judge shall have power to:
(1) Rule upon motions and requests;
(2) Adjourn the hearing from time to time, and change the time and
place of hearing;
(3) Administer oaths and affirmations and take affidavits;
(4) Issue subpenas, under the facsimile signature of the Secretary,
requiring the attendance and testimony of witnesses and the production
of books, records, contracts, papers, and other documentary evidence;
(5) Examine witnesses and receive evidence;
(6) Take or order, under the facsimile signature of the Secretary,
the taking of depositions;
(7) Admit or exclude evidence;
(8) Hear oral argument on facts or law;
(9) Consolidate hearings upon two or more petitions pertaining to
the same order;
(10) Do all acts and take all measures necessary for the maintenance
of order at the hearing and the efficient conduct of the proceeding.
(d) Who may act in absence of judge. In case of the absence of the
judge or his inability to act, the powers and duties to be performed by
him under these rules of practice in con
[[Page 17]]
nection with a proceeding may, without abatement of the proceeding
unless otherwise ordered by the Secretary, be assigned to any other
judge.
(e) Disqualification of judge. The judge may at any time withdraw as
judge in a proceeding if he deems himself to be disqualified. Upon the
filing by an interested person in good faith of a timely and sufficient
affidavit of personal bias or disqualification of a judge, the Secretary
shall determine the matter as a part of the record and decision in the
proceeding, after making such investigation or holding such hearings, or
both, as he may deem appropriate in the circumstances.
Sec. 900.56 Consolidated hearings.
At the discretion of the judge, hearings upon two or more petitions
pertaining to the same order may be consolidated, and the evidence taken
at such consolidated hearing may be embodied in a single record.
Sec. 900.57 Intervention.
Intervention in proceedings subject to this subpart shall not be
allowed, except that, in the discretion of the Secretary or the judge,
any person (other than the petitioner) showing a substantial interest in
the outcome of a proceeding shall be permitted to participate in the
oral argument and to file a brief.
Sec. 900.58 Prehearing conferences.
In any proceeding in which it appears that such procedure will
expedite the proceeding, the judge, at any time prior to the
commencement of or during the course of the hearing, may request the
parties or their counsel to appear at a conference before him to
consider (a) the simplification of issues; (b) the possibility of
obtaining stipulations of fact and of documents which will avoid
unnecessary proof; (c) the limitation of the number of expert or other
witnesses; and (d) such other matters as may expedite and aid in the
disposition of the proceeding. No transcript of such conference shall be
made, but the judge shall prepare and file for the record a written
summary of the action taken at the conference, which shall incorporate
any written stipulations or agreements made by the parties at the
conference or as a result of the conference. If the circumstances are
such that a conference is impracticable, the judge may request the
parties to correspond with him for the purpose of accomplishing any of
the objects set forth in this section. The judge shall forward copies of
letters and documents to the parties as the circumstances require.
Correspondence in such negotiations shall not be a part of the record,
but the judge shall submit a written summary for the record if any
action is taken.
Sec. 900.59 Motions and requests.
(a) General. All motions and requests shall be filed with the
hearing clerk, except that those made during the course of an oral
hearing may be filed with the judge or may be stated orally and made a
part of the transcript.
The judge is authorized to rule upon all motions and requests filed
or made prior to the transmittal by the hearing clerk to the Secretary
of the record as provided in this subpart. The Secretary shall rule upon
all motions and requests filed after that time.
(b) Certification of motions. The submission or certification of any
motion, request, objection, or other question to the Secretary shall be
in the discretion of the judge.
[25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973]
Sec. 900.60 Oral hearings before judge.
(a) Time and place. The judge shall set a time and place for hearing
and shall file with the hearing clerk a notice stating the time and
place of hearing. If any change in the time or place of hearing becomes
necessary, it shall be made by the judge, who, in such event, shall file
with the hearing clerk a notice of the change. Such notice shall be
served upon the parties, unless it is made during the course of an oral
hearing and made a part of the transcript.
(b) Appearances--(1) Representation. In any proceeding under the
act, the parties may appear in person or by counsel or other
representative. The Department, if represented by counsel, shall be
represented by an attorney assigned by the General Counsel of the
Department, and such attorney shall present or supervise the
presentation of the position of the Department.
(2) Debarment of counsel or representative. Whenever, while a
proceeding is pending before him, the judge finds that a person acting
as counsel or representative for any party to the proceeding is guilty
of unethical or unprofessional conduct, the judge may order that such
person be precluded from further acting as counsel or representative in
such proceeding. An appeal to the Secretary may be taken from any such
order, but the proceeding shall not be delayed or suspended pending
disposition of the appeal: Provided, That the judge may suspend the
proceeding for a reasonable time for the purpose of enabling the client
to obtain other counsel or representative.
In case the judge has issued an order precluding a person from
further acting as counsel or representative in the proceeding, the
judge, within a reasonable time thereafter, shall submit to the
Secretary a report of the facts and circumstances surrounding the
issuance of the order and shall recommend what action the Secretary
should take respecting the appearance of such person as counsel or
representative in other proceedings before the Secretary. Thereafter,
the Secretary may, after notice and an oppor
[[Page 18]]
tunity for hearing, issue such order respecting the appearance of such
person as counsel or representative in proceedings before the Secretary
as the Secretary finds to be appropriate.
(3) Failure to appear. If the petitioner, after being duly notified,
fails to appear at the hearing, he shall be deemed to have authorized
the dismissal of the proceeding, without further procedure, and with or
without prejudice as the judge may determine. In the event that the
petitioner appears at the hearing and no representative of the
Department appears, the judge shall proceed ex parte to hear the
evidence of the petitioner. Provided, That failure on the part of such
representative of the Department to appear at a hearing shall not be
deemed to be waiver of the Department's right to file suggested findings
of fact, conclusions and order; to be served with a copy of the judge's
initial decision and to appeal to the Secretary with respect thereto.
(c) Order of proceeding. Except as may be determined otherwise by
the judge, the petitioner shall proceed first at the hearing.
(d) Evidence--(1) In general. The hearing shall be publicly
conducted, and the testimony given at the hearing shall be reported
verbatim.
The testimony of witnesses at a hearing shall be upon oath or
affirmation and subject to cross-examination.
Any witness may, in the discretion of the judge, be examined
separately and apart from all other witnesses except those who may be
parties to the proceeding.
The judge shall exclude, insofar as practicable, evidence which is
immaterial, irrelevant, or unduly repetitious, or which is not of the
sort upon which responsible persons are accustomed to rely.
(2) Objections. If a party objects to the admission or rejection of
any evidence or to the limitation of the scope of any examination or
cross-examination, or any other ruling of the judge, he shall state
briefly the grounds of such objection, whereupon an automatic exception
will follow which may be pursued in an appeal pursuant to Sec. 900.65 by
the party adversely affected by the judge's ruling.
(3) Depositions. The deposition of any witness shall be admitted, in
the manner hereinafter provided in and subject to the provisions of
Sec. 900.61.
(4) Affidavits. Except as is otherwise provided in this subpart,
affidavits may be admitted only if the evidence is otherwise admissible
and the parties agree (which may be determined by their failure to make
timely objections) that affidavits may be used.
(5) Proof and authentication of official records or documents. An
official record or document, when admissible for any purpose, shall be
admissible in evidence without the production of the person who made or
prepared the same. Such record or document shall, in the discretion of
the judge, be evidenced by an official publication thereof or by a copy
attested by the person having legal custody thereof and accompanied by a
certificate that such person has the custody.
(6) Exhibits. All written statements, charts, tabulations, or
similar data offered in evidence at the hearing shall, after
identification by the proponent and upon a satisfactory showing of the
admissibility of the contents thereof, be numbered as exhibits and
received in evidence and made a part of the record. Except where the
judge finds that the furnishing of copies is impracticable, a copy of
each exhibit, in addition to the original, shall be filed with the judge
for the use of each other party to the proceeding. The judge shall
advise the parties as to the exact number of copies which will be
required to be filed and shall make and have noted on the record the
proper distribution of the copies.
If the testimony of a witness refers to a statute, or to a report,
document, or transcript, the judge, after inquiry relating to the
identification of such statute, report, document, or transcript, shall
determine whether the same shall be produced at the hearing and
physically be made a part of the evidence as an exhibit, or whether it
shall be incorporated into the evidence by reference. If relevant and
material matter offered in evidence is embraced in a report, document,
or transcript containing immaterial or irrelevant matter, such
immaterial or irrelevant matter shall be excluded and shall be
segregated insofar as practicable, subject to the direction of the
judge.
(7) Official notice. Official notice will be taken of such matters
as are judicially noticed by the courts of the United States and of any
other matter of technical, scientific, or commercial fact of established
character: Provided, That the parties shall be given adequate notice, at
the hearing or by reference in the judge's report or the tentative order
or otherwise, of matters so noticed, and (except where official notice
is taken, for the first time in the proceeding, in the final order)
shall be given adequate opportunity to show that such facts are
erroneously noticed.
(8) Offer of proof. Whenever evidence is excluded from the record,
the party offering such evidence may make an offer of proof, which shall
be included in the transcript. The offer of proof shall consist of a
brief statement describing the evidence to be offered. If the evidence
consists of a brief oral statement or of an exhibit, it shall be
inserted into the transcript in toto. In such event, it shall be
considered a part of the transcript if the Secretary decides that the
judge's ruling in excluding the evidence was erroneous. The judge shall
not allow the insertion of such evidence in toto if the taking of such
evidence will consume a considerable
[[Page 19]]
length of time at the hearing. In the latter event, if on appeal the
Secretary decides that the judge erred in excluding the evidence, and
that such error was substantial, the hearing shall be reopened to permit
the taking of such evidence.
(e) [Reserved]
(f) Transcript. (1) During the period in which the proceeding has an
active status the transcript and exhibits shall be kept on file in the
office of the hearing clerk, where it shall be available for examination
during official hours of business. Thereafter said transcript and
exhibits shall be made available by the hearing clerk for examination
during official hours of business after prior request and reasonable
notice to the hearing clerk.
(2) If a personal copy of the transcript is desired, such copy may
be obtained upon written application filed with the reporter, and upon
payment of fees at the rate (if any) provided in the contract between
the reporter and the Secretary.
[25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973]
Sec. 900.61 Depositions.
(a) Procedure in lieu of deposition. Before any party may have
testimony taken by deposition, said party shall, if practicable, submit
to the other party an affidavit which shall set forth the facts to which
the witness would testify, if the deposition should be taken. If, after
examination of such affidavit, the other party agrees, or (within 10
days after submission of the affidavit) fails to object, that the
affidavit may be used in lieu of the deposition, the judge shall admit
the affidavit in evidence and shall not order the deposition to be
taken.
(b) Application for taking deposition. Upon the application of a
party to the proceeding, the judge may, at any time after the filing of
the moving paper, order, under the facsimile signature of the Secretary,
the taking of testimony by deposition. The application shall be in
writing and shall be filed with the hearing clerk and shall set forth:
(1) The name and address of the proposed deponent; (2) the name and
address of the person (referred to hereinafter in this section as the
``officer''), qualified under the rules in this part to take
depositions, before whom the proposed examination is to be made; (3) the
proposed time and place of the examination, which shall be at least 15
days after the date of the mailing of the application; and (4) the
reasons why such deposition should be taken.
(c) Judge's order for taking deposition. If, after the examination
of the application, the judge is of the opinion that the deposition
should be taken, he shall order its taking. The order shall be filed
with the hearing clerk and shall be served upon the parties and shall
state: (1) The time and place of the examination (which shall not be
less than 10 days after the filing of the order); (2) the name of the
officer before whom the examination is to be made; (3) the name of the
deponent. The officer and the time and place need not be the same as
those suggested in the application.
(d) Qualifications of officer. The deposition shall be taken before
the judge or before an officer authorized by the law of the United
States or by the law of the place of the examination to administer
oaths, or before an officer authorized by the Secretary to administer
oaths.
(e) Procedure on examination. The deponent shall be examined under
oath or affirmation and shall be subject to cross-examination. The
testimony of the deponent shall be recorded by the officer or by some
person under his direction and in his presence. In lieu of oral
examination, parties may transmit written interrogatories to the officer
prior to the examination and the officer shall propound such
interrogatories to the deponent.
The applicant must arrange for the examination of the witness either
by oral examination or by written interrogatories. If it is found by the
judge, upon the protest of a party to the proceeding, that such party
has his residence and his place of business more than 100 miles from the
place of the examination and that it would constitute an undue hardship
upon such party to be represented at the examination, the applicant will
be required to conduct the examination by means of interrogatories. When
the examination is conducted by means of interrogatories, copies of the
interrogatories shall be served upon the other parties to the proceeding
at least five days prior to the date set for the examination, and the
other parties shall be afforded an opportunity to file with the officer
cross-interrogatories at any time prior to the time of the examination.
(f) Certification by officer. The officer shall certify on the
deposition that the deponent was duly sworn by him and that the
deposition is a true record of the deponent's testimony. He shall then
securely seal the deposition, together with two copies thereof, in an
envelope and mail the same by registered mail to the hearing clerk.
(g) Use of depositions. A deposition ordered and taken in accord
with the provisions of this section may be used in a proceeding under
the act if the judge finds that the evidence is otherwise admissible and
(1) that the witness is dead; or (2) that the witness is at a distance
greater than 100 miles from the place of hearing, unless it appears that
the absence of the witness was procured by the party offering the
deposition; or (3) that the witness is unable to attend or testify
because of age, sickness, infirmity or imprisonment; or (4) that the
party offering the deposition has endeavored to procure the attendance
of
[[Page 20]]
the witness by subpena but has been unable to do so; or (5) that such
exceptional circumstances exist as to make it desirable, in the
interests of justice, to allow the deposition to be used. If a
deposition has been taken, and the party upon whose application it was
taken refuses to offer it in evidence, the other party may offer the
deposition, or any part thereof, in evidence.
Sec. 900.62 Subpenas.
(a) Issuance of subpenas. The attendance of witnesses and the
production of documentary evidence from any place in the United States
on behalf of any party to the proceeding may, by subpena, be required at
any designated place of hearing. Subpenas may be issued by the Secretary
or by the judge, under the facsimile signature of the Secretary, upon a
reasonable showing by the applicant of the grounds, necessity, and
reasonable scope thereof.
(b) Application for subpena duces tecum. Subpenas for the production
of documentary evidence, unless issued by the judge upon his own motion,
shall be issued only upon a verified written application. Such
application shall specify, as exactly as possible, the documents desired
and shall show their competency, relevancy, and materiality and the
necessity for their production.
(c) Service of subpenas. Subpenas may be served (1) by a United
States Marshal or his deputy, or (2) by any other person who is not less
than 18 years of age, or (3) by registering and mailing a copy of the
subpena addressed to the person to be served at his or its last known
residence or principal place of business or residence. Proof of service
may be made by the return of service on the subpena by the United States
Marshal or his deputy; or, if served by an individual other than a
United States Marshal or his deputy, by an affidavit of such person
stating that he personally served a copy of the subpena upon the person
named therein; or, if service was by registered mail, by an affidavit
made by the person mailing the subpena that it was mailed as provided in
this paragraph and by the signed return post-office receipt: Provided,
That, if the subpena is issued on behalf of the Department, the return
receipt without an affidavit of mailing shall be sufficient proof of
service. In making personal service, the person making service shall
leave a copy of the subpena with the person subpenaed; the original,
bearing or accompanied by the required proof of service shall be
returned to the official who issued the same.
Sec. 900.63 Fees and mileage.
Witnesses who are subpenaed and who appear in such proceeding,
including witnesses whose depositions are taken, shall be paid the same
fees and mileage that are paid witnesses in the courts of the United
States, and persons taking depositions shall be entitled to the same
fees as are paid for like services in the courts of the United States,
to be paid by the party at whose request the deposition is taken.
Witness fees and mileage shall be paid by the party at whose instance
the witnesses appear, and claims therefor, as to witnesses subpenaed on
behalf of the Department, shall be proved before the person issuing the
subpena, and, as to witnesses subpenaed on behalf of any other party,
shall be presented to such party.
Sec. 900.64 The Administrative Law Judge's Decision.
(a) Corrections to and certification of transcript. (1) At such time
as the judge may specify, but not later than the time fixed for filing
proposed findings of fact, conclusions and order, or briefs, as the case
may be, the parties may file with the judge proposed corrections to the
transcript. (2) As soon as practicable after the filing of proposed
findings of fact, conclusions and order, or briefs, as the case may be,
the judge shall file with the hearing clerk his certificate indicating
any corrections to be made in the transcript, and stating that, to the
best of his knowledge and belief, the transcript, as corrected, is a
true, correct, and complete transcript of the testimony given at the
hearing, and that the exhibits are all the exhibits properly a part of
the hearing record. The original of such certificate shall be attached
to the original transcript and a copy of such certificate shall be
served upon each of the parties by the hearing clerk who shall also
enter onto the transcript (without obscuring the text) any correction
noted in the certification.
(b) Proposed findings of fact, conclusions, and orders. Within 10
days (unless the judge shall have announced at the hearing a shorter or
longer period of time) after the transcript has been filed with the
hearing clerk, as provided in paragraph (a) of this section, each party
may file with the hearing clerk proposed findings of fact, conclusions,
and order, based solely upon the evidence of record, and briefs in
support thereof.
(c) Administrative Law Judge's Decision. The judge, within a
reasonable time after the termination of the period allowed for the
filing of proposed findings of fact, conclusions, and orders, and briefs
in support thereof, shall prepare upon the basis of the record, and
shall file with the hearing clerk, his initial decision, a copy of which
shall be served by the hearing clerk, upon each of the parties. Such
decision shall become final without further proceedings 35 days after
the date of service thereof, unless there is an appeal to the Secretary
by a party to the proceeding: Provided, however, That no decision shall
be final for the purpose of judicial review except a final decision
issued by the Secretary pursuant to an appeal by a party to the
proceeding.
[[Page 21]]
[25 FR 5907, June 28, 1960, as amended at 38 FR 29799, Oct. 29, 1973]
Sec. 900.65 Appeals to Secretary: transmittal of record.
(a) Filing of appeal. Any party who disagrees with a judge's
decision or any part thereof, may appeal the decision to the Secretary
by transmitting an appeal petition to the hearing clerk within 30 days
after service of said decision upon said party. Each issue set forth in
the appeal, and the arguments thereon, shall be separately numbered;
shall be plainly and concisely stated; and shall contain detailed
citations of the record, statutes, regulations and authorities being
relied upon in support thereof. The appeal petition shall be served upon
the other party to the proceeding by the hearing clerk.
(b) Argument before Secretary--(1) Oral argument. A party bringing
an appeal may request within the prescribed time period for filing such
appeal, an opportunity for oral argument before the Secretary. Failure
to make such request in writing, within the prescribed time period,
shall be deemed a waiver of oral argument. The Secretary, in his
discretion, may grant, refuse or limit any request for oral argument on
appeal.
(2) Scope of argument. Argument to be heard on appeal, whether oral
or in a written brief, shall be limited to the issues raised by the
appeal, except that if the Secretary determines that additional issues
should be argued, the parties shall be given reasonable notice of such
determination, so as to permit preparation of adequate arguments on all
the issues to be argued.
(c) Response. Within 20 days after service of an appeal brought by a
party to the proceeding, any other party may file a response in support
of or in opposition to such appeal.
(d) Transmittal of record. Whenever an appeal is filed by a party to
the proceeding, the hearing clerk shall transmit to the Secretary the
record of the proceeding. Such record shall include: the pleadings; any
motions and requests filed, and the rulings thereon; the transcript of
the testimony taken at the hearing, as well as the exhibits filed in
connection therewith; any statements filed under the shortened
procedure; any documents or papers filed in connection with prehearing
conferences; such proposed findings of fact, conclusions, and orders,
and briefs in support thereof, as may have been filed in connection with
the hearing; the judge's initial decision; and the appeal petition;
briefs in support thereof, and responses thereto as may have been filed
in the proceeding.
[38 FR 29799, Oct. 29, 1973]
Sec. 900.66 Consideration of appeal by the Secretary and issuance of
final order.
(a) Consideration of appeal. As soon as practicable after the
receipt of the record from the hearing clerk, or, in case oral argument
was had, as soon as practicable thereafter, the Secretary, upon the
basis of and after due consideration of the record, shall rule on the
appeal. If the Secretary decides that no change or modification of the
judge's decision is warranted, he may adopt the Judge's decision as the
final order of the Secretary, preserving any right of the party bringing
the appeal to seek judicial review of such decision in the proper forum.
At no stage of the proceeding between its institution and the issuance
of the order shall the Secretary discuss ex parte the merits of the
proceeding with any person who is connected with the proceeding in an
advocative or an investigative capacity, or with any representative of
such person: Provided, however, That the Secretary may discuss the
merits of the proceeding with such a person if all parties to the
proceeding, or their representatives, have been given an opportunity to
be present. If, notwithstanding the foregoing provisions of this
section, a memorandum or other communication from any party, or from any
person acting on behalf of any party, which relates to the merits of the
proceeding, receives the personal attention of the Secretary (or, if an
official other than the Secretary is to issue the order, then of such
other official) during the pendency of the proceeding, such memorandum
or communication shall be regarded as argument made in the proceeding
and shall be filed with the hearing clerk, who shall serve a copy
thereof upon the opposite party to file a reply thereto.
(b) Issuance of final order. A final order issued by the Secretary
shall be filed with the hearing clerk, who shall serve it upon the
parties: Provided, That, if the terms of the order differ substantially
from those proposed in the decision of the judge, the Secretary shall,
if he deems it advisable to do so, direct that a copy of the order be
served upon the parties as a tentative order; and, in such event,
opportunity shall be given the parties to file exceptions thereto and
written arguments or briefs in support of such exceptions. In such case,
if exceptions are filed within a period of time (to be fixed by the
Secretary but not to exceed 20 days) following the service of the
tentative order, the Secretary shall give consideration, to and shall
make such changes in the tentative order as he deems to be appropriate;
otherwise, the tentative order shall become final, as of the day
following the date of expiration of the period fixed for the filing of
exceptions.
[38 FR 29799, Oct. 29, 1973]
[[Page 22]]
Sec. 900.67 [Reserved]
Sec. 900.68 Applications for reopening hearings; for rehearings or
rearguments of proceedings; or for reconsideration of orders.
(a) Petition requisite--(1) Filing; service. An application for
reopening the hearing to take further evidence, or for rehearing or
reargument of the proceeding, or for reconsideration of the order shall
be made by petition addressed to the Secretary and filed with the
hearing clerk, who immediately shall notify and serve a copy thereof
upon the other party to the proceeding. Every such petition shall state
specifically the grounds relied upon.
(2) Petitions to reopen hearings. A petition to reopen the hearing
for the purpose of taking additional evidence may be filed at any time
prior to the issuance of the final order. Every such petition shall
state briefly the nature and purpose of the evidence to be adduced,
shall show that such evidence is not merely cumulative, and shall set
forth a good reason why such evidence was not adduced at the hearing.
(3) Petitions to rehear or reargue proceedings, or to reconsider
orders. A petition to rehear or reargue the proceeding or to reconsider
the final order shall be filed within 15 days after the date of the
service of such order. Every such petition shall state specifically the
matters claimed to have been erroneously decided, and alleged errors
must be briefly stated.
(b) Procedure for disposition of petitions. Within 10 days following
the service of any petition provided for in this section, the other
party to the proceeding shall file with the hearing clerk an answer
thereto. As soon as practicable thereafter, the Secretary shall announce
the decision granting or denying the petition. Unless the Secretary
shall determine otherwise, the issuance or operation of the order shall
not be stayed pending the decision of the Secretary upon the petition.
In the event that any such petition is granted by the Secretary, the
applicable rules of practice, as set out elsewhere in this subpart,
shall be followed.
Sec. 900.69 Filing; service; extensions of time; effective date of
filing; and computation of time.
(a) Filing; number of copies. Except as provided otherwise herein,
all documents or papers required or authorized in this subpart to be
filed with the hearing clerk shall be filed in quadruplicate: Provided,
That, if there are more than two parties to the proceeding, a sufficient
number of additional copies shall be filed so as to provide for service
upon all the parties to the proceeding. Any document or paper, required
or authorized in this subpart to be filed with the hearing clerk, shall,
during the course of an oral hearing, be filed with the judge.
(b) Service; proof of service. Copies of all such papers shall be
served upon the parties by the hearing clerk, by the judge, or by some
other employee of the Department or by a United States Marshal or his
deputy. Service shall be made either (1) by delivering a copy of the
document or paper to the individual to be served or to a member of the
partnership to be served or to the president, secretary, or other
executive officer or any director of the corporation, organization, or
association to be served, or to the attorney or agent of record of such
individual, partnership, corporation, organization, or association; or
(2) by leaving a copy of the document or paper at the principal office
or place of business of such individual, partnership, corporation,
organization, or association, or of his or its attorney or agent of
record; or (3) by registering and mailing a copy of the document or
paper, addressed to such individual, partnership, corporation,
organization, or association, or to his or its attorney or agent of
record, at his or its last known principal office, place of business, or
residence. Proof of service hereunder shall be made by the affidavit of
the person who actually made the service. The affidavit contemplated
herein shall be filed with the hearing clerk, and the fact of filing
thereof shall be noted on the docket of the proceeding.
(c) Extensions of time. The time for the filing of any documents or
papers required or authorized in this subpart to be filed may be
extended upon (1) a written stipulation between the parties, or (2) upon
the request of a party, by the judge before the transmittal of the
record to the Secretary, or by the Secretary at any other time if, in
the judgment of the Secretary or the judge, as the case may be, there is
good reason for the extension.
(d) Effective date of filing. Any document or paper, except a
petition filed pursuant to Sec. 900.52, required or authorized under
these rules to be filed shall be deemed to have been filed when it is
postmarked, or when it is received by the hearing clerk. Any petition
filed under Sec. 900.52 shall be deemed to be filed when it is received
by the hearing clerk.
(e) Computation of time. Sundays and Federal holidays shall be
included in computing the time allowed for the filing of any document or
paper: Provided, That, when such time expires on a Sunday or legal
holiday, such time shall be extended to include the next following
business day.
Sec. 900.70 Applications for interim relief.
(a) Filing the application. A person who has filed a petition
pursuant to Sec. 900.52 may by separate application filed with the
hearing clerk apply to the Secretary for an order postponing the
effective date of, or suspend
[[Page 23]]
ing the application of, the marketing order or any provision thereof, or
any obligation imposed in connection therewith, pending final
determination of the proceeding.
(b) Contents of the application. The application shall contain a
statement of the facts upon which the relief is requested, including any
facts showing irreparable injury. The application must be signed and
sworn to by the petitioner and any facts alleged therein which are not
within his personal knowledge shall be supported by affidavits of a
person or persons having personal knowledge of such facts or by proper
documentary evidence thereof.
(c) Answer to application. Immediately upon receipt of the
application, the hearing clerk shall transmit a copy thereof, together
with all supporting papers, to the Administrator, who shall, within 20
days, or such other time fixed by the Secretary, after the filing of the
application file an answer thereto with the hearing clerk.
(d) Contents of answer. The answer shall contain a statement of the
objections, if any, of the Administrator to the application for interim
relief, and may be supported by affidavits and documentary evidence.
(e) Transmittal to Secretary. Upon receiving the answer of the
Administrator or upon the expiration of the time for filing the answer,
the hearing clerk shall transmit to the Secretary for his decision all
papers filed in connection with the application.
(f) Hearing and oral argument. The Secretary may, in his discretion,
permit oral argument or the taking of testimony in connection with such
application. However, unless written request therefor is filed with the
hearing clerk prior to the transmittal of the papers to the Secretary,
the parties shall be deemed to have waived oral argument and the taking
of testimony.
(g) Decision by Secretary. The Secretary may grant or deny the
application. Any action taken by the Secretary shall be in the form of
an order filed with the hearing clerk and shall contain a brief
statement of the reasons for the action taken. The hearing clerk shall
cause copies of the order to be served upon the parties.
Sec. 900.71 Hearing before Secretary.
The Secretary may act in the place and stead of a judge in any
proceeding hereunder. When he so acts the hearing clerk shall transmit
the record to the Secretary at the expiration of the period provided for
the filing of proposed findings of fact, conclusions and orders, and the
Secretary shall thereupon, after due consideration of the record, issue
his final order in the proceeding; Provided, That he may issue a
tentative order in which event the parties shall be afforded an
opportunity to file appeals before the issuance of the final order.
Subpart--Supplemental Rules of Practice for Marketing Orders, Marketing
Agreements, and Requirements Issued Pursuant to 7 U.S.C. 608b(b) and 7
U.S.C. 608e Covering Fruits, Vegetables, and Nuts
Authority: 7 U.S.C. 601-74.
[[Page 24]]
Source: 61 FR 20717, May 8, 1996, unless otherwise noted.
Sec. 900.80 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 900.81 Definitions.
As used in this subpart, the terms as defined in the act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term Act means Public Act No. 10, 73 Congress (48 Stat. 31)
as amended and as reenacted and amended by the Agricultural Marketing
Agreement Act of 1937 (50 Stat. 246), as amended.
(b) The term Department means the United States Department of
Agriculture.
(c) The term Secretary means the Secretary of Agriculture of the
United States, or any officer or employee of the Department to whom
authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in his stead.
(d) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(e) The term proceeding means a proceeding before the Secretary
arising under sections 8a, 8b(b), 8c(14), 8e, 10(c) and 10(h).
(f) The term hearing means that part of the proceeding which
involves the submission of evidence.
(g) The term marketing agreement means any marketing agreement or
any amendment thereto which may be entered into pursuant to section 8b
of the act.
(h) The term marketing order means any order or any amendment
thereto which may be issued pursuant to section 8c of the act, and after
notice and hearing as required by said section.
(i) The term handler means any person who, by the terms of a
marketing order or marketing agreement, is subject thereto, or to whom a
marketing order or marketing agreement is sought to be made applicable.
(j) The term importer means any person who, by the terms of section
8e of the act, is subject thereto.
(k) The term person means any individual, corporation, partnership,
association, or any other business unit.
Sec. 900.82 Stipulation procedures.
The Administrator, or the Administrator's representative, may, at
any time before the issuance of a complaint seeking a civil penalty
under the Act, enter into a stipulation with any handler or importer in
accordance with the following procedures:
(a) The Administrator, or the Administrator's representative, shall
give the handler or importer notice of the alleged violation of the
applicable marketing order or marketing agreement, or the requirements
issued pursuant to 7 U.S.C. 608b(b) and 7 U.S.C. 608e, and an
opportunity for a hearing thereon as provided by the Act;
(b) In agreeing to the proposed stipulation, the handler or importer
expressly waives the opportunity for a hearing and agrees to pay a
specified civil penalty within a designated time;
(c) The Administrator, or the Administrator's representative, agrees
to accept the specified civil penalty in settlement of the particular
matter involved if it is paid within the designated time;
(d) In cases where the handler or importer does not pay the
specified civil penalty within the designated time, or the handler or
importer does not agree to the stipulation, the Administrator may issue
an administrative complaint; and
(e) The civil penalty that the Administrator may have proposed in a
stipulation agreement shall have no bearing on the civil penalty amount
that the Department may seek in a formal administrative proceeding
against the same handler or importer for the same alleged violation.
Subpart--Procedure Governing Meetings To Arbitrate and Mediate Disputes
Relating to Sales of Milk or Its Products
Authority: Sec. 3, 50 Stat. 248; 7 U.S.C. 671.
Sec. 900.100 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 900.101 Definitions.
As used in this subpart, the terms as defined in the Act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term Act means section 3 of the Agricultural Marketing
Agreement Act of 1937, as amended (50 Stat. 248, as amended; 7 U.S.C.
671);
(b) The term Department means the United States Department of
Agriculture;
(c) The term Secretary means the Secretary of Agriculture of the
United States, or any officer or employee of the Department to whom
authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in his stead;
(d) The term General Counsel means the General Counsel of the
Department;
(e) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any of
[[Page 25]]
ficer or employee of the Department to whom authority has been delegated
or may hereafter be delegated to act in his stead.
(f) The term Service means the Agricultural Marketing Service.
(g) The term Division means the Dairy Division of the Service.
(h) The term cooperative means any association, incorporated or
otherwise, which is in good faith owned or controlled by producers, or
organizations thereof, of milk or its products, and which is bona fide
engaged in the collective processing or preparing for market or handling
or marketing, in the current of interstate or foreign commerce, of milk
or its products;
(i) The term arbitrator means any officer or employee of the Service
designated by the Administrator, pursuant to the Act, to arbitrate a
bona fide dispute with reference to the terms and conditions of the sale
of milk or its products between a producer cooperative and purchasers,
handlers, processors, or distributors of milk or its products;
(j) The term mediator means any officer or employee of the Service
designated by the Administrator, pursuant to the act, to mediate a bona
fide dispute with reference to terms and conditions of the sale of milk
or its products between a producer cooperative and purchasers, handlers,
processors, or distributors of milk or its products;
(k) The term hearing clerk means the hearing clerk, United States
Department of Agriculture, Washington, DC.
[25 FR 5907, June 28, 1960, as amended at 26 FR 7797, Aug. 22, 1961, 28
FR 579, Jan. 23, 1963; 37 FR 8059, Apr. 25, 1972]
Sec. 900.102 Filing of applications for mediation or arbitration.
All applications for mediation or arbitration, all submissions, and
all correspondence regarding mediation or arbitration shall be addressed
to the Secretary, attention of the Division.
Sec. 900.103 Application for mediation.
An application for mediation by cooperative shall be in writing and
shall include the following information:
(a) Names in full of the parties to the dispute and their addresses;
(b) Description of the cooperative organization and business,
including copies of the articles of incorporation or association,
bylaws, and membership contract; information regarding the number of
shares of outstanding stock and the approximate portion owned by active
producers; a statement of the function performed in connection with the
collective processing, preparing, handling, or marketing of milk or its
products; and data relative to the distribution of membership by States,
the distribution by States of plant facilities for collecting,
processing, or disposing of milk or its products, and the business
operations for the year last past, including the total quantity of milk
and its products handled by the applicant and the proportion of that
quantity that was sold in States other than the States of production;
(c) Suggested time and place for meeting between parties and
mediator.
Sec. 900.104 Inquiry by the Administrator.
Upon receipt of an application for mediation, the Administrator,
through such officers or employees of the Service as he may designate,
may make any inquiry which is deemed to be necessary or proper in order
to determine whether a bona fide dispute exists.
Sec. 900.105 Notification.
The Administrator, acting on behalf of the Secretary will notify the
applicant as to whether he considers that mediation will effectuate the
purpose of the act and as to whether he will mediate.
Sec. 900.106 Assignment of mediator.
The Director of the Division shall assign a mediator, from the group
designated by the Administrator, to act in such capacity.
Sec. 900.107 Meetings.
All meetings held pursuant to Secs. 900.103 to 900.109 shall be held
with and under the direction of the mediator.
Sec. 900.108 Mediator's report.
The mediator, upon the completion of mediation proceedings, shall
submit to the Administrator a complete report on such proceedings.
Sec. 900.109 Mediation agreement.
An agreement arrived at by mediation shall not become effective
until approved by the Secretary, and the Secretary will not approve an
agreement if there is evidence of fraud, if there is a lack of evidence
to support the agreement, or if the agreement provides for any unfair
trade practice.
Sec. 900.110 Application for arbitration.
An application for arbitration by a cooperative shall be in writing
and shall contain the following information:
(a) Names in full of the parties to the dispute and their addresses;
(b) The same information required under Sec. 900.103(b);
(c) Concise statement of dispute to be submitted;
(d) Originals or certified copies of all contracts, if any, involved
in the dispute, and of correspondence which has passed between the
parties and of any other documents or information relied upon;
(e) Dates before which it is desired that the hearing shall be had
and the award shall become effective;
[[Page 26]]
(f) Suggested time and place for arbitration hearing.
The applicant shall send a copy of the application to each other
party to the dispute.
Sec. 900.111 Inquiry by the Administrator.
Upon receipt of an application for arbitration, the Administrator,
through such officers or employees of the Service as he may designate,
may make any inquiry deemed to be necessary or proper in order to
determine whether a bona fide dispute exists, to assist the parties in
reducing the dispute to well-defined issues, and to select an arbitrator
who would be satisfactory to all parties.
Sec. 900.112 Notification.
The Administrator, acting on behalf of the Secretary, within a
reasonable time after the receipt of an application, will notify the
applicant as to whether he will grant the application.
Sec. 900.113 Submission.
Within a reasonable time after the receipt of the Administrator's
consent to arbitrate, the parties to the dispute shall file with the
Administrator a formal submission, which shall contain the following
information:
(a) Names in full of the parties;
(b) Addresses of the parties to whom all notifications and
communications concerning the arbitration shall be sent;
(c) Description of the organization and businesses of all parties to
the dispute, including sufficient information to show that the
cooperative is a bona fide one, and that the parties are engaged in
activities in the current of interstate or foreign commerce;
(d) Concise statement of the specific questions submitted and a
brief outline of the contentions of each party to the dispute, and a
statement as to the period of time during which the award shall be in
effect, said period to be not less than thirty days from the effective
date of the award;
(e) Name of arbitrator;
(f) Time and place of arbitration, including street address;
(g) Stipulation by the parties that they will produce any books,
records, and correspondence required by the arbitrator as being
necessary to a fair determination of the dispute;
(h) Agreement by the parties that they will consider the award as
final and will comply therewith;
(i) Stipulation by the parties that arbitration is to take place
under rules and regulations issued by the Secretary, and that any such
rules and regulations pertaining to mediation and arbitration shall be
considered a part of the submission;
(j) Stipulation that a stenographic report of the proceedings must
be made.
The submission shall be signed by each party before a notary public,
and when the signature is that of an agent of a corporation or
cooperative association, the same shall be accompanied by evidence of
the authority to sign.
A submission may be withdrawn at any time before the award, and any
question held by the arbitrator to be a separable question may be
withdrawn before award by agreement of all parties. When any question is
so withdrawn, the parties shall file with the arbitrator the agreement
on that question reached by the parties, showing all the details
thereof, and the arbitrator shall include it in the record of the
arbitration.
Sec. 900.114 Designation of arbitrator.
The Administrator, after receiving the submission, will designate
one or more persons to act as arbitrator.
Sec. 900.115 Hearing.
The arbitrator shall have full discretion to conduct the hearing in
such manner as will, in his opinion, enable him to ascertain all the
facts in the case.
Parties to the dispute may appear in person or by duly accredited
agents and may be represented by counsel.
All relevant and material evidence may be presented. The arbitrator
shall not be bound by the legal rules of evidence.
The arbitrator, in the presence of the parties, may require the
production of books and records for examination by himself, but not for
examination of confidential information by other parties to the dispute
unless the party producing the same consents to its examination by the
other parties to the dispute.
No evidence offered by one party shall be received except in the
presence of all parties unless the parties so agree in a submission
specifying the nature of the evidence to be received.
Final determination as to what will be considered confidential
information shall be made by the arbitrator.
The arbitrator may request the opinions of economists, marketing
specialists, statisticians, lawyers, accountants, and other experts.
When more than two arbitrators are designated to hear a dispute, and
they disagree, the award of the majority shall be the final award. If
the arbitrators are evenly divided, there shall be no award.
A stenographic record of all the proceedings during an arbitration
must be made.
Sec. 900.116 Award.
An award shall be made within ten days after the close of the
hearing.
The award shall be in writing and shall cover only points of dispute
raised in the submission.
[[Page 27]]
The arbitrator, in making the award, may use his own technical
knowledge in addition to the evidence submitted by the parties.
The award shall state the period during which it shall be in effect,
said period to be not less than thirty days from the effective date
thereof; and said period may be extended by agreement among the parties
upon notification thereof to the Administrator, unless or until the
Administrator withdraws his approval.
The arbitrator shall sign the award in the presence of a notary
public, or, when more than one arbitrator is designated the arbitrator
shall sign in the presence of each other.
Copies of the award shall be delivered to the parties by the
Division.
Sec. 900.117 Approval of award.
The award shall not become effective until approved by the
Secretary, and the Secretary will not approve an award if there is
evidence of fraud, or evidence of misconduct upon the part of the
arbitrator, or lack of evidence to support the award, or if the award
provides for any unfair trade practice.
Sec. 900.118 Costs.
The parties jointly shall pay for the stenographic record. A copy of
the record shall be furnished by the parties to the arbitrator and shall
be forwarded by him to the Administrator, ultimately to be filed in the
office of the hearing clerk.
The arbitrator shall not receive compensation for parties to the
dispute.
Subpart--Miscellaneous Regulations
Authority: Sec. 10, 48 Stat. 37, as amended; 7 U.S.C. 610.
Sec. 900.200 Definitions.
As used in this subpart, the terms as defined in the Act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term Act means Public Act No. 10, 73d Congress (48 Stat.
31), as amended and as reenacted and amended by the Agricultural
Marketing Agreement Act of 1937 (50 Stat. 246, 7 U.S.C. 601), as
amended;
(b) The term Department means the United States Department of
Agriculture;
(c) The term Secretary means the Secretary of Agriculture of the
United States, or any officer or employee of the Department to whom
authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in his stead;
(d) The term General Counsel means the General Counsel of the
Department;
(e) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(f) [Reserved]
(g) The term Federal Register means the publication provided for by
the Act of July 26, 1935 (49 Stat. 500), and acts supplementary thereto
and amendatory thereof;
(h) The term marketing agreement means any marketing agreement or
any amendment thereto which may be entered into pursuant to section 8b
of the Act;
(i) The term marketing order means any order or any amendment
thereto which may be issued pursuant to section 8c of the Act;
(j) The term person means any individual, corporation, partnership,
association, or any other business unit;
(k) The term official means the Secretary, any officer, employee, or
other person employed or appointed by the Department, and any agency or
agent appointed by the Secretary to administer a marketing agreement or
a marketing order, and any agent or employee of any such agency or
agent;
(l) The term information means and includes reports, books,
accounts, records, and the facts and information contained therein and
required to be furnished to or acquired by any official pursuant to the
provisions of any marketing agreement or marketing order.
[25 FR 5907, June 28, 1960, as amended at 26 FR 7796, Aug. 22, 1961; 28
FR 579, Jan. 23, 1963]
Sec. 900.201 Investigation and disposition of alleged violations.
Whenever the Administrator has reason to believe that any handler
has violated, or is violating, the provisions of any marketing order, he
may institute such investigation and, after due notice to such handler,
conduct such hearing in order to determine the facts as, in his opinion,
are warranted. If, in the opinion of the Administrator and the General
Counsel, the facts developed as a result of such investigation or
hearing warrant such action, the General Counsel shall refer the matter
to the Attorney General for appropriate action.
Sec. 900.210 Disclosures of information.
All information in the possession of any official which relates to
the business or property of any person, and which was furnished by, or
obtained from, such person pursuant to the provisions of any marketing
agreement or marketing order, shall be kept confidential and shall not
be disclosed, divulged, or made public, unless otherwise expressly
provided in said marketing agreement or marketing order, or unless said
person authorizes said official, in writing, to disclose such
information, except that:
(a) Such information may be disclosed, divulged, or made public if
it has been obtained from or furnished by a person who is
[[Page 28]]
not the person to whose business or property such information relates or
an employee of such latter person, or if such information is otherwise
required by law to be furnished to an official;
(b) Such information may be furnished to other officials for use in
the regular course of their official duties;
(c) Such information may be combined and published in the form of
general statistical studies or data in which the identity of the person
furnishing such information or from whom it was obtained shall not be
disclosed;
(d) Such information may be disclosed upon lawful demand made by the
President or by either House of Congress or any committee thereof, or,
if the Secretary determines that such disclosure is not contrary to the
public interest, such information may be disclosed in response to a
subpena by any court of competent jurisdiction.
(e) Such information may be offered in evidence (whether or not it
has been obtained from or furnished by the person against whom it is
offered) by or on behalf of the Secretary, the United States, or the
official who obtained it or to whom it was furnished, in any
administrative hearing held pursuant to section 8c (15)(A) of the Act or
in any action, suit, or proceeding, civil or criminal, in which the
Secretary or the United States or any such official is a party, and (1)
which is instituted (i) for the purpose of enforcing or restraining the
violation of any marketing agreement or marketing order, or (ii) for the
purpose of collecting any penalty or forfeiture provided for in the act,
or (iii) for the purpose of collecting any monies due under a marketing
agreement or marketing order, or (2) in which the validity of any
marketing agreement or marketing order, or any provision of either, is
challenged or involved.
(f) Such information may be furnished to the duly constituted
authorities of any State, pursuant to a written agreement made under
authority of section 10(i) of the Act, to the extent that such
information is relevant to transactions within the regulatory
jurisdiction of such authorities.
Sec. 900.211 Penalties.
Any official who shall have violated the provisions of Sec. 900.210
by wilfully divulging, disclosing, or making public any information
acquired by or furnished to or in the possession or custody of such
official pursuant to the provisions of a marketing agreement or
marketing order shall be subject to a penalty of $100 for each offense.
(The civil penalty provided in this section is prescribed under the
authority contained in sec. 10(c) of the Act (7 U.S.C. 610(c)); this
provision is not intended to supersede the provision in sec. 8d(2) of
the Act (7 U.S.C. 608d(2)) for criminal liability and removal from
office.
Subpart--Procedure for Conduct of Referenda To Determine Producer
Approval of Milk Marketing Orders To Be Made Effective Pursuant to
Agricultural Marketing Agreement Act of 1937, as Amended
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Source: 30 FR 15412, Dec. 15, 1965, unless otherwise noted.
Sec. 900.300 General.
Unless otherwise prescribed, the procedure contained in this subpart
shall be applicable to each producer referendum conducted for the
purpose of ascertaining whether the issuance by the Secretary of a milk
marketing order is approved or favored, as required under the applicable
provisions of the Agricultural Marketing Agreement Act of 1937, as
amended (48 Stat. 31, as amended, 7 U.S.C. 601-674). The procedure in
this subpart replaces the procedure for conducting similar referenda (15
FR 5177) issued August 7, 1950.
Sec. 900.301 Definitions.
As used in this subpart and in all supplementary instructions,
forms, and documents, unless the context or subject matter otherwise
requires, the following terms shall have the following meanings:
(a) Act. ``Act'' means Public Act. No. 10, 73d Congress (48 Stat.
31), as amended and as re-enacted and amended by the Agricultural
Marketing Agreement Act of 1937 (50 Stat. 246), as amended.
(b) Department. ``Department'' means the United States Department of
Agriculture.
(c) Secretary. ``Secretary'' means the Secretary of Agriculture of
the United States, or any officer or employee of the Department to whom
authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in his stead.
(d) Administrator. ``Administrator'' means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(e) Person. ``Person'' includes any individual, partnership,
corporation, association, and any other business unit.
(f) Order. ``Order'' means the marketing order (including an
amendatory order) with respect to which the Secretary has directed that
a referendum be conducted.
(g) Producer. ``Producer'' means any person who is a dairy farmer
and who, during the representative period, met the requirements of the
term ``producer'' as defined in the order had such order been in effect
during the representative period.
[[Page 29]]
(h) Handler. ``Handler'' means any person who, during the
representative period, met the requirements of the term ``handler'' as
defined in the order had such order been in effect during the
representative period.
(i) Referendum agent. ``Referendum agent'' means the person
designated by the Secretary to conduct the referendum.
(j) Representative period. ``Representative period'' means the
period designated by the Secretary pursuant to section 8c of the act (7
U.S.C. 608c).
(k) Cooperative association. ``Cooperative association'' means any
association of producers that the administrator has found to be
qualified pursuant to section 608c(12) of the Act.
[30 FR 15412, Dec. 5, 1965, as amended at 37 FR 8059, Apr. 25, 1972]
Sec. 900.302 Associations eligible to vote.
(a) Any association of producers, not previously determined to be a
cooperative association may file an application for a determination as
to whether it is a cooperative association and thus eligible to vote in
a referendum. Such application shall be filed with the Administrator at
least 60 days prior to the holding of the referendum: Provided, however,
That the Administrator may permit the filing of an application in less
than 60 days when, in the opinion of the Administrator, such filing
would not delay the conduct of the referendum.
(b) Within a time fixed by the referendum agent, but not later than
5 days prior to the final date for balloting, each cooperative
association electing to vote shall, upon the request of the referendum
agent, furnish to him a certified list showing the name and address of
each producer for whom it claims the right to vote and the plant at
which such person's milk was received during the representative period.
Sec. 900.303 Conduct of referendum.
The referendum shall be conducted by mail in the manner prescribed
in this subpart. The referendum agent may utilize such personnel or
agencies of the Department as are deemed necessary by the Administrator.
Sec. 900.304 Who may vote.
(a) Each producer shall be entitled to only one vote and to cast one
ballot in each referendum; and no person who may claim to be a producer
shall be refused a ballot. Each producer casting more than one ballot
with conflicting votes shall thereby invalidate all ballots cast by such
producer in such referendum. Each ballot cast shall contain a
certification by the person casting the ballot that he is a producer.
(b) Except as provided in section 8c(5)(B) of the Act, as amended,
any cooperative association eligible under Sec. 900.302 may, if it
elects to do so, vote and cast one ballot for producers who are members
of, stockholders in, or under contract with, such cooperative
association. A cooperative association shall submit with its ballot, a
certified copy of the resolution authorizing the casting of the ballot.
Each such cooperative association entitled to vote in a referendum
casting more than one ballot with conflicting votes shall thereby
invalidate all ballots cast by such voter in such referendum.
(c) Voting by proxy or agent, or in any manner, except by the
producer or cooperative association will not be permitted; however, a
producer which is other than an individual may cast its ballot by a
person who is duly authorized and such ballot shall contain a
certification by such person that the person on whose behalf the ballot
is cast is a producer.
Sec. 900.305 Duties of referendum agent.
The referendum agent shall also:
(a) For purposes of mailing, prepare a record of producers which
will disclose the name of each such person, his address, the name of the
handler who received the producer's milk during the representative
period, and the name of the cooperative association, if any, which
claims the right to vote for the producer. Such record may be compiled
from readily available sources, including the following:
(1) Records of the Department;
(2) Producer records supplied by handlers;
(3) Health authority records;
(4) Certifications signed by dairy farmers who claim to be
producers;
(5) Any other reliable sources of information which may be available
to the referendum agent.
(b) Apply, as a guide, the following criteria in preparing a record
of producers:
(1) When the order requires approval by an appropriate health
authority before a person meets the definition of producer, only those
persons having such approval and who otherwise meet the definition may
be regarded as producers. When the definition of producer requires the
shipment of milk to a handler or a plant as well as health authority
approval, only those persons having such approval and whose milk was
received by a handler or at a plant may be regarded as producers.
(2) When the order requires shipment to a handler or to a plant,
without regard to health authority approval, a person may not be
regarded as a producer, except as provided in paragraph (b)(6) of this
section, unless his name appears on the handler's producer records.
(3) In the case of a producer that is other than an individual, the
business unit shall be regarded as the producer.
(4) No person may be included in the record more than once although
he may operate more than one farm, hold more than one
[[Page 30]]
health authority approval, or appear on more than one handler's producer
records.
(5) In the event the health authority records are not available, are
inaccurate, or are incomplete, the appearance of the producer's name on
a handler's records as an approved producer shall be prima facie
evidence of health authority approval.
(6) In the event any handler refuses or fails to make his records
available to the referendum agent, a certification signed by the
producer shall be regarded by the referendum agent as prima facie
evidence that such person is eligible to vote.
(c) Verify the information supplied by each cooperative association
which wishes to vote on behalf of producers, as follows:
(1) Examine the records of the cooperative association for the
prupose of ascertaining whether each producer claimed by the cooperative
association is a member of, stockholder in, or under contract with the
cooperative association.
(2) Identify the persons ascertained to be members of, stockholders
in, or under contract with a cooperative association which wishes to
vote on behalf of its producers with the names of producers which appear
on the record compiled pursuant to paragraph (a) of this section.
(3) In determining whether a cooperative association may vote on
behalf of a producer the following criteria shall be used:
(i) The cooperative association may vote for each producer who is a
member of, stockholder in, or under contract with such cooperative
association on the date of the order directing that the referendum be
conducted.
(ii) The cooperative association may cast only one ballot for all
such producers.
(iii) Whenever more than one cooperative association claims the
right to vote for a producer only the cooperative association which
furnished evidence satisfactory to the referendum agent that such
association was in fact marketing the milk of the producer on the date
of the referendum order may vote for such producer.
Sec. 900.306 Notice of the referendum.
(a) The referendum agent shall at least 5 days prior to the final
date for balloting:
(1) Mail to each cooperative association which has elected to cast a
ballot on behalf of its producers and to each of all other known
producers, a notice of the referendum which will include instructions
for completing the ballot, a statement as to the time within which the
ballot must be mailed to, and received by, the referendum agent, a copy
of the final decision, and a ballot containing a description of the
terms and conditions of the order.
(2) Give public notice of the referendum:
(i) By furnishing press releases and other information to available
media of public information (including but not limited to press, radio,
and television facilities) serving the area, announcing the time within
which ballots must be completed and mailed to and received by the
referendum agent, eligibility requirements, where additional information
may be procured, and other pertinent information; and
(ii) By such other means as said agent may deem advisable.
Sec. 900.307 Time for voting.
There shall be no voting except within the time specified by the
referendum agent as stated in the notice of the referendum.
Sec. 900.308 Tabulation of ballots.
(a) General. The referendum agent shall verify the information
supplied with each ballot. If he ascertains that the person who cast the
ballot was eligible to do so, that the ballot is complete and was mailed
and received within the prescribed time, the ballot shall be eligible to
be counted. If the referendum agent ascertains that the person who cast
the ballot was not eligible to do so, or if the producer who cast the
ballot was a member of, stockholder in, or under contract with a
cooperative association which cast a valid ballot, or if the ballot is
not completed or cast in accordance with instructions, or if the ballot
was not mailed to or received by the referendum agent within the
prescribed time, the ballot shall be marked ``disqualified'' with a
notation on the ballot as to the reason for the disqualification. The
total number of ballots cast, including the disqualified ballots, shall
be ascertained. The number of eligible ballots cast approving and the
number of eligible ballots cast disapproving the issuance of the order
shall also be ascertained. The ballots marked ``disqualified'' shall not
be considered as approving or disapproving the issuance of the order,
and the persons who cast such ballots shall not be regarded as
participating in the referendum.
(b) Individual-handler pool provisions. Whenever separate approval
of the pooling provisions of the order is required by section
608c(5)(B)(i) of the Act, any ballot which approves the issuance of the
order and disapproves the pooling provisions, or approves the pooling
provisions and disapproves the issuance of the order, shall be
disqualified; and the referendum agent shall mark the ballot
accordingly.
(c) Record of results of the referendum. The referendum agent shall
notify the Administrator of the number of eligible ballots cast, the
count of the votes, the number of disqualified ballots and the number of
producers who were eligible to cast ballots. The referendum agent shall
seal the ballots, including those marked ``disqualified'', the list of
eligible voters and tabulation of ballots, and shall transmit to the
Administrator a complete detailed report of all action taken in
[[Page 31]]
connection with the referendum together with all the ballots cast and
all other information furnished to or compiled by the referendum agent.
(d) Announcement of the results of the referendum. Announcement of
the results of the referendum will be made only at the direction of the
Secretary. The referendum agent, or others who assist in the referendum,
shall not disclose the results of the referendum or the total number of
ballots cast.
Sec. 900.309 Confidential information.
The ballots cast, the identity of any person who voted, or the
manner in which any person voted and all information furnished to,
compiled by, or in the possession of the referendum agent, shall be
regarded as confidential.
Sec. 900.310 Supplementary instructions.
The Administrator is authorized to issue instructions and to
prescribe forms and ballots, not inconsistent with the provisions of
this subpart, to govern the conduct of referenda by referendum agents.
Sec. 900.311 Submittals or requests.
Interested persons may secure information or make submittals or
requests to the Administrator with respect to the provisions contained
in this subpart.
Subpart--Procedure for Determining the Qualification of Cooperative Milk
Marketing Associations
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Source: 32 FR 9821, July 6, 1967, unless otherwise noted.
Sec. 900.350 General statement.
Cooperative marketing associations apply for qualification by the
Secretary under the Federal milk order program for certain privileges
and exemptions. These privileges and exemptions are expressed in the
Agricultural Marketing Agreement Act of 1937 (50 Stat. 246) as amended,
and the milk marketing orders issued pursuant to its provisions.
Sec. 900.351 Applications for qualification.
Any association of producers may apply for determinations as to
whether it is a qualified cooperative association with authority to
represent producers in order referendums; has authorization to collect
payment from handlers for members' milk; and is rendering specified
marketing services to producers. Applicant associations should supply
information for these determinations, using as a guide Application Form
DA-25. The application form may be obtained from the Dairy Division,
Agricultural Marketing Service, United States Department of Agriculture,
Washington, DC 20250. Determinations required of the Secretary of
Agriculture, or the Administrator of the Agricultural Marketing Service,
by delegation are made by the Director of the Dairy Division. Once
issued they are valid until amended, suspended or terminated.
Sec. 900.352 Confidential information.
The documents and other information submitted by an applicant
association and otherwise obtained by investigation, examination of
books, documents, papers, records, files and facilities, and in reports
filed subsequent to initial determinations of qualification, shall be
regarded as confidential and shall be governed by Sec. 900.210.
Sec. 900.353 Qualification standards.
Statutory requirements for qualification of cooperative associations
are provided in subsections (5) and (12) of section 608c of the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601
et seq.). The association must: (a) Be a cooperative marketing
association of producers, qualified under the provisions of the Act of
Congress of February 18, 1922, as amended, known as the ``Capper-
Volstead Act,'' (7 U.S.C. 291, 292); (b) have its entire organization
and all of its activities under the control of its members; (c) have
full authority in the sale of its members' milk; and (d) be engaged in
making collective sales or marketing of milk or milk products for the
producers thereof. Qualification for exemption from deductions for
marketing service payments under specific marketing orders and payment
for milk of members under specific orders shall be determined in
accordance with the terms of the respective marketing orders.
Sec. 900.354 Inspection and investigation.
The Secretary of Agriculture, or his duly authorized representative,
shall have the right, at any time after an application is received, to
examine all books, documents, papers, records, files and facilities of
the association, to verify any of the information submitted and to
procure such other information as may be required to determine whether
the association is qualified in accordance with its application.
Sec. 900.355 Annual reporting.
Determinations of qualification for privileges and exemptions are
subject to amendment, termination or suspension if the association does
not currently meet the qualification standards. An association found to
be qualified pursuant to the Act is required to file an annual report
after its annual meeting has been held following the close of its fiscal
year. Form DA-24 is used for this purpose. The report form is available
at the Dairy Division, Agricultural Marketing Service, U.S. Department
of Agriculture,
[[Page 32]]
Washington, DC 20250. The association is required to file a copy of its
report with the Dairy Division at Washington and with the market
administrator of each order under which it operates.
Sec. 900.356 Listing of qualified associations.
A copy of each determination of qualification is furnished to the
respective association. Copies are also filed in the Dairy Division,
Agricultural Marketing Service, and with the Hearing Clerk, Office of
the Secretary, U.S. Department of Agriculture, Washington, DC 20250,
where they are available for public inspection. A list of qualified
associations engaged in marketing milk under a particular milk marketing
order is maintained at the office of the market administrator of the
order.
Sec. 900.357 Denial of application; suspension or revocation of
determination of qualification.
Any cooperative association whose application has been wholly or
partially denied, or whose determination of qualification has been
wholly or partly revoked or suspended, may petition the Secretary for a
review of such action. Such petition shall state facts relevant to the
matter for which review is sought. After due notice to such cooperative
association, the Director of the Dairy Division, or in his absence the
Acting Director, shall hold, in the manner hereinafter specified, an
informal hearing.
(a) Notice. Notice shall be given in writing and shall be mailed to
the last known address of the association, or of an officer thereof, at
least 3 days before the date set for a hearing. Such notice shall
contain: A statement of the time and place of the hearing, said place to
be as convenient to the association as can reasonably be arranged, and
may contain a statement of the reason for calling the hearing and the
nature of the questions upon which evidence is desired or upon which
argument may be presented.
(b) Parties. Hearings are not to be public and are to be attended
only by representatives of the association and of the Government, and
such other persons as either the association or the Government desires
to have appear for purposes of submitting information or as counsel.
(c) Conduct of hearing. The Director or Acting Director of the Dairy
Division, or a person designated by him, shall preside at the hearing.
The hearing shall be conducted in such manner as will be most conducive
to the proper disposition of the matter. Written statements or briefs
may be filed by the association within the time specified by the
presiding officer.
(d) Preliminary report. The presiding officer shall prepare a
preliminary report setting forth a recommendation as to what action
shall be taken and the basis for such action. A copy of said report
shall be served upon the association by mail or in person. The
association may file exceptions to said report within 10 days after
service thereof.
(e) Final report. After due consideration of all the facts and the
exceptions, if any, the Director of the Dairy Division shall issue a
final report setting forth the action to be taken and the basis for such
action.
Subpart--Procedure for the Conduct of Referenda in Connection With
Marketing Orders for Fruits, Vegetables, and Nuts Pursuant to the
Agricultural Marketing Agreement Act of 1937, as Amended
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Source: 30 FR 15414, Dec. 15, 1965, unless otherwise noted.
Sec. 900.400 General.
Referenda for the purpose of ascertaining whether the issuance by
the Secretary of Agriculture of a marketing order to regulate the
handling of any fruit, vegetable, or nut, or product thereof, or the
continuance or termination of such an order, is approved or favored by
producers or processors shall, unless supplemented or modified by the
Secretary, be conducted in accordance with this subpart.
Sec. 900.401 Definitions.
(a) Act means Public Act No. 10, 73d Congress (48 Stat. 31), as
amended, and as reenacted and amended by the Agricultural Marketing
Agreement Act of 1937 (50 Stat. 246), as amended (7 U.S.C. 601-674).
(b) Secretary means the Secretary of Agriculture of the United
States, or any officer or employee of the Department to whom authority
has heretofore been delegated, or to whom authority may hereafter be
delegated, to act in his stead; and Department means the United States
Department of Agriculture.
(c) Administrator means the Administrator of the Agricultural
Marketing Service, with power to redelegate, or any officer or employee
of the Department to whom authority has been delegated or may hereafter
be delegated to act in his stead.
(d) Order means the marketing order (including an amendatory order)
with respect to which the Secretary has directed that a referendum be
conducted.
(e) Referendum agent means the individual or individuals designated
by the Secretary to conduct the referendum.
(f) Representative period means the period designated by the
Secretary pursuant to section 8c of the Act (7 U.S.C. 608c).
(g) Person means any individual, partnership, corporation,
association, or other busi
[[Page 33]]
ness unit. For the purpose of this definition, the term ``partnership''
includes (1) a husband and wife who have title to, or leasehold interest
in, land as tenants in common, joint tenants, tenants by the entirety,
or, under community property laws, as community property, and (2) so-
called ``joint ventures,'' wherein one or more parties to the agreement,
informal or otherwise, contributed capital and others contribute labor,
management, equipment, or other services, or any variation of such
contributions by two or more parties, so that it results in the growing
of the commodity for market and the authority to transfer title to the
commodity so produced.
(h) Producer means any person defined as a producer in the order
who: (1) Owns and farms land, resulting in his ownership of the
commodity produced thereon; (2) rents and farms land, resulting in his
ownership of all or a portion of the commodity produced thereon; or (3)
owns land which he does not farm and, as rental for such land, obtains
the ownership of a portion of the commodity produced thereon. Ownership
of, or leasehold interest in, land and the acquisition, in any manner
other than as hereinbefore set forth, of legal title to the commodity
grown thereon shall not be deemed to result in such owners or lessees
becoming producers.
[30 FR 15414, Dec. 15, 1965, as amended at 37 FR 8059, Apr. 25, 1972]
Sec. 900.402 Voting.
(a) Each person who is a producer, as defined in this subpart, at
the time of the referendum and who also was a producer during the
representative period, shall be entitled to only one vote in the
referendum, except that: (1) In a landlord-tenant relationship, wherein
each of the parties is a producer, each such producer shall be entitled
to one vote in the referendum; and (2) a cooperative association of
producers, bona fide engaged in marketing the commodity or product
thereof proposed to be regulated, or in rendering services for or
advancing the interest of the producers of such commodity or product,
may, if it elects to do so, vote, both by number and total volume, for
the producers who are members of, stockholders in, or under contract
with such association.
(b) Whenever, as required by the act, processors vote on the
issuance of an order, each processor who is engaged in canning or
freezing within the production area of the commodity covered by the
order shall be entitled to vote in the referendum the quantity of such
commodity canned or frozen within the production area for market by him
during the representative period determined by the Secretary.
(c) Proxy voting is not authorized but an officer or employee of a
corporate producer, processor or cooperative association, or an
administrator, executor or trustee of a producing estate may cast a
ballot on behalf of such producer, processor, estate, or cooperative
association. Any individual so voting in a referendum shall certify that
he is an officer or employee of the producer, processor, or cooperative
association, or an administrator, executor, or trustee of a producing
estate, and that he has the authority to take such action. Upon request
of the referendum agent, the individual shall submit adequate evidence
of such authority.
(d) Each producer, cooperative association of producers, and
processor entitled to vote in a referendum shall be entitled to cast one
ballot in the referendum. Each producer, cooperative association of
producers, and processor casting more than one ballot with conflicting
votes shall thereby invalidate all ballots cast by such producer,
cooperative association of producers, or processor in such referendum.
Sec. 900.403 Instructions.
The referendum agent shall conduct the referendum, in the manner
herein provided, under supervision of the Administrator. The
Administrator may prescribe additional instructions, not inconsistent
with the provisions hereof, to govern the procedure to be followed by
the referendum agent. Such agent shall:
(a) Determine the time of commencement and termination of the period
of the referendum, and the time prior to which all ballots must be cast.
(b) Determine whether ballots may be cast by mail, at polling
places, at meetings of producers or processors, or by any combination of
the foregoing.
(c) Provide ballots and related material to be used in the
referendum. Ballot material shall provide for recording essential
information for ascertaining (1) whether the person voting, or on whose
behalf the vote is cast, is an eligible voter, and (2) the total volume
(i) produced for market during the representative period, or (ii) canned
or frozen for market during the representative period.
(d) Give reasonable advance notice of the referendum (1) by
utilizing without advertising expense available media of public
information (including, but not being limited to, press and radio
facilities) serving the production area, announcing the dates, places,
or methods of voting, eligibility requirements, and other pertinent
information, and (2) by such other means as said agent may deem
advisable.
(e) Make available to producers and the aforesaid cooperative
associations which indicate to the agent their intentions to vote, and
to processors when required, instructions on voting, appropriate ballot
and certification forms, and, except in the case of a referendum on the
termination or continuance of an order, the text of the proposed
[[Page 34]]
order and a summary of its terms and conditions: Provided, That no
person who claims to be qualified to vote shall be refused a ballot.
(f) If ballots are to be cast by mail, cause all the material
specified in paragraph (e) of this section to be mailed to each producer
(and processor when required) whose name and address is known to the
referendum agent.
(g) If ballots are to be cast at polling places or meetings,
determine the necessary number of polling or meeting places, designate
them, announce the time of each meeting or the hours during which each
polling place will be open, provide the material specified in paragraph
(e) of this section, and provide for appropriate custody of ballot forms
and delivery to the referendum agent of ballots cast.
(h) At the conclusion of the referendum, canvass the ballots,
tabulate the results, and, except as otherwise directed, report the
outcome to the Administrator and promptly thereafter submit the
following:
(1) All ballots received by the agent and appointees, together with
a certificate to the effect that the ballots forwarded are all of the
ballots cast and received by such persons during the referendum period;
(2) A list of all challenged ballots deemed to be invalid; and
(3) A tabulation of the results of the referendum and a report
thereon, including a detailed statement explaining the method used in
giving publicity to the referendum and showing other information
pertinent to the manner in which the referendum was conducted.
Sec. 900.404 Subagents.
The referendum agent may appoint any person or persons deemed
necessary or desirable to assist said agent in performing his functions
hereunder. Each person so appointed may be authorized by said agent to
perform, in accordance with the requirements herein set forth, any or
all of the following functions (which, in the absence of such
appointment, shall be performed by said agent):
(a) Give public notice of the referendum in the manner specified
herein;
(b) Preside at a meeting where ballots are to be cast or as poll
officer at a polling place;
(c) Distribute ballots and the aforesaid texts to producers (and to
processors when required) and receive any ballots which are cast; and
(d) Record the name and address of each person receiving a ballot
from, or casting a ballot with, said subagent and inquire into the
eligibility of such person to vote in the referendum.
Sec. 900.405 Ballots.
The referendum agent and his appointees shall accept all ballots
cast; but, should they, or any of them, deem that a ballot should be
challenged for any reason, said agent or appointee shall endorse above
his signature, on said ballot, a statement to the effect that such
ballot was challenged, by whom challenged, the reasons therefor, the
results of any investigations made with respect thereto, and the
disposition thereof. Invalid ballots shall not be counted.
Sec. 900.406 Referendum report.
Except as otherwise directed, the Administrator shall prepare and
submit to the Secretary a report on results of the referendum, the
manner in which it was conducted, the extent and kind of public notice
given, and other information pertinent to analysis of the referendum and
its results.
Sec. 900.407 Confidential information.
All ballots cast and the contents thereof (whether or not relating
to the identity of any person who voted or the manner in which any
person voted) and all information furnished to, compiled by, or in
possession of, the referendum agent shall be treated as confidential.
Subpart--Public Information
Authority: 5 U.S.C. 301, 552.
Source: 40 FR 20267, May 9, 1975, unless otherwise noted.
Availability of Program Information, Staff Manuals and Instructions, and
Related Material
Sec. 900.500 General.
This subpart is issued in accordance with the regulations of the
Secretary of Agriculture in part 1, subpart A, of subtitle A of this
title (7 CFR 1.1-1.16), and appendix A thereto, implementing the Freedom
of Information Act (5 U.S.C. 552). The Secretary's regulations, as
implemented by the regulations of this subpart, govern the availability
of records of AMS to the public.
Sec. 900.501 Public inspection and copying.
(a) Facilities for public inspection and copying of the indexes and
materials required to be made available under Sec. 1.2(a) of this title
will be provided by AMS during normal hours of operation. Request for
this information should be made to the Freedom of Information Act
Officer at the following address:
Freedom of Information Act Officer, Agricultural Marketing Service,
United States Department of Agriculture, Washington, DC 20250.
[[Page 35]]
(b) Copies of such material may be obtained in person or by mail.
Applicable fees for copies will be charged in accordance with the
regulations prescribed by the Director, Office of Operations and
Finance, USDA.
[44 FR 39151, July 5, 1979]
Sec. 900.502 Indexes.
Pursuant to the regulations in Sec. 1.4(b) of this title, AMS will
maintain and make available for public inspection and copying current
indexes of all material required to be made available in Sec. 1.2(a) of
this title. Notice is hereby given that publication of these indexes is
unnecessary and impractical, since the material is voluminous and does
not change often enough to justify the expense of publication.
[44 FR 39151, July 5, 1979]
Sec. 900.503 Request for records.
(a) Requests for records under 5 U.S.C. 552(a)(3) shall be made in
accordance with Sec. 1.3(a) of this title. Authority to make
determinations regarding initial requests in accordance with Sec. 1.4(c)
of this title is delegated to the Freedom of Information Act Officer of
AMS. Requests should be submitted to the FOIA Officer at the following
address:
Freedom of Information Act Officer (FOIA Request), Agricultural
Marketing Service, United States Department of Agriculture, Washington,
DC 20250.
(b) The request shall identify each record with reasonable
specificity as prescribed in Sec. 1.3 of this title.
(c) The FOIA Officer is authorized to receive requests and to
exercise the authority to (1) make determinations to grant requests or
deny initial requests, (2) extend the administrative deadline, (3) make
discretionary release of exempt records, and (4) make determinations
regarding charges pursuant to the fee schedule.
[44 FR 39151, July 5, 1979]
Sec. 900.504 Appeals.
Any person whose request under Sec. 900.503 above is denied shall
have the right to appeal such denial in accordance with Sec. 1.3(e) of
this title. Appeals shall be addressed to the Administrator,
Agricultural Marketing Service, U.S. Department of Agriculture,
Washington, DC 20250.
Subpart--Information Collection
Authority: 44 U.S.C. Ch. 35.
Sec. 900.600 General.
This subpart shall contain such requirements as pertain to the
information collection provisions under the Paperwork Reduction Act of
1980.
[49 FR 23826, June 8, 1984]
Sec. 900.601 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
(a) Purpose. This section collects and displays the control numbers
assigned to information collection requirements by the Office of
Management and Budget contained in 7 CFR parts 904 through 998 under the
Paperwork Reduction Act of 1980.
(b) Display.
------------------------------------------------------------------------
Current OMB
7 CFR part where identified and described control no.
------------------------------------------------------------------------
904, California Desert Grapefruit.......................... 0581-0101
905, Florida Oranges, Grapefruit, Tangerines, Tangelos..... 0581-0094
906, Texas Oranges & Grapefruit............................ 0581-0068
907, California-Arizona Navel Oranges...................... 0581-0116
908, California-Arizona Valencia Oranges................... 0581-0121
910, California-Arizona Lemons............................. 0581-0120
911, Florida Limes......................................... 0581-0091
912, Florida Indian River Grapefruit....................... 0581-0088
913, Florida Interior District Grapefruit.................. 0581-0081
915, Florida Avocados...................................... 0581-0078
916, California Nectarines................................. 0581-0072
917, California Pears, Plums & Peaches..................... 0581-0080
918, Georgia Fresh Peaches................................. 0581-0135
919, Mesa County, Colorado, Peaches........................ 0581-0139
921, Washington Peaches.................................... 0581-0097
922, Washington Apricots................................... 0581-0095
923, Washington Sweet Cherries............................. 0581-0133
924, Washington-Oregon Fresh Prunes........................ 0581-0134
925, S. E. California Desert Grapes........................ 0581-0109
926, California Tokay Grapes............................... 0581-0075
927, Oregon-Washington-California Winter Pears............. 0581-0089
928, Hawaiian Papayas...................................... 0581-0102
929, Cranberries Grown in Designated States................ 0581-0103
930, Red Tart Cherries..................................... 0581-0104
931, Oregon-Washington Bartlett Pears...................... 0581-0092
932, California Olives..................................... 0581-0142
945, Idaho-Eastern Oregon Potatoes......................... 0581-0069
946, Washington Potatoes................................... 0581-0070
947, Oregon-California Potatoes............................ 0581-0112
948, Colorado Potatoes..................................... 0581-0111
953, Southeastern Potatoes................................. 0581-0084
958, Idaho-Oregon Onions................................... 0581-0087
959, South Texas Onions.................................... 0581-0074
966, Florida Tomatoes...................................... 0581-0073
967, Florida Celery........................................ 0581-0145
971, South Texas Lettuce................................... 0581-0085
979, South Texas Melons.................................... 0581-0079
981, California Almonds.................................... 0581-0071
982, Oregon-Washington Filberts/Hazelnuts.................. 0581-0144
984, California Walnuts.................................... 0581-0090
985, Spearmint Oil......................................... 0581-0065
987, California Dates...................................... 0581-0077
989, California Raisins.................................... 0581-0083
991, Hops.................................................. 0581-0086
993, California Dried Prunes............................... 0581-0099
998, Domestic Peanuts...................................... 0581-0067
------------------------------------------------------------------------
[49 FR 23826, June 8, 1984, as amended at 53 FR 15659, May 3, 1988]
[[Page 36]]
PART 1000--GENERAL PROVISIONS OF FEDERAL MILK MARKETING ORDERS--Table of Contents
Sec.
1000.1 Scope and purpose of part 1000.
1000.2 Definitions.
1000.3 Market administrator.
1000.4 Continuity and separability of provisions.
1000.5 Handler responsibility for records and facilities.
1000.6 Termination of obligations.
1000.7 OMB control number assigned pursuant to the Paperwork Reduction
Act.
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Source: 36 FR 9845, May 29, 1971, unless otherwise noted.
Sec. 1000.1 Scope and purpose of part 1000.
This part sets forth certain terms, definitions, and provisions
which shall be common to and part of each Federal milk marketing order
except as specifically defined otherwise, or modified, or otherwise
provided, in an individual order.
Sec. 1000.2 Definitions.
The following terms shall have the following meanings as used in the
order:
(a) Act. ``Act'' means Public Act No. 10, 73d Congress, as amended
and as reenacted and amended by the Agricultural Marketing Agreement Act
of 1937, as amended (7 U.S.C. 601 et seq.).
(b) Order. ``Order'' means the applicable part of Title 7 of the
Code of Federal Regulations issued pursuant to section 8c of the Act as
a Federal milk marketing order (as amended).
(c) Department. ``Department'' means the U.S. Department of
Agriculture.
(d) Secretary. ``Secretary'' means the Secretary of Agriculture of
the United States or any officer or employee of the Department to whom
authority has heretofore been delegated, or to whom authority may
hereafter be delegated to act in his stead.
(e) Person. ``Person'' means any individual, partnership,
corporation, association, or other business unit.
Sec. 1000.3 Market administrator.
(a) Designation. The agency for the administration of the order
shall be a market administrator selected by the Secretary and subject to
removal at the Secretary's discretion. The market administrator shall be
entitled to compensation determined by the Secretary.
(b) Powers. The market administrator shall have the following powers
with respect to each order under his administration:
(1) Administer the order in accordance with its terms and
provisions;
(2) Make rules and regulations to effectuate the terms and
provisions of the order;
(3) Receive, investigate, and report complaints of violations to the
Secretary; and
(4) Recommend amendments to the Secretary.
(c) Duties. The market administrator shall perform all the duties
necessary to administer the terms and provisions of each order under his
administration, including, but not limited to, the following:
(1) [Reserved]
(2) Employ and fix the compensation of persons necessary to enable
him to exercise his powers and perform his duties;
(3) Pay out of funds provided by the administrative assessment,
except expenses associated with functions for which the order provides a
separate charge, all expenses necessarily incurred in the maintenance
and functioning of his office and in the performance of his duties,
including his own compensation;
(4) Keep records which will clearly reflect the transactions
provided for in the order, and upon request by the Secretary, surrender
the records to his successor or such other person as the Secretary may
designate;
(5) Furnish information and reports requested by the Secretary and
submit his records to examination by the Secretary;
(6) Announce publicly at his discretion, unless otherwise directed
by the Secretary, by such means as he deems appropriate, the name of any
handler who, after the date upon which he is required to perform such
act, has not:
[[Page 37]]
(i) Made reports required by the order;
(ii) Made payments required by the order; or
(iii) Made available records and facilities as required pursuant to
Sec. 1000.5;
(7) Prescribe reports required of each handler under the order.
Verify such reports and the payments required by the order by examining
records (including such papers as copies of income tax reports, fiscal
and product accounts, correspondence, contracts, documents or memoranda
of the handler, and the records of any other persons that are relevant
to the handler's obligation under the order), by examining such
handler's milk handling facilities; and by such other investigation as
the market administrator deems necessary for the purpose of ascertaining
the correctness of any report or any obligation under the order.
Reclassify skim milk and butterfat received by any handler if such
examination and investigation discloses that the original classification
was incorrect.
(8) Furnish each regulated handler a written statement of such
handler's accounts with the market administrator promptly each month.
Furnish a corrected statement to such handler if verification discloses
that the original statement was incorrect; and
(9) Prepare and disseminate publicly for the benefit of producers,
handlers, and consumers such statistics and other information concerning
operation of the order and facts relevant to the provisions thereof (or
proposed provisions) as do not reveal confidential information.
[36 FR 9845, May 29, 1971, as amended at 45 FR 7777, Feb. 5, 1980]
Sec. 1000.4 Continuity and separability of provisions.
(a) Effective time. The provisions of the order or any amendment to
the order shall become effective at such time as the Secretary may
declare and shall continue in force until suspended or terminated.
(b) Suspension or termination. The Secretary shall suspend or
terminate any or all of the provisions of the order whenever he finds
that such provision(s) obstructs or does not tend to effectuate the
declared policy of the Act. The order shall terminate whenever the
provisions of the Act authorizing it cease to be in effect.
(c) Continuing obligations. If upon the suspension or termination of
any or all of the provisions of the order, there are any obligations
arising under the order, the final accrual or ascertainment of which
requires acts by any handler, by the market administrator, or by any
other person, the power and duty to perform such further acts shall
continue notwithstanding such suspension or termination.
(d) Liquidation. (1) Upon the suspension or termination of any or
all provisions of the order, the market administrator, or such other
liquidating agent designated by the Secretary, shall if so directed by
the Secretary liquidate the business of the market administrator's
office, dispose of all property in his possession or control, including
accounts receivable and execute and deliver all assignments or other
instruments necessary or appropriate to effectuate any such disposition;
and
(2) If a liquidating agent is so designated, all assets and records
of the market administrator shall be transferred promptly to such
liquidating agent. If, upon such liquidation, the funds on hand exceed
the amounts required to pay outstanding obligations of the office of the
market administrator and to pay necessary expenses of liquidation and
distribution, such excess shall be distributed to contributing handlers
and producers in an equitable manner.
(e) Separability of provisions. If any provision of the order or its
application to any person or circumstances is held invalid, the
application of such provision and of the remaining provisions of the
order to other persons or circumstances shall not be affected thereby.
Sec. 1000.5 Handler responsibility for records and facilities.
Each handler shall maintain and retain records of his operations and
make such records and his facilities available to the market
administrator. If adequate records of a handler, or of any other
persons, that are relevant to the obligation of such handler are not
maintained and made available, any
[[Page 38]]
skim milk and butterfat required to be reported by such handler for
which adequate records are not available shall not be considered
accounted for or established as used in a class other than the highest
priced class.
(a) Records to be maintained. (1) Each handler shall maintain
records of his operations (including, but not limited to, records of
purchases, sales, processing, packaging, and disposition) as are
necessary to verify whether such handler has any obligation under the
order, and if so, the amount of such obligation. Such records shall be
such as to establish for each plant or other receiving point for each
month:
(i) The quantities of skim milk and butterfat contained in, or
represented by, products received in any form, including inventories on
hand at the beginning of the month, according to form, time, and source
of each receipt;
(ii) The utilization of all skim milk and butterfat showing the
respective quantities of such skim milk and butterfat in each form
disposed of or on hand at the end of the month; and
(iii) Payments to producers, dairy farmers and cooperative
associations, including the amount and nature of any deductions and the
disbursement of money so deducted.
(2) Each handler shall keep such other specific records as the
market administrator deems necessary to verify or establish such
handler's obligation under the order.
(b) Availability of records and facilities. Each handler shall make
available all records pertaining to such handler's operations and all
facilities the market administrator finds are necessary for such market
administrator to verify the information required to be reported by the
order and/or to ascertain such handler's reporting, monetary or other
obligation under the order. Each handler shall permit the market
administrator to weigh, sample, and test milk and milk products and
observe plant operations and equipment and make available to the market
administrator such facilities as are necessary to carry out his duties.
(c) Retention of records. All records required under the order to be
made available to the market administrator shall be retained by the
handler for a period of 3 years to begin at the end of the month to
which such records pertain. If, within such 3-year period, the market
administrator notifies the handler in writing that the retention of such
records, or of specified records, is necessary in connection with a
proceeding under section 8c(15)(A) of the Act or a court action
specified in such notice, the handler shall retain such records, or
specified records, until further written notification from the market
administrator. The market administrator shall give further written
notification to the handler promptly upon the termination of the
litigation or when the records are no longer necessary in connection
therewith.
Sec. 1000.6 Termination of obligations.
The provisions of this section shall apply to any obligation under
the order for the payment of money:
(a) Except as provided in paragraphs (b) and (c) of this section,
the obligation of any handler to pay money required to be paid under the
terms of the order shall terminate 2 years after the last day of the
month during which the market administrator receives the handler's
report of receipts and utilization on which such obligation is based,
unless within such 2-year period, the market administrator notifies the
handler in writing that such money is due and payable. Service of such
written notice shall be complete upon mailing to the handler's last
known address and it shall contain but need not be limited to the
following information:
(1) The amount of the obligation;
(2) The month(s) on which such obligation is based; and
(3) If the obligation is payable to one or more producers or to a
cooperative association (except an obligation to be prorated to
producers under an individual handler pool), the name of such
producer(s) or such cooperative association, or if the obligation is
payable to the market administrator, the account for which it is to be
paid;
(b) If a handler fails or refuses, with respect to any obligation
under the order, to make available to the market administrator all
records required by the order to be made available, the market
administrator may notify the handler in writing, within the 2-year
[[Page 39]]
period provided for in paragraph (a) of this section, of such failure or
refusal. If the market administrator so notifies a handler, the said 2-
year period with respect to such obligation shall not begin to run until
the first day of the month following the month during which all such
records pertaining to such obligation are made available to the market
administrator;
(c) Notwithstanding the provisions of paragraphs (a) and (b) of this
section, a handler's obligation under the order to pay money shall not
be terminated with respect to any transaction involving fraud or willful
concealment of a fact, material to the obligation, on the part of the
handler against whom the obligation is sought to be imposed; and
(d) Unless the handler files a petition pursuant to section
8c(15)(A) of the Act and the applicable rules and regulations (7 CFR
900.50 et seq.) within the applicable 2-year period indicated below, the
obligation of the market administrator:
(1) To pay a handler any money which such handler claims to be due
him under the terms of the order shall terminate 2 years after the end
of the month during which the skim milk and butterfat involved in the
claim were received; or
(2) To refund any payment made by a handler (including a deduction
or offset by the market administrator) shall terminate 2 years after the
end of the month during which payment was made by the handler.
Sec. 1000.7 OMB control number assigned pursuant to the Paperwork Reduction Act.
The information collection requirements contained in this regulation
have been approved by the Office of Management and Budget (OMB) under
the provisions of Title 44 U.S.C. chapter 35 and have been assigned OMB
control number 0581-0032.
[49 FR 7102, Feb. 27, 1984]
PART 1001--MILK IN THE NEW ENGLAND MARKETING AREA--Table of Contents
Subpart--Order Regulating Handling
General Provisions
Sec.
1001.1 General provisions.
Definitions
1001.2 New England marketing area.
1001.3 Route disposition.
1001.4 Plant.
1001.5 Distributing plant.
1001.6 Supply plant.
1001.7 Pool plant.
1001.8 Nonpool plant.
1001.9 Handler.
1001.10 Producer-handler.
1001.11 Dairy farmer for other markets.
1001.12 Producer.
1001.13 Producer milk.
1001.14 Other source milk.
1001.15 Diverted milk.
1001.16 Exempt milk.
1001.17 Fluid milk product.
1001.18 Fluid cream product.
1001.19 Filled milk.
1001.20 Cooperative association.
1001.21 [Reserved]
1001.22 Commercial food processing establishment.
Reports
1001.30 Reports of receipts and utilization.
1001.31 Other reports of receipts and utilization.
1001.32 Reports regarding individual producers and dairy farmers.
1001.33 Notices to producers.
Classification of Milk
1001.40 Classes of utilization.
1001.41 Shrinkage.
1001.42 Classification of transfers and diversions.
1001.43 General classification rules.
1001.44 Classification of producer milk.
1001.45 Market administrator's reports and announcements concerning
classification.
1001.46--1001.48 [Reserved]
Class Prices
1001.50 Class prices.
1001.51 Basic formula price.
1001.52 Plant location adjustments.
1001.53 Determination of applicable zone locations for pricing
purposes.
1001.54 Announcement of class prices.
1001.55 Equivalent price.
Blended Price
1001.60 Handler's value of milk for computing basic blended price.
1001.61 Partially regulated distributing plant operator's value of milk
for computing basic blended price.
1001.62 Computation of basic blended price.
1001.63 Announcement of blended prices and butterfat differential.
[[Page 40]]
Payments for Milk
1001.70 Producer-settlement fund.
1001.71 Handlers' producer-settlement fund debits and credits.
1001.72 Payments to and from the producer-settlement fund.
1001.73 Payments to producers.
1001.74 Payments to cooperative associations.
1001.75 Statements to producers.
1001.76 Butterfat differential.
1001.77 Adjustment of accounts.
1001.78 Charges on overdue accounts.
Administrative Assessment and Marketing Service Deduction
1001.85 Assessment for order administration.
1001.86 Deduction for marketing services.
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Source: 41 FR 8357, Feb. 26, 1976, unless otherwise noted.
Subpart--Order Regulating Handling
General Provisions
Sec. 1001.1 General provisions.
The terms, definitions, and provisions in part 1000 of this chapter
are hereby incorporated by reference and made a part of this order.
Definitions
Sec. 1001.2 New England marketing area.
New England marketing area, hereinafter called the ``marketing
area,'' means all territory within the boundaries of the places set
forth below, all waterfront facilities connected therewith and craft
moored thereat, and all territory therein occupied by any governmental
installation, institution, or other similar establishment:
Connecticut
All of the State of Connecticut.
Massachusetts
Counties:
Barnstable.
Bristol.
Essex.
Franklin (except the towns of New Salem, Orange, and Warwick).
Hampden (except the towns of Brimfield, Monson, Palmer, and Wales).
Hampshire (except the town of Ware).
Middlesex.
Norfolk.
Plymouth.
Suffolk.
Worcester (except the towns of Athol, Barre, Douglas, East
Brookfield, Hardwick, New Braintree, North Brookfield, Northbridge,
Petersham, Philipston, Royalston, Templeton, Uxbridge, Warren, West
Brookfield, and Winchendon).
New Hampshire
Counties:
Belknap.
Cheshire.
Grafton (the towns of Ashland, Bridgewater, Bristol, Holderness, and
Plymouth only).
Hillsborough.
Merrimack.
Rockingham.
Stafford.
Sullivan (except the town of Plainfield).
Rhode Island
All cities and towns except New Shoreham (Block Island).
Vermont
Counties:
Bennington (the towns of Landgrove, Peru, and Winhall only).
Windham (except Somerset).
Windsor (the towns of Andover, Baltimore, Cavendish, Chester,
Ludlow, Plymouth, Reading, Springfield, Weathersfield, Weston, West
Windsor, and Windsor only).
[41 FR 8357, Feb. 26, 1976, as amended at 48 FR 32160, July 14, 1983]
Sec. 1001.3 Route disposition.
Route disposition means distribution of Class I milk by a handler to
retail or wholesale outlets, which include vending machines but do not
include plants or distribution points. The route disposition of a
handler shall be attributed to the processing and packaging plant from
which the Class I milk is moved to retail or wholesale outlets without
intermediate movement to another processing and packaging plant.
Sec. 1001.4 Plant.
Plant means the land and buildings, together with their
surroundings, facilities, and equipment, whether owned or operated by
one or more persons, constituting a single operating unit or
establishment for the receiving, processing, or packaging of milk or
milk
[[Page 41]]
products. The term ``plant'' shall not include:
(a) Distribution points (separate premises used primarily for the
transfer to vehicles of packaged fluid milk products moved there from
processing and packaging plants); or
(b) Bulk reload points (separate premises used for the purpose of
transferring bulk milk from one tank truck to another tank truck while
en route from dairy farmers' farms to a plant). If stationary storage
tanks are used for transferring milk at the premises, the operator of
the facility shall make an advance written request to the market
administrator that the facility be treated as a reload point; otherwise
it shall be a plant. The cooling of milk, collection or testing of
samples, and washing and sanitizing of tank trucks at the premises shall
not disqualify it as a bulk reload point.
[43 FR 17459, Apr. 25, 1978, as amended at 46 FR 58642, Dec. 3, 1981]
Sec. 1001.5 Distributing plant.
Distributing plant means a processing and packaging plant.
[56 FR 5309, Feb. 11, 1991]
Sec. 1001.6 Supply plant.
Supply plant means a plant at which facilities are maintained and
used for washing and sanitizing cans and to which milk is moved from
dairy farmers' farms in cans and is there accepted, weighed or measured,
sampled, and cooled, or it is a plant to which milk is moved from dairy
farmers' farms in tank trucks.
[56 FR 5309, Feb. 11, 1991]
Sec. 1001.7 Pool plant.
Except as provided in paragraph (d) of this section, pool plant
means:
(a) A distributing plant from which:
(1) Not less than 40 percent of its total receipts of fluid milk
products (except filled milk) in any month, or in either of the 2
preceding months, are disposed of as Class I (except filled milk); and
(2) Route disposition (except filled milk) in the marketing area in
the month:
(i) Is not less than 10 percent of its total receipts of fluid milk
products (except filled milk);
(ii) Exceeds its route disposition in any other Federal marketing
area; and
(iii) Exceeds 700 quarts on any day or a daily average of 300
quarts.
(b) A supply plant which meets the conditions specified in
paragraphs (a)(1), (2), or (3) of this section. Receipts and disposition
of filled milk shall be excluded in determining whether a plant has met
these conditions. For the purposes of this paragraph, milk received at a
plant from a cooperative association in its capacity as a handler under
Sec. 1001.9(d) shall be considered as having been received at that plant
from dairy farmers' farms.
(1) It is a plant from which in any month of August and December at
least 15 percent, and in any month of September through November at
least 25 percent, of its total receipts of milk from dairy farmers'
farms is shipped as fluid milk products, other than as diverted milk, to
pool distributing plants.
(2) For any month of August through December, it is one of a group
of plants that meets the conditions specified in this paragraph.
(i) The handler's written request for continuation of pool supply
plant status, which the plant held under the handler's operation in the
preceding month, is received by the market administrator on or before
the 16th day of the month.
(ii) The group of plants, considered as a unit, meets the shipping
requirements specified in paragraph (b)(1) of this section.
(iii) To qualify as a pool supply plant under this paragraph in
December of any year, the plant, considered individually, shall have
shipped at least 5 percent of its total receipts of milk from dairy
farmers' farms as fluid milk products, other than as diverted milk, to
pool distributing plants in one of the months of August through December
of that year.
(iv) In the event of the failure of a group of plants to meet fully
the requirements of paragraph (b)(2)(ii) of this section, termination of
pool supply plant status shall be limited to the
[[Page 42]]
least number of plants which will result in the remaining supply plants
meeting the requirements of paragraph (b)(2)(ii) of this section. If
such termination becomes necessary, the handler shall be permitted to
designate which plants shall continue to have pool plant status for the
month.
(v) For the purposes of this paragraph, any supply plant operated by
a cooperative association that is also a handler under Sec. 1001.9(d)
may be considered as one of a group of plants. In that event, the
group's total receipts of milk from dairy farmers' farms shall be the
total of such receipts by the association other than at any of its
plants that is not one of the group, and the group's qualifying
shipments shall consist of the qualifying shipments from the plants in
the group plus the quantity of milk moved by the association in its
capacity as a handler under Sec. 1001.9(d) from farms of its members to
pool distributing plants.
(3) For any month of January through July, it is a plant from which
at least 15 percent of its total receipts of milk from dairy farmers'
farms is shipped as fluid milk products, other than as diverted milk, to
pool distributing plants or it is a plant that meets the requirements
for automatic pool plant status specified in this paragraph. The
automatic pool plant status of a plant shall be revoked for any month
for which the market administrator has received the handler's written
request for revocation on or before the 16th day of that month. In that
event, the plant shall not have automatic pool plant status in any
subsequent month of the current January through July period.
(i) The plant was a pool supply plant under this order in each of
the preceding months of August through December; or
(ii) The plant was a pool supply plant under this order in at least
two of the preceding months of August through December and would have
been such a plant in all other months in that period had it not been a
pool plant under the New York-New Jersey Federal order.
(4) No plant shall be a pool supply plant in any month in which it
is operated as:
(i) A pool distributing plant; or
(ii) A regulated plant under another Federal order if its Class I
disposition of fluid milk products, except filled milk, in the marketing
area regulated by that order exceeds its shipments of fluid milk
products, except filled milk, to pool distributing plants under this
order.
(c) Each plant, other than a plant operated as a pool distributing
plant or a pool supply plant, that is located in the marketing area and
operated by a cooperative association shall be a pool plant in any month
in which its route disposition does not exceed 2 percent of its total
receipts of fluid milk products. Receipts and disposition of filled milk
shall be excluded in determining whether a plant has met these
conditions.
(d) The term ``pool plant'' shall not apply to the following plants:
(1) An exempt distributing plant under Sec. 1001.8(e);
(2) The plant of a producer-handler under any Federal order;
(3) A plant designated as a regular pool plant under the New York-
New Jersey Federal order; or
(4) Any plant for which the market administrator determines that a
specified proportion or quantity of the receipts from dairy farmers and
of milk from other sources handled at a plant is not available for Class
I use because there is in force an unconditional contract for the plant
to supply fluid milk products for Class II or Class III use, the plant
shall not be a pool plant for the month in which the market
administrator notifies the handler of the determination and for any
subsequent month in which the contract is in force for any part of the
month.
[56 FR 5310, Feb. 11, 1991]
Sec. 1001.8 Nonpool plant.
Nonpool plant means a plant (except a pool plant) which receives
milk from dairy farmers or is a milk or filled milk manufacturing,
processing or bottling plant. The following categories of nonpool plants
are further defined as follows:
(a) Other order plant means a pool plant under another Federal order
or any other plant at which all fluid milk products handled become
subject to the
[[Page 43]]
classification and pricing provisions of another Federal order.
(b) Producer-handler plant means a plant operated by a producer-
handler as defined in any order (including this part) issued pursuant to
the Act.
(c) Partially regulated distributing plant means a nonpool plant
that is not a regulated plant under another Federal order, a producer-
handler plant, or an exempt distributing plant, and from which there is
route disposition in the marketing area during the month.
(d) Unregulated supply plant means a nonpool plant that is not an
other order plant, a producer-handler plant, or an exempt distributing
plant from which fluid milk products are shipped during the month to a
pool plant.
(e) Exempt distributing plant means:
(1) A plant, other than a pool supply plant or a regulated plant
under another Federal order, that meets all the requirements for status
as a pool distributing plant, except that its route disposition
(exclusive of filled milk) in the marketing area in the month does not
exceed 700 quarts on any day or a daily average of 300 quarts.
(2) A plant that is operated by a governmental agency and from which
there is route disposition in the marketing area.
[56 FR 5310, Feb. 11, 1991]
Sec. 1001.9 Handler.
Handler means:
(a) Any person who operates a pool plant;
(b) Any person who operates any other plant, or a pool bulk tank
unit as defined under another Federal order, from which fluid milk
products are disposed of, directly or indirectly, in the marketing area;
(c) Any person who does not operate a plant but who engages in the
business of receiving fluid milk products for resale and distributes to
retail or wholesale outlets packaged fluid milk products received from
any plant described in paragraph (a) or (b) of this section; or
(d) Any cooperative association with respect to the milk that is
moved from farms in tank trucks operated by, or under contract to, the
association to pool plants or as diverted milk to nonpool plants for the
account of, and at the direction of, the association. The association
shall be considered as the handler who received the milk from the dairy
farmers. However, the cooperative association shall not be the handler
with respect to the milk moved from any farm if the association and the
operator of the pool plant to which milk from such farm is moved both
submit a request in writing, on or before the due date for filing the
monthly reports of receipts and utilization, that the operator of the
pool plant be considered as the handler who received the milk from the
dairy farmer, and the pool plant operator's request states that the pool
plant operator is purchasing the milk from such farm on the basis of the
farm bulk tank measurement readings and the butterfat tests of samples
of the milk taken from the farm bulk tank.
[41 FR 8357, Feb. 26, 1976, as amended at 56 FR 5311, Feb. 11, 1991]
Sec. 1001.10 Producer-handler.
Producer-handler means any person who, during the month, is both a
dairy farmer and a handler and who meets all of the following
conditions:
(a) Provides as the person's own enterprise and at the person's own
risk the maintenance, care, and management of the dairy herd and other
resources and facilities that are used to produce milk, to process and
package such milk at the producer-handler's own plant, and to distribute
it as route disposition.
(b) The person's own route disposition constitutes the majority of
the route disposition from the plant.
(c) The quantity of route disposition in the marketing area from the
person's plant is greater than in any other Federal marketing area.
(d) The producer-handler receives no fluid milk products except from
such handler's own production and from pool handlers, either by transfer
or diversion pursuant to Sec. 1001.15. If the producer-handler's
receipts from own production and the total route disposition from the
producer-handler's plant each exceed 4,300 pounds per day for the month,
the producer-handler's receipts from pool plants are not in excess of 2
[[Page 44]]
percent of receipts from own production. For the purposes of this
paragraph, the producer-handler's receipts of fluid milk products shall
include receipts from plants of other persons at all retail and
wholesale outlets that are located in a Federal marketing area and
operated by the producer-handler, an affiliate, or any person who
controls or is controlled by the producer-handler.
[56 FR 5311, Feb. 11, 1991]
Sec. 1001.11 Dairy farmer for other markets.
Dairy farmer for other markets means any dairy farmer described in
this section. For the purposes of this section, the acts of any person
who is an affiliate of, or who controls or is controlled by, a handler
or dealer shall be considered as having been performed by the handler or
dealer. Receipts from a ``dairy farmer for other markets'' under
paragraphs (a), (b), and (c) of this section shall be considered as
receipts from the unregulated plant at which the greatest quantity of
his milk was received in the most recent month.
(a) The term includes a dairy farmer with respect to milk that is
purchased from him during the month by a dealer who operates a plant but
does not operate a pool plant, if the milk is moved to a pool plant
directly from the dairy farmer's farm. The term shall not apply to the
dairy farmer, however, if all the nonpool milk purchased from him during
the month by the same dealer is a receipt of producer milk under the
provisions of another Federal order or will be such if the dairy farmer
is a producer under this order.
(b) The term includes a dairy farmer with respect to milk that is
purchased from him by a handler and moved to a pool plant or that is
purchased from him by a cooperative association in its capacity as a
handler under Sec. 1001.9(d), if that handler caused milk from the same
farm to be moved as nonpool milk to any plant during the same month. The
term shall not apply to the dairy farmer, however, if all the nonpool
milk is a receipt of producer milk under the provisions of another
Federal order or will be such if the dairy farmer is a producer under
this order or if all the nonpool milk is excluded from producer milk
under Sec. 1001.15.
(c) The term includes a dairy farmer with respect to milk that is
received from him by a handler at a pool plant or that is purchased from
him by a cooperative association in its capacity as a handler under
Sec. 1001.9(d) during any of the months of January through July, if the
handler caused nonpool milk from the same farm to be received during any
of the preceding months of August through December at a plant that is
not a pool plant under any Federal order in the current month. The term
shall not apply to the dairy farmer, however, if all the nonpool milk
was a receipt of producer milk under the provisions of another Federal
order or represented receipts from own production by a producer-handler
under any Federal order, or was excluded from producer milk under
Sec. 1001.15.
(d) Notwithstanding the provisions of paragraphs (a), (b), and (c)
of this section, the term shall apply to any dairy farmer with respect
to milk moved from his farm to a handler's pool plant or purchased from
him by a cooperative association in its capacity as a handler under
Sec. 1001.9(d) during any month in which milk from that farm was
received as base milk under another Federal order.
[41 FR 8357, Feb. 26, 1976, as amended at 43 FR 17460, Apr. 25, 1978]
Sec. 1001.12 Producer.
Producer means a dairy farmer who produces milk that is moved, other
than in packaged form, from his farm to a pool plant, or to any other
plant as diverted milk. However, the term shall not include:
(a) A producer-handler under any Federal order;
(b) A dairy farmer with respect to milk caused to be moved from his
farm to a pool plant under this order by a handler under another Federal
order if all of the dairy farmer's milk so received is considered as a
receipt from a producer under the provisions of the other Federal order;
(c) A dairy farmer for other markets;
(d) A dairy farmer who is a local or state government that has
nonproducer status for the month under Sec. 1001.16(c);
[[Page 45]]
(e) A dairy farmer who is a governmental agency that is operating an
exempt distributing plant under Sec. 1001.8(e)(2);
(f) A dairy farmer with respect to salvage product assigned under
Sec. 1001.44(a)(7)(ii);
(g) A dairy farmer with respect to milk that is excluded from
producer milk under Sec. 1001.15; or
(h) A dairy farmer with respect to milk that a handler causes to be
moved from the dairy farmer's farm to a regulated plant under another
Federal order if any portion of such dairy farmer's milk so moved is
assigned to Class I milk under the provisions of such other order and
all of the dairy farmer's milk so moved is considered as producer milk
under the other order.
[41 FR 8357, Feb. 26, 1976, as amended at 56 FR 5311, Feb. 11, 1991]
Sec. 1001.13 Producer milk.
Producer milk means milk that the handler has received from
producers. The quantity of milk received by a handler from producers
shall include any milk of a producer that was not received at any plant
but which the handler or an agent of the handler has accepted, measured,
sampled, and transferred from the producer's farm tank into a tank truck
during the month. Such milk shall be considered as having been received
at the pool plant at which other milk from the same farm of that
producer is received by the handler during the month, except that in the
case of a cooperative association in its capacity as a handler under
Sec. 1001.9(d), the milk shall be considered as having been received at
a plant in the zone location of the pool plant, or pool plants within
the same zone, to which the greatest aggregate quantity of the milk of
the cooperative association in such capacity was moved during the
current month or the most recent month.
Sec. 1001.14 Other source milk.
Other source milk means all skim milk and butterfat contained in or
represented by:
(a) Receipts of fluid milk products and bulk products specified in
Sec. 1001.40(b)(1) from any source other than producers, handlers
described in Sec. 1001.9(d), or pool plants;
(b) Receipts in packaged form from other plants of products
specified in Sec. 1001.40(b)(1);
(c) Products (other than fluid milk products, products specified in
Sec. 1001.40(b)(1), and products produced at the plant during the same
month) from any source which are reprocessed, converted into, or
combined with another product in the plant during the month; and
(d) Receipts of any milk product (other than a fluid milk product or
a product specified in Sec. 1001.40(b)(1)) for which the handler fails
to establish a disposition.
[56 FR 5311, Feb. 11, 1991]
Sec. 1001.15 Diverted milk.
Diverted milk means milk, other than that excluded under
Sec. 1001.12 from being considered as received from a producer, that
meets the conditions set forth in paragraph (a) or (b) of this section
and is not excluded from diverted milk under paragraph (c) of this
section.
(a) Milk that a handler in its capacity as the operator of a pool
plant reports as having been moved from a dairy farmer's farm to the
pool plant, but which the handler caused to be moved from the farm to
another plant, if the handler specifically reports such movement to the
other plant as a movement of diverted milk, and the conditions of
paragraph (a) (1) or (2) of this section have been met. Milk that is
diverted milk under this paragraph shall be considered to have been
received at the pool plant from which it was diverted, but for pricing
purposes the location adjustments for the zone location specified in
Sec. 1001.53 shall be used.
(1) During any 2 months subsequent to July of the preceding calendar
year, or during the current month, on more than half of the days on
which the handler caused milk to be moved from the dairy farmer's farm
during the month, all of the milk that the handler caused to be moved
from that farm was physically received as producer milk at the handler's
pool plant or at another of the handler's pool plants that is no longer
operated as a plant.
[[Page 46]]
(2) During the current month and not more than 5 other months
subsequent to July of the preceding calendar year, milk from the dairy
farmer's farm was received at or diverted from the handler's pool plant
as producer milk, and during the current month all of the milk from that
farm that the handler reported as diverted milk was moved from the farm
in a tank truck in which it was intermingled with milk from other farms,
the milk from a majority of which farms was diverted from the same pool
plant in accordance with the preceding provisions of this paragraph.
(b) Milk that a cooperative association in its capacity as a handler
under Sec. 1001.9(d) caused to be moved from a dairy farmer's farm to a
nonpool plant if the association specifically reports the movement to
such plant as a movement of diverted milk, and the conditions of
paragraph (b) (1) or (2) of this section have been met. Milk that is
diverted under this paragraph shall be considered to have been received
by the cooperative association in its capacity as a handler under
Sec. 1001.9(d), but for pricing purposes the location adjustments for
the zone location specified in Sec. 1001.53 shall be used.
(1) During any 2 months subsequent to July of the preceding calendar
year, or during the current month, on more than half of the days on
which the cooperative association in its capacity as a handler under
Sec. 1001.9(d) caused milk to be moved from the farm as producer milk
during the month, all of the milk that the association caused to be
moved from the farm was physically received at a pool plant.
(2) During the current month and not more than 5 other months
subsequent to July of the preceding calendar year, the cooperative
association in its capacity as a handler under Sec. 1001.9(d) caused
milk to be moved from the dairy farmer's farm as producer milk, and
during the current month all of the milk from that farm that the
cooperative association in its capacity as a handler under
Sec. 1001.9(d) reported as diverted milk was moved from the farm in a
tank truck in which it was intermingled with milk from other farms, the
milk from a majority of which farms was diverted by the association in
accordance with the preceding provisions of this paragraph.
(c) Milk moved, as described in paragraphs (a) and (b) of this
section, from dairy farmers' farms to nonpool plants in excess of 35
percent in the months of September through November and 45 percent in
other months, of the total quantity of producer milk received (including
diversions) by the handler during the month shall not be diverted milk.
Such milk, and any other milk reported as diverted milk that fails to
meet the requirements set forth in this section, shall be considered as
having been moved directly from the dairy farmers' farms to the plant of
physical receipt, and if that plant is a nonpool plant the milk shall be
excluded from producer milk. If the handler fails to designate the dairy
farmers whose milk is to be so excluded, the entire quantity of milk
that the handler caused to be moved from dairy farmers' farms directly
to nonpool plants during the month shall be excluded from producer milk.
[41 FR 8357, Feb. 26, 1976, as amended at 43 FR 17460, Apr. 25, 1978; 46
FR 58642, Dec. 3, 1981; 56 FR 5311, Feb. 11, 1991]
Sec. 1001.16 Exempt milk.
Exempt milk means:
(a) Fluid milk products received at a pool plant in bulk from a
nonpool plant to be processed and packaged, for which an equivalent
quantity of packaged fluid milk products is returned to the operator of
the nonpool plant during the same month, if the receipt of bulk fluid
milk products and return of packaged fluid milk products occur during an
interval in which the facilities of the nonpool plant at which the fluid
milk products are usually processed and packaged are temporarily
unusable because of fire, flood, storm, or similar extraordinary
circumstances completely beyond the nonpool plant operator's control;
(b) Packaged fluid milk products received at a pool plant from a
nonpool plant in return for an equivalent quantity of bulk fluid milk
products moved from a pool plant for processing and packaging during the
same month, if the movement of bulk fluid milk products and receipt of
packaged fluid milk products occur during an interval in
[[Page 47]]
which the facilities of the pool plant at which the fluid milk products
are usually processed and packaged are temporarily unusable because of
fire, flood, storm, or similar extraordinary circumstances completely
beyond the pool plant operator's control;
(c) Milk received at a pool plant in bulk from the dairy farmer who
produced it, to the extent of the quantity of any packaged fluid milk
products returned to the dairy farmer, if:
(1) The dairy farmer is a State or local government that is not
engaged in the route disposition of any of the returned products; and
(2) The dairy farmer has, by written notice to the market
administrator and the receiving handler, elected nonproducer status for
a period of not less than 12 months beginning with the month in which
the election was made and continuing for each subsequent month until
canceled in writing, and the election is in effect for the current
month.
[41 FR 8357, Feb. 26, 1976, as amended at 56 FR 5311, Feb. 11, 1991]
Sec. 1001.17 Fluid milk product.
(a) Except as provided in paragraph (b) of this section fluid milk
product means any milk products in fluid or frozen form containing less
than 9 percent butterfat, that are in bulk or are packaged, distributed
and intended to be used as beverages. Such products include, but are not
limited to: Milk, skim milk, lowfat milk, milk drinks, buttermilk, and
filled milk, including any such beverage products that are flavored,
cultured, modified with added nonfat milk solids, sterilized,
concentrated (to not more than 50 percent total milk solids), or
reconstituted.
(b) The term fluid milk product shall not include:
(1) Plain or sweetened evaporated milk, plain or sweetened
evaporated skim milk, sweetened condensed milk or skim milk, formulas
especially prepared for infant feeding or dietary use that are packaged
in hermetically sealed containers, any product that contains by weight
less than 6.5 percent nonfat milk solids, and whey; and
(2) The quantity of skim milk in any modified product specified in
paragraph (a) of this section that is in excess of the quantity of skim
milk in an equal volume of an unmodified product of the same nature and
butterfat content.
[58 FR 27775, May 11, 1993]
Sec. 1001.18 Fluid cream product.
Fluid cream product means cream (other than plastic cream or frozen
cream), including sterilized cream, or a mixture of cream and milk or
skim milk containing 9 percent or more butterfat, with or without the
addition of other ingredients.
[58 FR 27775, May 11, 1993]
Sec. 1001.19 Filled milk.
Filled milk means any combination of nonmilk fat (or oil) with
skimmed milk (whether fresh, cultured, reconstituted or modified by the
addition of nonfat milk solids), with or without milkfat, so that the
product (including stabilizers, emulsifiers or flavoring) resembles milk
or any other fluid milk product, and contains less than 6 percent
nonmilk fat (or oil).
Sec. 1001.20 Cooperative association.
Cooperative association means any cooperative marketing association
of producers which the Secretary determines:
(a) To be qualified under the provisions of the Act of Congress of
February 18, 1922, known as the ``Capper-Volstead Act'';
(b) To have full authority in the sale of milk of its members; and
(c) To be engaged in making collective sales of, or marketing, milk
or its products for its members.
Sec. 1001.21 [Reserved]
Sec. 1001.22 Commercial food processing establishment.
Commercial food processing establishment means any facility other
than a milk or filled milk plant, to which bulk fluid milk products and
bulk fluid cream products are disposed of, or producer milk is diverted,
that uses such receipts as ingredients in food products and has no
disposition of fluid milk products or fluid cream products other than
those received in consumer-type packages. Producer milk diverted to
[[Page 48]]
commercial food processing establishments shall be subject to the same
provisions relating to diversions to plants, including but not limited
to, provisions in Secs. 1001.15, 1001.41 and 1001.52.
[58 FR 27775, May 11, 1993]
Reports
Sec. 1001.30 Reports of receipts and utilization.
On or before the 8th day after the end of each month, or not later
than the 10th day if the report is delivered in person to the office of
the market administrator, each handler shall report for such month to
the market administrator, in the detail and on the forms prescribed by
the market administrator, as follows:
(a) Each handler, with respect to each of the handler's pool plants,
shall report the quantities of skim milk and butterfat contained in or
represented by:
(1) Receipts of producer milk (including the specific quantities of
diverted milk and receipts from the handler's own production);
(2) Receipts of milk from cooperative associations in their capacity
as handlers under Sec. 1001.9(d);
(3) Receipts of fluid milk products and bulk fluid cream products
from other pool plants;
(4) Receipts of other source milk;
(5) Inventories at the beginning and end of the month of fluid milk
products and products specified in Sec. 1001.40(b)(1);
(6) The utilization or disposition of all milk, filled milk, and
milk products required to be reported pursuant to this paragraph.
(b) Each handler operating a partially regulated distributing plant
shall report with respect to such plant in the same manner as prescribed
for reports required by paragraph (a) of this section. Receipts of milk
that would have been producer milk if the plant had been fully regulated
shall be reported in lieu of producer milk. Such report shall show also
the quantity of any reconstituted skim milk in route disposition in the
marketing area.
(c) Each handler described in Sec. 1001.9(d) shall report:
(1) The quantities of all skim milk and butterfat contained in
receipts of milk from producers; and
(2) The utilization or disposition of all such receipts.
(d) Each handler shall report bulk milk received at a handler's pool
plant from a cooperative association in its capacity as the operator of
a pool plant or as a handler under Sec. 1001.9(d), if such milk was
rejected by the handler subsequent to such handler's receipt of the milk
on the basis that it was not of marketable quality at the time the milk
was delivered to the handler's plant, and such milk was removed from the
plant in bulk form by the cooperative association and was replaced with
other milk from the association. Except for purposes of this paragraph
and Sec. 1001.31(b), such milk that was so removed from the handler's
plant shall be treated for all other purposes of the order as though it
had not been delivered to and received at the handler's plant.
(e) Each handler not specified in paragraphs (a) through (c) of this
section shall report with respect to the handler's receipts and
utilization of milk, filled milk, and milk products in such manner as
the market administrator may prescribe.
[56 FR 5312, Feb. 11, 1991]
Sec. 1001.31 Other reports of receipts and utilization.
(a) Each handler who dumps fluid milk products at a pool plant
shall:
(1) Give the market administrator, at the request and in accordance
with instructions of the market administrator, advance notice of the
handler's intention to dump such products and the quantities involved;
and
(2) Submit to the market administrator at the time and in the manner
prescribed by the market administrator such detailed reports of dumpage
as the market administrator requests.
(b) Each handler who intends to have a receipt of unmarketable milk
replaced with other milk in the manner described under Sec. 1001.30(d)
shall give
[[Page 49]]
the market administrator, at the request and in accordance with
instructions of the market administrator, advance notice of the
handler's intention to have such milk replaced.
(c) In addition to the reports required pursuant to paragraphs (a)
and (b) of this section and Secs. 1001.30 and 1001.32, each handler
shall report such other information as the market administrator deems
necessary to verify or establish such handler's obligation under the
order.
[56 FR 5312, Feb. 11, 1991]
Sec. 1001.32 Reports regarding individual producers and dairy farmers.
(a) Each handler shall report on or before the 15th day after the
end of each month the information required by the market administrator
with respect to producer additions, producer withdrawals, changes in
farm locations, and changes in the name of farm operators.
(b) Each handler that is not a cooperative association, upon request
from any such association, shall furnish it with information with
respect to each of its producer members from whose farm the handler
begins, resumes, or stops receiving milk at his pool plant. Such
information shall include the applicable date, the producer-member's
post office address and farm location, and, if known, the plant at which
his milk was previously received, or the reason for the handler's
failure to continue receiving milk from his farm. In lieu of providing
the information directly to the association, the handler may authorize
the market administrator to furnish the association with such
information, derived from the handler's reports and records.
(c) Each handler shall submit to the market administrator, within 10
days after his request made not earlier than 20 days after the end of
the month, his producer payroll for the month, which shall show for each
producer:
(1) The daily and total pounds of milk delivered and its average
butterfat test; and
(2) The net amount of the handler's payments to the producer, with
the prices, deductions, and charges involved.
Sec. 1001.33 Notices to producers.
Each handler shall furnish each producer from whom he receives milk
the following information regarding the weight and butterfat test of the
milk:
(a) Whenever he receives milk from the producer on the basis of farm
bulk tank measurements, the handler shall give the producer at the time
the milk is picked up at the farm a receipt indicating the measurement
and the equivalent pounds of milk received;
(b) Whenever he receives milk from the producer on a basis other
than farm bulk tank measurements, the handler shall give the producer
within 3 days after receipt of the milk a written notice of the quantity
so received;
(c) If butterfat tests of the producer's milk are determined from
fresh milk samples, the handler shall give the producer within 10 days
after the end of each month a written notice of the producer's average
butterfat test for the month. Such notice shall not be required if the
handler has given the producer a written notice of the butterfat test
for each of the sampling periods within the month; and
(d) If butterfat tests of the producer's milk are determined from
composite milk samples, the handler shall give the producer within 7
days after the end of each sampling period a written notice of the
producer's average butterfat test for the period.
Classification of Milk
Sec. 1001.40 Classes of utilization.
Except as provided in Sec. 1001.42, all skim milk and butterfat
required to be reported by a handler pursuant to Sec. 1001.30 shall be
classified as follows:
(a) Class I milk. Class I milk shall be all skim milk and butterfat:
(1) Disposed of in the form of a fluid milk product, except as
otherwise provided in paragraphs (b) and (c) of this section;
(2) In packaged inventory of fluid milk products at the end of the
month; and
(3) Not specifically accounted for as Class II or Class III milk.
(b) Class II milk. Class II milk shall be all skim milk and
butterfat:
[[Page 50]]
(1) Disposed of in the form of a fluid cream product or any product
containing artificial fat, fat substitutes, or 6 percent or more nonmilk
fat (or oil) that resembles a fluid cream product, except as otherwise
provided in paragraph (c) of this section;
(2) In packaged inventory at the end of the month of the products
specified in paragraph (b)(1) of this section and in bulk concentrated
fluid milk products in inventory at the end of the month;
(3) In bulk fluid milk products and bulk fluid cream products
disposed of or diverted to a commercial food processor if the market
administrator is permitted to audit the records of the commercial food
processing establishment for the purpose of verification. Otherwise,
such uses shall be Class I;
(4) Used to produce:
(i) Cottage cheese, lowfat cottage cheese, dry curd cottage cheese,
ricotta cheese, pot cheese, Creole cheese, and any similar soft, high-
moisture cheese resembling cottage cheese in form or use;
(ii) Milkshake and ice milk mixes (or bases), frozen desserts, and
frozen dessert mixes distributed in one-quart containers or larger and
intended to be used in soft or semi-solid form;
(iii) Aerated cream, frozen cream, sour cream and sour half-and-
half, sour cream mixtures containing nonmilk items, yogurt and any other
semi-solid product resembling a Class II product;
(iv) Eggnog, custards, puddings, pancake mixes, buttermilk biscuit
mixes, coatings, batter, and similar products;
(v) Formulas especially prepared for infant feeding or dietary use
(meal replacement) that are packaged in hermetically sealed containers;
(vi) Candy, soup, bakery products and other prepared foods which are
processed for general distribution to the public, and intermediate
products, including sweetened condensed milk, to be used in processing
such prepared food products; and
(vii) Any product not otherwise specified in this section.
(c) Class III milk. Class III milk shall be all skim milk and
butterfat:
(1) Used to produce:
(i) Cream cheese and other spreadable cheeses, and hard cheeses of
types that may be shredded, grated, or crumbled, and are not included in
paragraph (b)(4)(i) of this section;
(ii) Butter, plastic cream, anhydrous milkfat and butteroil;
(iii) Any milk product in dry form, except nonfat dry milk;
(iv) Evaporated or sweetened condensed milk in a consumer-type
package and evaporated or sweetened condensed skim milk in a consumer-
type package; and
(2) In inventory at the end of the month of unconcentrated fluid
milk products in bulk form and products specified in paragraph (b)(1) of
this section in bulk form;
(3) In fluid milk products, products specified in paragraph (b)(1)
of this section, and products processed by the disposing handler that
are specified in paragraphs (b)(4) (i) through (iv) of this section,
that are disposed of by a handler for animal feed;
(4) In fluid milk products, products specified in paragraph (b)(1)
of this section, and products processed by the disposing handler that
are specified in paragraphs (b)(4) (i) through (iv) of this section,
that are dumped by a handler. The market administrator may require
notification by the handler of such dumping in advance for the purpose
of having the opportunity to verify such disposition. In any case,
classification under this paragraph requires a handler to maintain
adequate records of such use. If advance notification of such dumping is
not possible, or if the market administrator so requires, the handler
must notify the market administrator on the next business day following
such use;
(5) In fluid milk products and products specified in paragraph
(b)(1) of this section that are destroyed or lost by a handler in a
vehicular accident, flood, fire, or in a similar occurrence beyond the
handler's control, to the extent that the quantities destroyed or lost
can be verified from records satisfactory to the market administrator;
(6) In skim milk in any modified fluid milk product or in any
product specified in paragraph (b)(1) of this section that is in excess
of the quantity of skim milk in such product that was included within
the fluid milk product definition pursuant to Sec. 1001.17 and the
[[Page 51]]
fluid cream product definition pursuant to Sec. 1001.18; and
(7) In shrinkage assigned pursuant to Sec. 1001.41(a) to the
receipts specified in Sec. 1001.41(a)(2) and in shrinkage specified in
Sec. 1001.41 (b) and (c).
(d) Class III-A milk. Class III-A milk shall be all skim milk and
butterfat used to produce nonfat dry milk.
[56 FR 5313, Feb. 11, 1991, as amended at 57 FR 174, Jan. 3, 1992; 58 FR
27776, May 11, 1993]
Sec. 1001.41 Shrinkage.
For purposes of classifying all skim milk and butterfat to be
reported by a handler pursuant to Sec. 1001.30, the market administrator
shall determine the following:
(a) The pro rata assignment of shrinkage of skim milk and butterfat,
respectively, at each pool plant to the respective quantities of skim
milk and butterfat:
(1) In the receipts specified in paragraphs (b)(1) through (6) of
this section on which shrinkage is allowed pursuant to such paragraphs;
and
(2) In other source milk not specified in paragraphs (b)(1) through
(6) of this section which was received in the form of a bulk fluid milk
product or a bulk fluid cream product;
(b) The shrinkage of skim milk and butterfat, respectively, assigned
pursuant to paragraph (a) of this section to the receipts specified in
paragraph (a)(1) of this section that is not in excess of:
(1) Two percent of the skim milk and butterfat, respectively, in
producer milk (excluding milk diverted by the plant operator to another
plant and milk received from a handler described in Sec. 1001.9(d));
(2) Plus 1.5 percent of the skim milk and butterfat, respectively,
in milk received from a handler described in Sec. 1001.9(d) and in milk
diverted to such plant from another pool plant, except that if the
operator of the plant to which the milk is delivered purchases such milk
on the basis of weights determined from its measurement at the farm and
butterfat tests determined from farm bulk tank samples, the applicable
percentage under this paragraph shall be 2 percent:
(3) Plus 0.5 percent of the skim milk and butterfat, respectively,
in producer milk diverted from such plant by the plant operator to
another plant, except that if the operator of the plant to which the
milk is delivered purchases such milk on the basis of weights determined
from its measurement at the farm and butterfat tests determined from
farm bulk tank samples, the applicable percentage shall be zero;
(4) Plus 1.5 percent of the skim milk and butterfat, respectively,
in bulk fluid milk products received by transfer from other pool plants;
(5) Plus 1.5 percent of the skim milk and butterfat, respectively,
in bulk fluid milk products received by transfer from other order
plants, excluding the quantity for which Class II or Class III
classification is requested by the operators of both plants;
(6) Plus 1.5 percent of the skim milk and butterfat, respectively,
in receipts from dairy farmers for other markets and in bulk fluid milk
products received from unregulated supply plants, excluding the quantity
for which Class II or Class III classification is requested by the
handler; and
(7) Less 1.5 percent of the skim milk and butterfat, respectively,
in bulk fluid milk products transferred to other plants that is not in
excess of the respective amounts of skim milk and butterfat to which
percentages are applied in paragraphs (b) (1), (2), (4), (5), and (6) of
this section; and
(c) The quantity of skim milk and butterfat, respectively, in
shrinkage of milk from producers for which a cooperative association is
the handler pursuant to Sec. 1001.9(d), but not in excess of 0.5 percent
of the skim milk and butterfat, respectively, in such milk. If the
operator of the plant to which the milk is delivered purchases such milk
on the basis of weights determined from its measurement at the farm and
butterfat tests determined from farm bulk tank samples, the applicable
percentage under this paragraph for the cooperative association shall be
zero.
[56 FR 5313, Feb. 11, 1991]
Sec. 1001.42 Classification of transfers and diversions.
(a) Transfers and diversions to pool plants. Skim milk or butterfat
transferred or diverted in the form of a fluid milk product or a bulk
fluid cream
[[Page 52]]
product from a pool plant to another pool plant shall be classified as
Class I milk unless the operators of both plants request the same
classification in another class. In either case, the classification of
such transfers or diversions shall be subject to the following
conditions:
(1) The skim milk and butterfat classified in each class shall be
limited to the amount of skim milk and butterfat, respectively,
remaining in such class at the transferee-plant or divertee-plant after
the computations pursuant to Sec. 1001.44(a)(12) and the corresponding
step of Sec. 1001.44(b). The amount of skim milk or butterfat classified
in each class shall include the assigned utilization of skim milk or
butterfat in transfers of concentrated fluid milk products;
(2) If the transferor-plant or divertor-plant received during the
month other source milk to be allocated pursuant to Sec. 1001.44(a)(7)
or the corresponding step of Sec. 1001.44(b), the skim milk or butterfat
so transferred or diverted shall be classified so as to allocate the
least possible Class I utilization to such other source milk; and
(3) If the transferor-handler or divertor-handler received during
the month other source milk to be allocated pursuant to Sec. 1001.44(a)
(11) or (12) or the corresponding steps of Sec. 1001.44(b), the skim
milk or butterfat so transferred or diverted, up to the total of the
skim milk and butterfat, respectively, in such receipts of other source
milk, shall not be classified as Class I milk to a greater extent than
would be the case if the other source milk had been received at the
transferee-plant or divertee-plant.
(b) Transfers and diversions to other order plants. Skim milk or
butterfat transferred or diverted in the form of a fluid milk product or
a bulk fluid cream product from a pool plant to an other order plant
shall be classified in the following manner. Such classification shall
apply only to the skim milk or butterfat that is in excess of any
receipts at the pool plant from the other order plant of skim milk and
butterfat, respectively, in fluid milk products and bulk fluid cream
products, respectively, that are in the same category as described in
paragraph (b) (1), (2), or (3) of this section:
(1) If transferred as packaged fluid milk products, classification
shall be in the classes to which allocated as a fluid milk product under
the other order;
(2) If transferred in bulk form, classification shall be in the
classes to which allocated under the other order (including allocation
under the conditions set forth in paragraph (b)(3) of this section);
(3) If the operators of both plants so request in their reports of
receipts and utilization filed with their respective market
administrators, transfers or diversions in bulk form shall be classified
as Class II or Class III milk to the extent of such utilization
available for such classification pursuant to the allocation provisions
of the other order;
(4) If information concerning the classes to which such transfers or
diversions were allocated under the other order is not available to the
market administrator for the purpose of establishing classification
under this paragraph, classification shall be as Class I, subject to
adjustment when such information is available;
(5) For purposes of this paragraph, if the other order provides for
a different number of classes of utilization than is provided for under
this part, skim milk or butterfat allocated to a class consisting
primarily of fluid milk products shall be classified as Class I milk,
and skim milk or butterfat allocated to the other classes shall be
classified as Class III milk; and
(6) If the form in which any fluid milk product that is transferred
to an other order plant is not defined as a fluid milk product under
such other order, classification under this paragraph shall be in
accordance with the provisions of Sec. 1001.40.
(c) Transfers and diversions to producer-handlers and to exempt
distributing plants. Skim milk or butterfat in the following forms that
is transferred or diverted from a pool plant to a producer-handler under
this or any other Federal order or to an exempt distributing plant shall
be classified:
(1) As Class I milk, if so moved in the form of a fluid milk
product; and
[[Page 53]]
(2) In accordance with the utilization assigned to it by the market
administrator, if transferred in the form of a bulk fluid cream product.
For this purpose, the transferee's utilization of skim milk and
butterfat in each class, in series beginning with Class III, shall be
assigned to the extent possible to its receipts of skim milk and
butterfat, respectively, in bulk fluid cream products, pro rata to each
source.
(d) Transfers and diversions to other nonpool plants. Skim milk or
butterfat transferred or diverted in the following forms from a pool
plant to a nonpool plant that is not an other order plant, a producer-
handler plant, or an exempt distributing plant shall be classified:
(1) As Class I milk, if transferred in the form of a packaged fluid
milk product; and
(2) As Class I milk, if transferred or diverted in the form of a
bulk fluid milk product or a bulk fluid cream product, unless the
following conditions apply:
(i) If the conditions described in paragraphs (d)(2)(i) (A) and (B)
of this section are met, transfers or diversions in bulk form shall be
classified on the basis of the assignment of the nonpool plant's
utilization to its receipts as set forth in paragraphs (d)(2) (ii)
through (viii) of this section:
(A) The transferor-handler or divertor-handler claims such
classification in its report of receipts and utilization filed pursuant
to Sec. 1001.30 for the month within which such transaction occurred;
and
(B) The nonpool plant operator maintains books and records showing
the utilization of all skim milk and butterfat received at such plant
which are made available for verification purposes if requested by the
market administrator;
(ii) Route disposition in the marketing area of each Federal milk
order from the nonpool plant and transfers of packaged fluid milk
products from such nonpool plant to plants fully regulated thereunder
shall be assigned to the extent possible in the following sequence:
(A) Pro rata to receipts of packaged fluid milk products at such
nonpool plant from pool plants;
(B) Pro rata to any remaining unassigned receipts of packaged fluid
milk products at such nonpool plant from other order plants;
(C) Pro rata to receipts of bulk fluid milk products at such nonpool
plant from pool plants; and
(D) Pro rata to any remaining unassigned receipts of bulk fluid milk
products at such nonpool plant from other order plants;
(iii) Any remaining Class I disposition of packaged fluid milk
products from the nonpool plant shall be assigned to the extent possible
pro rata to any remaining unassigned receipts of packaged fluid milk
products at such nonpool plant from pool plants and other order plants;
(iv) Transfers of bulk fluid milk products from the nonpool plant to
a plant fully regulated under any Federal milk order, to the extent that
such transfers to the regulated plant exceed receipts of fluid milk
products from such plant and are allocated to Class I at the transferee-
plant, shall be assigned to the extent possible in the following
sequence:
(A) Pro rata to receipts of fluid milk products at such nonpool
plant from pool plants; and
(B) Pro rata to any remaining unassigned receipts of fluid milk
products at such nonpool plant from other order plants;
(v) Any remaining unassigned Class I disposition from the nonpool
plant shall be assigned to the extent possible in the following
sequence:
(A) To such nonpool plant's receipts from dairy farmers who the
market administrator determines constitute regular sources of milk for
such nonpool plant; and
(B) To such nonpool plant's receipts of milk from plants not fully
regulated under any Federal milk order which the market administrator
determines constitute regular sources of milk for such nonpool plant;
(vi) Any remaining unassigned receipts of bulk fluid milk products
at the nonpool plant from pool plants and other order plants shall be
assigned, pro rata among such plants, to the extent possible first to
any remaining
[[Page 54]]
Class I utilization, then to Class II utilization, and then to Class III
utilization at such nonpool plant;
(vii) Receipts of bulk fluid cream products at the nonpool plant
from pool plants and other order plants shall be assigned, pro rata
among such plants, to the extent possible first to any remaining Class
II utilization, then to any remaining Class III utilization, and then to
Class I utilization at such nonpool plant; and
(viii) In determining the nonpool plant's utilization for purposes
of this paragraph, any fluid milk products and bulk fluid cream products
transferred from such nonpool plant to a plant not fully regulated under
any Federal milk order shall be classified on the basis of the second
plant's utilization using the same assignment priorities at the second
plant that are set forth in paragraph (d)(2) of this section.
[56 FR 5314, Feb. 11, 1991, as amended at 58 FR 27776, May 11, 1993]
Sec. 1001.43 General classification rules.
In determining the classification of producer milk pursuant to
Sec. 1001.44, the following rules shall apply:
(a) Each month the market administrator shall correct for
mathematical and other obvious errors all reports filed pursuant to
Sec. 1001.30 and shall compute separately for each pool plant and for
each cooperative association with respect to milk for which it is the
handler pursuant to Sec. 1001.9(d) the pounds of skim milk and
butterfat, respectively, in each class in accordance with Secs. 1001.40,
1001.41, and 1001.42;
(b) If any of the water contained in the milk from which a product
is made is removed before the product is utilized or disposed of by a
handler, the pounds of skim milk in such product that are to be
considered under this part as used or disposed of by the handler shall
be an amount equivalent to the nonfat milk solids contained in such
product plus all of the water originally associated with such solids;
(c) The classification of producer milk for which a cooperative
association is the handler pursuant to Sec. 1001.9(d) shall be
determined separately from the operations of any pool plant operated by
such cooperative; and
(d) If receipts from more than one pool plant are to be assigned,
the receipts shall be assigned in sequence according to the zone
locations of the plants, beginning with the plant in the lowest-numbered
zone for assignments to Class I milk and beginning with the plant in the
highest numbered zone for assignments to Class III milk; and
(e) Receipts of other source milk from more than one plant shall be
assigned in sequence according to the zone locations of the plants,
beginning with the plant in the lowest-numbered zone for assignments to
Class I milk and beginning with the plant in the highest-numbered zone
for assignments to Class III milk.
(f) Class III-A milk shall be allocated in combination with Class
III milk and the quantity of producer milk eligible to be priced in
Class III-A shall be determined by prorating receipts from pool sources
to Class III-A use on the basis of the quantity of total receipts of
bulk fluid milk products allocated to Class III milk at the plant.
(g) Skim milk and butterfat contained in receipts of bulk
concentrated fluid milk and nonfluid milk products that are
reconstituted for fluid use shall be assigned to Class I use, up to the
reconstituted portion of labeled reconstituted fluid milk products, on a
pro rata basis (except for any Class I use of specific concentrated
receipts that is established by the handler) prior to any assignments
under Sec. 1001.44. Any remaining skim milk and butterfat in
concentrated receipts shall be assigned to uses under Sec. 1001.44 on a
pro rata basis, unless a specific use of such receipts is established by
the handler.
[56 FR 5315, Feb. 11, 1991, as amended at 57 FR 174, Jan. 3, 1992; 58 FR
27776, May 11, 1993]
Sec. 1001.44 Classification of producer milk.
For each month the market administrator shall determine the
classification of producer milk of each handler described in
Sec. 1001.9(a) for each of the handler's pool plants separately and of
each handler described in Sec. 1001.9(d) by allocating the handler's
receipts of skim milk and butterfat to the handler's utilization
pursuant to paragraphs (a) through (c) of this section.
[[Page 55]]
(a) Skim milk shall be allocated in the following manner:
(1) Subtract from the total pounds of skim milk in Class III the
pounds of skim milk in shrinkage specified in Sec. 1001.41(b);
(2) Subtract from the total pounds of skim milk in Class I the
pounds of skim milk in:
(i) Receipts of packaged fluid milk products from an unregulated
supply plant to the extent that an equivalent amount of skim milk
disposed of to such plant by handlers fully regulated under any Federal
milk order is classified and priced as Class I milk and is not used as
an offset for any other payment obligation under any order; and
(ii) Receipts of exempt milk;
(iii) Packaged fluid milk products in inventory at the beginning of
the month. This paragraph shall apply only if the pool plant was subject
to the provisions of this paragraph or comparable provisions of another
Federal milk order in the immediately preceding month;
(3) Subtract from the pounds of skim milk remaining in each class
the pounds of skim milk in fluid milk products received in packaged form
from an other order plant, except that to be subtracted pursuant to
paragraph (a)(7)(vi) of this section, as follows:
(i) From Class III milk, the lesser of the pounds remaining or 2
percent of such receipts; and
(ii) From Class I milk, the remainder of such receipts;
(4) Subtract from the pounds of skim milk in Class II the pounds of
skim milk in products specified in Sec. 1001.40(b)(1) that were received
in packaged form from other plants, but not in excess of the pounds of
skim milk remaining in Class II;
(5) Subtract from the remaining pounds of skim milk in Class II the
pounds of skim milk in products specified in Sec. 1001.40(b)(1) in
packaged form and in bulk concentrated fluid milk products that were in
inventory at the beginning of the month, but not in excess of the pounds
of skim milk remaining in Class II. This paragraph shall apply only if
the pool plant was subject to the provisions of this paragraph (a)(5) or
comparable provisions of another Federal milk order in the immediately
preceding month;
(6) Subtract from the remaining pounds of skim milk in Class II the
pounds of skim milk in bulk concentrated fluid milk products and in
other source milk (except other source milk received in the form of an
unconcentrated fluid milk product or a fluid cream product) that is used
to produce, or added to any product specified in Sec. 1001.40(b)
(excluding the quantity of such skim milk that was classified as Class
III milk pursuant to Sec. 1001.40(c)(6)), but not in excess of the
pounds of skim milk remaining in Class II;
(7) Subtract in the order specified below from the pounds of skim
milk remaining in each class, in series beginning with Class III, the
pounds of skim milk in each of the following:
(i) Bulk concentrated fluid milk products and other source milk
(except other source milk received in the form of an unconcentrated
fluid milk product) and, if paragraph (a)(5) of this section applies,
packaged inventory at the beginning of the month of products specified
in Sec. 1001.40(b)(1) that was not subtracted pursuant to paragraphs
(a)(4), (a)(5) and (a)(6) of this section;
(ii) Receipts from dairy farmers of fluid milk products which are
rejected and segregated in the handler's normal operation for receiving
milk, and which receipts are accepted and disposed of by the handler as
salvage product rather than as milk;
(iii) Receipts of fluid milk products from unidentified sources;
(iv) Receipts of fluid milk products from a producer-handler as
defined under this or any other Federal milk order and from an exempt
distributing plant;
(v) Receipts of reconstituted skim milk in filled milk from an
unregulated supply plant that were not subtracted pursuant to paragraph
(a)(2)(i) of this section;
(vi) Receipts of reconstituted skim milk in filled milk from an
other order plant that is regulated under any Federal milk order
providing for individual-handler pooling, to the extent that
reconstituted skim milk is allocated to Class I at the transferor-plant;
[[Page 56]]
(vii) Receipts of fluid milk products (other than exempt milk) from
a local or State government which has elected nonproducer status for the
month pursuant to Sec. 1001.16(c); and
(viii) Receipts of fluid milk products from dairy farmers for other
markets;
(8) Subtract in the order specified below from the pounds of skim
milk remaining in Class II and Class III, in sequence beginning with
Class III:
(i) The pounds of skim milk in receipts of fluid milk products from
an unregulated supply plant that were not subtracted pursuant to
paragraphs (a)(2)(i) and (7)(v) of this section for which the handler
requests a classification other than Class I, but not in excess of the
pounds of skim milk remaining in Class II and Class III combined;
(ii) The pounds of skim milk in receipts of fluid milk products from
an unregulated supply plant that were not subtracted pursuant to
paragraphs (a)(2)(i), (7)(v), and (8)(i) of this section which are in
excess of the pounds of skim milk determined pursuant to paragraphs
(a)(8)(ii)(A) through (C) of this section. Should the pounds of skim
milk to be subtracted from Class II and Class III combined exceed the
pounds of skim milk remaining in such classes, the pounds of skim milk
in Class II and Class III combined shall be increased (increasing as
necessary Class III and then Class II to the extent of available
utilization in such classes at the nearest other pool plant of the
handler, and then at each successively more distant pool plant of the
handler) by an amount equal to such excess quantity to be subtracted,
and the pounds of skim milk in Class I shall be decreased by a like
amount. In such case, the pounds of skim milk remaining in each class at
this allocation step at the handler's other pool plants shall be
adjusted in the reverse direction by a like amount:
(A) Multiply by 1.25 the pounds of skim milk remaining in Class I at
this allocation step (exclusive of transfers between pool plants of the
same handler) at all pool plants of the handler;
(B) Subtract from the above result the sum of the pounds of skim
milk in receipts at all pool plants of the handler of producer milk,
fluid milk products from pool plants of other handlers, and bulk fluid
milk products from other order plants that were not subtracted pursuant
to paragraph (a)(7)(vi) of this section; and
(C) Multiply any plus quantity resulting above by the percentage
that the receipts of skim milk in fluid milk products from unregulated
supply plants remaining at this pool plant is of all such receipts
remaining at this allocation step at all pool plants of the handler; and
(iii) The pounds of skim milk in receipts of bulk fluid milk
products from an other order plant that are in excess of bulk fluid milk
products transferred or diverted to such plant and that were not
subtracted pursuant to paragraph (a)(7)(vi) of this section, if Class II
or Class III classification is requested by the operator of the other
order plant and the handler, but not in excess of the pounds of skim
milk remaining in Class II and Class III combined;
(9) Subtract from the pounds of skim milk remaining in each class,
in series beginning with Class III, the pounds of skim milk in fluid
milk products and products specified in Sec. 1001.40(b)(1), in inventory
at the beginning of the month that were not subtracted pursuant to
paragraphs (a)(2)(iii), (a)(5) and (7)(i) of this section;
(10) Add to the remaining pounds of skim milk in Class III the
pounds of skim milk subtracted pursuant to paragraph (a)(1) of this
section;
(11) Subject to the provisions of paragraphs (a)(11)(i) and (ii) of
this section, subtract from the pounds of skim milk remaining in each
class at the plant, prorata to the total pounds of skim milk remaining
in Class I and in Class II and Class III combined at this allocation
step at all pool plants of the handler (excluding any duplication of
utilization in each class resulting from transfers between pool plants
of the handler), with the quantity prorated to Class II and Class III
combined being subtracted first from Class III and then from Class II,
the pounds of skim milk in receipts of fluid milk products from an
unregulated supply plant that were not subtracted pursuant to paragraphs
(a)(2)(i), (7)(v) and (8)(i) and (ii) of this section and that were not
offset by transfers or diversions of fluid milk
[[Page 57]]
products to the same unregulated supply plant from which fluid milk
products to be allocated at this step were received:
(i) Should the pounds of skim milk to be subtracted from Class II
and Class III combined pursuant to paragraph (a)(11) of this section
exceed the pounds of skim milk remaining in such classes, the pounds of
skim milk in Class II and Class III combined shall be increased
(increasing as necessary Class III and then Class II to the extent of
available utilization in such classes at the nearest other pool plant of
the handler, and then at each successively more distant pool plant of
the handler) by an amount equal to such excess quantity to be
subtracted, and the pounds of skim milk in Class I shall be decreased by
a like amount. In such case, the pounds of skim milk remaining in each
class at this allocation step at the handler's other pool plants shall
be adjusted in the reverse direction by a like amount; and
(ii) Should the pounds of skim milk to be subtracted from Class I
pursuant to paragraph (a)(11) of this section exceed the pounds of skim
milk remaining in such class, the pounds of skim milk in Class I shall
be increased by an amount equal to such excess quantity to be
subtracted, and the pounds of skim milk in Class II and Class III
combined shall be decreased by a like amount (decreasing as necessary
Class III and then Class II). In such case, the pounds of skim milk
remaining in each class at this allocation step at the handler's other
pool plants shall be adjusted in the reverse direction by a like amount,
beginning with the nearest plant at which Class I utilization is
available;
(12) Subtract in the manner specified below from the pounds of skim
milk remaining in each class the pounds of skim milk in receipts of bulk
fluid milk products from another order plant that are in excess of bulk
fluid milk products transferred or diverted to such plant and that were
not subtracted pursuant to paragraphs (a)(7)(vi) and (8)(iii) of this
section:
(i) Subject to the provisions of paragraphs (a)(12)(ii), (iii) and
(iv) of this section, such subtraction shall be pro rata to the pounds
of skim milk in Class I and in Class II and Class III combined, with the
quantity prorated to Class II and Class III combined being subtracted
first from Class III and then from Class II with respect to whichever of
the following quantities represents the lower proportion of Class I
milk:
(A) The estimated utilization of skim milk of all handlers in each
class, as announced for the month pursuant to Sec. 1001.45(a); or
(B) The total pounds of skim milk remaining in each class at this
allocation step at all pool plants of the handler (excluding any
duplication of utilization in each class resulting from transfers
between pool plants of the handler);
(ii) Should the proration pursuant to paragraph (a)(12)(i) of this
section result in the total pounds of skim milk at all pool plants of
the handler that are to be subtracted at this allocation step from Class
II and Class III combined exceeding the pounds of skim milk remaining in
Class II and Class III at all such plants, the pounds of such excess
shall be subtracted from the pounds of skim milk remaining in Class I
after such proration at the pool plants at which such other source milk
was received;
(iii) Except as provided in paragraph (a)(12)(ii) of this section,
should the computations pursuant to paragraph (a)(12)(i) or (ii) of this
section result in a quantity of skim milk to be subtracted from Class II
and Class III combined that exceeds the pounds of skim milk remaining in
such classes, the pounds of skim milk in Class II and Class III combined
shall be increased (increasing as necessary Class III and then Class II
to the extent of available utilization in such classes at the nearest
other pool plant of the handler, and then at each successively more
distant pool plant of the handler) by an amount equal to such excess
quantity to be subtracted, and the pounds of skim milk in Class I shall
be decreased by a like amount. In such case, the pounds of skim milk
remaining in each class at this allocation step at the handler's other
pool plants shall be adjusted in the reverse direction by a like amount;
and
(iv) Except as provided in paragraph (a)(12)(ii) of this section,
should the
[[Page 58]]
computations pursuant to paragraph (a)(12)(i) or (ii) of this section
result in a quantity of skim milk to be subtracted from Class I that
exceeds the pounds of skim milk remaining in such class, the pounds of
skim milk in Class I shall be increased by an amount equal to such
excess quantity to be subtracted, and the pounds of skim milk in Class
II and Class III combined shall be decreased by a like amount
(decreasing as necessary Class III and then Class II). In such case, the
pounds of skim milk remaining in each class at this allocation step at
the handler's other pool plants shall be adjusted in the reverse
direction by a like amount beginning with the nearest plant at which
Class I utilization is available;
(13) Subtract from the pounds of skim milk remaining in each class
the pounds of skim milk in receipts of fluid milk products and bulk
fluid cream products from other pool plants according to the
classification of such products pursuant to Sec. 1001.42(a); and
(14) If the total pounds of skim milk remaining in all classes
exceed the pounds of skim milk in producer milk and in receipts from
handlers under Sec. 1001.9(d), subtract such excess from the pounds of
skim milk remaining in each class in series beginning with Class III.
Any amount so subtracted shall be known as ``overage'';
(b) Butterfat shall be allocated in accordance with the procedure
outlined for skim milk in paragraph (a) of this section; and
(c) The quantity of producer milk in each class shall be the
combined pounds of skim milk and butterfat remaining in each class after
the computations pursuant to paragraph (a)(14) of this section and the
corresponding step of paragraph (b) of this section.
[56 FR 5315, Feb. 11, 1991, as amended at 58 FR 27776, May 11, 1993]
Sec. 1001.45 Market administrator's reports and announcements concerning classification.
The market administrator shall make the following reports and
announcements concerning classification:
(a) Whenever required for the purpose of allocating receipts from a
regulated plant or handler under another Federal order pursuant to
Sec. 1001.44(a)(12) and the corresponding step of Sec. 1001.44(b),
estimate and publicly announce the utilization (to the nearest whole
percentage) in each class during the month of skim milk and butterfat,
respectively, in producer milk of all handlers. Such estimate shall be
based upon the most current available data and shall be final for such
purpose.
(b) Report to the market administrator of the other order, as soon
as possible after the report of receipts and utilization for the month
is received from a handler who has received fluid milk products or bulk
fluid cream products from an other order plant, the class to which such
receipts are allocated pursuant to Sec. 1001.43(g) and Sec. 1001.44 on
the basis of such report, (including any reclassification of inventories
of bulk concentrated fluid milk products), and thereafter, any change in
such allocation required to correct errors disclosed in the verification
of such report.
(c) Furnish to each handler operating a pool plant who has shipped
fluid milk products or bulk fluid cream products to an other order plant
the class to which such shipments were allocated by the market
administrator of the other order on the basis of the report by the
receiving handler, and, as necessary, any changes in such allocation
arising from the verification of such report.
[56 FR 5317, Feb. 11, 1991, as amended at 58 FR 27777, May 11, 1993]
Secs. 1001.46--1001.48 [Reserved]
Class Prices
Sec. 1001.50 Class prices.
Subject to the provisions of Sec. 1001.52, the class prices per
hundredweight of milk for the month shall be as follows:
(a) Class I price. The Class I price in Zone 21 shall be the basic
formula price for the second preceding month plus $2.52. The
differential value for Zone 1 shall be $3.24.
(b) Class II price. The Class II price shall be the basic formula
price for the second preceding month plus $0.30.
(c) Class III price. Subject to the adjustment set forth below for
the applicable month, the Class III price shall
[[Page 59]]
be the basic formula price for the month.
------------------------------------------------------------------------
Month Amount
------------------------------------------------------------------------
January........................................................ +$0.03
February....................................................... +.02
March.......................................................... -.05
April.......................................................... -.09
May............................................................ -.12
June........................................................... -.11
July........................................................... +.03
August......................................................... +.10
September...................................................... +.06
October........................................................ +.06
November....................................................... +.06
December....................................................... +.06
------------------------------------------------------------------------
(d) Class III-A price. The Class III-A price for the month shall be
the average Central States nonfat dry milk price for the month, as
reported by the Department, less 12.5 cents, times an amount computed by
subtracting from 9 an amount calculated by dividing .4 by such nonfat
dry milk price, plus the butterfat differential times 35 and rounded to
the nearest cent, and subject to the adjustments set forth in paragraph
(c) of this section for the applicable month.
[56 FR 5317, Feb. 11, 1991, as amended at 58 FR 63285, Dec. 1, 1993; 60
FR 6607, Feb. 2, 1995]
Sec. 1001.51 Basic formula price.
The basic formula price shall be the preceding month's average pay
price for manufacturing grade milk in Minnesota and Wisconsin using the
``base month'' series, as reported by the Department, adjusted to a 3.5
percent butterfat basis using the butterfat differential for the
preceding month computed pursuant to Sec. 1001.76 and rounded to the
nearest cent, plus or minus the change in gross value yielded by the
butter-nonfat dry milk and cheddar cheese product price formula computed
pursuant to paragraphs (a) through (e) of this section.
(a) The gross values of per hundredweight of milk used to
manufacture butter-nonfat dry milk and Cheddar cheese shall be computed,
using price data determined pursuant to paragraph (b) of this section
and annual yield factors, for the preceding month and separately for the
current month as follows:
(1) The gross value of milk used to manufacture butter-nonfat dry
milk shall be the sum of the following computations:
(i) Multiply the Grade AA butter price by 4.27;
(ii) Multiply the nonfat dry milk price by 8.07; and
(iii) Multiply the dry buttermilk price by 0.42.
(2) The gross value of milk used to manufacture Cheddar cheese shall
be the sum of the following computations:
(i) Multiply the Cheddar cheese price by 9.87; and
(ii) Multiply the Grade A butter price by 0.238.
(b) The following product prices shall be used pursuant to paragraph
(a) of this section:
(1) Grade AA butter price. Grade AA butter price means the simple
average for the month of the Chicago Mercantile Exchange, Grade AA
butter price, as reported by the Department.
(2) Nonfat dry milk price. Nonfat dry milk price means the simple
average for the month of the Western Nonfat Dry Milk Low/Medium Heat
price, as reported by the Department.
(3) Dry buttermilk price. Dry buttermilk price means the simple
average for the month of the Western Dry Buttermilk price, as reported
by the Department.
(4) Cheddar cheese price. Cheddar cheese price means the simple
average for the month of the National Cheese Exchange 40-pound block
Cheddar cheese price, as reported by the Department.
(5) Grade A butter price. Grade A butter price means the simple
average for the month of the Chicago Mercantile Exchange Grade A butter
price, as reported by the Department.
(c) Determine the amounts by which the gross value per hundredweight
of milk used to manufacture butter-nonfat dry milk and the gross value
per hundredweight of milk used to manufacture Cheddar cheese for the
current month exceed or are less than the respective gross values for
the preceding month.
(d) Compute weighting factors to be applied to the changes in gross
values determined pursuant to paragraph (c) of this section by
determining the relative proportion that the data included in each of
the following paragraphs is
[[Page 60]]
of the total of the data represented in paragraphs (d)(1) and (d)(2) of
this section:
(1) Combine the total nonfat dry milk production for the States of
Minnesota and Wisconsin, as reported by the Department, for the most
recent reporting period, and divide by the annual yield factor for
nonfat dry milk, 8.07, to determine the quantity (in hundredweights) of
milk used in the production of butter-nonfat dry milk; and
(2) Combine the total American cheese production for the States of
Minnesota and Wisconsin, as reported by the Department, for the most
recent reporting period, and divide by the annual yield factor for
Cheddar cheese, 9.87, to determine the quantity (in hundredweights) of
milk used in the production of American cheese.
(e) Compute a weighted average of the changes in gross values per
hundredweight of milk determined pursuant to paragraph (c) of this
section in accordance with the relative proportions of milk determined
pursuant to paragraph (d) of this section.
[60 FR 18953, Apr. 14, 1995]
Sec. 1001.52 Plant location adjustments.
The Class I and blended prices computed under Secs. 1001.50 and
1001.61 shall be subject to plant location adjustments based upon the
zone locations of plants. The zone location of any plant and the
location adjustments applicable to each zone location shall be
determined as specified in this section.
(a) The following zones are defined for the purpose of determining
location adjustments:
(1) Zone 1 shall include the State of Rhode Island and the
Massachusetts counties of Barnstable, Bristol, Dukes, Norfolk, Plymouth
and Suffolk, and between Boston and Massachusetts highway route number
128.
(2) Zone 2 shall include the Massachusetts counties of Middlesex
(only that portion south of Massachusetts highway route number 2 not
included in Zone 1) and Worcester (only the townships of Berlin,
Blackstone, Bolton, Douglas, Hopedale, Mendon, Milford, Millville,
Northborough, Northbridge, Southborough, Sutton, Upton, Uxbridge,
Westborough and that portion of Harvard township south of Massachusetts
highway route number 2).
(3) Zone 3 shall include: (i) The Connecticut counties of Middlesex
(except the townships of Cromwell, Durham, Haddam, Middlefield,
Middletown, and Portland), New London, Tolland (except the townships of
Ellington and Somers), and Windham.
(ii) The Massachusetts county of Worcester (only the townships of
Auburn, Boylston, Charlton, Clinton, Dudley, Grafton, Holden, Lancaster,
Leicester, Millbury, Oxford, Paxton, Shrewsbury, Southbridge, Sterling,
Webster, West Boylston, and Worcester City).
(4) Zone 5 shall include: (i) The Connecticut counties of Fairfield,
Hartford, Litchfield, Middlesex (only the townships of Cromwell, Durham,
Haddam, Middlefield, Middletown and Portland), New Haven, and Tolland
(only the townships of Ellington and Somers).
(ii) The Massachusetts counties of Hampden (only the townships of
Brimfield, Holland, Monson, Palmer and Wales), Hampshire (only the
township of Ware) and Worcester (only the townships of Brookfield, East
Brookfield, Hardwick, New Braintree, North Brookfield, Oakham, Spencer,
Sturbridge, Warren and West Brookfield).
(5) Zone 6 shall include the Massachusetts counties of Hampden
(except the townships of Brimfield, Holland, Monson, Palmer and Wales),
and Hampshire (except the township of Ware).
(b)-(c) [Reserved]
(d) The zone location of each plant in the State of Massachusetts
(except Berkshire County) that is outside the areas specified in
paragraph (a) of this section shall be based upon its highway mileage
distance to Boston, Massachusetts. The distance for each plant shall be
the mileage between Boston, Massachusetts, and the named point nearest
to the plant, measured to the greatest extent possible over roads
designated as principal roads, on the road maps specified in paragraph
(e) of this section.
(e) The zone location of each plant that is outside the areas
specified in
[[Page 61]]
paragraphs (a) through (d) of this section shall be based upon its
highway mileage distance to Boston, Mass., as determined by use of
Mileage Guide No. 11, and supplements to and revisions thereof, issued
by Household Goods Carriers' Bureau, Agent, Arlington, Va. The mileages
used shall be those shown between designated key points in the mileage
charts, and between named points on the appropriate State road maps, as
published in the mileage guide. In any instance in which the map does
not clearly show the mileage between points on a road, the mileage used
shall be the mileage as determined by the highway authority for the
State in which the road is located. The distance for each plant shall be
the mileage between Boston and the named point nearest to the plant, as
shown in the mileage charts. If that named point is not listed in the
mileage charts, the distance for the plant shall be the lowest mileage
distance between Boston and that named point, computed as follows:
(1) Determine from the charts the mileage between Boston and each of
the three key points nearest to the named point which are nearer to
Boston than the named point; and
(2) For each of these key points, add to the result in paragraph
(e)(1) of this section the mileage between the key point and the named
point, measured to the greatest extent possible over roads designated as
principal roads.
(f) Notwithstanding the provisions of paragraph (e) of this section,
for any named point located in Maine, New Hampshire, Vermont, New York,
or Berkshire County, Mass., determine the highway mileage distance
between Boston and the named point by use of the appropriate State maps
contained in Mileage Guide No. 7, issued by Household Goods Carriers'
Bureau, Agent, Arlington, Va. Such distance shall be the lowest highway
mileage between Boston and the named point on the map, over roads
designated thereon as paved, all-weather roads. In the event that the
named point is not located on a through, paved, all-weather road, such
other roads shall be used to reach a through, paved, all-weather road as
will result in the lowest highway mileage to Boston, except that such
other roads shall not be used for a distance of more than 15 miles if it
is otherwise possible to connect with a through, paved, all-weather
road. In any instance in which the map does not clearly show the mileage
between points on a road, the mileage used shall be the mileage as
determined by the highway authority for the State in which the road is
located. The mileage so determined, or the mileage determined under
paragraph (e) of this section, whichever is less, shall be considered to
be the lowest highway mileage distance between Boston and the named
point.
(g) The location adjustments for each plant shall be the amounts
shown in the following table for the zone in which the plant is located:
Location Adjustments for Determination of Zone Price
------------------------------------------------------------------------
Class I and
Plant blended price
Distance to Boston (miles) location adjustments
zone (cents per
hundredweight)
------------------------------------------------------------------------
1 to 10....................................... 1 +72.0
11 to 20...................................... 2 +69.5
21 to 30...................................... 3 +67.0
31 to 40...................................... 4 +64.5
41 to 50...................................... 5 +62.0
51 to 60...................................... 6 +59.5
61 to 70...................................... 7 +57.0
71 to 80...................................... 8 +54.5
81 to 90...................................... 9 +52.0
91 to 100..................................... 10 +49.5
101 to 110.................................... 11 +47.0
111 to 120.................................... 12 +44.5
121 to 130.................................... 13 +42.0
131 to 140.................................... 14 +39.5
141 to 150.................................... 15 +15.0
151 to 160.................................... 16 +12.5
161 to 170.................................... 17 +10.0
171 to 180.................................... 18 +7.5
181 to 190.................................... 19 +5.0
191 to 200.................................... 20 +2.5
201 to 210.................................... 21 +0.0
211 to 220.................................... 22 -2.5
221 to 230.................................... 23 -5.0
231 to 240.................................... 24 -7.5
241 to 250.................................... 25 -10.0
251 and over.................................. \2\ 26 (\1\)
------------------------------------------------------------------------
\1\ Class I and blended price location adjustments applicable to plants
located in subsequent zones shall be obtained by extending the table
at the rate of 2.5 cents for each additional 10 miles except that in
no event shall the Class I or blended price at any zone be less than
the Class II price for the month.
\2\ Includes 26 and over.
[43 FR 49972, Oct. 26, 1978, as amended at 46 FR 58642, Dec. 3, 1981; 56
FR 5318, Feb. 11, 1991]
[[Page 62]]
Sec. 1001.53 Determination of applicable zone locations for pricing purposes.
In computing the value of fluid milk products at claas prices under
Secs. 1001.60 and 1001.61, the handlers' producer-settlement fund debits
and credits under Sec. 1001.71, the minimum amounts payable to producers
under Sec. 1001.73, and the minimum amounts payable to cooperative
associations under Sec. 1001.74, the location adjustments specified in
Sec. 1001.52 for the zone location of the plant for which the
computation is being made shall be used except that for the following
items the adjustments for the zone locations specified shall be used:
(a) For producer milk diverted by any handler, including a
cooperative association in its capacity as a handler under
Sec. 1001.9(d), the zone location of the plant to which the milk was
diverted;
(b) For producer milk of a cooperative association in its capacity
as a handler under Sec. 1001.9(d) moved to a pool plant, the zone
location of the plant to which the milk was moved;
(c) For milk of a cooperative association in its capacity as a
handler under Sec. 1001.9(d) in shrinkage, overage, extraordinary loss,
and ending inventory, the zone location of the pool plant, or pool
plants within the same zone, to which the greatest aggregate quantity of
such milk of the cooperative association was moved during the current
month or the most recent month;
(d) For beginning inventory of a cooperative association in its
capacity as a handler under Sec. 1001.9(d), the zone location at which
the milk was priced as ending inventory during the previous month;
(e) [Reserved]
(f) For receipts from unregulated supply plants assigned to Class I
milk, the zone location of the plant from which the product was
received;
(g) For any excess of beginning inventory assigned to Class I milk
under Sec. 1001.44(a)(2)(iii), (a)(5), (a)(7)(i), or (a)(9) over the
quantities of producer milk and of milk from cooperative associations in
their capacity as handlers under Sec. 1001.9(d) assigned to Class II and
Class III milk in the preceding month, the zone location of the pool
plants from which an equivalent quantity of receipts of fluid milk
products were assigned to Class II or Class III milk in the preceding
month in sequence beginning with the plant in the lowest-numbered zone;
and
(h) For purposes of computing the value of fluid milk products at
class prices, any fluid milk products moved in bulk from a pool plant to
another pool plant at which a higher Class I price applies and which is
classified as Class I milk shall be priced at the Class I price
applicable at the location of the plant to which the milk was moved
subject to a location adjustment credit for the transferee-plant
determined by the market administrator as follows:
(1) After the allocation step of Sec. 1001.44(a)(12) for the
transferee-plant, multiply the remaining pounds of Class I skim milk and
Class I butterfat, plus the pounds of skim milk and butterfat in
receipts of concentrated fluid milk products from other pool plants that
are assigned to Class I use, by 110 percent and 150 percent,
respectively;
(2) Subtract the respective pounds of skim milk and butterfat in
bulk fluid milk products physically received at the plant from the
following sources:
(i) Producers;
(ii) Cooperative associations in their capacity as handlers under
Sec. 1001.9(d);
(iii) Receipts of diverted milk from pool plants; and
(iv) Receipts (other than diverted milk) from pool plants at which
the same or a higher Class I price applies;
(3) Assign any pounds remaining (which are not in excess of Class I
transfers) to skim milk and butterfat in bulk receipts of fluid milk
products (except diverted milk) from other pool plants at which a lower
Class I price applies in sequence according to the zone location of the
plants, beginning with the plant in the lowest numbered zone; and
(4) Multiply the hundredweight computed for each transferor-plant in
paragraph (h)(3) of this section by the difference in the Class I prices
applicable at the transferee-plant and transferor-plant and total such
amounts.
[41 FR 8357, Feb. 26, 1976, as amended at 43 FR 49972, Oct. 26, 1978; 46
FR 58643, Dec. 3, 1981; 56 FR 5318, Feb. 11, 1991; 58 FR 27777, May 11,
1993]
[[Page 63]]
Sec. 1001.54 Announcement of class prices.
The market administrator shall announce publicly on or before the
fifth day of each month the Class I and Class II prices for the
following month, and the Class III and Class III-A prices for the
preceding month.
[60 FR 6607, Feb. 2, 1995]
Sec. 1001.55 Equivalent price.
If, for any reason, a price specified in this part for use in
computing class prices or for other purposes is not reported or
published in the manner described in this part, the market administrator
shall use one determined by the Secretary to be equivalent to the price
that is specified.
Blended Price
Sec. 1001.60 Handler's value of milk for computing basic blended price.
For the purpose of computing the basic blended price, the market
administrator shall determine for each month the value of milk of each
handler with respect to each of the handler's pool plants, and of each
handler described in Sec. 1001.9(d) with respect to milk that was not
received at a pool plant, as directed in this section. The prices used
shall be those for the applicable zone locations as determined under
Sec. 1001.53.
(a) Multiply the pounds of producer milk and milk received from a
handler described in Sec. 1001.9(d) that were classified in each class
as determined pursuant to Sec. 1001.44 by the applicable class prices
and add the resulting amounts;
(b) Add the amounts obtained from multiplying the pounds of overage
subtracted from each class pursuant to Sec. 1001.44(a)(14) and the
corresponding step of Sec. 1001.44(b) by the respective class prices, as
adjusted by the butterfat differential specified in Sec. 1001.74, that
are applicable at the location of the pool plant;
(c) Add the amount obtained from multiplying the difference between
the Class III price for the preceding month and the Class I price
applicable at the location of the pool plant or the Class II price, as
the case may be, for the current month by the hundredweight of skim milk
and butterfat subtracted from Class I and Class II pursuant to
Sec. 1001.44(a)(9) and the corresponding step of Sec. 1001.44(b).
(d) Add the amount obtained from multiplying the difference between
the Class I price applicable at the location of the pool plant and the
Class III price by the hundredweight of skim milk and butterfat assigned
to Class I pursuant to Sec. 1001.43(g) and the hundredweight of skim
milk and butterfat subtracted from Class I pursuant to
Sec. 1001.44(a)(7) (i) through (iv), (vii), and (viii) and the
corresponding step of Sec. 1001.44(b), excluding receipts of bulk fluid
cream products from an other order plant and bulk concentrated fluid
milk products from pool plants, other order plants and unregulated
supply plants;
(e) Add the amount obtained from multiplying the difference between
the Class I price applicable at the location of the transferor-plant and
the Class III price by the hundredweight of skim milk and butterfat
subtracted from Class I pursuant to Sec. 1001.44(a)(7) (v) and (vi) and
the corresponding step of Sec. 1001.44(b);
(f) Add the amount obtained from multiplying the Class I price
applicable at the location of the nearest unregulated supply plants from
which an equivalent volume was received by the pounds of skim milk and
butterfat in receipts of concentrated fluid milk products assigned to
Class I pursuant to Sec. 1001.43(g) and Sec. 1001.44(a)(7)(i) and the
pounds of skim milk and butterfat subtracted from Class I pursuant to
Sec. 1001.44(a)(11) and the corresponding steps of Sec. 1001.44(b),
excluding such skim milk and butterfat in receipts of bulk fluid milk
products from an unregulated supply plant to the extent that an
equivalent amount of skim milk or butterfat disposed of to such plant by
handlers fully regulated under any Federal milk order is classified and
priced as Class I milk and is not used as an offset for any other
payment obligation under any order;
(g) Subtract, for reconstituted milk made from receipts of nonfluid
milk products, an amount computed by multiplying $1.00 (but not more
than the difference between the Class I price applicable at the location
of the pool plant and the Class III price) by the
[[Page 64]]
hundredweight of skim milk and butterfat contained in receipts of
nonfluid milk products that are allocated to Class I use pursuant to
Sec. 1001.43(g);
(h) Exclude, for pricing purposes under this section, receipts of
nonfluid milk products that are distributed as labeled reconstituted
milk for which payments are made to the producer-settlement fund of
another order under Sec. 1001.61(e); and
(i) For pool plants that transfer bulk concentrated fluid milk
products to other pool plants and other order plants, add or subtract
the amount per hundredweight of any class price change from the previous
month that results from any inventory reclassification of bulk
concentrated fluid milk products that occurs at the transferee plant.
Any such applicable class price change shall be applied to the plant
that used the concentrated milk in the event that the concentrated fluid
milk products were made from bulk unconcentrated fluid milk products
received at the plant during the prior month.
[56 FR 5319, Feb. 11, 1991, as amended at 58 FR 27777, May 11, 1993]
Sec. 1001.61 Partially regulated distributing plant operator's value of milk for computing basic blended price.
For the purpose of computing the basic blended price, the market
administrator shall determine for each month the value of milk
distributed as route disposition in the marketing area by the operator
of a partially regulated distributing plant, as follows:
(a) Subtract from the quantity of route disposition, except
reconstituted milk products, distributed in the marketing area by the
partially regulated distributing plant operator the quantity of fluid
milk products (except reconstituted milk products and those described in
paragraph (b) of this section) received at the plant during the month
that is classified and priced as Class I milk or the equivalent thereof
under any marketwide pool Federal order and that is not used to offset
route disposition in any other marketing area, and multiply the result
by the applicable Class I price;
(b) Multiply by the difference between the applicable Class I price
and the Class III price for the month the quantity of filled milk
distributed as route disposition in the marketing area from the
partially regulated distributing plant which is not proved to have been
made from other fresh fluid milk products; and
(c) Subtract the pounds of reconstituted milk that are made from
nonfluid milk products and which are then disposed of as route
disposition in the marketing area from the partially regulated
distributing plant. Add the amount obtained from multiplying the pounds
of labeled reconstituted milk included previously in this paragraph by
the difference between the Class I price applicable at the location of
the partially regulated distributing plant less $1.00 (but not to be
less than the Class III price) and the Class III price. For any
reconstituted milk that is not so labeled, the Class I price shall not
be reduced by $1.00. Alternatively, for such disposition, payments may
be made to the producer-settlement fund of the order regulating the
producer milk used to produce the nonfluid milk ingredients at the
difference between the Class I price applicable under the other order at
the location of the plant where the nonfluid milk ingredients were
processed (but not to be less than the Class III price) and the Class
III price. This payment option shall apply only if a majority of the
total milk received at the plant that processed the nonfluid milk
ingredients is regulated under one or more Federal orders and payment
may only be made to the producer-settlement fund of the order pricing a
plurality of the milk used to produce the nonfluid milk ingredients.
This payment option shall not apply if the source of the nonfluid
ingredients used in reconstituted fluid milk products cannot be
determined by the market administrator.
(d) Add the values pursuant to paragraphs (a) through (c) of this
section.
(e) Any handler may elect partially regulated distributing plant
status for any plant with respect to receipts of nonfluid milk
ingredients assigned to Class I use under Sec. 1001.43(g). Payments may
be made to the producer-settlement fund of the order regulating the
producer milk used to produce the
[[Page 65]]
nonfluid milk ingredients at the difference between the Class I price
applicable under the other order at the location of the plant where the
nonfluid milk ingredients were processed (but not to be less than the
Class III price) and the Class III price. This payment option shall
apply only if a majority of the total milk received at the plant that
processed the nonfluid milk ingredients is regulated under one or more
Federal orders and payment may only be made to the producer-settlement
fund of the order pricing a plurality of the milk used to produce the
nonfluid milk ingredients. This payment option shall not apply if the
source of the nonfluid ingredients used in reconstituted fluid milk
products cannot be determined by the market administrator.
[56 FR 5319, Feb. 11, 1991, as amended at 58 FR 27777, May 11, 1993]
Sec. 1001.62 Computation of basic blended price.
The market administrator shall compute the basic blended price per
hundredweight applicable to milk received at plants located in zone 21
and containing 3.5 percent butterfat as follows:
(a) Combine into one total the values computed pursuant to
Secs. 1001.60 and 1001.61 for all handlers from whom the market
administrator has received at the market administrator's office prior to
the 11th day after the end of the month the reports for the month
prescribed in Sec. 1001.30 and the payments for the preceding month
required under Sec. 1001.72(a);
(b) Deduct the amount of the plus adjustments, and add the amount of
the minus adjustments, that are applicable under Secs. 1001.52 and
1001.53;
(c)-(d) [Reserved]
(e) Add an amount equal to not less than one-half of the unobligated
balance of the producer-settlement fund at the close of business on the
10th day after the end of the month;
(f) Divide the resulting amount by the sum of the following for all
handlers included in these computations:
(1) The total hundredweight of producer milk;
(2) The total hundredweight for which a value is computed pursuant
to Sec. 1001.60(f); and
(3) The total hundredweight for which a value is computed pursuant
to Sec. 1001.61(a); and
(g) Subtract not less than 4 cents nor more than 5 cents for the
purpose of retaining a cash balance in the producer-settlement fund. The
result shall be the basic blended price for the month.
[56 FR 5319, Feb. 11, 1991, as amended at 59 FR 16512, Apr. 7, 1994]
Sec. 1001.63 Announcement of blended prices and butterfat differential.
The market administrator shall announce publicly on or before:
(a) The fifth day after the end of each month the butterfat
differential for such month; and
(b) The 13th day after the end of each month the zone blended prices
resulting from the adjustment of the basic blended price for such month,
as computed under Sec. 1001.62, by the location adjustments set forth in
Sec. 1001.52.
[56 FR 5320, Feb. 11, 1991]
Payments for Milk
Sec. 1001.70 Producer-settlement fund.
(a) The market administrator shall establish and maintain a separate
fund known as the ``producer-settlement fund.'' He shall deposit into
the fund all amounts received from handlers under Secs. 1001.72,
1001.77, and 1001.78 and the amount subtracted under Sec. 1001.62(c). He
shall pay from the fund all amounts due handlers under Secs. 1001.72,
1001.77, and 1001.78 and the amount added under Sec. 1001.62(d), subject
to his right to offset any amounts due from the handler under these
sections and under Secs. 1001.85 and 1001.86.
(b) All amounts subtracted under Sec. 1001.62(c), including interest
earned thereon, shall remain in the producer-settlement fund as an
obligated balance until it is withdrawn for the purpose of effectuating
Sec. 1001.62(d).
(c) The market administrator shall place all monies subtracted under
Sec. 1001.62(c) in an interest-bearing bank account or accounts in a
bank or banks duly approved as a Federal depository for such monies, or
invest them in short-term U.S. Government securities.
[41 FR 8357, Feb. 26, 1976, as amended by 56 FR 5320, Feb. 11, 1991]
[[Page 66]]
Sec. 1001.71 Handlers' producer-settlement fund debits and credits.
On or before the 15th day after the end of the month, the market
administrator shall render a statement to each handler showing the
amount of the handler's producer-settlement fund debit or credit, as
calculated in this section.
(a) The producer-settlement fund debit or credit for each plant and
each cooperative association in its capacity as a handler under
Sec. 1001.9(d) shall be computed as specified in this paragraph.
(1) Multiply the quantities of producer milk, the quantities of
fluid milk products received at the pool plant from cooperative
associations in their capacity as handlers under Sec. 1001.9(d), the
quantities of other source fluid milk receipts at pool plants that were
allocated to Class I pursuant to Sec. 1001.44; and the quantities of
route disposition in the marketing area by partially regulated
distributing plants for which a value was determined pursuant to
Sec. 1001.61(a) by the basic blended price computed under Sec. 1001.62
adjusted by any location adjustments applicable under Secs. 1001.52 and
1001.53.
(2) For any cooperative association in its capacity as a handler
under Sec. 1001.9(d), multiply the quantities of milk moved to each pool
plant by the basic blended price computed under Sec. 1001.62 adjusted by
any location adjustments applicable under Secs. 1001.52 and 1001.53; and
to the result add the value determined under Sec. 1001.60.
(3) If the value of fluid milk products, as determined under
Sec. 1001.60 for any pool plant, under Sec. 1001.61 for any partially
regulated distributing plant, or under paragraph (a)(2) of this section
for any cooperative association in its capacity as a handler under
Sec. 1001.9(d), is greater than the credit as determined under paragraph
(a)(1) of this section, the difference shall be the producer-settlement
fund debit for the plant or the cooperative association in its capacity
as a handler under Sec. 1001.9(d).
(4) If the value of fluid milk products, as determined under
Sec. 1001.60 or 1001.61 for any plant, or as determined under paragraph
(a)(2) of this section for any cooperative association in its capacity
as a handler under Sec. 1001.9(d), is less than the credit as determined
under paragraph (a)(1) of this section, the difference shall be the
producer-settlement fund credit for the plant or the cooperative
association in its capacity as a handler under Sec. 1001.9(d).
(b) The producer-settlement fund debit or credit of any handler
shall be the net of the producer-settlement fund debits and credits as
computed for all of its operations under paragraph (a) of this section.
[41 FR 8357, Feb. 26, 1976, as amended by 56 FR 5320, Feb. 11, 1991]
Sec. 1001.72 Payments to and from the producer-settlement fund.
(a) On or before the 18th day after the end of the month, each
handler shall pay to the market administrator the handler's producer-
settlement fund debit for the month as determined under Sec. 1001.71.
(b) On or before the 20th day after the end of the month, the market
administrator shall pay to each handler the handler's producer-
settlement fund credit for the month as determined under Sec. 1001.71.
If the unobligated balance in the producer-settlement fund is
insufficient to make such payments, the market administrator shall
reduce uniformly such payments and shall complete them as soon as the
funds are available.
Sec. 1001.73 Payments to producers.
(a) On or before the 5th day after the end of the month, each
handler shall pay each producer for milk received from him during the
first 15 days of the month at a rate that is not less than the Class III
price for the preceding month.
(b) On or before the 20th day after the end of the month, each
handler shall make final payment to each producer for the total value of
milk received from him during the month at not less than the basic
blended price per hundredweight computed under Sec. 1001.62, adjusted by
the location adjustment applicable under Secs. 1001.52 and 1001.53 and
the butterfat differential applicable under Sec. 1001.76, minus the
amount of the payment made to the producer under paragraph (a) of this
section. If
[[Page 67]]
the handler has not received full payment from the market administrator
under Sec. 1001.72(b) by the date payments are due under this paragraph,
he may reduce pro rata his payments to producers by an amount not to
exceed such underpayment. Such payments shall be completed after receipt
of the balance due from the market administrator by the next following
date for making payments under this paragraph.
(c) If the handler's net payment to a producer is for an amount less
than the total amount due the producer under this section, the burden
shall rest upon the handler to prove to the market administrator that
each deduction from the total amount due is properly authorized and
properly chargeable to the producer.
(d) In making payment to producers under paragraph (b) of this
section for milk diverted from a pool plant the handler may elect to pay
such producers at the price applicable at the zone location of the plant
from which the milk was diverted, if the resulting net payment to each
producer is not less than that otherwise required under this section and
the rate of payment and the deductions shown on the statement required
to be furnished under Sec. 1001.75 are those used in computing the
payment.
[41 FR 8357, Feb. 26, 1976, as amended at 43 FR 17461, Apr. 25, 1978; 43
FR 49972, Oct. 26, 1978; 56 FR 5320, Feb. 11, 1991]
Sec. 1001.74 Payments to cooperative associations.
(a) Each cooperative association may file with a handler who is not
a cooperative association a claim either for the payments that the
handler is required to make to the association's producer members under
Sec. 1001.73 or for authorized deductions from such payments. The claim
shall contain a list of the producers to whom the payments are due or to
whom the deductions apply, an agreement to indemnify the handler in the
making of such payments or deductions, and a certification that the
association has for each producer listed an unterminated membership
contract authorizing the payment or deduction.
(b) The handler shall withhold from the association's producer
members the payments or the deductions specified in paragraph (a) of
this section in accordance with the association's claim. He shall pay
the amounts withheld to the association on or before the dates on which
such amounts otherwise would have been due to the producer members under
Sec. 1001.73.
(c) For each producer member from whom payment was withheld, the
handler shall furnish the association a supporting statement showing the
information required to be furnished to the producer under Sec. 1001.75.
Such information with respect to milk received during the first 15 days
of the month shall be furnished not later than the 27th day of the month
and with respect to milk received during the remainder of the month not
later than the 12th day of the following month. For each producer member
from whom a deduction is made under this section, the handler shall
furnish the association a statement showing the pounds of milk received.
(d) Each handler who receives fluid milk products at his plant from
a cooperative association in its capacity as the operator of a pool
plant or in its capacity as a handler under Sec. 1001.9(d) shall make
payment to the association for such receipts as follows:
(1) On or before the 5th day after the end of the month, for the
fluid milk products received from the association during the first 15
days of the month at a rate that is not less than the Class III price
for the preceding month. The payment made to the association under this
subparagraph shall constitute partial payment of the total amount
required to be paid under this paragraph.
(2) On or before the 20th day after the end of the month, for not
less than the total value of fluid milk products received from the
association's pool plants, as determined by multiplying the respective
quantities assigned to each class under Sec. 1001.44 by the class price
for the month, adjusted by the location adjustments applicable under
Secs. 1001.52 and 1001.53 and the butterfat differential applicable
under Sec. 1001.76, minus the amount of the payment made to the
association under paragraph (d)(1) of this section.
(3) On or before the 20th day after the end of the month, for not
less than the
[[Page 68]]
total value of milk received from the cooperative association in its
capacity as a handler under Sec. 1001.9(d), at the basic blended price
per hundredweight for the month computed under Sec. 1001.62, adjusted by
the location adjustment applicable under Secs. 1001.52 and 1001.53 and
the butterfat differential applicable under Sec. 1001.76, minus the
amount of the payment made to the association under paragraph (d)(1) of
this section. If the handler has not received full payment from the
market administrator under Sec. 1001.72(b) by the date payment is due
under this paragraph, he may reduce his payment to the association by an
amount not to exceed such underpayment. Such payment shall be completed
after receipt of the balance due from the market administrator by the
next following date for making payment under this paragraph.
[41 FR 8357, Feb. 26, 1976, as amended at 43 FR 17461, Apr. 25, 1978; 56
FR 5320, Feb. 11, 1991]
Sec. 1001.75 Statements to producers.
In making the payments to producers required under Sec. 1001.73,
each handler shall furnish each producer with a supporting statement, in
such form that it may be retained by the producer, which shall show:
(a) The month and the identity of the handler and of the producer;
(b) The pounds and butterfat test of milk that is received from the
producer, or if more than one minimum rate of payment is applicable to
the producer's milk under Sec. 1001.73, the respective pounds and test
to which each minimum rate of payment applies;
(c) The minimum rate or rates, including the butterfat differential,
at which payment to the producer is required under Sec. 1001.73;
(d) The rate that is used in making the payment, if such rate is
other than the applicable minimum rate;
(e) The amount or the rate per hundredweight of each deduction
claimed by the handler, including any deductions claimed under
Secs. 1001.74 and 1001.86, together with a description of the respective
deductions; and
(f) The net amount of payment to the producer.
Sec. 1001.76 Butterfat differential.
(a) In making the payments to producers required under Sec. 1001.73
and the payments to cooperative associations required under
Sec. 1001.74(d), each handler shall add for each one-tenth of one
percent of average butterfat content above 3.5 percent, or may deduct
for each one-tenth of one percent of average butterfat content below 3.5
percent, as a butterfat differential, an amount per hundredweight that
shall be computed by the market administrator under paragraph (b) of
this section.
(b) Round to the nearest one-tenth cent, which shall be 0.138 times
the current month's butter price less 0.0028 times the preceding month's
average pay price per hundredweight, at test, for manufacturing grade
milk in Minnesota and Wisconsin, using the ``base month'' series,
adjusted pursuant to Sec. 1001.51 (a) through (e), as reported by the
Department. The butter price means the simple average for the month of
the Chicago Mercantile Exchange, Grade A butter price as reported by the
Department.
[41 FR 8357, Feb. 26, 1976, as amended at 60 FR 18954, Apr. 14, 1995]
Sec. 1001.77 Adjustment of accounts.
(a) Whenever the market administrator's verification of a handler's
reports or payments discloses an error in payments to or from the market
administrator under Sec. 1001.72, Sec. 1001.85, or Sec. 1001.86, the
market administrator shall promptly issue to the handler a charge bill
or a credit, as the case may be, for the amount of the error. Adjustment
charge bills issued during the period beginning with the 11th day of the
prior month and ending with the 10th day of the current month shall be
payable by the handler to the market administrator on or before the 18th
day of the current month. Adjustment credits issued during that period
shall be payable by the market administrator to the handler on or before
the 20th day of the current month.
(b) Whenever the market administrator's verification of a handler's
payments discloses payment to a producer or a cooperative association of
an amount less than is required by Secs. 1001.73 and 1001.74, the
handler shall
[[Page 69]]
make payment of the balance due the producer or the cooperative
association not later than the 20th day after the end of the month in
which the handler is notified of the deficiency.
Sec. 1001.78 Charges on overdue accounts.
Any producer-settlement fund account balance due from or to a
handler under Sec. 1001.72, Sec. 1001.77, or Sec. 1001.78, for which
remittance has not been received in or paid from the market
administrator's office by the close of business on the 20th day of any
month, shall be increased one percent effective the following day.
[56 FR 5320, Feb. 11, 1991]
Administrative Assessment and Marketing Service Deduction
Sec. 1001.85 Assessment for order administration.
On or before the 18th day after the end of the month, each handler
shall pay to the market administrator his pro rata share of the expense
of administration of this order. The payment shall be at the rate of 4
cents per hundredweight, or such lesser rate as the Secretary may
prescribe. The payment shall apply to:
(a) All of a handler's receipts at pool plants during the month of
fluid milk products from all sources, except receipts from pool plants,
receipts from regulated plants or pool bulk tank units under other
Federal orders if such receipts were subject to an administrative
expense assessment under the other order, and receipts of exempt milk
processed at plants other than pool plants;
(b) All receipts and beginning inventory of a cooperative
association in its capacity as a handler under Sec. 1001.9(d) for the
month less its disposition to pool plants and ending inventory for the
month; and
(c) The quantity distributed as route disposition in the marketing
area from a partially regulated distributing plant for which a value is
determined under Sec. 1001.61.
[41 FR 8357, Feb. 26, 1976, as amended by 56 FR 5320, Feb. 11, 1991]
Sec. 1001.86 Deduction for marketing services.
(a) In making the payments required by Sec. 1001.73 to producers,
other than himself and any producer who is a member of a cooperative
association that the Secretary determines is performing the services
specified in this section, each handler shall deduct 5 cents per
hundredweight, or such lesser rate as the Secretary shall determine to
be sufficient, for marketing services. The handler shall pay the amount
deducted to the market administrator on or before the 18th day after the
end of the month.
(b) The market administrator shall expend amounts received under
paragraph (a) of this section only in providing for market information
to such producers and for verification of weights, samples, and tests of
milk received from them. The market administrator may contract with a
cooperative association for the furnishing of the whole or any part of
these services.
[41 FR 8357, Feb. 26, 1976, as amended at 43 FR 17461, Apr. 25, 1978]
PART 1002--MILK IN NEW YORK-NEW JERSEY MARKETING AREA--Table of Contents
Subpart--Order Regulating Handling
General Provisions and Definitions
Sec.
1002.1 General provisions.
1002.3 Marketing area.
1002.5 Dairy farmer.
1002.6 Producer.
1002.7 Handler.
1002.8 Plant.
1002.9 Unit.
1002.10 Farm.
1002.11 Own farm milk.
1002.12 Producer-handler.
1002.13 Other order.
1002.14 Pool milk.
1002.15 Fluid milk product.
1002.16 Other source milk.
1002.17 Filled milk.
1002.18 Fluid cream product.
1002.19 [Reserved]
1002.20 Commercial food processing establishment.
Market Administrator
1002.22 Additional duties of the market administrator.
[[Page 70]]
Pool Plants and Bulk Tank Units
1002.24 Regular pool plants.
1002.25 Bulk tank units.
1002.26 Operating requirements.
1002.27 Suspension and cancellation of designation.
1002.28 Temporary pool plants.
1002.29 Partial pool plants.
Reports
1002.30 Reports of receipts and utilization.
1002.31 Producer payroll reports.
1002.32 Other reports.
Classification
1002.40 General classification rules.
1002.41 Classes of utilization.
1002.42 Shrinkage.
1002.44 Transfers.
1002.45 Allocation of skim milk and butterfat classified.
1002.46 Rules and regulations.
Minimum Prices
1002.50 Class prices.
1002.51 Basic formula price.
1002.52 Transportation differentials.
1002.53 Producer-handler price differential.
1002.54 Use of equivalent price or index.
1002.55 Transportation credit on bulk unit pool milk.
1002.56 Announcement of class prices and butterfat differential.
Determination of Uniform Price
1002.60 Net pool obligation of handlers.
1002.61 Computation of the uniform price.
1002.62 Announcement of uniform price.
Producer Settlement Fund and Its Operation
1002.70 Producer settlement fund.
1002.71 Handler's accounts.
1002.72 Payments to the producer-settlement fund.
1002.73 Payments out of the producer-settlement fund.
1002.74 Handler's pool debit or credit.
1002.75 Adjustments of errors in payments.
1002.76 Charges on overdue accounts.
1002.77 Cooperative payments for marketwide services.
Payment by Handlers Directly to Producers
1002.80 Time and rate of payments.
1002.81 Butterfat differential.
1002.82 Transportation differentials.
Expense of Administration
1002.85 Payment by handlers.
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Subpart--Order Regulating Handling
Source: 33 FR 8201, June 1, 1968, unless otherwise noted.
General Provisions and Definitions
Sec. 1002.1 General provisions.
The terms, definitions, and provisions in part 1000 of this chapter
are hereby incorporated by reference and made a part of this order.
[36 FR 9847, May 29, 1971]
Sec. 1002.3 Marketing area.
New York-New Jersey milk marketing area (hereinafter called the
``marketing area'') means all of the territory within the boundaries of
the city of New York, and the counties and parts of counties set forth
below together with all piers, docks, and wharves connected therewith,
and all craft moored thereat, and including territory within such
boundaries which is occupied by Government (municipal, State, Federal,
or international) reservations, installations, institutions, or other
establishments.
New York Counties
Albany.
Broome.
Cayuga (except the townships of Sterling, Victory, Conquest, and
Montezuma).
Chemung.
Chenango.
Columbia.
Cortland.
Delaware.
Dutchess.
Essex (Schroon, Ticonderoga, Crown Point, and Moriah townships only).
Fulton (except the township of Stratford).
Greene.
Herkimer (except the townships of Webb, Ohio, and Salisbury).
Madison.
Montgomery.
Nassau.
Oneida (except the townships of Ava, Boonville, Forestport, and
Florence).
Onondaga.
Orange.
Oswego (except the townships of Redfield and Boylston).
Otsego
Putnam.
Rensselaer.
Rockland.
[[Page 71]]
Saratoga (except the townships of Day, Edinburg, and Providence).
Schenectady.
Schoharie.
Schuyler.
Steuben (Addison, Corning, and Erwin townships only).
Suffolk (except Fisher's Island).
Sullivan.
Tioga.
Tompkins.
Ulster.
Warren (except the townships of Johnsburg, Thurman, and Stony Creek).
Washington.
Westchester.
Yates (except the townships of Italy, Middlesex, and Potter).
New Jersey Counties
Bergen.
Essex.
Hudson.
Hunterdon.
Middlesex.
Monmouth.
Morris.
Ocean (except the boroughs of Barnegat Light, Beach Haven, Harvey,
Cedars, Ship Bottom, Surf City, Tuckerton, and the townships of
Eagleswood, Lacery, Little Egg Harbor, Long Beach, Ocean, Stafford, and
Union).
Passaic.
Somerset.
Sussex.
Union.
Warren.
Sec. 1002.5 Dairy farmer.
Dairy farmer means any person who produces milk.
Sec. 1002.6 Producer.
Producer means any dairy farmer who produces milk approved by a duly
constituted regulatory agency for fluid consumption and who delivers
pool milk as specified in Sec. 1002.14 to a pool plant, a pool unit, a
plant specified in Sec. 1002.28 (f)(2) which is a partial pool plant, or
a partial pool unit whose pool designation was canceled for failure to
meet the requirements specified in Sec. 1002.26(a), except that it shall
not include any such dairy farmer delivering to such partial pool plant
or partial pool unit unless at least 50 percent of such dairy farmer's
milk delivered to such plant or unit is pool milk pursuant to
Sec. 1002.14. Each dairy farmer delivering milk to a partial pool plant
or a partial pool unit shall be considered to have delivered pool milk
for such dairy farmer's proportionate share of total milk delivered by
dairy farmers to such plant or unit.
[56 FR 5320, Feb. 11, 1991]
Sec. 1002.7 Handler.
Handler means:
(a) Any person who engages in the handling of skim milk or butterfat
which was received at a pool plant, a partial pool plant, a pool unit or
a partial pool unit or at a plant approved by any health authority as a
source of skim milk or butterfat for disposition as fluid milk products
in the marketing area;
(b) Any person who engages in the handling of fluid milk products,
all or a portion of which is shipped to, or received in, the marketing
area; or
(c) Any cooperative association with respect to milk which it causes
to be delivered from producers to any other handler for the account of
such association and for which such association receives payment.
Sec. 1002.8 Plant.
(a) Plant means the land, buildings, surroundings, facilities, and
equipment, whether owned or operated by one or more persons,
constituting a single operating unit or establishment for the receiving,
handling, or processing of milk or milk products as determined by the
market administrator.
(b) Pool plant means any plant which is designated as a pool plant
pursuant to Secs. 1002.24 to 1002.28 and any plant, except an other
order plant, which receives no milk from dairy farmers or units and from
which 50 percent or more of the gross receipts of skim milk and
butterfat in the form of fluid milk products is disposed of in consumer
packages or dispenser inserts in the marketing area by direct
distribution or is moved either in packaged form or bulk to other plants
in the marketing area.
(c) Partial pool plant means a plant which is so designated pursuant
to Sec. 1002.29.
(d) Other order plant means a plant which is fully subject to the
pricing and payment provisions of an other order.
[[Page 72]]
Sec. 1002.9 Unit.
(a) Pool unit means a bulk tank unit established pursuant to
Sec. 1002.25 and which meets the requirements of a pool unit pursuant to
such section.
(b) Partial pool unit means a bulk tank unit so designated pursuant
to Sec. 1002.25(k).
Sec. 1002.10 Farm.
Farm means the production facilities and resources supplying milk to
a milk house of a dairy farmer. The location of the farm shall be deemed
to be the same as the location of the milk house, and in the event of a
change in the location of the dairy farmer's milk house, any question as
to whether milk received from the new milk house is from the same or a
different farm shall be determined by the market administrator.
Sec. 1002.11 Own farm milk.
(a) Own farm milk means milk received at a plant from a farm
operated by the person who is the operator of such plant.
(b) The market administrator shall publicly announce the name of any
handler operating a pool plant receiving own farm milk and the location
of the plant operated by such handler. This public announcement shall
not include the name of:
(1) Any person meeting the definition of producer-handler as set
forth in Sec. 1002.12;
(2) Any person receiving no milk from other dairy farmers and
selling no more than 100 quarts per day of Class I-A milk to persons in
the marketing area other than to other plants; or
(3) A charitable, religious, educational, or governmental
institution which is not engaged in the practice of receiving bulk milk
from other sources for processing or packaging and is not engaged in the
practice of selling packaged milk to persons not associated with such
institution.
Sec. 1002.12 Producer-handler.
Producer-handler means a handler who, following the filing of an
application pursuant to paragraph (a) of this section, has been so
designated by the market administrator upon determination that the
requirements of paragraph (b) of this section have been met. Such
designation shall be effective on the first of the month after receipt
by the market administrator of an application containing complete
information on the basis of which the market administrator determines
that the requirements of paragraph (b) of this section are being met.
The effective date of designation shall be governed by the date of
filing new applications in instances where applications previously filed
have been denied. All designations shall remain in effect until
cancelled pursuant to paragraph (c) of this section.
(a) Application. Any handler claiming to meet the requirements of
paragraph (b) of this section may file with the market administrator, on
forms prescribed by the market administrator, an application for
designation as a producer-handler. The application shall contain the
following information:
(1) A listing and description of all resources and facilities used
for the production of milk which are owned or directly or indirectly
operated or controlled by the applicant.
(2) A listing and description of all resources and facilities used
for the processing or distribution of milk or milk products which are
owned, or directly or indirectly operated or controlled by the
applicant.
(3) A description of any other resources and facilities used in the
production, handling, or processing of milk or milk products in which
the applicant in any way has an interest, including any contractual
arrangement, and the names of any other persons having or exercising any
degree of ownership, management, or control in, or with whom there
exists any contractual arrangement with respect to, the applicant's
operation either in his capacity as a handler or in his capacity as a
dairy farmer.
(4) A listing and description of the resources and facilities used
in the production, processing, and distribution of milk or milk products
which the applicant desires to be determined as his milk production,
processing, and distribution unit in connection with his
[[Page 73]]
designation as a producer-handler: Provided, That all milk production
resources and facilities owned, operated, or controlled by the applicant
either directly or indirectly shall be considered as constituting a part
of the applicant's milk production unit in the absence of proof
satisfactory to the market administrator that some portion of such
facilities or resources do not constitute an actual or potential source
of milk supply for the applicant's operation as a producer-handler.
(5) Such other information as may be required by the market
administrator.
(b) Requirements. (1) The handler has and exercises (in his capacity
as a handler) complete and exclusive control over the operation and
management of a plant at which he handles milk received from production
facilities and resources (milking herd, buildings housing such herd, and
the land on which such buildings are located) the operation and
management of which also are under the complete and exclusive control of
the handler (in his capacity as a dairy farmer), all of which facilities
and resources for the production, processing, and distribution of milk
and milk products constitute an integrated operation over which the
handler (in his capacity as a producer-handler) has and exercises
complete and exclusive control.
(2) The handler, in his capacity as a handler, handles no fluid milk
products other than those derived from the milk production facilities
and resources designated as constituting the applicant's operation as a
producer-handler.
(3) The handler is not, either directly or indirectly, associated
with control or management of the operation of another plant or another
handler, nor is another handler so associated with his operation.
(4) The handler sells more than an average of 100 quarts per day of
Class I-A milk to persons in the marketing area other than to other
plants.
(5) In case the plant of the applicant was operated by a handler
whose designation as a producer-handler previously had been cancelled
pursuant to paragraph (c) of this section, the quantity of fluid milk
products handled during the 12 months preceding the application which
was derived from sources other than the designated milk production
facilities and resources constituting the applicant's operation as a
producer-handler is less than the volume set forth for cancellation
pursuant to paragraph (c)(3) or (4) of this section.
(c) Cancellation. The designation as a producer-handler shall be
cancelled under conditions set forth in paragraphs (c)(1) and (2) of
this section or, except as specified in paragraphs (c)(3) and (4) of
this section, upon determination by the market administrator that any of
the requirements of paragraph (b) of this section are not continuing to
be met, such cancellation to be effective on the first day of the month
following the month in which the requirements were not met.
(1) Milk from the designated production facilities and resources of
the producer-handler is delivered in the name of another person as pool
milk to another handler or except in the months of June through November
with prior notice to the market administrator, a dairy herd, cattle
barn, or milking parlor is transferred to another person who uses such
facilities or resources for producing milk which is delivered as pool
milk to another handler. This provision, however, shall not be deemed to
preclude the occasional sale of individual cows from the herd.
(2) A dairy herd, cattle barn, or milking parlor, previously used
for the production of milk delivered as pool milk to another handler, is
added to the designated milk production facilities and resources of the
producer-handler, except in the months of December through May, with
prior notice to the market administrator, or if such facilities and
resources were a part of the designated production facilities and
resources during any of the preceding 12 months. This provision,
however, shall not be deemed to preclude the occasional purchase of
individual cows for the herd.
(3) If the producer-handler handles an average of more than 150
product pounds per day of fluid milk products which are derived from
sources other than the designated milk production facilities and
resources, the cancellation of designation shall be effective the first
of the month in which he handled such fluid milk products.
[[Page 74]]
(4) If the producer-handler handles fluid milk products derived from
sources other than the designated milk production facilities and
resources in a volume less than specified in paragraph (c)(3) of this
section, the designation shall be cancelled effective on the first of
the month following the third month in any six-month period in which the
producer-handler handled such fluid milk products: Provided, That the
receipt of up to an average of ten pounds per day of packaged fluid milk
products in the form of fluid skim milk, or of any volume of other
packaged fluid milk products (except milk) from pool plants, shall not
be counted for purposes of this paragraph (c)(4).
(d) Public announcement. The market administrator shall publicly
announce the name, plant, and farm location of persons designated as
producer-handlers, and those whose designations have been canceled. Such
announcements shall be controlling with respect to the accounting at
plants of other handlers for fluid milk products received from such
producer-handler on and after the first of the month following the date
of such announcement.
(e) Burden of establishing and maintaining producer-handler status.
The burden rests upon the handler who is designated as a producer-
handler (and upon the applicant for such designation) to establish
through records required pursuant to Sec. 1000.5 that the requirements
set forth in paragraph (b) of this section have been and are continuing
to be met and that the conditions set forth in paragraph (c) of this
section for cancellation of designation do not exist.
[33 FR 8201, June 1, 1968, as amended at 35 FR 16789, Oct. 30, 1970; 36
FR 9847, May 29, 1971]
Sec. 1002.13 Other order.
Other order means an order issued by the Secretary pursuant to the
Act, which order regulates the handling of milk in a marketing area
other than that defined in this part.
Sec. 1002.14 Pool milk.
Pool milk means all skim milk and butterfat contained in milk except
as set forth in paragraphs (a) through (k) of this section which is
pumped at the farm into a tank mounted on a truck or trailer for a
handler who has included such milk in a pool unit, or a partial pool
unit or which is delivered direct from a farm to a pool plant or a
partial pool plant but is not put into a tank truck prior to such
delivery. This definition shall include any milk so delivered by a
person defined in Sec. 1002.11(b)(2), by an institution defined in
Sec. 1002.11(b)(3), or by a producer-handler designated pursuant to
Sec. 1002.12 which milk is produced in accordance with methods and
standards of the American Association of Medical Milk Commissions for
the production of certified milk and which is delivered in bulk to
another handler but for marketing as other than certified milk.
(a) Milk first received at a pool plant which otherwise would be
considered producer milk under an other order if all of such milk is
assigned to Class II or Class III pursuant to Sec. 1002.45(a)(9) and the
corresponding step of Sec. 1002.45(b).
(b) Milk not approved by a duly constituted regulatory agency for
fluid consumption.
(c) Milk delivered by a pool unit direct to a plant other than a
pool plant or a partial pool plant if such milk is pooled as producer
milk under an other order.
(d) Milk which is pumped into a tank truck at the farm for delivery
to a handler during any of the months of December through June if any
milk from such farm was delivered to such handler as producer milk under
an other order during any of the preceding months of July through
November unless such farm becomes part of a partial pool unit.
(e) Milk delivered to a partial pool plant set forth in
Sec. 1002.29(a) and milk of a partial pool unit pursuant to
Sec. 1002.25(k)(1) in excess of the quantity of such milk classified as
Class I-A and Class I-B.
(f) Milk delivered to a partial pool plant set forth in
Sec. 1002.29(b) and milk of a partial pool unit pursuant to
Sec. 1002.25(k)(2) in excess of the quantity of such milk classified as
Class I-A in the marketing area or at a pool plant, except that if milk
is shipped from a partial pool plant in the 401 miles and over freight
zone to a plant from which 50 percent or more of the gross receipts
[[Page 75]]
of skim milk and butterfat in the form of fluid milk products is
disposed of in consumer packages and dispenser inserts in the marketing
area either by direct distribution or to other plants, all of the milk
so shipped shall be considered to be pool milk except as set forth in
paragraph (g) of this section.
(g) Milk delivered to a partial pool plant or a partial pool unit if
in either case there is a monetary obligation on such milk under an
other order.
(h) Milk received from farms in Nassau and Suffolk Counties in New
York, which farms are not approved for sale of milk in New York City,
and milk received from farms in New York City.
(i) Own farm milk of a handler listed pursuant to Sec. 1002.11(b)
not in excess of an average of 800 pounds per day if the handler is not
a producer-handler designated pursuant to Sec. 1002.12, and if the
volume of skim milk and butterfat in milk handled, other than that
derived from own farm milk, does not exceed an average of 1,600 pounds
per day.
(j) Own farm milk of an institution as defined pursuant to
Sec. 1002.11(b)(3) if such milk is not delivered to a pool plant, a
partial pool plant, a pool unit or a partial pool unit.
(k) All skim milk and butterfat handled by:
(1) A producer-handler designated pursuant to Sec. 1002.12 which is
derived from such producer-handler's production resources and facilities
except as provided in the preamble of this section; or
(2) A producer-handler pursuant to an other order.
[33 FR 8201, June 1, 1968, as amended at 41 FR 8367, Feb. 26, 1976; 56
FR 5320, Feb. 11, 1991]
Sec. 1002.15 Fluid milk product.
(a) Except as provided in paragraph (b) of this section fluid milk
product means any milk products in fluid or frozen form containing less
than 9 percent butterfat, that are in bulk or are packaged, distributed
and intended to be used as beverages. Such products include, but are not
limited to: Milk, skim milk, lowfat milk, milk drinks, buttermilk, and
filled milk, including any such beverage products that are flavored,
cultured, modified with added nonfat milk solids, sterilized,
concentrated (to not more than 50 percent total milk solids), or
reconstituted.
(b) The term fluid milk product shall not include:
(1) Plain or sweetened evaporated milk, plain or sweetened
evaporated skim milk, sweetened condensed milk or skim milk, formulas
especially prepared for infant feeding or dietary use that are packaged
in hermetically sealed containers, any product that contains by weight
less than 6.5 percent nonfat milk solids, and whey; and
(2) The quantity of skim milk in any modified product specified in
paragraph (a) of this section that is in excess of the quantity of skim
milk in an equal volume of an unmodified product of the same nature and
butterfat content.
[58 FR 27778, May 11, 1993]
Sec. 1002.16 Other source milk.
Other source milk means all skim milk and butterfat contained in or
represented by:
(a) Receipts in the form of fluid milk products from any source
other than receipts of pool milk from dairy farmers, receipts from other
pool plants and pool units, and receipts of pool milk from partial pool
plants and partial pool units;
(b) Receipts in a form other than as a fluid milk product (including
those produced at the plant during a prior month) which are reprocessed,
converted or combined with another product during the month; and
(c) Receipts in a form other than a fluid milk product for which the
handler fails to establish a disposition.
Sec. 1002.17 Filled milk.
Filled milk means any combination of nonmilk fat (or oil) with skim
milk (whether fresh, cultured, reconstituted or modified by the addition
of nonfat milk solids), with or without milkfat, so that the product
(including stabilizers, emulsifiers or flavoring) resembles milk or any
other fluid milk product; and contains less than 6 percent nonmilk fat
(or oil).
[34 FR 18604, Nov. 22, 1969]
[[Page 76]]
Sec. 1002.18 Fluid cream product.
Fluid cream product means cream (other than plastic cream or frozen
cream), including sterilized cream, or a mixture of cream and milk or
skim milk containing 9 percent or more butterfat, with or without the
addition of other ingredients.
[58 FR 27778, May 11, 1993]
Sec. 1002.19 [Reserved]
Sec. 1002.20 Commercial food processing establishment.
Commercial food processing establishment means any facility other
than a milk or filled milk plant, to which bulk fluid milk products and
bulk fluid cream products are disposed of that uses such receipts as
ingredients in food products and has no disposition of fluid milk
products or fluid cream products other than those received in consumer-
type packages.
[58 FR 27778, May 11, 1993]
Market Administrator
Sec. 1002.22 Additional duties of the market administrator.
In addition to the duties specified in Sec. 1000.3(c) of this
chapter, the market administrator shall perform the following duties:
(a) Maintain a main office and such branch offices as may be
necessary;
(b) Promptly notify a handler, upon receipt of the handler's written
request therefor, of the market administrator's determination: as to
whether one or more plants exist at a specified location, as to whether
any specified item constitutes a part of the handler's plant, or as to
which plant a specified item is a part in the event that the particular
premises in question constitutes more than one plant: Provided, That if
the request of the handler is for revision or affirmation of a previous
determination, there is set forth in the request a statement of what the
handler believes to be the changed conditions which make a new
determination necessary. If a handler has been notified in writing of a
determination with respect to an establishment operated by him, any
revision of such determination shall not be effective prior to the date
on which such handler is notified of the revised determination;
(c) Place the sums deducted under Sec. 1002.61(d) and retained
pursuant to Sec. 1002.70 in an interest-bearing account or accounts in a
bank or banks duly approved as a Federal depository for such sums or
invest them in short-term United States Government securities;
(d) For the purpose of allocating receipts from other Federal order
plants under Sec. 1002.45(a)(15) and the corresponding step of
Sec. 1002.45(b), publicly announce the market administrator's estimate
of the utilization (to the nearest whole percentage) in each class
during the month of skim milk and butterfat, respectively, in pool milk
of all handlers. Such estimate shall be final for such purpose.
(e) Report to the market administrator of the other order, as soon
as possible after the report of receipts and utilization for the month
is received from a handler who has received fluid milk products or bulk
fluid cream products from another order plant, the class to which such
receipts are allocated pursuant to Secs. 1002.40(c) and 1002.45 on the
basis of such report, (including any reclassification of inventories of
bulk concentrated fluid milk products), and thereafter, any change in
such allocation required to correct errors disclosed in the verification
of such report.
[56 FR 5321, Feb. 11, 1991, as amended at 58 FR 27778, May 11, 1993]
Pool Plants and Bulk Tank Units
Sec. 1002.24 Regular pool plants.
A plant may be designated a regular pool plant pursuant to either
paragraph (a) or paragraph (b) of this section. Designation shall be
applicable to the plant as such and subject to cancellation only
pursuant to Sec. 1002.27, regardless of change in the person owning or
operating the plant. The market administrator shall be notified by the
handlers involved of any transfer from one person to another of
ownership or operation of a pool plant.
(a) Any plant shall be designated a pool plant upon determination by
the Secretary that the provisions of paragraphs (a)(1) through (4) of
this section have been met. Not later than the end
[[Page 77]]
of the month following the month in which an application is received by
the Secretary pursuant to paragraph (a)(1) of this section, the
Secretary shall either determine that the provisions of paragraphs
(a)(1) through (4) of this section either have been met or have not been
met, or notify the applicant that additional information is needed prior
to making a determination. Such designation shall be effective the first
of the month following the date of designation and shall continue until
such designation is canceled pursuant to Sec. 1002.27: Provided, That
notwithstanding the provisions of paragraphs (a)(1) through (4) of this
section, any plant which for the month immediately preceding the
effective date of this section, had a designation pursuant to
Sec. 1002.24 as then in effect, is hereby designated a regular pool
plant from the effective date of this section until such designation is
canceled pursuant to Sec. 1002.27.
(1) An application by the operator of the plant for such
determination has been addressed to the Secretary and filed at the
office of the market administrator: Provided, That if 50 percent or more
of the dairy farmers delivering milk at such plant deliver such milk for
the account of a cooperative association which does not operate the
plant but for which milk such association receives payment, an
application must be filed by such cooperative association as well as the
person operating the plant.
(2) The plant is located in New York, New Jersey, or Pennsylvania.
(3) The plant was a pool plant pursuant to paragraph (a) or (b) of
Sec. 1002.28 for each of the 12 months immediately preceding the month
during which an application is filed.
(4) The operating requirements of Sec. 1002.26 are being met.
(b) A plant may be designated at any time as a regular pool plant
upon application made by the person operating the plant to the Secretary
showing that the plant is a replacement for one or more pool plants,
designated pursuant to this section, which are operated by him and that
substantially all of the dairy farmers delivering milk at the plant
previously delivered milk to the pool plant or plants replaced.
Sec. 1002.25 Bulk tank units.
Any handler receiving milk from farms in a tank truck shall
establish such farms in one or more bulk tank units (hereinafter called
``units'') each consisting of one or more farms, in accordance with
provisions of this section. The milk of any farm included in a unit
shall be considered for pricing purposes as having been received by the
handler in the unit at the nearest point of the township (as determined
pursuant to Sec. 1002.52(b)) in which such farm is located. Any handler
who receives milk at a pool plant or a plant distributing Class I-A milk
in the marketing area which is delivered from a farm to such plant in a
tank truck shall be deemed to have received such milk from a unit, pool,
partial pool, or nonpool, and any handler who receives bulk milk from a
farm in a tank truck containing pool milk shall be deemed to have
received such milk from a farm of a unit either pool, partial pool, or
nonpool.
(a) Handlers who may establish, maintain, and be responsible for
pool units are as follows:
(1) A handler who operates a pool plant or a handler who operates a
plant from which Class I-A milk is distributed in the marketing area
other than to another plant: Provided, That a handler who is affiliated
with or is a subsidiary of a handler operating a pool plant may also
operate pool units if both handlers notify the market administrator in
writing of such relationship: Provided further, That such handler who
operates a distributing plant but not a pool plant, to be eligible to
maintain a pool unit for any month, must have combined receipts of skim
milk and butterfat from such unit for such month classified as Classes
I-A and I-B in a percentage at least as great as the market percentage
of pool milk in Classes I-A and I-B for the same month of the preceding
year.
(2) A cooperative handler who does not operate a plant but who
receives milk from farms in a tank truck and delivers such milk to
plants of other handlers if such cooperative for 12 months has been
qualified as a basis for payments pursuant to Sec. 1002.77 or if such
cooperative has operated a pool
[[Page 78]]
unit for 12 consecutive months: Provided, That such cooperative must
meet the definition of a cooperative set forth in Sec. 1002.77(a)(1).
(3) Any other cooperative handler who does not operate a plant if
such cooperative meets the definition of a cooperative set forth in
Sec. 1002.77(a)(1) subject to the conditions of this section.
(4) For the months specified in paragraph (a)(4)(i) or (ii) of this
section, any other handler operating a unit in any of the months of
April, May, or June which unit had for such month any skim milk or
butterfat classified as Class I-A milk in the marketing area (on some
basis other than failure to account for such milk) and had a total Class
I-A and Class I-B classification in a percentage at least as great as
the market percentage of pool milk in Classes I-A and I-B for the same
month in the preceding year.
(i) Such month.
(ii) Each of the months through March following such month except
for any month when the Class I-B or combined Class I-A and Class I-B of
such unit is less than 60 percent.
(b) The handler may establish the units in any manner chosen by him,
subject to the following limitations:
(1) Each unit shall have a headquarters where the basic record of
receipts and butterfat tests of milk from each farm are maintained and
where there is maintained the basic record of each receipt and each
delivery of milk by each tank truck receiving milk from farms of the
unit and related details with respect to the movement of such milk.
(2) Each unit shall be given a name indicating the general
geographic area in which farms comprising such unit are located.
(3) The handler shall declare whether each unit is to be operated as
a pool unit. Farms from which the milk is to be pooled shall be
established in a separate unit from those which are not to be pooled.
(4) Farms in the area specified in paragraph (e) of this section
shall be in units separate from farms in the area specified in paragraph
(f) of this section.
(c) Except as set forth in paragraphs (c)(1) through (5) of this
section, a handler may declare that a unit is to be operated as a pool
unit and at any time may add a farm to a pool unit: Provided, That a
handler pursuant to paragraph (a)(4) of this section may not add farms
to a pool unit during the months of July through March unless such
handler's Class I-A skim milk or butterfat utilization exceeds the total
receipts of skim milk or butterfat, respectively, in milk from the pool
unit, and in the latter case he may add only the smallest number of
farms necessary to provide sufficient milk to cover such Class I-A
utilization.
(1) If the unit is a declared nonpool unit or if the farm is a part
of a declared nonpool unit of such handler, the unit or farm may be
changed to a pool status, except as excluded from the pool milk
definition pursuant to Sec. 1002.14(d), only beginning the first day of
a month upon notice to the market administrator by not later than the
10th day of such month. If the notice is filed after the 10th day of the
month, the effective date shall be the first day of the following month
except as specified in paragraph (c)(5) of this section.
(2) In the period of December through June, no new pool unit may be
established, no nonpool or partial pool unit may be declared to be a
pool unit, and no farm may be added to a pool unit if the handler
caused, as specified in paragraph (d) of this section, any pool unit or
any farm of a pool unit to become nonpool in the period of July through
November immediately preceding: Provided, That this limitation shall not
prevent the handler from including in a pool unit a farm which for the
first time has converted from can delivery to bulk tank delivery and
from which the handler received as pool milk all milk delivered by such
farm in cans for a period of 30 days immediately preceding: Provided
further, That, except in the case set forth in paragraph (d)(3) of this
section, this paragraph (c)(2) shall not be applicable if the farm which
is caused to become nonpool thereby becomes a producer farm under
another order with a provision for marketwide equalization.
(3) No farm which was caused to become nonpool may be made a part of
a pool unit by a handler set forth in paragraphs (c)(3)(i) through (iv)
of this
[[Page 79]]
section until after the passage of a complete April-May-June period
following the time such farm was caused to become nonpool:
(i) The handler who caused the farm to become nonpool.
(ii) The handler or other person who received the milk as nonpool
milk.
(iii) A handler who is substantially under the same management
control, or ownership as the handler or other person set forth in
paragraph (c)(3)(i) or (ii) of this section.
(iv) A handler who receives the milk through arrangement with the
handler or other person set forth in paragraph (c)(3)(i), (ii), or
(c)(3)(iii) of this section.
(4) A handler may transfer a farm from one pool unit to another of
his pool units on the first day of any month upon notice to the market
administrator by not later than the 10th day of such month.
(5) A farm shall automatically be added to a pool unit or a nonpool
unit shall automatically become a pool unit effective the first day of
any month in which any of the skim milk or butterfat in milk of such
farm or unit is assigned pursuant to Sec. 1002.45 to Class I-A milk
unless the handler is precluded from doing so pursuant to paragraph
(c)(2) or (c)(3) of this section or unless such milk is considered
producer milk under an other order with a provision for marketwide
equalization. If some but not all skim milk or butterfat in milk
received from such farms previously a part of a nonpool unit is assigned
to Class I-A milk the handler operating such unit has until the time of
filing the report required pursuant to Sec. 1002.30 to specify which
farms are to be added to a pool unit and if upon verification by audit
the market admininstrator finds that other skim milk or butterfat in
milk of a declared nonpool unit is assigned to Class I-A milk, the
handler operating such unit has until ten days after notification by the
market administrator to specify which farms are to be added to a pool
unit. In absence of such specification, all eligible farms shall be
added to the pool unit.
(d) A handler may cause a pool unit or a farm which is a part of a
pool unit to become nonpool by the methods set forth in paragraphs
(d)(1) through (4) of this section: Provided, That the failure of a unit
to meet the pool requirements set forth in paragraph (f) of this section
shall not be considered for purposes of this paragraph to be a change of
pool status caused by the handler: Provided further, That a handler
pursuant to paragraph (a)(4) of this section must continue in a pool
unit any farm which was a part of such handler's pool unit in any of the
months of April, May, or June preceding from which he receives milk or
from which any other handler receives milk through arrangement with him:
Provided further, That if a unit operated by a handler is reported by
another handler which is a cooperative, the actions specified in
paragraphs (d)(1), (2), and (4) of this section must be concurred in by
such cooperative handler.
(1) The handler may change the status of a declared pool unit to a
declared nonpool unit effective the first day of any month upon notice
to the market administrator by not later than the 10th day of such
month. If the notice is filed after the 10th day of the month, the
effective date shall be the first day of the following month.
(2) The handler may transfer a farm from a pool unit to a nonpool
unit effective the first day of any month upon notice to the market
administrator by not later than the 10th day of such month. If the
notice is filed after the 10th day of the month, the effective date
shall be the first day of the following month.
(3) The handler may so operate a unit located in the area specified
in paragraph (e) of this section that its pool status is cancelled
pursuant to Sec. 1002.27.
(4) The handler may arrange for the milk of a farm in his pool unit
to be delivered to another person as nonpool milk. Any delivery of milk
by a farm in a handler's pool unit to another person as nonpool milk
shall be considered to have been arranged by such handler unless such
handler can establish that such other person is not substantially under
the same management, control or ownership as such handler and that such
handler was in no way a party to such nonpool delivery.
(e) A declared pool unit must be operated to meet the requirements
set
[[Page 80]]
forth in Sec. 1002.26 if the farms of such unit are located in the
following area: New York, New Jersey, the counties of Addison, Rutland,
and Bennington in Vermont, the county of Berkshire in Massachusetts, or
in Pennsylvania. Failure to meet such requirements shall make such
declared pool unit subject to suspension and cancellation pursuant to
the procedure set forth in Sec. 1002.27. This paragraph shall not be
applicable to a cooperative handler specified in paragraph (a)(3) of
this section.
(f) A declared pool unit made up of farms located outside the area
specified in paragraph (e) of this section or a declared pool unit made
up of farms specified in paragraph (e) of this section and operated by a
cooperative handler specified in paragraph (a)(3) of this section shall
be a pool unit in the months of July through March if at least 25
percent of the milk in such unit is delivered in such month to pool
plants, and shall be a pool unit in the months of April through June
only if 60 percent of the milk of such unit was received at pool plants
during the period of October through December immediately preceding or
if such handler received no milk of such unit or from farms of such unit
in the preceding October through December.
(g) Any unit declared to be a pool unit shall be designated a pool
unit in any month (1) if the handler is qualified in such month pursuant
to paragraph (a) of this section, (2) if such unit meets all the
requirements of this section applicable to it to be a pool unit, or (3)
if the designation of such unit has not been cancelled pursuant to
Sec. 1002.27.
(h) Each handler shall report by not later than the 10th day of the
month any changes in units during the preceding month and as of the
first day of such month.
(i) Whenever the market administrator finds that a handler has
received bulk tank milk from a farm required to be included in an
established unit but which has not been so included, he shall
tentatively assign such farm to a unit and promptly notify the handler
of such action. Unless otherwise requested by the handler within 10 days
of such notice, the tentative assignment by the market administrator
will become final.
(j) Whenever the market administrator finds that a handler has
caused milk to become nonpool pursuant to paragraph (d)(4) of this
section he shall promptly notify the handler of such finding. Within 10
days of such notice the handler may, except as to any such milk pooled
under another order, (1) make a written claim that the failure to
include the milk involved as pool milk was an error and, in such event,
the market administrator shall pool such milk and rescind his finding,
or (2) make a written offer to submit proof that he had not caused such
milk to become nonpool. In the latter event, the market administrator
shall examine such proof and shall either rescind his original finding
or confirm it. Failure to respond to the market administrator's notice
shall be deemed to confirm the finding.
(k) Units other than those which are pool units pursuant to
paragraph (g) of this section shall be designated partial pool units if
they meet the provisions set forth in paragraphs (k)(1) and (2) of this
section.
(1) Any nonpool unit which would have been automatically made a pool
unit pursuant to paragraph (c)(5) of this section except that the
handler is precluded from adding farms thereof to a pool unit pursuant
to paragraph (c)(2) or (c)(3) of this section. If a unit of a handler
becomes a partial pool unit pursuant to this paragraph, all of the
handler's pool units and partial pool units shall be combined and the
skim milk and butterfat in milk of the partial pool units assigned to
Class II and Class III of such combined total prior to any skim milk and
butterfat in the partial pool unit milk being assigned to Class I-A.
(2) Any unit the milk of which fails to meet the pooling
requirements of paragraph (f) of this section, or any unit operated by a
handler not specified in paragraph (a) of this section, as being
eligible to establish and maintain pool units, or any unit made up of
farms located in the 401 miles and over freight zone unless the handlers
operating such unit is eligible to establish a pool unit and has
specifically requested such unit to be so designated.
[[Page 81]]
(l) The market administrator shall publicly announce the names of
handlers establishing pool units and the names and headquarters of such
units. He shall also publicly announce any change in the pool status of
such units, and the names of handlers who are ineligible to add farms to
a pool unit under the terms set forth in paragraph (c)(2) of this
section.
[33 FR 8201, June 1, 1968, as amended at 56 FR 5321, Feb. 11, 1991]
Sec. 1002.26 Operating requirements.
The person operating a pool plant designated pursuant to
Sec. 1002.24 or a declared pool unit consisting of farms in the area
specified in Sec. 1002.25(e) shall stipulate to each of the following
requirements:
(a) Be willing to dispose of as Class I-A milk in the marketing area
milk received at the plant or on the unit from dairy farmers and agree
that if a plant designation is canceled for failure to meet this
requirement, the Class I-A and Class I-B milk of such plant through the
partial pool plant and partial pool unit provisions shall be priced and
equalized from the effective date of cancellation through the following
June 30;
(b) Keep such control over the sanitary conditions under which milk
received at the plant or on the unit is produced and handled that the
milk can meet the requirements of a source of milk for the marketing
area: Provided, That approval by a health authority of the plant as a
source of milk for the marketing area shall constitute sufficient
evidence that this requirement is being met even though such approval is
restricted to prohibit shipment to the marketing area of milk for
specified periods during which permission is given by such health
authority for receiving unapproved milk or skim milk at the plant or for
shipment of approved skim milk from such plant; and
(c) Have no commitments for disposition of milk that prevent him
from utilizing milk as set forth in Sec. 1002.27(g).
[33 FR 8201, June 1, 1968, as amended at 56 FR 5322, Feb. 11, 1991]
Sec. 1002.27 Suspension and cancellation of designation.
The designation of a pool plant pursuant to Sec. 1002.24 or of a
declared pool unit consisting of farms in the area specified in
Sec. 1002.25(e) may be suspended or canceled under any of the following
provisions:
(a) The designation shall be canceled effective on the first of the
month following the filing with the market administrator, and on a form
prescribed by him, of an application by the handler operating the plant:
Provided, That a plant whose designation is so canceled on the first of
any of the months of August through November shall be a pool plant if it
meets the provisions of paragraph (e) of Sec. 1002.28, and shall not be
a pool plant pursuant to any other provision of this order prior to
December 1 following such cancellation: Provided further, That such
application for cancellation shall be accompanied by proof that the
handler, if not a cooperative association qualified pursuant to
Sec. 1002.77 has notified any qualified cooperative association which
has any members who deliver milk to such plant, and has notified
individually all producers delivering to such plant who are not members
of such qualified cooperative association, of his intention to make such
application: Provided further, That if 50 percent or more of the
producers delivering milk at such plant deliver such milk for the
account of a cooperative association which does not operate the plant
but for which milk such association receives payment, an application
must be made by such cooperative association as well as by the handler
operating the plant: Provided further, That if a handler applies for a
replacement designation pursuant to Sec. 1002.24(b), the designation of
the plant or plants replaced shall be canceled automatically at the time
the replacement designation becomes effective.
(b) The designation of any plant which in any month is not approved
by a health authority as a source of milk for the marketing area shall
be automatically suspended at the beginning of the second month
following the month that the handler receives notice that the plant does
not have health approval as a source of milk for the marketing area
unless the absence of
[[Page 82]]
health approval is a temporary condition covering a period of not more
than 15 days: Provided, That the designation of a plant approved by a
health authority as a source of milk for the marketing area, even though
such approval is restricted to prohibit shipment to the marketing area
of milk for specified periods during which permission is given by such
health authority for receiving unapproved milk or skim milk at the plant
or for shipment of approved skim milk from such plant, shall not be
suspended pursuant to this provision.
(c) The designation of a plant pursuant to Sec. 1002.24 shall be
suspended at the beginning of the second month following any consecutive
12-month period in which the plant failed to receive any pool milk or at
the beginning of the second month following a month in which there is a
failure to maintain the facilities and equipment that constitute a plant
pursuant to Sec. 1002.8(a).
(d) The designation of any plant or unit shall be suspended,
effective no sooner than 10 days nor later than 20 days after the date
of mailing of notice, by registered letter, to the handler, whenever the
market administrator, subject to the limitations set forth in paragraphs
(h) and (j) of this section, finds on the basis of available information
that the handler operating the plant or unit is not meeting the
requirements set forth in Sec. 1002.26: Provided, That, if the handler
operating the plant or unit is not a cooperative association qualified
pursuant to Sec. 1002.77, the market administrator shall notify any
qualified cooperative association which has any members who deliver milk
to such plant or unit, and shall also notify individually all producers
delivering to such plant or unit who are not members of such qualified
cooperative association, of such suspension of designation.
(e) In the case of suspension pursuant to this section of the
designation of one or more plants or units for failure to meet the
requirements of Sec. 1002.26(a) or (c) the handler operating such plant
or unit may select, prior to the effective date of such suspension, one
or more other pool plants or pool units consisting of farms in the area
specified in Sec. 1002.25(e) for suspension in lieu thereof if, during
the preceding month, the quantity of pool milk received from producers
at such substituted plants or units was not less than the quantity of
pool milk received from producers at the plants or units named for
suspension. The handler may also select the order in which plant or unit
designations are to be canceled in the event of a later determination by
the Secretary canceling the designation of some but not all of the
plants or units suspended.
(f) Not later than 10 days after the effective date of suspension of
designation pursuant to this section, the handler operating the plant or
unit may apply to the Secretary for a review. If the handler fails to so
apply for such review, the designation shall be canceled as of the
effective date of the suspension. If the handler does so apply, the
Secretary shall, after review, either determine that the requirements
set forth in Sec. 1002.26 have been met and order the suspension
revoked, or determine that such requirements have not been met and order
the designation canceled as of the effective date of the suspension:
Provided, That, if the Secretary has made no determination within two
months after the end of the month in which the suspension was made
effective, but later orders the designation canceled, such cancellation
shall be effective as of the first of the month following the date of
such determination.
(g) Beginning with the effective date of a suspension pursuant to
this section, and until the Secretary has either ordered the designation
canceled or ordered the suspension revoked, the plant or unit shall be
treated as a pool plant or pool unit: Provided, That all payments into
or out of the producer settlement fund (except such payments on the
basis of operations during a month in which the plant meets the
requirements of Sec. 1002.28 or the unit meets the requirements of
Sec. 1002.25(g)) shall be held in reserve by the market administrator
until an order is issued by the Secretary, but not longer than 2 months
after the end of the month in which the suspension was made effective.
(h) No pool plant or pool unit designation shall be suspended for
failure
[[Page 83]]
to meet the requirements of Sec. 1002.26(a) except under the following
conditions or pursuant to paragraph (l) of this section:
(1) A meeting has been held no sooner than three days after notice
by the market administrator to all handlers operating pool plants
designated pursuant to Sec. 1002.24 or pool units consisting of farms in
the area specified in Sec. 1002.25(e) for consideration of the desirable
utilization of milk received from producers during a period ending not
later than the end of the second month after the month during which such
meeting is held.
(2) There has been issued by the market administrator, following
such meeting, and mailed to all handlers operating pool plants
designated pursuant to Sec. 1002.24 or pool units consisting of farms in
the area specified in Sec. 1002.25(e) the market administrator's
determination of the desirable utilization of milk received from
producers each month during all or a part of the period set forth in
paragraph (h)(1) of this section. Such determination shall include a
schedule setting forth, by months, the desired minimum percentage of
pool milk received from producers to be utilized in specified classes.
Such specified classes shall include Class I-A in the marketing area,
and may include all or a part of other Class I-A and Class I-B.
(3) The market administrator finds on the basis of available
information that the handler operating a plant or unit or the
cooperative reporting a plant or unit is not utilizing milk received
from producers in accordance with the minimum percentage set forth in
the determination of the market administrator previously announced
pursuant to paragraph (h)(2) of this section: Provided, That the
suspension of the designation of a plant or unit may be made effective
during the months of November and December if the market administrator
finds that the handler is utilizing any milk received from producers in
classes other than those set forth in the determination of the market
administrator announced pursuant to paragraph (h)(2) of this section.
(i) The cancellation of pool plant or pool unit designation for
failure to meet the requirements of Sec. 1002.26(a) shall be subject to
the following conditions:
(1) No pool plant or pool unit designation shall be canceled if the
handler operating the plant or unit utilized the milk received by the
handler from producers during the month in which the suspension is made
effective in accordance with the minimum percentage set forth in the
determination of the market administrator announced pursuant to
paragraph (h)(2) or paragraph (l) of this section.
(2) No pool plant or pool unit designation shall be canceled if the
handler operating the plant or unit utilized in the specified classes
set forth in the determination of the market administrator announced
pursuant to paragraph (h)(2) of this section a percentage of the total
milk received by such handler from producers during the month in which
the suspension is made effective which is not less than the percentage
of the total pool milk reported by all handlers for such month to have
been used in the specified classes.
(3) In the event that all milk received from producers at a plant or
unit is reported to the market administrator by a cooperative
association qualified pursuant to Sec. 1002.77 and such association pays
the producer for such milk, the pool plant or pool unit designation
shall not be canceled if a percentage of all milk reported by such
cooperative association is utilized in accordance with the minimum
percentage set forth in the determination of the market administrator
announced pursuant to paragraph (h)(2) of this section, or in accordance
with the percentage set forth in paragraph (i)(2) of this section.
(4) Cancellation of designations shall be limited to those plants or
units necessary to result in a utilization of milk received at the
remaining pool plants and pool units operated by the handler, or
reported by the cooperative, as the case may be, in accordance with the
minimum percentage set forth in paragraph (l) of this section, or in the
determination of the market administrator announced pursuant to
paragraph (h)(2) of this section.
(j) Loss of approval by health authorities of a plant as a source of
milk for the marketing area may in itself constitute adequate reason for
the
[[Page 84]]
market administrator to suspend the designation of the plant for failure
to meet the requirements of Sec. 1002.26(b) only if the absence of such
approval continues for more than 15 days.
(k) The designation shall be canceled effective on the first of the
month following three consecutive months if in the absence of this
designation milk received from dairy farmers and units at the plant
would have been classified and priced under another order with a
provision for marketwide equalization and if in each of such months the
percentage of milk received from dairy farmers and units at the plant
which is classified as Class I-A and disposed of in the marketing area
defined in such other order is greater than the percentage of such milk
so classified and disposed of in this marketing area.
(l) The designation of any pool plant pursuant to Sec. 1002.24 or
any pool unit pursuant to Sec. 1002.25(e) shall be canceled unless 5
percent or more of the pool milk received from producers at such plant
or by such unit during each of the months of December and January, and
10 percent during each of the months of September through November, is
utilized as Class I-A milk unless the percentage has been revised
pursuant to paragraph (h) of this section.
[33 FR 8201, June 1, 1968, as amended at 56 FR 5322, Feb. 11, 1991]
Sec. 1002.28 Temporary pool plants.
Except for plants which, pursuant to paragraph (f) of this section,
are not eligible for designation, any plant not designated pursuant to
Sec. 1002.24 shall automatically be designated a pool plant in
accordance with provisions of paragraphs (a) through (e) of this
section: Provided, That no plant shall be a pool plant pursuant to this
section if, in the absence of this provision, milk received from dairy
farmers and units at the plant would be classified and priced under
another order with a provision for marketwide equalization, and if the
percentage of the milk received from dairy farmers and units at the
plant which is classified in Class I-A and disposed of in the marketing
area defined in such other order is greater than the percentage of such
milk so classified and disposed of in this marketing area: Provided,
further, That for purposes of the computations of percentages set forth
in this section, skim milk and butterfat in filled milk shall be
excluded from skim milk and butterfat classified in Class I-A and Class
I-B.
(a) For any of the months of January through March and July through
December, any plant at which 25 percent or more of the combined receipts
of skim milk and butterfat in milk from dairy farmers and units is
classified as Class I-A in the marketing area or as Class I-A on the
basis of a transfer to a pool plant on some basis other than the failure
to account for such milk shall automatically be designated a pool plant
for such month: Provided, That at the option of the handler the plant
shall not be a pool plant if less than 25 percent of such combined
receipts of skim milk and butterfat in milk from other than pool units
is classified in such Class I-A.
(b) For any of the months of April, May, or June, any plant at which
during the preceding period of October, November, and December either
(1) no milk was received from dairy farmers or units, or (2) 60 percent
or more of the combined receipts of skim milk and butterfat in milk
received from dairy farmers and units was classified in Class I-A in the
marketing area or as Class I-A on the basis of a transfer to a pool
plant, on some basis other than the failure to account for such milk,
shall automatically be designated a pool plant for any of such months of
April, May, or June in which 10 percent or more of the combined receipts
of skim milk and butterfat in milk received from dairy farmers and units
is classified in Class I-A in the marketing area or as Class I-A on the
basis of a transfer to a pool plant, on some basis other than the
failure to account for such milk: Provided, That at the option of the
handler the plant shall not be a pool plant if less than 10 percent of
combined receipts of skim milk and butterfat in such milk from other
than pool units as classified in such Class I-A.
(c) Any plant which is a pool plant in any of the months of April,
May, or June on the basis of paragraph (b) of
[[Page 85]]
this section or on the basis of paragraph (d) of this section and in the
latter case, the percentage of combined receipts of skim milk and
butterfat in milk from dairy farmers and units classified in Class I-A
in the marketing area or as Class I-A on the basis of a transfer to a
pool plant, is at least as great as the market percentage of pool milk
in Classes I-A and I-B for the same month of the previous year, shall be
a pool plant in any of the months of July through March following in
which 60 percent or more of the combined receipts of skim milk and
butterfat in milk received at the plant from dairy farmers and units is
classified in Class I-A, Class I-B, or Classes I-A and I-B combined.
(d) Any plant which for any month is not a pool plant because of
failure to meet the requirements of paragraph (a), (b), or (c) of this
section shall be a pool plant in any month in which a daily average of
at least 800 pounds of combined receipts of skim milk and butterfat in
milk received from dairy farmers and units is classified as Class I-A in
the marketing area or as Class I-A on the basis of a transfer to a pool
plant, on some basis other than failure to account for such milk and if
the percentage of combined receipts of skim milk and butterfat in milk
classified as Class I-A and Class I-B is at least as great as the market
percentage of pool milk in Classes I-A and I-B for the same month in the
preceding year: Provided, That at the option of the handler, the plant
shall not be a pool plant if none of the skim milk or butterfat in such
milk from other than pool units is classified in such Class I-A:
Provided further, That such plant shall not be a pool plant on the basis
of this paragraph if it is located in the 401 miles and over freight
zone.
(e) A plant whose regular pool plant designation has been canceled
at the request of the handler on the first of any of the months of
August through November shall be a pool plant in any month through
November 30 following such cancellation if the percentage of the
combined receipts of skim milk and butterfat in milk received from dairy
farmers and units classified in Class I-A, Class I-B or Classes I-A and
I-B combined is at least as great as the market percentage of pool milk
in Classes I-A and I-B for the same month in the preceding year unless
such plant qualifies as a pool plant under an other order with a
provision for marketwide equalization.
(f) A plant shall not be a pool plant on the basis of this section
for the periods and under the conditions set forth in paragraphs (f)(1)
and (2) of this section:
(1) If the pool plant designation was canceled on the first of
August, September, October, or November pursuant to Sec. 1002.27(a), for
the period through November 30 except as specified in paragraph (e) of
this section.
(2) If the pool plant designation was canceled pursuant Sec. 1002.27
for failure to meet the requirements of Sec. 1002.26(a), for the period
from the date the cancellation was effective through the following June
30.
(g) At the time of announcing the uniform price for each month, the
market administrator shall make public the location and name of the
operator of any plant for which a report of receipts from dairy farmers
was used in the computation of that uniform price.
[33 FR 8201, June 1, 1968, as amended at 34 FR 18604, Nov. 22, 1969; 41
FR 8367, Feb. 26, 1976]
Sec. 1002.29 Partial pool plants.
The following plants not designated pool plants pursuant to
Secs. 1002.24 and 1002.28, which plants distribute fluid milk products
in the marketing area or transfer fluid milk products to a pool plant
shall be designated partial pool plants:
(a) Plants set forth in Sec. 1002.28(f).
(b) Plants other than those set forth in paragraph (a) of this
section which have some skim milk or butterfat in milk received from
dairy farmers or nonpool units classified in Class I-A on some basis
other than failure to account for such milk, except a plant which would
otherwise qualify as a pool plant pursuant to Sec. 1002.28(d) but which
has less than a daily average of 800 pounds of skim milk or butterfat in
milk received from dairy farmers or
[[Page 86]]
units classified in Class I-A in the marketing area on some basis other
than failure to account for such milk.
[33 FR 8201, June 1, 1968, as amended at 41 FR 8367, Feb. 26, 1976]
Reports
Sec. 1002.30 Reports of receipts and utilization.
Each handler, except a handler receiving own farm milk and not
required to be listed pursuant either to Sec. 1002.11 or Sec. 1002.12,
shall report each month to the market administrator for the preceding
month in the manner and on the forms prescribed by the market
administrator with respect to each pool plant, partial pool plant, pool
unit or partial pool unit operated by such person, the information set
forth in paragraphs (a) through (d) of this section. Such report shall
be physically received at the office of the market administrator no
later than the close of business on the 10th day of the month. Other
information required to be reported no later than the 10th day of the
month pursuant to Secs. 1002.25 and 1002.31 must also be physically
received by the market administrator no later than the 10th day of the
month.
(a) The quantity of skim milk and butterfat contained in:
(1) Receipts of milk from producers;
(2) Receipts of fluid milk products from other pool plants or
partial pool plants and from pool units or partial pool units; and
(3) Receipts of other source milk.
(b) Inventories at the beginning and the end of the month of fluid
milk products and products specified in Sec. 1002.41(c)(1);
(c) The utilization of all skim milk and butterfat required to be
reported pursuant to this section, including the destination of any
fluid milk product, the classification of which wholly or partially
depends upon its destination; and
(d) The computation pursuant to Sec. 1002.60 of such handler's net
pool obligation.
[33 FR 8201, June 1, 1968, as amended at 55 FR 3199, Jan. 31, 1990; 56
FR 5323, Feb. 11, 1991]
Sec. 1002.31 Producer payroll reports.
Each handler shall report with respect to producers as set forth in
paragraphs (a) and (b) of this section:
(a) On or before the 10th day after the end of each month, the
information required by the market administrator with respect to
producer additions, producer withdrawals, and changes in names of farm
operators; and
(b) On or before the last day of each month such handler's producer
payroll for the preceding month, which shall show for each producer:
(1) The total pounds of milk from such producer;
(2) The average butterfat content of such milk: Provided, That if no
butterfat tests are made on any of the milk received from producers, and
if such milk is received by the handler from no more than 10 producers,
3.5 percent shall be reported as the average butterfat test of milk
received from producers;
(3) The amount of payment due each producer;
(4) The nature and amount of any deductions and charges made by the
handler;
(5) The net amount of payment to such producer; and
(6) Such other information with respect thereto as the market
administrator shall require.
Sec. 1002.32 Other reports.
At such time as the market administrator may request, each handler
shall report to the market administrator in the manner and on forms
prescribed by the market administrator:
(a) The quantities of skim milk and butterfat in milk and each milk
product received at his nonpool plants, from dairy farmers, from other
plants or nonpool units, from such handler's own farm, from other
handlers, and from other sources;
(b) The quantities of skim milk and butterfat in milk and each milk
product moved out of, or on hand at, his nonpool plants and the
destination of such skim milk and butterfat;
(c) Information concerning land, buildings, surroundings, facilities
and equipment at any of his plants;
[[Page 87]]
(d) The current receipts and utilization of skim milk and butterfat
at each of his pool plants and pool units; and
(e) Such other information as may be necessary for the
administration of the provisions of this part.
Classification
Sec. 1002.40 General classification rules.
All skim milk and butterfat required to be reported by each handler
pursuant to Secs. 1002.30 and 1002.32 shall be classified each month
pursuant to the provisions of Secs. 1002.41 through 1002.46, subject to
the following conditions:
(a) Each month the market administrator shall correct for
mathematical and other obvious errors all reports filed pursuant to
Sec. 1002.30, including the pounds of skim milk and butterfat,
respectively, in each class in accordance with Secs. 1002.40 through
1002.44;
(b) If any of the water contained in the milk from which a product
is made is removed before the product is utilized or disposed of by a
handler, the pounds of skim milk used or disposed of in such product
shall be considered to be an amount equivalent to the nonfat milk solids
contained in such products plus all the water originally associated with
such solids; and
(c) Skim milk and butterfat contained in receipts of bulk
concentrated fluid milk and nonfluid milk products that are
reconstituted for fluid use shall be assigned to Class I use, up to the
reconstituted portion of labeled reconstituted fluid milk products, on a
pro rata basis (except for any Class I use of specific concentrated
receipts that is established by the handler) prior to any assignments
under Sec. 1002.45. Any remaining skim milk and butterfat in
concentrated receipts shall be assigned to uses under Sec. 1002.45 on a
pro rata basis, unless a specific use of such receipts is established by
the handler.
(d) Class III-A milk shall be allocated in combination with Class
III milk and the quantity of producer milk eligible to be priced in
Class III-A shall be determined by prorating receipts from pool sources
to Class III-A use on the basis of the quantity of total receipts of
bulk fluid milk products allocated to Class III milk at the plant or
unit.
[58 FR 27778, May 11, 1993, as amended at 58 FR 63285, Dec. 1, 1993]
Sec. 1002.41 Classes of utilization.
Subject to the conditions set forth in Secs. 1002.42 through
1002.46, the classes of utilization shall be as follows:
(a) Class I-A milk. Class I-A milk shall be all skim milk and
butterfat:
(1) Disposed of as a fluid milk product, except as otherwise
provided in paragraphs (c) and (d) of this section:
(i) Inside the marketing area;
(ii) As route disposition in an other order marketing area;
(iii) To an other order plant and assigned under such other order to
Class I;
(iv) In packaged form to an other order plant if such product is not
defined as a fluid milk product under such other order; and
(v) To a partially regulated plant under an other order and there
applied as an offset to Class I sales in any other order market;
(2) In packaged inventory of fluid milk products at the end of the
month;
(3) In shrinkage assigned to Class I-A pursuant to Sec. 1002.42(c);
and
(4) Not specifically accounted for as Class I-B, Class II or Class
III milk.
(b) Class I-B milk. Class I-B milk shall be all skim milk and
butterfat:
(1) Disposed of as a fluid milk product outside this or any other
Federal order marketing area, except for:
(i) Milk moved to a partially regulated plant under an other order
and there applied as an offset to Class I sales in any other order
market; and
(ii) Inventory of packaged fluid milk products at nonpool plants
that are not other order plants.
(2) In shrinkage assigned to Class I-B pursuant to Sec. 1002.42(c).
(c) Class II milk. Class II milk shall be all skim milk and
butterfat:
(1) Disposed of in the form of a fluid cream product or any product
containing artificial fat, fat substitutes, or 6 percent or more nonmilk
fat (or oil) that resembles a fluid cream product, except as otherwise
provided in paragraph (d) of this section;
(2) In packaged inventory at the end of the month of the products
specified
[[Page 88]]
in paragraph (c)(1) of this section and in bulk concentrated fluid milk
products in inventory at the end of the month;
(3) In bulk fluid milk products and bulk fluid cream products
disposed of to a commercial food processor if the market administrator
is permitted to audit the records of the commercial food processing
establishment for the purpose of verification. Otherwise, such uses
shall be Class I;
(4) Used to produce:
(i) Cottage cheese, lowfat cottage cheese, dry curd cottage cheese,
ricotta cheese, pot cheese, Creole cheese, and any similar soft, high-
moisture cheese resembling cottage cheese in form or use;
(ii) Milkshake and ice milk mixes (or bases), frozen desserts, and
frozen dessert mixes distributed in one-quart containers or larger and
intended to be used in soft or semi-solid form;
(iii) Aerated cream, frozen cream, sour cream and sour half-and-
half, sour cream mixtures containing nonmilk items, yogurt and any other
semi-solid product resembling a Class II product;
(iv) Eggnog, custards, puddings, pancake mixes, buttermilk biscuit
mixes, coatings, batter, and similar products;
(v) Formulas especially prepared for infant feeding or dietary use
(meal replacement) that are packaged in hermetically sealed containers;
(vi) Candy, soup, bakery products and other prepared foods which are
processed for general distribution to the public, and intermediate
products, including sweetened condensed milk, to be used in processing
such prepared food products; and
(vii) Any product not otherwise specified in this section.
(d) Class III milk. Class III milk shall be all skim milk and
butterfat:
(1) Used to produce:
(i) Cream cheese and other spreadable cheeses, and hard cheeses of
types that may be shredded, grated, or crumbled, and are not included in
paragraph (c)(4)(i) of this section;
(ii) Butter, plastic cream, anhydrous milkfat and butteroil;
(iii) Any milk product in dry form, except nonfat dry milk;
(iv) Evaporated or sweetened condensed milk in a consumer-type
package and evaporated or sweetened condensed skim milk in a consumer-
type package; and
(2) In inventory at the end of the month of unconcentrated fluid
milk products in bulk form and products specified in paragraph (c)(1) of
this section in bulk form;
(3) In fluid milk products, products specified in paragraph (c)(1)
of this section, and products processed by the disposing handler that
are specified in paragraphs (c)(4)(i) through (iv) of this section, that
are disposed of by a handler for animal feed;
(4) In fluid milk products, products specified in paragraph (c)(1)
of this section, and products processed by the disposing handler that
are specified in paragraphs (c)(4)(i) through (iv) of this section, that
are dumped by a handler. The market administrator may require
notification by the handler of such dumping in advance for the purpose
of having the opportunity to verify such disposition. In any case,
classification under this paragraph requires a handler to maintain
adequate records of such use. If advance notification of such dumping is
not possible, or if the market administrator so requires, the handler
must notify the market administrator on the next business day following
such use;
(5) In fluid milk products and products specified in paragraph
(c)(1) of this section that are destroyed or lost by a handler in a
vehicular accident, flood, fire, or in a similar occurrence beyond the
handler's control, to the extent that the quantities destroyed or lost
can be verified from records satisfactory to the market administrator;
(6) In skim milk in any modified fluid milk product or in any
product specified in paragraph (c)(1) of this section that is in excess
of the quantity of skim milk in such product that was included within
the fluid milk product definition pursuant to Sec. 1002.15 and the fluid
cream product definition pursuant to Sec. 1002.18; and
(7) In shrinkage assigned pursuant to Sec. 1002.42(a) to the
receipts specified in Sec. 1002.42(a)(2) and in shrinkage specified in
Sec. 1002.42(b) and (c).
[[Page 89]]
(e) Class III-A milk. Class III-A milk shall be all skim milk and
butterfat used to produce nonfat dry milk.
[56 FR 5323, Feb. 11, 1991, as amended at 58 FR 27778, May 11, 1993; 58
FR 63285, Dec. 1, 1993]
Sec. 1002.42 Shrinkage.
For purposes of classifying all skim milk and butterfat to be
reported by a handler pursuant to Sec. 1002.30, the following shall be
determined:
(a) The pro rata assignment of shrinkage of skim milk and butterfat,
respectively, at each pool plant to the respective quantities of skim
milk and butterfat:
(1) In the receipts specified in paragraphs (b)(1) through (5) of
this section on which shrinkage is allowed pursuant to such paragraph;
and
(2) In other source milk not specified in paragraph (b)(1) through
(5) of this section, which was received in the form of a bulk fluid milk
product or a bulk fluid cream product;
(b) The shrinkage of skim milk and butterfat, respectively, assigned
pursuant to paragraph (a) of this section to the receipts specified in
paragraph (a)(1) of this section that is not in excess of:
(1) Two percent of the skim milk and butterfat, respectively, in
pool milk received from producers, in milk received from pool units, and
in milk received from units other than pool units, exclusive of the
quantity for which Class II or Class III utilization was requested by
the handler;
(2) Plus 1.5 percent of the skim milk and butterfat, respectively,
in receipts of fluid milk products in bulk from other pool plants;
(3) Plus 1.5 percent of the skim milk and butterfat, respectively,
in bulk fluid milk products received by transfer from other order
plants, excluding the quantity for which Class II or Class III
classification is requested by the operators of both plants;
(4) Plus 1.5 percent of the skim milk and butterfat, respectively,
in receipts of fluid milk products in bulk from plants other than those
defined in Sec. 1002.8(b) or (d), excluding the quantity for which Class
II or Class III classification is requested by the handler; and
(5) Less 1.5 percent of the skim milk and butterfat, respectively,
in bulk fluid milk products transferred to other plants that is not in
excess of the respective amounts of skim milk and butterfat to which
percentages are applied in paragraph (b)(1) through (4) of this section;
and
(c) Shrinkage in excess of the amounts assigned to Class III
pursuant to paragraphs (a) and (b) of this section shall be assigned pro
rata to Class I-A and Class I-B in accordance with the respective
volumes of skim milk and butterfat actually accounted for in each such
class.
[56 FR 5323, Feb. 11, 1991]
Sec. 1002.44 Transfers.
(a) Transfers to pool plants. Skim milk or butterfat transferred in
the form of a fluid milk product or a bulk fluid cream product from a
pool plant or a pool unit to another pool plant shall be classified as
Class I-A milk unless the operators of both plants request the same
classification in another class. In either case, the classification of
such transfers shall be subject to the following conditions:
(1) The skim milk or butterfat classified in each class shall be
limited to the amount of skim milk and butterfat, respectively,
remaining in such class at the transferee-plant after the computations
pursuant to Sec. 1002.45(a)(17) and the corresponding step of
Sec. 1002.45(b). The amount of skim milk or butterfat classified in each
class shall include the assigned utilization of skim milk or butterfat
in transfers of concentrated fluid milk products;
(2) If the transferor-plant received during the month other source
milk to be allocated pursuant to Sec. 1002.45(a)(8) or the corresponding
step of Sec. 1002.45(b), the skim milk or butterfat so transferred shall
be classified so as to allocate the least possible Class I utilization
to such other source milk; and
(3) If the transferor-handler received during the month other source
milk to be allocated pursuant to Sec. 1002.45(a) (13) or (15) or the
corresponding steps of Sec. 1002.45(b), the skim milk or butterfat so
transferred, up to the total of the skim milk and butterfat,
respectively, in such receipts of other source milk,
[[Page 90]]
shall not be classified as Class I milk to a greater extent than would
be the case if the other source milk had been received at the
transferee-plant.
(b) Transfers to other order plants. Skim milk or butterfat
transferred in the form of a fluid milk product or a bulk fluid cream
product from a pool plant to an other order plant shall be classified in
the following manner:
(1) If transferred as packaged fluid milk products, classification
shall be in the classes (either Class I-A, II or III) to which allocated
as a fluid milk product under the other order;
(2) If transferred in bulk form, classification shall be in the
classes to which allocated under the other order (including allocation
under the conditions set forth in paragraph (b)(3) of this section);
(3) If the operators of both the transferor and the transferee
plants so request in the reports of receipts and utilization filed with
their respective market administrators, transfers in bulk form shall be
classified as Class II or Class III milk to the extent of such
utilization available for such classification pursuant to the allocation
provisions of the other order;
(4) If information concerning the classes to which such transfers
were allocated under the other order is not available to the market
administrator for the purpose of establishing classification under this
paragraph, classification shall be as Class I-A, subject to adjustment
at a later date;
(5) For purposes of this paragraph, if the other order provides for
a different number of classes of utilization than is provided for under
this part, skim milk or butterfat allocated to a class consisting
primarily of fluid milk products shall be classified as Class 1-A milk,
and skim milk or butterfat allocated to the other classes shall be
classified as Class III milk; and
(6) If the form in which any fluid milk product that is transferred
to an other order plant is not defined as a fluid milk product under
such other order, classification under this paragraph shall be in
accordance with the provisions of Sec. 1002.41.
(c) Transfers to producer-handlers. Skim milk or butterfat in the
following forms that is transferred from a pool plant to a producer-
handler under this or any other Federal order shall be classified:
(1) As Class I-A milk, if transferred in the form of a fluid milk
product; and
(2) In accordance with the utilization assigned to it by the market
administrator, if transferred in the form of a bulk fluid cream product.
For this purpose, the transferee's utilization of skim milk and
butterfat in each class, in series beginning with Class III, shall be
assigned to the extent possible to its receipts of skim milk and
butterfat, respectively, in bulk fluid cream products, pro rata to each
source.
(d) Transfers to other nonpool plants. Skim milk or butterfat
transferred in the following forms from a pool plant or a pool unit to a
nonpool plant that is not an other order plant or a producer-handler
plant shall be classified:
(1) As Class I-A milk, if transferred in the form of a packaged
fluid milk product; and
(2) As Class I-A milk, if transferred in the form of a bulk fluid
milk product or a bulk fluid cream product, unless the following
conditions apply:
(i) The transferring handler claims classification pursuant to the
assignment set forth in paragraph (d)(3) of this section in the
handler's report submitted to the market administrator pursuant to
Sec. 1002.30 for the month within which such transaction occurred;
(ii) The operator of such transferee plant maintains books and
records showing the utilization of all skim milk and butterfat received
at such plant which are made available if requested by the market
administrator for the purpose of verification;
(iii) In determining the nonpool plant's utilization for purposes of
this section, any fluid milk products and bulk fluid cream products
transferred from such nonpool plant to a second nonpool plant shall be
classified pursuant to the same assignment procedure with respect to
receipts and utilization at such second nonpool plant, except that
classification of such transfers in Class I-A and I-B shall not be less
than the quantities which would be assigned to those classes if the
transfer of such products had been directly from a pool plant or pool
unit.
[[Page 91]]
(3) Skim milk and butterfat so transferred shall be classified on
the basis of the following assignment of utilization at the transferee
plant pursuant to paragraph (d)(2)(ii) of this section:
(i) Packaged receipts of fluid milk products from Federal order
sources shall first be assigned to route disposition in Federal order
marketing areas (assigning receipts to sales in the same market to the
extent possible) and any residual shall be assigned to Class 1-B route
sales.
(ii) Such bulk transfers and other bulk receipts of fluid milk
products at such transferee plant from pool plants and units and from
other order plants shall next be assigned to any remaining route
disposition in any Federal order marketing area. For this purpose
receipts from each Federal order market shall first be assigned to
remaining route sales in such marketing area and any remainder of such
receipts shall be prorated with all Federal order receipts to remaining
route disposition in all Federal order marketing areas.
(iii) Receipts from dairy farmers shall then be assigned to any
remaining route sales in the marketing area.
(iv) Remaining receipts from dairy farmers and other unregulated
other source receipts (excluding opening inventory) in the form of fluid
milk products shall be assigned pro rata to Class I-B, Class II and
Class III utilization at such plant to the extent of such utilization
available at such plant and any remainder of such receipts shall be
assigned pro rata to Class I-A bulk sales to plants regulated under this
order and Class I bulk sales to plants regulated under other orders.
(v) Receipts of bulk fluid cream products from plants defined
pursuant to Sec. 1002.8 (b) and (d) shall be assigned pro rata among
such plants to any remaining Class II and Class III utilization on a pro
rata basis, then to any remaining Class I-A disposition and finally any
Class I-B disposition.
(vi) Any remaining receipts of fluid milk products or bulk fluid
cream products being assigned pursuant to this paragraph shall be
assigned pro rata with remaining receipts from other order plants, first
to remaining Class I-A utilization, then to Class I-B utilization, then
to Class II utilization, and finally to Class III utilization at such
plant: Provided, That if on inspection of the books and records of such
plant the market administrator finds that there is insufficient
utilization to cover such receipts, the remainder shall be classified as
Class I-A.
(vii) Any remaining Class I-A route disposition in any Federal
marketing area shall be subject to the pricing specified in
Sec. 1002.60(d)(2).
[56 FR 5324, Feb. 11, 1991, as amended at 58 FR 27779, May 11, 1993]
Sec. 1002.45 Allocation of skim milk and butterfat classified.
The classification of milk received from producers at each pool
plant or pool unit for each handler shall be determined each month
pursuant to paragraphs (a), (b), and (c) of this section: Provided, That
for the purpose of establishing the pool status of any plant with Class
I-A route disposition in the marketing area which is not a pool plant
pursuant to Sec. 1002.24, skim milk and butterfat in milk received at
such plant directly from dairy farmers or units up to an amount
sufficient to qualify such plant as a pool plant pursuant to
Sec. 1002.28 (a) or (b) shall be considered the source of such Class I-A
route disposition of such plant and be subtracted from Class I-A prior
to the application of the allocation sequence set forth in paragraphs
(a) and (b) of this section, unless at the time of filing the handler's
report pursuant to Sec. 1002.30 the handler elects not to have it so
allocated.
(a) Skim milk shall be allocated in the following manner:
(1) Subtract from the total pounds of skim milk in Class III the
pounds of skim milk classified as Class III pursuant to Sec. 1002.42(b);
(2) Subtract the pounds of skim milk received in packaged form from
a producer-handler for marketing as certified fluid milk products from
the total pounds of skim milk in Class I-A and Class 1-B milk,
respectively, in accordance with its proportionate disposition in such
classes;
(3) Subtract from the remaining pounds of skim milk in Class III, 2
percent of the pounds of skim milk in packaged fluid milk products
received
[[Page 92]]
from other order plants, and subtract the balance from Class I-A;
(4) Subtract from the remaining pounds of skim milk in Class 1-A the
pounds of skim milk in packaged fluid milk products in inventory at the
beginning of the month. This paragraph shall apply only if the pool
plant was subject to the provisions of this paragraph (a)(4) or
comparable provisions of another Federal milk order in the immediately
preceding month;
(5) Subtract from the pounds of skim milk in Class II the pounds of
skim milk in products specified in Sec. 1002.41(c)(1) that were received
in packaged form from other plants, but not in excess of the pounds of
skim milk remaining in Class II;
(6) Subtract from the remaining pounds of skim milk in Class II the
pounds of skim milk in products specified in Sec. 1002.41(c)(1) in
packaged form and in bulk concentrated fluid milk products that were in
inventory at the beginning of the month, but not in excess of the pounds
of skim milk remaining in Class II. This paragraph shall apply only if
the pool plant was subject to the provisions of this paragraph (a)(6) or
comparable provisions of another Federal milk order in the immediately
preceding month;
(7) Subtract from the remaining pounds of skim milk in Class II the
pounds of skim milk in bulk concentrated fluid milk products and in
other source milk (except other source milk received in the form of an
unconcentrated fluid milk product or a fluid cream product) that is used
to produce, or added to any product specified in Sec. 1002.41(c)
(excluding the quantity of such skim milk that was classified as Class
III milk pursuant to Sec. 1002.41(d)(6)), but not in excess of the
pounds of skim milk remaining in Class II.
(8) Subtract in the order specified below from the pounds of skim
milk remaining in Class I-A, Class II and Class III milk, in series
beginning with Class III, the pounds of skim milk in:
(i) Bulk concentrated fluid milk products and other source milk
(except other source milk received in the form of an unconcentrated
fluid milk product) and, if paragraph (a)(6) of this section applies,
packaged inventory at the beginning of the month of products specified
in Sec. 1002.41(c)(1) that was not subtracted pursuant to paragraphs
(a)(5), (a)(6) and (a)(7) of this section;
(ii) Receipts of fluid milk products not approved by a duly
constituted health authority which are excepted from the pool milk
definition pursuant to Sec. 1002.14(b);
(iii) Receipts of fluid milk products from a producer-handler
pursuant to an other order or a producer-handler defined pursuant to
Sec. 1002.12 (except pool milk designated in the preamble of
Sec. 1002.14).
(iv) Receipts of fluid milk products from a handler's plant at which
milk is excepted from the pool milk definition pursuant to
Sec. 1002.14(h).
(v) Receipts of fluid milk products from a handler with own farm
milk, which milk is excepted from the pool milk definition pursuant to
Sec. 1002.14(i).
(9) Subtract in series beginning with Class III from the pounds of
skim milk remaining in Class II and Class III milk the pounds of skim
milk in receipts of other source milk in the form of fluid milk products
from plants other than those defined in Sec. 1002.8 (b) or (d) and units
other than pool units for which the handler requests a Class II or Class
III classification, but not in any case to exceed the pounds of skim
milk remaining in such class;
(10) Subtract from the remaining pounds of skim milk in Class II or
Class III milk the pounds of skim milk in bulk receipts of fluid milk
products from other order plants not previously assigned and for which a
Class II or Class III classification is requested by both the transferor
and transferee handler in filing reports of receipts and utilization for
the month with their respective market administrators, but not in any
case to exceed the pounds of skim milk remaining in such class;
(11) Subtract from the pounds of skim milk remaining in each class,
in series beginning with Class III, the pounds of skim milk in fluid
milk products and products specified in Sec. 1002.41(c)(1), in inventory
at the beginning of the month that were not subtracted pursuant to
paragraphs (a)(4), (6) and (8)(i) of this section;
[[Page 93]]
(12) Add to the remaining pounds of skim milk in Class III the
pounds subtracted pursuant to paragraph (a)(1) of this section;
(13)(i) Subtract pro rata from the pounds of skim milk remaining in
Class I-B, Class II and Class III milk the remaining pounds of skim milk
in receipts of other source milk in the form of fluid milk products from
plants not defined pursuant to Sec. 1002.8 (b) or (d) and from units
other than pool units: Provided, That if the pounds of skim milk to be
assigned pursuant to this paragraph (a)(13)(i) exceed the available
pounds of skim milk in Class I-B, Class II, and Class III the handler
shall designate the priority of sources to be assigned to such classes;
(ii) No assignment shall be made pursuant to this paragraph with
respect to milk received from a plant not defined pursuant to
Sec. 1002.8 (b) or (d) in the 401 miles and over freight zone at a plant
from which 50 percent or more of the gross receipts of skim milk and
butterfat leaves the plant in the form of fluid milk products in
consumer packages or dispenser inserts and is classified as Class I-A;
(14) Subtract pro rata from the remaining pounds of skim milk in
each class the pounds of skim milk in receipts from dairy farmers and
from the handler's own farm which are excepted from the pool milk
definition pursuant to Sec. 1002.14 (h) and (i);
(15) Subtract in the manner specified below from the pounds of skim
milk remaining in each class the pounds of skim milk in receipts of
fluid milk products from other order plants not previously assigned
pursuant to paragraph (a) (3) and (10) of this section:
(i) Subject to the provisions of this paragraph, such subtraction
shall be pro rata to the pounds of skim milk in each class with respect
to whichever of the following quantities represents the higher
proportion of Class II and Class III milk combined:
(A) The estimated utilization of skim milk of all handlers in each
class as announced for the month pursuant to Sec. 1002.22(d); or
(B) The total pounds of skim milk remaining in each class at this
allocation step at all pool plants of the handler (excluding any
duplication of utilization in each class resulting from transfers
between pool plants of the handler);
(ii) Should the proration pursuant to paragraph (a)(15)(i) of this
section result in the total pounds of skim milk at all pool plants of
the handler that are to be subtracted at this allocation step from Class
II and Class III combined exceeding the pounds of skim milk remaining in
Class II and Class III at all such plants, the pounds of such excess
shall be subtracted from the pounds of skim milk remaining in Class I-A
milk and Class I-B milk after such proration at the pool plants at which
such other source milk was received;
(iii) Except as provided in paragraph (a)(15)(ii) of this section,
should the computations pursuant to paragraph (a)(15) (i) or (ii) of
this section result in a quantity of skim milk to be subtracted from
Class II and Class III combined that exceeds the pounds of skim milk
remaining in such classes, the pounds of skim milk in Class II and Class
III combined shall be increased (increasing as necessary Class III and
then Class II to the extent of available utilization in such classes at
the nearest other pool plant of the handler, and then at each
successively more distant pool plant of the handler) by an amount equal
to such excess quantity to be subtracted, and the pounds of skim milk in
Class I-A milk and Class I-B milk combined shall be decreased by a like
amount, pro rata to remaining utilization in each such class. In such
case, the pounds of skim milk remaining in each class at this allocation
step at the handler's other pool plants shall be adjusted in the reverse
direction by a like amount; and
(iv) Except as provided in paragraph (a)(15)(ii) of this section,
should the computations pursuant to paragraph (a)(15) (i) or (ii) of
this section result in a quantity of skim milk to be subtracted from
Class I-A milk or Class I-B milk that exceeds the pounds of skim milk
remaining in that class, the pounds of skim milk in such class shall be
increased by an amount equal to such excess quantity to be subtracted,
and the pounds of skim milk in Class II and Class III combined shall be
decreased by a like amount (decreasing
[[Page 94]]
as necessary Class III and then Class II). In such case, the pounds of
skim milk remaining in each class at this allocation step at the
handler's other pool plants shall be adjusted in the reverse direction
by a like amount in sequence beginning with the nearest other pool plant
of such handler at which Class I-A or Class I-B utilization is
available;
(16) If the plant at which assignment is being made is a plant from
which 50 percent or more of the gross receipts of skim milk and
butterfat in the form of fluid milk products left the plant in the form
of fluid milk products in consumer packages or dispenser inserts and was
classified as Class I-A, subtract pro rata from the remaining pounds of
skim milk in each class the pounds of skim milk in receipts of fluid
milk products from plants in the 401 miles and over freight zone, not
defined pursuant to Sec. 1002.8 (b) or (d);
(17) Subtract from the remaining pounds of skim milk in Class I-A
milk the pounds of skim milk in remaining receipts from plants (except
other order plants) or units the pool status of which has not yet been
established and which receipts have not previously been assigned
pursuant to paragraph (a) (13) and (16) of this section;
(18) Subtract from the remaining pounds of skim milk in each class
the pounds of skim milk received in the form of fluid milk products and
bulk fluid cream products from other pool plants and from pool units
(not previously assigned pursuant to the preamble of this section), in
accordance with the classification assigned by the transferee handler
subject to the conditions of paragraph (a)(18) (i) through (iii) of this
section:
(i) The skim milk so assigned to any class of utilization shall be
limited to the amount thereof remaining in such class in the transferee
plant;
(ii) If the transferor plant received during the month other source
milk to be allocated pursuant to paragraph (a)(7) of this section the
skim milk so transferred shall be classified so as to allocate the least
possible Class I-A or I-B utilization to such other source milk; and
(iii) If the transferor handler received during the month other
source milk to be allocated pursuant to paragraph (a)(13) of this
section, the skim milk so transferred shall not be classified as Class
I-A or I-B to a greater extent than would be applicable to a like
quantity of such other source milk received at the transferee plant;
(19) Add to the remaining pounds of skim milk in Class I-A the
pounds of skim milk received directly from dairy farmers or units which
was deducted pursuant to the proviso in the preamble of this section;
(20) If the pounds of skim milk remaining in all classes exceeds the
pounds of skim milk in receipts from producers subtract such excess from
the pounds of skim milk remaining in each class in series beginning with
Class III. Any amount so subtracted shall be known as ``overage'';
(b) Butterfat shall be allocated in accordance with the procedure
outlined for skim milk in paragraph (a) of this section; and
(c) Combine the amounts of skim milk and butterfat determined
pursuant to paragraphs (a) and (b) of this section into one total for
each class.
[56 FR 5325, Feb. 11, 1991, as amended at 58 FR 27779, May 11, 1993]
Sec. 1002.46 Rules and regulations.
Accounting rules and regulations to effectuate the provisions of
Secs. 1002.40 through 1002.45 shall be issued by the market
administrator and shall include (but not be limited to) conversion
factors to be used in the absence of specific weights and tests,
specific definitions of products, specific shrinkage allowances and
procedures for determining the quantities of skim milk and butterfat
disposed of in specified products. Such rules and regulations shall be
made, and may from time to time be amended, by the market administrator
in accordance with the procedure set forth in this section: Provided,
That at any time upon a determination by the Secretary that an emergency
exists which requires the immediate adoption of rules and regulations,
the market administrator may issue, with the approval of the Secretary,
temporary rules and regulations without regard to the following
procedure: Provided further, That, if any interested person makes
written request for the issuance,
[[Page 95]]
amendment, or repeal of any rule, the market administrator shall within
30 days either issue notice of meeting pursuant to paragraph (a) of this
section or deny such request and except in affirming a prior denial, or
where the denial is self-explanatory, shall state the grounds for such
denial: Provided further, That if the market administrator finds it
necessary to promulgate formal rules with respect to units, he shall
follow the procedure set forth in this section.
(a) All proposed rules and regulations and amendments thereto shall
be the subject of a meeting called by the market administrator at which
time all interested persons shall have opportunity to be heard. Notice
of such meeting shall be given by the market administrator, and a copy
of the proposed rules and regulations shall be sent at least 5 days
prior to the date of the meeting to all handlers operating pool plants.
A stenographic record shall be made at all such meetings and such record
shall be public information available for inspection at the office of
the market administrator.
(b) A period of at least 5 days after the meeting held pursuant to
paragraph (a) of this section shall be allowed for the filing of briefs.
Such briefs shall be public information available for inspection at the
office of the market administrator.
(c) Not later than 30 days after a meeting held pursuant to
paragraph (a) of this section, the market administrator shall issue and
send to all handlers, operating pool plants and pool units the tentative
rules and regulations or amendments thereto relating to the issues
considered at such meeting, or a tentative notice that no rules or
regulations or amendments thereto are to be issued prior to further
consideration at another meeting. The tentative rules and regulations,
or tentative notice, together with copies of the stenographic record and
briefs, shall also at the same time be forwarded by the market
administrator to the Secretary.
(d) Not later than 30 days after issuance by the market
administrator, the Secretary shall either approve the tentative rules
and regulations or tentative notice as issued, or direct the market
administrator to reconsider. In which latter event, the market
administrator shall within 30 days either issue revised tentative rules
and regulations or tentative notice, or call another meeting pursuant to
paragraph (a) of this section.
(e) The tentative rules and regulations and amendments thereto or
tentative notice issued pursuant to paragraph (c) of this section shall
be effective as of the first of the month following approval by the
Secretary, but not sooner than 10 days after issuance by the market
administrator.
Minimum Prices
Sec. 1002.50 Class prices.
For pool milk received during each month from dairy farmers or
cooperative associations of producers, each handler shall pay per
hundredweight not less than the prices set forth in this section,
subject to the differentials and adjustments in Secs. 1002.52 and
1002.81. Any handler who purchases or receives milk during any month
from a cooperative association of producers but does not operate the
plant or unit receiving this milk from producers shall pay the
cooperative association on or before 2 days before the last day of the
month if paid by check, or the last day of the month if paid in cash or
cash equivalent, at not less than the lowest class price pursuant to
this section for the preceding month for milk received from such
cooperative during the first 15 days of the month, and shall pay the
cooperative association on or before the 15th day of the following month
the balance due for milk received during the month from such cooperative
at not less than the class prices pursuant to this section subject to
the differentials and adjustments set forth in Secs. 1002.52 and 1002.81
applicable at the plant at which the milk is first received from the
cooperative association. Such payments to a cooperative association
shall be deemed not to have been made until the payments have been
received by the cooperative association.
(a) Class I-A price. For Class I-A milk the Class I price in the
201-210 mile freight zone shall be the basic formula price for the
second preceding month
[[Page 96]]
plus Sec. 2.42. The differential value in the 1-10 mile freight zone
shall be $3.14.
(b) Class I-B price. For Class I-B milk the price shall be the price
for Class I-A milk.
(c) Class II price. The Class II price shall be the basic formula
price for the second preceding month plus $0.30.
(d) Class III price. Subject to the adjustment set forth below for
the applicable month, the Class III price shall be the basic formula
price for the month.
------------------------------------------------------------------------
Month Amount Month Amount
------------------------------------------------------------------------
January.......................... +.03 July............... +.03
February......................... +.02 August............. +.10
March............................ -.05 September.......... +.06
April............................ -.09 October............ +.06
May.............................. -.12 November........... +.06
June............................. -.11 December........... +.06
------------------------------------------------------------------------
(e) Class III-A price. The Class III-A price for the month shall be
the average Central States nonfat dry milk price for the month, as
reported by the Department, less 12.5 cents, times an amount computed by
subtracting from 9 an amount calculated by dividing .4 by such nonfat
dry milk price, plus the butterfat differential times 35 and rounded to
the nearest cent, and subject to the adjustments set forth in paragraph
(d) of this section for the applicable month.
[56 FR 5327, Feb. 11, 1991, as amended at 58 FR 63285, Dec. 1, 1993; 60
FR 6607, Feb. 2, 1995]
Sec. 1002.51 Basic formula price.
The basic formula price shall be the preceding month's average pay
price for manufacturing grade milk in Minnesota and Wisconsin using the
``base month'' series, as reported by the Department, adjusted to a 3.5
percent butterfat basis using the butterfat differential for the
preceding month computed pursuant to Sec. 1002.81 and rounded to the
nearest cent, plus or minus the change in gross value yielded by the
butter-nonfat dry milk and Cheddar cheese product price formula computed
pursuant to paragraphs (a) through (e) of this section.
(a) The gross values of per hundredweight of milk used to
manufacture butter-nonfat dry milk and Cheddar cheese shall be computed,
using price data determined pursuant to paragraph (b) of this section
and annual yield factors, for the preceding month and separately for the
current month as follows:
(1) The gross value of milk used to manufacture butter-nonfat dry
milk shall be the sum of the following computations:
(i) Multiply the Grade AA butter price by 4.27;
(ii) Multiply the nonfat dry milk price by 8.07; and
(iii) Multiply the dry buttermilk price by 0.42.
(2) The gross value of milk used to manufacture Cheddar cheese shall
be the sum of the following computations:
(i) Multiply the Cheddar cheese price by 9.87; and
(ii) Multiply the Grade A butter price by 0.238.
(b) The following product prices shall be used pursuant to paragraph
(a) of this section:
(1) Grade AA butter price. Grade AA butter price means the simple
average for the month of the Chicago Mercantile Exchange, Grade AA
butter price, as reported by the Department.
(2) Nonfat dry milk price. Nonfat dry milk price means the simple
average for the month of the Western Nonfat Dry Milk Low/Medium Heat
price, as reported by the Department.
(3) Dry buttermilk price. Dry buttermilk price means the simple
average for the month of the Western Dry Buttermilk price, as reported
by the Department.
(4) Cheddar cheese price. Cheddar cheese price means the simple
average for the month of the National Cheese Exchange 40-pound block
Cheddar cheese price, as reported by the Department.
(5) Grade A butter price. Grade A butter price means the simple
average for the month of the Chicago Mercantile Exchange Grade A butter
price, as reported by the Department.
(c) Determine the amounts by which the gross value per hundredweight
of milk used to manufacture butter-nonfat dry milk and the gross value
per hundredweight of milk used to manufacture Cheddar cheese for the
current month exceed or are less than the respective gross values for
the preceding month.
[[Page 97]]
(d) Compute weighting factors to be applied to the changes in gross
values determined pursuant to paragraph (c) of this section by
determining the relative proportion that the data included in each of
the following paragraphs is of the total of the data represented in
paragraphs (d)(1) and (d)(2) of this section:
(1) Combine the total nonfat dry milk production for the States of
Minnesota and Wisconsin, as reported by the Department, for the most
recent preceding period, and divide by the annual yield factor for
nonfat dry milk, 8.07, to determine the quantity (in hundredweights) of
milk used in the production of butter-nonfat dry milk; and
(2) Combine the total American cheese production for the States of
Minnesota and Wisconsin, as reported by the Department, for the most
recent reporting period, and divide by the annual yield factor for
Cheddar cheese, 9.87, to determine the quantity (in hundredweights) of
milk used in the production of American cheese.
(e) Compute a weighted average of the changes in gross values per
hundredweight of milk determined pursuant to paragraph (c) of this
section in accordance with the relative proportions of milk determined
pursuant to paragraph (d) of this section.
[60 FR 18954, Apr. 14, 1995]
Sec. 1002.52 Transportation differentials.
The class prices set forth in Sec. 1002.50 shall be subject to a
transportation differential determined in accordance with paragraphs (a)
through (e) of this section.
(a) The market administrator shall determine a freight zone for each
pool plant and each partial pool plant. Such freight zone shall be the
shortest highway mileage from the plant to the nearest of the following
points as computed by the market administrator from data contained in
Mileage Guide No. 5, without supplements, issued on July 20, 1949,
effective August 21, 1949, by the Household Goods Carriers' Bureau,
Agent, Washington, DC: Mount Vernon or Yonkers in the State of New York;
Tenafly, Glen Ridge, East Orange, Elizabeth, Hackensack, Hillside,
Irvington, or Passaic in the State of New Jersey. The freight zone for
plants located in New York City, Nassau, and Suffolk Counties in the
State of New York, or in Essex, Hudson, and Union Counties in the State
of New Jersey shall be in the 1- to 10-mile zone. The market
administrator shall publicly announce the freight zones for pool plants.
(b) The market administrator shall determine and publicly announce a
freight zone for each minor civil division (township, borough,
incorporated village, or city) within which farms included in a pool or
partial pool unit are located by computing the shortest highway mileage
distance from the nearest point in the minor civil division to the
nearest point specified in paragraph (a) of this section, using the
mileage guide specified in such paragraph supplemented by U.S.
Geological Survey maps. In States where the smallest governmental unit
except for incorporated cities or villages is the county, a zone for the
county shall be determined in the same manner as for minor civil
divisions. The zone for each farm shall be the zone of the minor civil
division or county in which the farm is located.
(c) The differential rates applicable at plants shall be as set
forth in the following schedule:
------------------------------------------------------------------------
A B C
------------------------------------------------------------------------
Classes II
Freight zone miles Classes I-A and III and
and I-B III-A
------------------------------------------------------------------------
1-10......................................... +72.0 +8
11-20......................................... +69.5 +8
21-25......................................... +67.0 +8
26-30......................................... +67.0 +7
31-40......................................... +64.5 +7
41-50......................................... +62.0 +7
51-60......................................... +59.5 +6
61-70......................................... +57.0 +6
71-75......................................... +32.5 +6
76-80......................................... +32.5 +5
81-90......................................... +30.0 +5
91-100........................................ +27.5 +5
101-110....................................... +25.0 +4
111-120....................................... +22.5 +4
121-125....................................... +20.0 +4
126-130....................................... +20.0 +3
131-140....................................... +17.5 +3
141-150....................................... +15.0 +3
151-160....................................... +12.5 +2
161-170....................................... +10.0 +2
171-175....................................... +7.5 +2
176-180....................................... +7.5 +l
181-190....................................... +5.0 +1
191-200....................................... +2.5 +1
201-210....................................... 0.0 0
211-220....................................... -2.5 0
[[Page 98]]
221-225....................................... -5.0 0
226-230....................................... -5.0 0
231-240....................................... -7.5 0
241-250....................................... -10.0 0
251-260....................................... -12.5 0
261-270....................................... -15.0 0
271-275....................................... -17.5 0
276-280....................................... -17.5 0
281-290....................................... -20.0 0
291-300....................................... -22.5 0
301-310....................................... -25.0 0
311-320....................................... -27.5 0
321-325....................................... -30.0 0
326-330....................................... -30.0 0
331-340....................................... -32.5 0
341-350....................................... -35.0 0
351-360....................................... -37.5 0
361-370....................................... -40.0 0
371-375....................................... -42.5 0
376-380....................................... -42.5 0
381-390....................................... -45.0 0
391-400....................................... -47.5 0
401 and over.................................. -50.0 0
------------------------------------------------------------------------
(d) The differential rate applicable to each pool unit or partial
pool unit shall be computed each month as follows: Multiply the volume
of pool milk received from farms in each zone by the rate for that zone
as set forth in the schedule in paragraph (c) of this section, add the
resulting values for all zones of the unit, divide such sum by the total
volume of milk received by the unit and round to the nearest 0.1 cent.
Rates shall be computed separately for Columns B and C of such schedule.
(e) In the event that a plant in the 401 miles and over freight zone
becomes a pool plant, a 10-mile zone shall be determined for such plant
and for each farm in any pool unit delivering to such plant. The Column
B differentials in paragraph (c) of this section shall be extended at
the same rate as provided in such column for such plant or unit:
Provided, That in no case shall such differential cause the class price
or the uniform price for such plant or unit to be less than the Class
III price for such plant or unit: Provided further, That farms or units
delivering to such plant shall be deemed to be in the same zone as the
plant.
[33 FR 8201, June 1, 1968, as amended at 37 FR 2929, Feb. 10, 1972; 46
FR 41756, Aug. 18, 1981; Redesignated and amended at 56 FR 5327 and
5328, Feb. 11, 1991; 58 FR 63285, Dec. 1, 1993]
Sec. 1002.53 Producer-handler price differential.
For skim milk and butterfat received from a handler who is a
producer-handler under this or any other order and is assigned to Class
I-A pursuant to Sec. 1002.45(a)(8)(iii), the transferee handler shall
pay a differential equal to the difference between the Class I-A price
and the Class III price both appropriately adjusted for differentials
pursuant to Sec. 1002.52.
[56 FR 5328, Feb. 11, 1991]
Sec. 1002.54 Use of equivalent price or index.
If for any reason a price or index specified by this part for use in
computing class prices or other purposes is not reported or published in
the manner therein described, the market administrator shall use a price
or index determined by the Secretary to be equivalent to or comparable
with the price or index specified.
Sec. 1002.55 Transportation credit on bulk unit pool milk.
For pool milk received by a handler in a pool or partial pool unit,
a transportation credit at the rate of 15 cents per hundredweight shall
be computed.
[56 FR 5328, Feb. 11, 1991]
Sec. 1002.56 Announcement of class prices and butterfat differential.
The market administrator shall announce publicly on or before the
fifth day of each month, the following:
(a) The Class I price for the following month applicable at the 201-
210 mile zone and at the 1-10 mile zone.
(b) The Class II price for the following month applicable at the
201-210 mile zone and at the 1-10 mile zone.
(c) The Class III and Class III-A prices for the preceding month
applicable at the 201-210 mile zone and at the 1-10 mile zone;
(d) The butterfat differential for the preceding month;
(e) The basic formula price for the preceding month, pursuant to
Sec. 1002.51, as reported by the United States Department of
Agriculture.
(f) The average price per hundredweight for manufacturing grade
milk,
[[Page 99]]
f.o.b. plants in Wisconsin and Minnesota, using the base month series,
for the second preceding month, as reported by the United States
Department of Agriculture.
(g) The average price per pound of Grade A (92-score) butter, at the
Chicago Mercantile Exchange, for the preceding month, as reported by the
United States Department of Agriculture.
(h) The average price per pound, of nonfat dry milk f.o.b. Western
Area, for the preceding month, as reported by the United States
Department of Agriculture.
[56 FR 5328, Feb. 11, 1991, as amended at 58 FR 63285, Dec. 1, 1993; 60
FR 6607, Feb. 2, 1995; 60 FR 18955, Apr. 14, 1995]
Determination of Uniform Price
Sec. 1002.60 Net pool obligation of handlers.
Each handler's net pool obligation for milk received at each plant
and unit shall be computed separately pursuant to paragraphs (a) through
(d) of this section and then combined into one total to be adjusted by
any credit applicable pursuant to paragraph (e) of this section to
determine the handler's total net pool obligation.
(a) Multiply the quantity of milk in each class remaining after the
computation pursuant to Sec. 1002.45(a)(20) and the corresponding step
of Sec. 1002.45(b) by the applicable class price adjusted by the
applicable differential pursuant to Sec. 1002.52:
(b) For each partial pool plant or partial pool unit multiply the
quantity of pool milk in each class by the applicable class price
adjusted by the applicable differential pursuant to Sec. 1002.52;
(c) Deduct, in the case of each plant or unit nearer than the 201-
to-210-mile zone and add, in the case of each plant or unit farther than
the 201-to-210-mile zone, the sum obtained by multiplying the quantity
of pool milk received from dairy farmers by the differential in Column B
of Sec. 1002.52(c) applicable at the plant and weighted average Column B
differential computed pursuant to Sec. 1002.52(d) applicable to the
unit.
(d) Add the amounts computed in paragraph (d) (1) through (4) of
this section:
(1) Multiply the pounds of overage deducted from each class pursuant
to Sec. 1002.45(a)(20) and the corresponding step of Sec. 1002.45(b) by
the applicable class price adjusted by the differentials pursuant to
Secs. 1002.52 and 1002.81;
(2) Multiply the pounds of skim milk and butterfat in receipts of
nonfluid milk products subtracted from Class I-A pursuant to
Sec. 1002.45(a)(8)(i) and the corresponding step of Sec. 1002.45(b) and
the pounds of skim milk and butterfat specified in
Sec. 1002.44(d)(3)(vii) by the difference between the Class I-A and
Class III prices, each adjusted by the applicable differential pursuant
to Sec. 1002.52;
(3) Multiply the pounds of skim milk and butterfat in receipts of
nonfluid milk products assigned to Class I pursuant to Sec. 1002.40(c)
by the difference between the Class I price less $1.00 (but not to be
less than the Class III price) and the Class III price, both adjusted by
the applicable differential pursuant to Sec. 1002.52. Alternatively, the
handler may, with respect to such receipts of nonfluid milk products
processed from producer milk regulated under another Federal order,
elect to make payment to the producer-settlement fund of the other order
at the difference between the Class I price applicable under the other
order at the location of the plant where the nonfluid milk products were
processed (but not to be less than the Class III price) and the Class
III price. This payment option shall apply only if a majority of the
total milk received at the plant that processed the nonfluid milk
products is regulated under one or more Federal orders and payment may
only be made to the producer-settlement fund of the order pricing a
plurality of the milk used to produce the nonfluid milk products. This
payment option shall not apply if the source of the nonfluid milk
products used in reconstituted fluid milk products cannot be determined
by the market administrator;
(4) Multiply the quantity of skim milk and butterfat in receipts of
concentrated fluid milk products from plants other than those defined in
Sec. 1002.8(b) or (d) or as a producer-handler and which are assigned to
Class I pursuant to Sec. 1002.40(c) or which are subtracted from Class
I-A pursuant to Sec. 1002.45(a)(8)(i) and the corresponding
[[Page 100]]
step of Sec. 1002.45(b) by the Class I price, adjusted by the applicable
differential pursuant to Sec. 1002.52.
(5) Multiply the producer-handler price differential by the pounds
of skim milk and butterfat subtracted from Class I-A pursuant to
Sec. 1002.45(a)(8)(iii) and the corresponding step of Sec. 1002.45(b);
(6) Multiply the difference between the Class III price for the
preceding month and the Class I-A price or the Class II price, as the
case may be, for the current month, both applicable at the location of
the nearest plant or unit from which an equivalent quantity of Class III
milk was received in the preceding month, by the pounds of skim milk and
butterfat subtracted from Class I-A and Class II pursuant to
Sec. 1002.45(a)(11) and the corresponding step of Sec. 1002.45(b).
(e) For pool plants that transfer bulk concentrated fluid milk
products to other pool plants and other order plants, add or subtract
the amount per hundredweight of any class price change from the previous
month that results from any inventory reclassification of bulk
concentrated fluid milk products that occurs at the transferee plant.
Any such applicable class price change shall be applied to the plant
that used the concentrated milk in the event that the concentrated fluid
milk products were made from bulk unconcentrated fluid milk products
received at the plant during the prior month.
(f) Deduct any credit applicable pursuant to Sec. 1002.55.
[33 FR 8201, June 1, 1968, as amended at 34 FR 18605, Nov. 22, 1969; 35
FR 16790, Oct. 30, 1970; 39 FR 11981, Apr. 2, 1974; 39 FR 30925, Aug.
27, 1974; 41 FR 8367, Feb. 26, 1976. Redesignated and amended at 56 FR
5328, Feb. 11, 1991; 58 FR 27779, May 11, 1993]
Sec. 1002.61 Computation of the uniform price.
The market administrator shall, on or before the 14th day of each
month, audit for mathematical correctness and obvious errors the report
submitted for the preceding month by each handler. If the unreserved
cash balance in the producer settlement fund to be included in the
computation is less than 2 cents per hundredweight of pool milk on all
reports, the report of any handler who has not made payment of the last
monthly pool debit account rendered pursuant to Sec. 1002.71 shall not
be included in the computation of the uniform price. The report of such
handler shall not be included in the computation for succeeding months
until he has made full payment of outstanding monthly pool debits.
Subject to the aforementioned conditions, the market administrator shall
compute the uniform price in the following manner:
(a) Combine into one total the net pool obligations of all handlers
computed pursuant to Sec. 1002.60;
(b) Subtract the total of payments required to be made pursuant to
Sec. 1002.77;
(c) Subtract an amount computed by multiplying the quantity of pool
milk delivered directly from farms to pool plants and partial pool
plants that was not put into a tank truck prior to such delivery, by a
rate per hundredweight that is equal to the rate specified in
Sec. 1002.55;
(d)-(e) [Reserved]
(f) Add the amount of unreserved cash in the producer settlement
fund;
(g) Subtract an amount equal to not less than 8 cents nor more than
9 cents per hundredweight of pool milk and receipts of concentrated
fluid milk products for which a payment obligation is computed pursuant
to Sec. 1002.60(d)(4) to provide against the contingency of errors in
reports and payments or of delinquencies in payments by handlers; and
(h) Divide the result obtained in paragraph (g) of this section by
the total pounds of pool milk delivered by dairy farmers and the total
pounds of concentrated fluid milk products for which a payment
obligation is computed pursuant to Sec. 1002.60(d)(4). The result shall
be known as the uniform price.
[33 FR 8201, June 1, 1968, as amended at 37 FR 4175, Feb. 29, 1972; 42
FR 52380, Sept. 30, 1977. Redesignated and amended at 56 FR 5329, Feb.
11, 1991; 58 FR 27780, May 11, 1993; 59 FR 16512, Apr. 7, 1994]
Sec. 1002.62 Announcement of uniform price.
The market administrator shall publicly announce, on or before the
14th
[[Page 101]]
day of each month, the uniform price for the preceding month pursuant to
Sec. 1002.61 applicable at the 201-210 mile zone and at the 1-10 mile
zone pursuant to Sec. 1002.82.
[56 FR 5329, Feb. 11, 1991]
Producer Settlement Fund and Its Operation
Sec. 1002.70 Producer settlement fund.
The market administrator shall establish and maintain a separate
fund known as the ``producer settlement fund'' into which he shall
deposit all payments and out of which he shall make all payments
pursuant to Secs. 1002.72 through 1002.77. All amounts subtracted under
Sec. 1002.61(d), inclusive of interest earned thereon, shall remain
therein as an obligated balance until it is withdrawn for the purpose of
effectuating Sec. 1002.61(e).
[56 FR 5329, Feb. 11, 1991]
Sec. 1002.71 Handler's accounts.
The market administrator shall establish an account for each handler
who is required to make payments to the producer settlement fund or who
received payments from the producer settlement fund. After computing the
uniform price and each handler's pool debit or credit each month, and at
such times as he deems appropriate, the market administrator shall
render each handler a statement of his account showing the debit or
credit balance, together with all debits or credits entered on such
handler's account since the previous statement was rendered: Provided,
That the handler operating a pool plant receiving milk from a partial
pool plant or partial pool unit without producers as defined in
Sec. 1002.6, or from a partial pool plant in the 401 miles or over
freight zone, shall be responsible for the debit or credit arising on
milk so received and for the payment of the administration assessment
pursuant to Sec. 1002.85 on such milk.
[33 FR 8201, June 1, 1968. Redesignated and amended at 56 FR 5329, Feb.
11, 1991]
Sec. 1002.72 Payments to the producer-settlement fund.
On or before the 16th day of each month each handler shall make full
payment to the market administrator of the debit balance, if any, of
such handler shown on the last statement of account rendered pursuant to
Sec. 1002.71. Payments to the market administrator shall be deemed not
to have been made until such payments have been received by the market
administrator. If the date by which such payments must be received by
the market administrator falls on a Saturday or Sunday or a national
holiday, such payments shall not be due until the next day that the
market administrator's office is open for public business.
[42 FR 11823, Mar. 1, 1977, as amended at 55 FR 3200, Jan. 31, 1990.
Redesignated and amended at 56 FR 5329, Feb. 11, 1991]
Sec. 1002.73 Payments out of producer-settlement fund.
(a) On or before the 17th day of each month the market administrator
shall make payment to each handler of the credit balance, if any, of
such handler shown on the last statement of account rendered pursuant to
Sec. 1002.71. If the date by which such payments are to be made falls on
Saturday or Sunday or a national holiday, such payments need not be made
until the next day that the market administrator's office is open for
public business. If payments to the producer-settlement fund under
Sec. 1002.72 were delayed because the due date fell on a Saturday or
Sunday or a national holiday, payments under this paragraph may be
delayed by the same number of days.
(b) If the balance in the producer-settlement fund is insufficient
to make full payment required under paragraph (a) of this section, the
market administrator shall reduce uniformly the payments to each handler
and shall complete such payments as soon as the necessary funds are
available. No handler who, on the 20th day of the month, has not
received such payments in full from the market administrator shall be
deemed to be in violation of Secs. 1002.80 through 1002.82 if he reduces
his total
[[Page 102]]
payments to producers for milk delivered by such producers during the
preceding month by not more than the amount of the reduction in payment
from the producer-settlement fund.
[42 FR 11823, Mar. 1, 1977, as amended at 55 FR 3200, Jan. 31, 1990; 56
FR 5329, Feb. 11, 1991]
Sec. 1002.74 Handler's pool debit or credit.
After computing the uniform price for each month, the market
administrator shall compute each handler's pool debit or credit as
follows:
(a) Add the contents computed as follows:
(1) Multiply the quantity of pool milk received by each handler from
dairy farmers by the uniform price;
(2) Multiply the quantity of pool milk received by the handler at a
pool plant or partial pool plant directly from farms that was not put
into a tank truck prior to delivery by a rate per hundredweight that is
equal to the rate specified in Sec. 1002.55;
(3) Multiply the quantity of concentrated fluid milk products for
which a payment obligation is computed pursuant to Sec. 1002.60(d)(4) by
the uniform price.
(b) If the result obtained in paragraph (a) of this section is less
than the handler's net pool obligation, the difference shall be entered
on the handler's producer settlement fund account as such handler's pool
debit.
(c) If the result obtained in paragraph (a) of this section is
greater than the handler's net pool obligation, the difference shall be
entered on the handler's producer settlement fund account as such
handler's pool credit.
[33 FR 8201, June 1, 1968, as amended at 42 FR 52381, Sept. 30, 1977.
Redesignated at 56 FR 5329, Feb. 11, 1991, and amended at 58 FR 27780,
May 11, 1993]
Sec. 1002.75 Adjustments of errors in payments.
Whenever verification by the market administrator of reports or
payments of any handler discloses errors made in payments to or from the
producer settlement fund, the market administrator shall debit the
handler's producer settlement fund account for any unpaid amount.
Whenever verification discloses that payment is due from the market
administrator to any handler, the market administrator shall credit the
handler's producer settlement fund account for any such amount.
[33 FR 8201, June 1, 1968. Redesignated at 56 FR 5329, Feb. 11, 1991]
Sec. 1002.76 Charges on overdue accounts.
Any unpaid obligation of a handler pursuant to Secs. 1002.72 and
1002.85 shall be increased 1 percent on the first day after the due date
of such obligation and on the same day of each succeeding month until
such obligation is paid.
[42 FR 52381, Sept. 30, 1977. Redesignated and amended at 56 FR 5329,
Feb. 11, 1991]
Sec. 1002.77 Cooperative payments for marketwide services.
Payments shall be made to qualified cooperatives or to federations
under the conditions, in the manner, and at the rates set forth in this
section.
(a) Definitions. As used in this section the following terms shall
have the following meanings:
(1) Cooperative means a cooperative association of producers which
is duly incorporated under the cooperative corporation laws of a state;
is qualified under the Capper-Volstead Act (7 U.S.C. 291 et seq.); has
all its activities under the control of its members; and has full
authority in the sale of its members' milk.
(2) Federation means a federation of cooperatives which is duly
incorporated under the laws of a State.
(3) Federated cooperatives means a cooperative which is a member of
a federation and on whose membership the federation is an applicant for
or receives payments under paragraph (f)(2) of this section.
(4) Affiliated cooperatives means a cooperative upon whose entire
membership another cooperative, by mutual consent, is an applicant for
or receives payments under paragraph (f)(2) of this section.
(5) Member producer means, when used with respect to a cooperative
or federation which is an applicant for or is receiving payments, is a
producer as defined in Sec. 1002.6 who has met the following conditions:
[[Page 103]]
(i) He is a member of the cooperative or one of its affiliated
cooperatives, or in the case of a federation, he is a member of one of
its federated cooperatives from whom the cooperative, affiliated
cooperative, or federated cooperative is receiving at least 1 cent per
hundredweight of milk delivered by him: Provided, That the cooperative
of which he is a member is meeting the requirements of this part
applicable to it;
(ii) He has been a producer, or his farm, as defined in
Sec. 1002.10, had been the farm of a producer for at least a prior 12-
month period; and
(iii) He has not for a prior 12-month period been a member producer
of another cooperative or federation: Provided, That in the case of
membership transfers resulting from mergers of designated organizations,
or from affiliation, federation or merger of cooperatives not previously
meeting the definition of paragraph (a)(3) or (a)(4) of this section,
this paragraph shall not apply.
(6) Marketwide services means services performed by cooperatives or
federations, as defined herein, which benefit all producers in the
marketing of their milk under this order; such services are not limited
to those specified in paragraphs (e)(1) through (6) of this section and
may include services directly or indirectly related to the order.
(b) Designated cooperatives and federations. A cooperative or
federation may submit an application to the market administrator for
payments under the provisions of this section or for modification of the
basis of a previous designation. In accordance with the requirements of
the rules and regulations issued by the market administrator such
application shall include a written description of the applicant's
program for the performance of marketwide services, including evidence
that adequate facilities and personnel will be maintained by it so as to
enable it to perform the marketwide services; and the application shall
contain a statement by the applicant that it will perform the required
marketwide services for which it is applying for payments: Provided,
That in the case of an application for modification of the basis for a
previous designation the market administrator may waive the requirement
for submission of the written description of the programs. The
application shall set forth all necessary data so as to enable the
market administrator to determine whether it meets the designation
requirements with respect to the payments for which the application is
submitted. An application shall be approved by the market administrator
only if he determines that:
(1) In the case of a cooperative;
(i) It has as member producers not less than 15 percent of all
producers, as defined in Sec. 1002.6;
(ii) It has contracts with each of its affiliated cooperatives under
which the cooperatives agree to continue as affiliated cooperatives for
at least 1 year, and such contracts cover or will be renewed for a
yearly period for every subsequent year for which member producers of
the affiliated cooperative are to be included within its membership for
cooperative payment purposes;
(iii) It receives from each of its affiliated cooperatives not less
than 1 cent per hundredweight of milk delivered by member producers of
such cooperatives; and
(iv) If the application is also for an additional payment under
paragraph (f)(3) of this section, the cooperative or its affiliated
cooperatives operate marketing facilities, i.e., pool plants and pool
bulk tank units, at which is received at least 25 percentum, by weight,
of all milk delivered by its member producers; and, in addition, the
cooperative or its affiliated cooperatives control processing facilities
capable of handling at least 10 percentum, by weight, of all milk
marketed by its member producers: Provided, That such processing
facilities must be capable of handling not less than 1 million pounds of
milk daily: Provided further, That the cooperative must be willing to
accept nonmember milk on a temporary basis under the generally
prevailing conditions for acceptance of milk from its own members.
(2) In the case of a federation:
(i) It has contracts with each of its federated cooperatives under
which the cooperatives agree to remain in the federation for at least 1
year, and such
[[Page 104]]
contracts cover or will be renewed for a yearly period for every
subsequent year for which the federated cooperatives are to be included
within the membership of the federation for cooperative payment
purposes;
(ii) It has as member producers not less than 15 percent of all
producers, as defined in Sec. 1002.6;
(iii) It receives from each of its federated cooperatives not less
than 1 cent per hundredweight of milk delivered by member producers of
such cooperative;
(iv) If the application is also for an additional payment under
paragraph (f)(4) of this section, the federation or its federated
cooperatives operate marketing facilities, i.e., pool plant(s) and pool
bulk tank unit(s), at which is received at least 25 percentum, by
weight, of the milk marketed by its member producers; and, in addition,
the federation or its federated cooperatives control processing
facilities capable of handling at least 10 percentum, by weight, of all
milk marketed by its member producers: Provided, That such processing
facilities must be capable of handling not less than 1 million pounds of
milk daily: Provided further, That the federation must be willing to
accept nonmember milk on a temporary basis under the generally
prevailing conditions for such acceptance of milk from its own members.
(3) The applicant cooperative or federation demonstrates that it has
the ability to perform the marketwide services for which application is
made, and that such services will be performed.
(4) The applicant cooperative or the federated cooperatives of an
applicant federation are in no way precluded from arranging for the
utilization of milk under their respective control so as to yield the
highest available net return to all producers without displacing an
equivalent quantity of other producer milk in the preferred
classification.
(c) Notice of designation or denial; effective date. Upon
determination by the market administrator that a cooperative or a
federation shall be designated to receive payment for performance of the
marketwide services, he shall transmit such determination to the
applicant cooperative or federation and publicly announce the issuance
of the determination. The determination shall be effective with respect
to milk delivered on and after the first day of the month following
issuance of the determination. If, after consideration of an application
for payments for marketwide services, the market administrator
determines that the cooperative or federation is not qualified to
receive such payments he shall promptly notify the applicant and
specifically set forth in such notice his reasons for denial of the
application.
(d) Requirements for continued designation. From time to time and in
accordance with the rules and regulations which may be issued by the
market administrator, each designated cooperative or federation must
demonstrate to the market administrator that it continues to meet the
designation requirements for the payments and is fully performing the
marketwide services for which it is being paid.
(e) Marketwide services. Each cooperative or federation shall
perform the marketwide services enumerated in this paragraph. Such
services shall include:
(1) Analyzing milk marketing problems and their solutions,
conducting market research and maintaining current information as to all
market developments, preparing and assembling statistical data relative
to prices and marketing conditions, and making an economic analysis of
all such data;
(2) determining the need for the formulation of amendments to the
order and proposing such amendments or requesting other appropriate
action by the Secretary or the market administrator in the light of
changing conditions;
(3) participating in proceedings with respect to amendments to the
order, including the preparation and presentation of evidence at public
hearings, the submission of appropriate briefs and exceptions, and also
participating, by voting or otherwise, in the referenda relative to
amendments;
(4) participating in the meetings called by the market
administrator, such as meetings with respect to rules and regulations
issued under the order, including activities such as the preparation and
presentation of data at such
[[Page 105]]
meetings and briefs for submission thereafter;
(5) conducting a comprehensive education program among producers--
i.e., members and nonmembers of cooperatives--and keeping such producers
well informed for participation in the activities under the regulatory
order and, as a part of such program, issuing publications that contain
relevant data and information about the order and its operation, and the
distribution of such publications to members and, on the same
subscription basis, to nonmembers who request it, and holding meetings
at which members and nonmembers may attend;
(6) in the case of a cooperative or federation which receives an
additional payment under paragraph (f)(3) or (4) of this section,
operating marketing facilities, or having affiliated cooperatives or
federated cooperatives that operate marketing facilities, i.e., pool
plant(s) and pool bulk tank unit(s), at which is received at least 25
percentum, by weight, of milk marketed by its member producers; and in
addition, controls, or having affiliated cooperatives or federated
cooperatives that control processing facilities capable of handling at
least 10 percentum, by weight, of the milk marketed by its member
producers: Provided, That such processing facilities must be capable of
handling at least one million pounds of milk daily: Provided further,
That the cooperative or federation must be willing to accept nonmember
milk on a temporary basis under the generally prevailing conditions for
such acceptance of milk of its own members; and
(7) performing such other services as are needed to maintain
satisfactory marketing conditions and promote market stability.
(f) Rate, computation, time, and method of payment. (1) Subject to
the provisions of paragraph (g) of this section, the market
administrator, on or before the 20th day of each month, shall make
payment out of the producer-settlement fund, or issue equivalent credit
therefore, to each cooperative or federation which is designated for
such payments for marketwide services. The payments to a cooperative or
federation shall be based upon the milk reported by cooperative or
proprietary handlers to have been received during the preceding month
from its member producers, subject to adjustment upon verification by
the market administrator.
(2) Such payment or credit shall be at the rate of 3 cents per
hundredweight of milk in accordance with paragraph (f)(1) of this
section.
(3) Any cooperative that operates marketing facilities or whose
affiliated cooperatives operate marketing facilities, i.e., pool
plant(s) and pool bulk tank unit(s), at which is received at least 25
percentum, by weight, of the milk marketed by its member producers, and,
in addition, controls, or has affiliated cooperatives that control,
processing facilities capable of handling, at least 10 percentum, by
weight, of the milk marketed by its member producers but not less than
one million pounds of milk daily shall receive a payment in addition to
that provided for in paragraph (f)(2) of this section of one cent per
hundredweight of all milk marketed by member producers in accordance
with paragraph (f)(1) of this section.
(4) Any federation that operates marketing facilities, or whose
federated cooperatives operate marketing facilities, i.e., pool plant(s)
and pool bulk tank unit(s), at which is received at least 25 percentum,
by weight, of the milk marketed by its member producers, and, in
addition, controls, or whose federated cooperatives control, processing
facilities capable of handling at least 10 percentum of the milk
marketed by its member producers but not less than 1 million pounds
daily, shall receive a payment, in addition to the payment provided for
in paragraph (f)(2) of this section, of 1 cent per hundredweight of all
milk marketed by member producers in accordance with paragraph (f)(1) of
this section.
(5) If an individually designated cooperative is affiliated with a
federation, the cooperative payment shall be made to such cooperative
unless its contract with the federation specified in writing that the
federation is to receive the payments. Any such contract must authorize
the federation to receive the payments for at least 1 year, and such
agreement must cover or be renewed
[[Page 106]]
for a yearly period for every subsequent year for which the federation
is to receive the payments.
(g) Cancellation of designation. (1) The market administrator shall
issue an order wholly or partly canceling the designation of a
previously designated cooperative or federation for payments authorized
pursuant to this section and such payments shall not thereafter be made
to it if he determines that:
(i) The cooperative or federation no longer complies with the
requirements of this part: Provided, That if one of its affiliated or
federated cooperatives has failed to comply with the requirements of
this part applicable to it or has failed, promptly after demand by the
market administrator, to arrange for the utilization of milk under its
control so as to yield the highest available net return to all producers
without displacing an equivalent quantity of other producer milk in the
preferred classification, the cooperative or federation shall be
disqualified only to the extent that its qualification for payments or
the amount of its payment are based upon the membership, milk, or
operations of such noncomplying affiliated or federated cooperatives.
(ii) The cooperative or federation has failed to make reports or
furnish records pursuant to this section or pursuant to rules and
regulations issued by the market administrator; or
(iii) In the case of the cooperative, it has failed, promptly after
demand by the market administrator, to arrange for the utilization of
milk under its control so as to yield the highest available net return
to all producers without displacing an equivalent quantity of other
producer milk in the preferred classification.
(2) An order of the market administrator wholly or partly canceling
the designation of a cooperative or federation shall not be issued until
after the cooperative or federation has had opportunity for hearing
thereon following not less than 15 days' notice to it specifying the
reasons for the proposed cancellation. If the cooperative or federation
fails to file a written request for hearing with the market
administrator within such period of 15 days, the market administrator
may issue an order of cancellation without further notice: But if within
such period a request for hearing is filed, the market administrator
shall promptly proceed to hold such hearing pursuant to rules and
regulations issued by him under paragraph (i) of this section.
(3) A cancellation order issued by the market administrator shall
set forth the findings and conclusions on the basis of which it is
issued.
(h) Appeals--(1) From denials of application. Any cooperative or
federation whose application for designation has been denied by the
market administrator may, within 30 days after notice of such denial,
file with the Secretary a written petition for review. But the failure
to file such petition shall not bar the cooperative or federation from
again applying to the market administrator for designation.
(2) From cancellation orders. A cancellation order by the market
administrator shall become final 30 days after its service on the
cooperative or federation unless within such 30-day period the
cooperative or federation files a written petition with the Secretary
for review thereof. If such petition for review is filed, payments for
which the cooperative or federation has been canceled by the order shall
be held in reserve by the market administrator pending ruling of the
Secretary, after which the sums so held in reserve shall either be
returned to the producer-settlement fund or paid over to the cooperative
or federation depending on the Secretary's ruling on the petition. If
such petition for review is not filed, any payments which otherwise
would be made within the 30-day period following issuance of the
cancellation order shall be held in reserve until such order becomes
final and shall then be returned to the producer-settlement fund.
(3) Record on appeal. If an appeal is taken under paragraph (h) (1)
or (2) of this section, the market administrator shall promptly certify
to the Secretary the ruling or order appealed from and the evidence upon
which it was issued: Provided, That if a hearing was held the complete
record thereof, including the applications, petitions, and all exhibits
or other documentary material submitted in evidence shall be the record
so certified. Such certified material shall
[[Page 107]]
constitute the sole record upon which the appeal shall be decided by the
Secretary.
(i) Regulations. The market administrator is authorized to issue
regulations and amendments thereto to effectuate the provisions of this
section and to facilitate and implement the administration of its
provisions. Such regulations shall be issued in accordance with the
following procedure:
(1) All proposed rules and regulations and amendments thereto shall
be the subject of a meeting called by the market administrator, at which
all interested persons shall have opportunity to be heard. Not less than
5 days prior to the meeting, notice thereof and of the proposed
regulations or amendments shall be mailed to qualified cooperatives and
federations. A stenographic record shall be made at such meetings which
shall be public information and be available for inspection at the
office of the market administrator.
(2) A period of at least 5 days after the meeting shall be allowed
for the filing of briefs.
(3) All regulations and amendments thereto issued by the market
administrator pursuant to this section must be submitted in tentative
form to the Secretary for approval, shall not be effective without such
approval. The regulations or amendments in tentative form shall be
forwarded also to cooperatives and federations designated under this
section and to other persons upon request in writing. The Secretary
shall either approve the regulations or amendments thereto submitted by
the market administrator or direct the market administrator to
reconsider the tentative rules or amendments. In the event the market
administrator is directed to give reconsideration to the matter, the
market administrator shall either issue revised tentative regulations or
amendments or call another meeting pursuant to this section for
additional consideration of the rules or amendments.
(j) Reports and records. Each designated cooperative or federation
shall, in accordance with rules and regulations issued by the market
administrator:
(1) After submission to the market administrator for verification,
make a public report of its performance of marketwide services pursuant
to this section, including data on its receipts and expenditure of
cooperative payments funds and a description of the marketwide services
performed. The report shall contain a certification by the market
administrator that the report is, to the best of his knowledge, accurate
and in accordance with the rules and regulations which he has
established.
(2) Submit an annual report to the market administrator which shall
include:
(i) A concise report of its performance of marketwide services and
allocations of expenditures to such performance for the previous year;
and
(ii) An outline of its proposed program and budget for performance
of marketwide services for the coming year.
(3) Make such additional reports to the market administrator as may
be requested by him for the administration of the provisions of this
section.
(4) Maintain and make available to the market administrator or his
representative such records as will enable the market administrator to
verify such reports.
(k) Notices, demands, orders, etc. All notices, demands, orders, or
other papers required by this section to be given to or served upon a
cooperative or federation shall be deemed to have been given or served
as of the time when mailed to the last known secretary of the
cooperative or federation at his last known address.
[33 FR 14230, Sept. 20, 1968, as amended at 55 FR 3200, Jan. 31, 1990.
Redesignated and amended at 56 FR 5329, Feb. 11, 1991; 60 FR 62019, Dec.
4, 1995]
Payment by Handlers Directly to Producers
Sec. 1002.80 Time and rate of payments.
(a) On or before the last day of the month, each handler shall make
payment to each producer for milk received from such producer during the
first 15 days of the month at not less than the lowest class price for
the preceding month.
[[Page 108]]
(b) On or before the 20th day of the month, each handler shall make
payment, pursuant to paragraphs (c), (d), (e), (f) and (g) of this
section, to each producer for the balance due for all milk received from
such producer during the preceding month at not less than the uniform
price for such month, subject to the following adjustments:
(1) Appropriate differentials set forth in Secs. 1002.81 and
1002.82;
(2) Proper deductions for the month that were authorized in writing
by producers from whom the handler received milk (except as specified in
paragraph (a)(3) of this section);
(3) For milk received in a bulk tank unit and for which
transportation was provided by the handler or at his expense, there may
be deducted, as proper and as authorized in writing by the producer, or
by a cooperative association authorized to act on behalf of such
producer, a tank truck service (transportation) charge. This charge may
include any farm-to-first plant transportation costs for which the
handler was not reimbursed through the transportation credit pursuant to
Sec. 1002.55, but such charge shall be reduced by the amount that the
class use location value of milk at the plant of first receipt exceeds
its class use location value where the milk was accounted for as a
receipt in the bulk tank unit from which the milk was transferred. Any
such deduction, plus the transportation credit, and plus the amount of
the increase in class use location value of the milk at the plant
compared to the unit shall not exceed the actual transportation costs
incurred. Any such deduction also must be made by the handler not later
than the date on which the producer is required to be paid for such
milk. If authorization for such deduction is cancelled by the producer
or by the cooperative by notifying the handler in writing, such
cancellation shall be effective on the first day of the month following
its receipt by the handler; and
(4) For pool milk delivered directly from a farm to a pool plant or
a partial pool plant that was not put into a tank truck prior to such
delivery, the handler shall pay to the producer an additional amount
computed by multiplying the quantity of such milk by a rate per
hundredweight that is equal to the rate specified in Sec. 1002.55.
(c) Upon receipt of a written request from a cooperative association
which the market administrator determines is authorized by its producer-
members to collect payment for their milk, each handler, on or before 2
days before payments are due to individual producers if paid by check,
or the same day such payments are due to individual producers if paid in
cash or cash equivalent, shall pay the cooperative association for milk
received during the month from the producer-members of such association
an amount equal to not less than the total amount otherwise due such
producer-members as determined pursuant to paragraphs (a) and (b) of
this section.
(d) Each handler which is also a cooperative marketing association,
determined by the Secretary to be qualified under the Capper-Volstead
Act with respect to producers who are members of and under contract with
such association, may make distribution in accordance with the contract
between the association and such members of the net proceeds of all its
sales in all markets in all use classifications.
(e) Whenever verification by the market administrator of the payment
to any producer or cooperative association of producers for milk
delivered to any handler discloses payment of less than is required by
this part, the handler shall make up such payment to the producer or
cooperative association of producers not later than the time of making
payment next following such disclosure.
(f) If a handler claims that he cannot make the required payment
because the producer is deceased or cannot be located, or because the
cooperative association or its lawful successor or assignee is no longer
in existence, such payment shall be made to the producer settlement
fund, and in the event that the handler subsequently locates and pays
the producer or a lawful claimant, or in the event that the handler no
longer exists and a lawful claim is later established, the market
administrator shall make such payment from the producer settlement fund
to the handler or to the lawful claimant as the case may be.
[[Page 109]]
(g) If not later than the date when such payment is required to be
made, legal proceedings have been instituted by the handler for the
purpose of administrative or judicial review of the market
administrator's findings upon verification as provided above such
payment shall be made to the producer settlement fund and shall be held
in reserve until such time as the above-mentioned proceedings have been
completed or until the handler submits proof to the market administrator
that the required payment has been made to the producer or association
of producers in which latter event the payment shall be refunded to the
handler.
[33 FR 8201, June 1, 1968, as amended at 42 FR 11823, Mar. 1, 1977; 42
FR 52380, Sept. 30, 1977; 46 FR 41756, Aug. 18, 1981; 55 FR 3200, Jan.
31, 1990]
Sec. 1002.81 Butterfat differential.
The butterfat differential for the adjustment of prices as specified
in this part shall be plus or minus for each one-tenth of one percent of
butterfat above or below 3.5 percent by an amount computed as follows:
Round to the nearest one-tenth cent, 0.138 times the current month's
butter price less 0.0028 times the preceding month's average pay price
per hundredweight, at test, for manufacturing grade milk in Minnesota
and Wisconsin, using the ``base month'' series, adjusted pursuant to
Sec. 1002.51 (a) through (e), as reported by the Department. The butter
price means the simple average for the month of the Chicago Mercantile
Exchange, Grade A butter price as reported by the Department.
[60 FR 18955, Apr. 14, 1995]
Sec. 1002.82 Transportation differentials.
The transportation differential shall be plus or minus the
appropriate differential shown in column B of the schedule in
Sec. 1002.52(c) for the zone of the plant to which the milk is delivered
or in the case of farms included in units the zone of the township in
which the milk is received.
[56 FR 5329, Feb. 11, 1991]
Expense of Administration
Sec. 1002.85 Payment by handlers.
To share on a pro rata basis the expense of administration of this
part, each handler shall, on or before the date specified for making
payment to the producer-settlement fund pursuant to Sec. 1002.72, pay to
the market administrator a sum not exceeding five cents per
hundredweight on the total quantity of pool milk received from dairy
farmers at plants or from farms in a unit operated by such handler,
directly or at the instance of a cooperative association of producers
and on the quantity for which payment is made pursuant to
Sec. 1002.60(d)(2), the exact amount to be determined by the market
administrator subject to review by the Secretary. This section shall not
be deemed to duplicate any similar payment by any handler under an order
issued by the Commissioner of Agriculture and Markets of the State of
New York, or the Director of the Division of Dairy Industry of the New
Jersey Department of Agriculture, with respect to the marketing area.
Whenever verification by the market administrator discloses an error in
the payment made by any handler, such error shall be adjusted not later
than the date next following such disclosure on which payments are due
pursuant to this section.
[42 FR 11823, Mar. 1, 1977, as amended at 53 FR 48516, Dec. 1, 1988; 53
FR 49966, Dec. 12, 1988. Redesignated and amended at 56 FR 5329, Feb.
11, 1991]
PART 1004--MILK IN THE MIDDLE ATLANTIC MARKETING AREA--Table of Contents
Subpart--Order Regulating Handling
General Provisions
Sec.
1004.1 General provisions.
Definitions
1004.2 Middle Atlantic marketing area.
1004.3 Route disposition.
1004.4 Plant.
1004.5--1004.6 [Reserved]
1004.7 Pool plant.
1004.8 Nonpool plant.
1004.9 Handler.
1004.10 Producer-handler.
[[Page 110]]
1004.11 Dairy farmer.
1004.12 Producer.
1004.13 Producer milk.
1004.14 Other source milk.
1004.15 Fluid milk product.
1004.16 Fluid cream product.
1004.17 Filled milk.
1004.18 Exempt milk.
1004.19 Federation.
1004.20 Cooperative association.
1004.21 [Reserved]
1004.22 Commercial food processing establishment.
Handler Reports
1004.30 Reports of receipts and utilization.
1004.31 [Reserved]
1004.32 Other reports.
Classification of Milk
1004.40 Classes of utilization.
1004.41 Shrinkage.
1004.42 Classification of transfers and diversions.
1004.43 General classification rules.
1004.44 Classification of producer milk.
1004.45 Market administrator's reports and announcements concerning
classification.
Class and Component Prices
1004.50 Class and component prices.
1004.51 Basic formula prices.
1004.52 Location differentials to handlers.
1004.53 Announcement of class prices and component prices.
1004.54 Equivalent prices or indexes.
Differential Pool and Handler Obligations
1004.60 Handler's value of milk for computing uniform prices.
1004.61 Computation of weighted average differential price, and
producer nonfat milk solids price.
1004.62 Computation of uniform price.
1004.63 Announcement of weighted average differential price, nonfat
milk solids price and producer nonfat milk solids price.
Payments for Milk
1004.70 Producer-settlement fund.
1004.71 Payments to the producer-settlement fund.
1004.72 Payments from the producer-settlement fund.
1004.73 Value of producer milk.
1004.74 Payments to producers and to cooperative associations.
1004.75 Location differentials to producers and on nonpool milk.
1004.76 Payments by a handler operating a partially regulated
distributing plant.
1004.77 Adjustment of accounts.
1004.78 Charges on overdue accounts.
1004.79 Direct-delivery differential.
Administrative Assessment and Marketing Service Deduction
1004.85 Assessment for order administration.
1004.86 Deductions for marketing services.
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Source: 40 FR 18753, Apr. 30, 1975, unless otherwise noted.
Subpart--Order Regulating Handling
General Provisions
Sec. 1004.1 General provisions.
The terms, definitions, and provisions in Part 1000 of this chapter
are hereby incorporated by reference and made a part of this order.
Definitions
Sec. 1004.2 Middle Atlantic marketing area.
Middle Atlantic marketing area (hereinafter called the ``marketing
area'') means all territory within the boundaries of the following
places, including piers, docks and wharves and territory within such
boundaries occupied by government (municipal, State, or Federal)
reservations, installations, institutions or other similar
establishments:
(a) The District of Columbia.
(b) The State of Delaware.
(c) In the State of Maryland:
(1) The counties of:
Anne Arundel, Baltimore, Calvert, Caroline, Carroll, Cecil, Charles,
Dorchester, Frederick, Harford, Howard, Kent, Montgomery, Prince
Georges, Queen Annes, Somerset, St. Marys, Talbot, Washington, Wicomico,
Worcester.
(2) The city of Baltimore.
(d) In the State of New Jersey:
(1) The counties of:
Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester,
Mercer, Salem.
(2) In Ocean County:
(i) The townships of:
Eagleswood, Lacey, Long Beach, Little Egg Harbor, Ocean, Stafford,
Union.
(ii) The boroughs of:
[[Page 111]]
Barnegat Light, Beach Haven, Harvey Cedars, Ship Bottom, Tuckerton.
(e) In the State of Pennsylvania, the counties of:
Adams, Bucks, Chester, Cumberland, Dauphin, Delaware, Franklin,
Fulton, Juniata, Lancaster, Lebanon, Montgomery, Perry, Philadelphia,
York.
(f) In the State of Virginia:
(1) The counties of:
Arlington, Fairfax, Loudoun, Prince William.
(2) The cities of:
Alexandria, Falls Church, Fairfax.
Sec. 1004.3 Route disposition.
Route disposition means any delivery of a fluid milk product from a
plant to a retail or wholesale outlet (including any delivery through a
distribution depot, by a vendor, from a plant store or through a vending
machine) except any delivery to a plant.
Sec. 1004.4 Plant.
Except as specifically provided in Sec. 1004.7(d)(2), plant means
the land and buildings together with their surroundings, facilities and
equipment, whether owned or operated by one or more persons,
constituting a single operating unit or establishment for the receiving,
processing or packaging of milk or milk products (including filled
milk). However, a separate facility used only for the purpose of
transferring bulk milk from one tank truck to another tank truck or only
as a distribution depot for fluid milk products in transit for route
distribution shall not be included under this definition.
[50 FR 16453, Apr. 26, 1985]
Secs. 1004.5--1004.6 [Reserved]
Sec. 1004.7 Pool plant.
Except as provided in paragraph (f) of this section, pool plant
means a plant (except a producer-handler plant or the plant of a handler
pursuant to Sec. 1004.9(e)) specified in paragraphs (a) through (e) of
this section.
(a) A plant from which during the month a volume not less than 40
percent in the months of September through February, and 30 percent in
the months of March through August, of its receipts described in
paragraph (a)(1) or (2) of this section is disposed of as Class I milk
(except filled milk) and a volume not less than 15 percent of such
receipts is disposed of as route disposition (other than as filled milk)
in the marketing area.
(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
(2) In the case of a plant with no receipts described in paragraph
(a)(1) of this section, receipts of fluid milk products (other than
filled milk) from other plants.
(3) A plant which meets the ``pool plant'' requirements of this
paragraph during any month shall retain its pool status during the
immediately succeeding two months as long as the plant continues to meet
the 15-percent in-area Class I disposition requirement, unless written
application is filed by the plant operator with the market administrator
on or before the first day of any such month requesting that the plant
be designated a nonpool plant for such month and each subsequent month
during which it does not otherwise qualify pursuant to this paragraph.
(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.
(b) Any plant not meeting the conditions of paragraph (a) of this
section from which during the month a quantity of fluid milk products
(other than filled milk) not less than the applicable percentage (as
specified in paragraph (b)(1) of this section) of such plant's receipts
of milk from dairy farmers (including milk diverted as producer milk
pursuant to Sec. 1004.12 by either the plant operator or by a
cooperative association) and from a cooperative association in its
capacity as a handler pursuant to Sec. 1004.9(c) is moved to a plant(s)
meeting the percentage disposition requirements specified in paragraph
(a)
[[Page 112]]
of this section with respect to its total receipts of fluid milk
products (other than filled milk) from dairy farmers, cooperative
associations as handlers pursuant to Sec. 1004.9(c) and from other
plants. However, a plant shall not qualify pursuant to this paragraph in
any month in which a greater proportion of its qualifying shipments are
made to a plant(s) regulated under another Federal order than to plants
regulated under this order.
(1) The applicable percentage for the purpose of this paragraph
shall be:
(i) 50 percent for any month of September through February; and
(ii) 40 percent for any month of March through August.
(c) [Reserved]
(d) A plant operated in accordance with paragraph (d)(1), (2) or (3)
of this section, subject to the requirement of paragraph (d)(4) of this
section.
(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.
(2) A reserve processing plant operated by a federation of
cooperative associations if, during the month, 30 percent or more of the
producer milk of member producers of such cooperative is caused to be
delivered to and physically received at pool plants qualified pursuant
to paragraph (a) of this section either from the farms of such producers
or by transfer in the form of fluid milk products (except filled milk)
from the plant(s) of such cooperatives. If a pipeline is maintained
between a reserve processing plant and a nonpool plant operated by
another person and located on the same premises, the reserve processing
plant shall be a pool plant for the month if the operator of such plant
proves to the satisfaction of the market administrator that such plant
should be eligible for pool status on the basis of the plant's monthly
receipts and disposition of milk and that the pipeline was used only to
move by-products (not milk) between such plants during the month.
(3) A reserve processing plant owned and operated by a cooperative
association that also owns and operates a pool plant pursuant to
Sec. 1004.7(a) so long as the volume of the cooperative's member milk
pooled at the reserve processing plant does not exceed the volume of
sales of Class I milk (except filled milk) from the cooperative's pool
distributing plant, plus the milk of member producers received directly
at pool plants pursuant to Sec. 1004.7(a) of other handlers during the
month.
(4) A cooperative or federation of cooperatives operating a pool
reserve processing plant qualified pursuant to this paragraph shall
notify the market administrator each month, at the time of filing
reports pursuant to Sec. 1004.30 and in the detail prescribed by the
market administrator, with respect to any receipts from member dairy
farmers of the cooperative(s) delivering to such plant not meeting the
health requirements for disposition as fluid milk in the marketing area.
(e) A plant that qualified as a pool plant pursuant to paragraph (b)
or (d) of this section during each of the immediately preceding months
of September through February shall be qualified for automatic pool
plant status for each of the following months of March through August,
unless the plant operator files a written request with the market
administrator prior to the beginning of any such month asking that such
plant not be a pool plant. Such nonpool status shall be effective on the
first day of the month following the receipt of such request and shall
continue until the plant again qualifies as a pool plant pursuant to
paragraph (b) or (d) of this section, subject to the following
conditions:
(1) The automatic pool plant status for any plant identified in
paragraph (e) of this section shall be cancelled if another plant is
qualified as a pool plant on the basis of deliveries to the same plants
through which such automatic pooling status was acquired by the plant.
Cancellation of the plant's automatic pool plant status shall be
effective on the first day of the month in which the other plant is
qualified as a pool plant and shall continue until the
[[Page 113]]
plant again qualifies as a pool plant pursuant to paragraph (b) or (d)
of this section; and
(2) The automatic pool plant status of a reserve processing plant
operated by a federation of cooperative associations qualified pursuant
to paragraph (d)(2) of this section shall be forfeited for any month
during the March through August period in which the market administrator
determines on the basis of the investigation conducted pursuant to
paragraph (d)(2) of this section that such plant shall not be a pool
plant for the month.
(f) A plant specified in paragraph (f)(1) or (2) of this section
shall, except as provided in Secs. 1004.32(e) and 1004.71(c), be exempt
from the provisions of this part:
(1) Any plant qualified pursuant to paragraph (a) of this section
which would be subject to the classification and pricing provisions of
another order issued pursuant to the Act unless the Secretary determines
that a greater volume of Class I milk, except filled milk, is disposed
of from such plant as route disposition in the Middle Atlantic marketing
area than is so disposed of in a marketing area regulated pursuant to
such other order; or
(2) Any plant subject to the classification and pricing provisions
of another order issued pursuant to the Act, notwithstanding its status
under this order pursuant to paragraph (a) or (b) of this section.
(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.
[40 FR 18753, Apr. 30, 1975, as amended at 44 FR 21621, Apr. 11, 1979;
47 FR 5194, Feb. 4, 1982; 47 FR 51732, Nov. 17, 1982; 48 FR 39034, Aug.
29, 1983; 49 FR 33432, Aug. 23, 1984; 50 FR 16453, Apr. 26, 1985; 60 FR
55310, Oct. 31, 1995]