Milk in the Northeast and Other Marketing Areas; Notice of Hearing on Proposed Amendments to Tentative Marketing Agreements and Orders, 19012-19015 [05-7271]
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19012
Proposed Rules
Federal Register
Vol. 70, No. 69
Tuesday, April 12, 2005
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1000, 1001, 1005, 1006,
1007, 1030, 1032, 1033, 1124, 1126, and
1131
[Docket No. AO–14–A73, et al.; DA–03–10]
Milk in the Northeast and Other
Marketing Areas; Notice of Hearing on
Proposed Amendments to Tentative
Marketing Agreements and Orders
7 CFR
part
1001
1005
1006
1007
1030
1032
1033
1124
1126
1131
...
...
...
...
...
...
...
...
...
...
Marketing area
AO Nos.
Northeast ...............
Appalachian ...........
Florida ....................
Southeast ..............
Upper Midwest ......
Central ...................
Mideast ..................
Pacific Northwest ...
Southwest ..............
Arizona Las-Vegas
AO–14–A73
AO–388–A14
AO–356–A37
AO–366–A43
AO–361–A38
AO–313–A47
AO–166–A71
AO–368–A34
AO–231–A67
AO–271–A39
Agricultural Marketing Service,
USDA.
ACTION: Proposed rule; Notice of public
hearing on proposed rulemaking.
AGENCY:
SUMMARY: A national public hearing is
being held to consider proposals seeking
to amend the Class I fluid milk product
definition of all Federal milk marketing
orders.
DATES: The hearing will convene at 8
a.m. on Monday, June 20, 2005.
ADDRESSES: The hearing will be held at
Sheraton Station Square Hotel, 300 West
Station Square Drive, Pittsburgh, PA
15219–1122. Telephone Number: (412)
261–2000.
FOR FURTHER INFORMATION CONTACT:
Gino M. Tosi, Marketing Specialist,
USDA/AMS/Dairy Programs, Order
Formulation and Enforcement Branch,
Stop 0231–Room 2971, 1400
Independence Avenue, SW.,
Washington, DC 20250–0231, (202) 690–
1366, e-mail address:
gino.tosi@usda.gov.
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Persons requiring a sign language
interpreter or other special
accommodations should contact David
Z. Walker, Market Administrator, at
(330) 225–4758; email address:
dwalker@fmmaclev.com before the
hearing begins.
SUPPLEMENTARY INFORMATION: This
administrative action is governed by the
provisions of sections 556 and 557 of
Title 5 of the United States Code and,
therefore, is excluded from the
requirements of Executive Order 12866.
Notice is hereby given of a public
hearing to be held at Sheraton Station
Square Hotel, 300 West Station Square
Drive, Pittsburgh, Pennsylvania
beginning at 8 a.m., on Monday, June
20, 2005, with respect to proposed
amendments to the tentative marketing
agreements and to the orders regulating
the handling of milk in the Northeast
and other marketing areas.
The hearing is called pursuant to the
provisions of the Agricultural Marketing
Agreement Act of 1937, as amended (7
U.S.C. 601–674), and the applicable
rules of practice and procedure
governing the formulation of marketing
agreements and marketing orders (7 CFR
Part 900).
The purpose of the hearing is to
receive evidence with respect to the
economic and marketing conditions
which relate to the proposed
amendments, hereinafter set forth, and
any appropriate modifications thereof,
to the tentative marketing agreements
and to the orders.
Actions under the Federal milk order
program are subject to the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
This Act seeks to ensure that, within the
statutory authority of a program, the
regulatory and informational
requirements are tailored to the size and
nature of small businesses. For the
purpose of the Act, a dairy farm is a
‘‘small business’’ if it has an annual
gross revenue of less than $750,000, and
a dairy products manufacturer is a
‘‘small business’’ if it has fewer than 500
employees. Most parties subject to a
milk order are considered as a small
business. Accordingly, interested parties
are invited to present evidence on the
probable regulatory and informational
impact of the hearing proposals on
small businesses. Also, parties may
suggest modifications of these proposals
for the purpose of tailoring their
applicability to small businesses.
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The amendments to the rules
proposed herein have been reviewed
under Executive Order 12988, Civil
Justice Reform. They are not intended to
have a retroactive effect. If adopted, the
proposed amendments would not
preempt any state or local laws,
regulations, or policies, unless they
present an irreconcilable conflict with
this rule.
The Agricultural Marketing
Agreement Act provides that
administrative proceedings must be
exhausted before parties may file suit in
court. Under section 8c(15)(A) of the
Act, any handler subject to an order may
request modification or exemption from
such order by filing with the
Department of Agriculture (Department)
a petition stating that the order, any
provision of the order, or any obligation
imposed in connection with the order is
not in accordance with the law. A
handler is afforded the opportunity for
a hearing on the petition. After a
hearing, the Department would rule on
the petition. The Act provides that the
district court of the United States in any
district in which the handler is an
inhabitant, or has its principal place of
business, has jurisdiction in equity to
review the Department’s ruling on the
petition, provided a bill in equity is
filed not later than 20 days after the date
of the entry of the ruling.
Interested parties who wish to
introduce exhibits should provide the
Presiding Officer at the hearing with (6)
copies of such exhibits for the Official
Record. Also, it would be helpful if
additional copies are available for the
use of other participants at the hearing.
List of Subjects in 7 CFR Parts 1000,
1001, 1005, 1006, 1007, 1030, 1032,
1033, 1124, 1126, and 1131
Milk marketing orders.
PARTS 1000, 1001, 1005, 1006, 1007,
1030, 1032, 1033, 1124, 1126, AND
1131—[AMENDED]
The authority citation for 7 CFR Parts
1000, 1001, 1005, 1006, 1007, 1030,
1032, 1033, 1124, 1126, and 1131
continues to read as follows:
Authority: 7 U.S.C. 601–674.
The proposed amendments, as set
forth below, have not received the
approval of the Department.
E:\FR\FM\12APP1.SGM
12APP1
Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Proposed Rules
Proposed by Dairy Farmers of America,
Inc.
Proposal No. 1
This proposal seeks to amend the
fluid milk product definition to include
products formulated using milk or milk
solids for beverage consumption by
removing the 6.5 percent nonfat milk
solids standard.
1. Amend § 1000.15 by revising
paragraphs (a) and (b)(1), to read as
follows:
§ 1000.15
Fluid milk product.
(a) Except as provided in paragraph
(b) of this section, fluid milk product
means any product containing milk or
milk products in fluid or frozen form
containing less than 9 percent butterfat
that are intended to be used as
beverages, including any beverage
products that are flavored, cultured,
modified with added nonfat solids,
sterilized, concentrated, or
reconstituted. As used in this part, the
term concentrated milk means milk that
contains not less than 25.5 percent, and
not more than 50 percent, total milk
solids.
(b) * * *
(1) Plain or sweetened evaporated
milk/skim milk, sweetened condensed
milk/skim milk, formulas especially
prepared for infant feeding or dietary
use (meal replacement) that are
packaged in hermetically-sealed
containers, and whey; and
*
*
*
*
*
Proposal No. 2
This proposal seeks to amend the
fluid milk product definition to include
any dairy ingredient, including whey,
when calculating the milk contained in
a product on a protein-equivalent or
nonfat solids equivalent basis.
Proposed by O–AT–KA Milk Products
Cooperative, Inc.
Proposal No. 3
This proposal seeks to amend the
fluid milk product definition by adding
a true-protein standard. In determining
the protein content and milk equivalent
of a product, the proposal seeks to
include all dairy solids—such as
caseinates, milk protein concentrates
and whey protein—and non-dairy
sources while pricing only the milk
equivalent of the dairy solids.
Furthermore, this proposal seeks to add
exemptions for alcoholic beverages
containing dairy ingredients and
formulas prepared for dietary use (meal
replacements or nutritional
supplements) having a true-protein
content from any source greater than 6.2
percent on a protein-equivalent basis.
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1. Amend § 1000.15 by revising
paragraph (b)(1), redesignating
paragraph (b)(2) as paragraph (b)(4), and
adding new paragraphs (b)(2) and (b)(3)
to read as follows:
§ 1000.15
Fluid milk product.
*
*
*
*
*
(b) * * *
(1) Plain or sweetened evaporated
milk/skim milk and sweetened
condensed milk/skim milk,
(2) The following products packaged
in containers that are shelf stable at
ambient temperatures:
(i) Formulas especially prepared for
infant feeding;
(ii) Formulas especially prepared for
meal replacement and contain at least
25 percent of the Daily Values per
serving reference amounts defined by
the Food and Drug Administration in 21
CFR 101.9 for calories and protein and
at least 16 of the 25 listed vitamins and
minerals.
(iii) Formulas especially prepared for
high protein drinks and have a true
protein solids content greater than 8
percent.
(iv) Beverages that contain alcohol
and are licensed by the Federal Tax and
Trade Bureau, U.S. Department of the
Treasury, and
(v) Packaged milk products that are
specifically formulated and labeled for
animal use.
(3) Any product that contains by
weight less than 6.5 percent nonfat milk
solids and 2.24 percent true protein.
Provided further that all protein sources
(including non-dairy sources) will be
included in establishing the true protein
content of the beverage product.
*
*
*
*
*
Proposed by Select Milk Producers Inc.
and Continental Dairy Products, Inc.
Proposal No. 4
This proposal seeks to amend the
fluid milk product definition by
including only stand-alone beverages
that are determined by a skimequivalent standard, removing the 6.5
percent nonfat milk solids standard, and
excluding other dairy products in fluid
form that are not intended to be used as
stand-alone beverages.
1. Amend § 1000.15 by revising
paragraphs (a) and (b)(1), redesignating
paragraph (b)(2) as paragraph (b)(3), and
adding new paragraphs (b)(2) and (c), to
read as follows:
§ 1000.15
Fluid milk product.
(a) Except as provided in paragraph
(b) of this section, fluid milk product
means any product containing milk or
milk products in fluid or frozen form
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19013
that is intended to be used as a standalone beverage. Fluid milk product
includes any beverage products that are
flavored, cultured, modified with added
nonfat solids, sterilized, concentrated,
or reconstituted. As used in this part,
the term concentrated milk means milk
that contains not less than 25.5 percent
and not more than 50 percent total milk
solids.
(b) * * *
(1) Plain or sweetened evaporated
milk/skim milk, sweetened condensed
milk/skim milk, formulas especially
prepared for infant feeding or dietary
use (meal replacement) that are
packaged in hermetically-sealed
containers, and whey;
(2) Products such as half-and-half,
light cream, heavy cream, and whipping
creams which, although fluid in form,
are not intended for use as stand-alone
beverages; and
(3) * * *
(c) The quantity of milk that is used
in a product defined in paragraph (a) of
this section shall be determined on a
skim-equivalent basis.
Proposed by H.P. Hood LLC
Proposal No. 5
This proposal seeks to amend the
fluid milk product definition to include
any product that, based upon
substantial evidence as determined by
the Department, directly competes with
other fluid milk products and whose
classification would enhance producer
revenues.
1. Amend § 1000.15 by revising
paragraph (b)(2), to read as follows:
§ 1000.15
Fluid milk product.
*
*
*
*
*
(b) * * *
(2) The quantity of skim milk
equivalent in any modified product
specified in paragraph (a) of this section
that is greater than an equal volume of
an unmodified product of the same
nature and butterfat content, provided
that any product that would otherwise
be excluded from the fluid milk product
definition because it contains by weight
less than 6.5 percent nonfat milk solids
will nonetheless be deemed a fluid milk
product if the Department makes a
written determination, based on
substantial evidence, that:
(i) The product directly competes
with other fluid milk products; and
(ii) Treating the product as a fluid
milk product will enhance producer
revenues under the orders, taking into
account both the revenues generated by
the minimum class price resulting from
that classification and the impact of that
class price on consumer demand for the
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12APP1
19014
Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Proposed Rules
product and the substitution of nondairy ingredients.
Proposal No. 6
As an alternative to Proposal 5, this
proposal seeks to amend the fluid milk
product definition by authorizing, but
not requiring, the Department to
determine a product’s nonfat milk solids
content by applying only a skim milk
equivalent standard with respect to any
dried dairy ingredient.
1. Amend § 1000.15 by revising
paragraph (b)(2), to read as follows:
§ 1000.15
Proposed by General Mills, Inc.
Proposal No. 9
Fluid milk product.
*
*
*
*
*
(b) * * *
(2) The quantity of skim milk
equivalent in any modified product
specified in paragraph (a) of this section
that is greater than an equal volume of
an unmodified product of the same
nature and butterfat content, provided
that, in determining whether a product
contains by weight less than 6.5 percent
nonfat milk solids, the Department shall
be authorized, but not required to apply
that test on a skim milk equivalent basis
only with respect to any dairy
ingredient utilized in dried form.
Proposed by National Milk Producers
Federation
Proposal No. 7
This proposal seeks to amend the
fluid milk product definition by
removing the reference to the 6.5
percent nonfat milk solids standard and
whey, and adopting a milk protein
standard.
1. Amend § 1000.15 by revising
paragraph (b)(1), to read as follows:
§ 1000.15
(b) * * *
(1) Plain or sweetened evaporated
milk/skim milk, sweetened condensed
milk/skim milk, formulas especially
prepared for infant feeding or dietary
use (meal replacement) that are
packaged in hermetically-sealed
containers, yogurt-containing beverages,
any product that contains by weight less
than 6.5 percent nonfat milk solids, and
whey; and
*
*
*
*
*
Fluid milk product.
*
*
*
*
*
(b) * * *
(1) Plain or sweetened evaporated
milk/skim milk, sweetened condensed
milk/skim milk, formulas especially
prepared for infant feeding or dietary
use (meal replacement) that are
packaged in hermetically-sealed
containers, and any product that
contains by weight less than 2.25
percent milk protein; and
*
*
*
*
*
This proposal seeks to amend the
fluid milk product definition to exclude
drinkable food products with no more
than 2.2 percent skim milk protein
provided the product contains at least
20 percent yogurt (nonfat yogurt, lowfat
yogurt or yogurt) by weight.
Proposed by Novartis Nutrition
Corporation
Proposal No. 10
This proposal seeks to amend the
fluid milk product definition to exclude
formulas prepared for dietary use by
removing the words ‘‘(meal
replacement) that are packaged in
hermitically-sealed containers.’’ The
proposal removes the 6.5 percent nonfat
milk solids standard.
1. Amend § 1000.15 by revising
paragraph (b)(1), to read as follows:
§ 1000.15
Fluid milk product.
*
*
*
*
*
(b) * * *
(1) Plain or sweetened evaporated
milk/skim milk, sweetened condensed
milk/skim milk, formulas especially
prepared for infant feeding or dietary
use, and whey; and
*
*
*
*
*
Proposed by Hormel Foods, LLC
Proposal No. 11
This proposal seeks to amend the
fluid milk product definition and the
corresponding classification of milk
utilization provision to exclude healthcare beverages as fluid milk products.
1. Amend § 1000.15 by revising
paragraph (b)(1) to read as follows:
Proposed by The Dannon Company Inc.
§ 1000.15
Proposal No. 8
*
This proposal seeks to amend the
fluid milk product definition by
excluding yogurt-containing beverages.
1. Amend § 1000.15 by revising
paragraph (b)(1), to read as follows:
§ 1000.15
Fluid milk product.
*
*
*
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*
*
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Fluid milk product.
*
*
*
*
(b) * * *
(1) Plain or sweetened evaporated
milk/skim milk, sweetened condensed
milk/skim milk, formulas especially
prepared for infant feeding, nutrient
enhanced (fortified) formulas especially
prepared for the health care industry or
dietary use (meal replacement) that are
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packaged in hermetically-sealed
containers, any product that contains by
weight less than 6.5 percent nonfat milk
solids, and whey; and
*
*
*
*
*
2. Amend § 1000.40 by revising
paragraph (b)(2)(vi) to read as follows:
§ 1000.40
Classes of utilization.
*
*
*
*
*
(b) * * *
(2) * * *
(vi) Formulas especially prepared for
infant feeding; nutrient enhanced
(fortified) formulas especially prepared
for the health care industry, or dietary
use (meal replacement) that are
packaged in hermetically-sealed
containers;
*
*
*
*
*
Proposed by Dairy Programs,
Agricultural Marketing Service
Proposal No. 12
For all Federal Milk Marketing
Orders, make such changes as may be
necessary to make the entire marketing
agreements and the orders conform with
any amendments thereto that may result
from this hearing.
Copies of this notice of hearing and
the orders may be procured from the
Market Administrator of each of the
aforesaid marketing areas, or from the
Hearing Clerk, United States
Department of Agriculture, STOP
9200—Room 1083, 1400 Independence
Avenue, SW., Washington, DC 20250–
9200, or may be inspected there.
Copies of the transcript of testimony
taken at the hearing will not be available
for distribution through the Hearing
Clerk’s Office. If you wish to purchase
a copy, arrangements may be made with
the reporter at the hearing.
From the time that a hearing notice is
issued and until the issuance of a final
decision in a proceeding, Department
employees involved in the decisionmaking process are prohibited from
discussing the merits of the hearing
issues on an ex parte basis with any
person having an interest in the
proceeding. For this particular
proceeding, the prohibition applies to
employees in the following
organizational units:
Office of the Secretary of Agriculture;
Office of the Administrator,
Agricultural Marketing Service;
Office of the General Counsel; and
Dairy Programs, Agricultural
Marketing Service (Washington office)
and the Offices of all Market
Administrators.
Procedural matters are not subject to
the above prohibition and may be
discussed at any time.
E:\FR\FM\12APP1.SGM
12APP1
Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 / Proposed Rules
Dated: April 6, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 05–7271 Filed 4–11–05; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. NM305; Notice No. 25–05–04–
SC]
Special Conditions: Airbus Model
A380–800 Airplane; Dynamic Braking,
Interaction of Systems and Structures,
Limit Pilot Forces, Side Stick
Controllers, Dive Speed Definition,
Electronic Flight Control SystemLateral-Directional Stability,
Longitudinal Stability, and Low Energy
Awareness, Electronic Flight Control
System-Control Surface Awareness,
Electronic Flight Control System-Flight
Characteristics Compliance Via the
Handling Qualities Rating Method,
Flight Envelope Protection-General
Limiting Requirements, Flight
Envelope Protection-Normal Load
Factor (G) Limiting, Flight Envelope
Protection-High Speed Limiting, Flight
Envelope Protection-Pitch and Roll
Limiting, Flight Envelope ProtectionHigh Incidence Protection and AlphaFloor Systems, High Intensity Radiated
Fields (HIRF) Protection, and
Operation Without Normal Electrical
Power
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed special
conditions.
AGENCY:
SUMMARY: This notice proposes special
conditions for the Airbus A380–800
airplane. This airplane will have novel
or unusual design features when
compared to the state of technology
envisioned in the airworthiness
standards for transport category
airplanes. These design features include
side stick controllers, a body landing
gear in addition to conventional wing
and nose landing gears, electronic flight
control systems, and flight envelope
protection. These proposed special
conditions also pertain to the effects of
such novel or unusual design features,
such as their effects on the structural
performance of the airplane. Finally, the
proposed special conditions pertain to
the effects of certain conditions on these
novel or unusual design features, such
as the effects of high intensity radiated
fields (HIRF) or of operation without
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Jkt 205001
normal electrical power. Additional
special conditions will be issued for
other novel or unusual design features
of the Airbus A380–800 airplanes. A list
is provided in the section of this
document entitled ‘‘Discussion of Novel
or Unusual Design Features.’’
DATES: Comments must be received on
or before May 27, 2005.
ADDRESSES: Comments on this proposal
may be mailed in duplicate to: Federal
Aviation Administration, Transport
Airplane Directorate, Attention: Rules
Docket (ANM–113), Docket No. NM305,
1601 Lind Avenue SW., Renton,
Washington 98055–4056; or delivered in
duplicate to the Transport Airplane
Directorate at the above address. All
comments must be marked: Docket No.
NM305. Comments may be inspected in
the Rules Docket weekdays, except
Federal holidays, between 7:30 a.m. and
4 p.m.
FOR FURTHER INFORMATION CONTACT:
Holly Thorson, FAA, International
Branch, ANM–116, Transport Airplane
Directorate, Aircraft Certification
Service, 1601 Lind Avenue SW.,
Renton, Washington 98055–4056;
telephone (425) 227–1357; facsimile
(425) 227–1149.
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites interested persons to
participate in this rulemaking by
submitting written comments, data, or
views. The most helpful comments
reference a specific portion of the
special conditions, explain the reason
for any recommended change, and
include supporting data. We ask that
you send us two copies of written
comments.
We will file in the docket all
comments we receive as well as a report
summarizing each substantive public
contact with FAA personnel concerning
these proposed special conditions. The
docket is available for public inspection
before and after the comment closing
date. If you wish to review the docket
in person, go to the address in the
ADDRESSES section of this notice
between 7:30 a.m. and 4 p.m., Monday
through Friday, except Federal holidays.
We will consider all comments we
receive on or before the closing date for
comments. We will consider comments
filed late, if it is possible to do so
without incurring expense or delay. We
may change the proposed special
conditions in light of the comments we
receive.
If you want the FAA to acknowledge
receipt of your comments on this
proposal, include with your comments
a pre-addressed, stamped postcard on
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19015
which the docket number appears. We
will stamp the date on the postcard and
mail it back to you.
Background
Airbus applied for FAA certification/
validation of the provisionallydesignated Model A3XX–100 in its
letter AI/L 810.0223/98, dated August
12, 1998, to the FAA. Application for
certification by the Joint Aviation
Authorities (JAA) of Europe had been
made on January 16, 1998, reference AI/
L 810.0019/98. In its letter to the FAA,
Airbus requested an extension to the 5year period for type certification in
accordance with 14 CFR 21.17(c). The
request was for an extension to a 7-year
period, using the date of the initial
application letter to the JAA as the
reference date. The reason given by
Airbus for the request for extension is
related to the technical challenges,
complexity, and the number of new and
novel features on the airplane. On
November 12, 1998, the Manager,
Aircraft Engineering Division, AIR–100,
granted Airbus’ request for the 7-year
period based on the date of application
to the JAA.
In its letter AI/LE–A 828.0040/99
Issue 3, dated July 20, 2001, Airbus
stated that its target date for type
certification of the Model A380–800 has
been moved from May 2005, to January
2006, in order to match the delivery
date of the first production airplane. In
accordance with 14 CFR 21.17(d)(2),
Airbus chose a new application date of
April 20, 1999, and requested that the
7-year certification period which had
already been approved be continued.
The part 25 certification basis for the
Model A380–800 airplane was adjusted
to reflect the new application date.
The Model A380–800 airplane will be
an all-new, four-engine jet transport
airplane with a full double-deck, twoaisle cabin. The maximum takeoff
weight will be 1.235 million pounds
with a typical three-class layout of 555
passengers.
Type Certification Basis
Under the provisions of 14 CFR 21.17,
Airbus must show that the Model A380–
800 airplane meets the applicable
provisions of 14 CFR part 25, as
amended by Amendments 25–1 through
25–98. If the Administrator finds that
the applicable airworthiness regulations
do not contain adequate or appropriate
safety standards for the Airbus A380–
800 airplane because of novel or
unusual design features, special
conditions are prescribed under the
provisions of 14 CFR 21.16.
In addition to the applicable
airworthiness regulations and special
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12APP1
]]>Agencies
[Federal Register Volume 70, Number 69 (Tuesday, April 12, 2005)]
[Proposed Rules]
[Pages 19012-19015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-7271]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 70, No. 69 / Tuesday, April 12, 2005 /
Proposed Rules
[[Page 19012]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1000, 1001, 1005, 1006, 1007, 1030, 1032, 1033, 1124,
1126, and 1131
[Docket No. AO-14-A73, et al.; DA-03-10]
Milk in the Northeast and Other Marketing Areas; Notice of
Hearing on Proposed Amendments to Tentative Marketing Agreements and
Orders
------------------------------------------------------------------------
7 CFR part Marketing area AO Nos.
------------------------------------------------------------------------
1001............... Northeast............... AO-14-A73
1005............... Appalachian............. AO-388-A14
1006............... Florida................. AO-356-A37
1007............... Southeast............... AO-366-A43
1030............... Upper Midwest........... AO-361-A38
1032............... Central................. AO-313-A47
1033............... Mideast................. AO-166-A71
1124............... Pacific Northwest....... AO-368-A34
1126............... Southwest............... AO-231-A67
1131............... Arizona Las-Vegas....... AO-271-A39
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AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule; Notice of public hearing on proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: A national public hearing is being held to consider proposals
seeking to amend the Class I fluid milk product definition of all
Federal milk marketing orders.
DATES: The hearing will convene at 8 a.m. on Monday, June 20, 2005.
ADDRESSES: The hearing will be held at Sheraton Station Square Hotel,
300 West Station Square Drive, Pittsburgh, PA 15219-1122. Telephone
Number: (412) 261-2000.
FOR FURTHER INFORMATION CONTACT: Gino M. Tosi, Marketing Specialist,
USDA/AMS/Dairy Programs, Order Formulation and Enforcement Branch, Stop
0231-Room 2971, 1400 Independence Avenue, SW., Washington, DC 20250-
0231, (202) 690-1366, e-mail address: gino.tosi@usda.gov.
Persons requiring a sign language interpreter or other special
accommodations should contact David Z. Walker, Market Administrator, at
(330) 225-4758; email address: dwalker@fmmaclev.com before the hearing
begins.
SUPPLEMENTARY INFORMATION: This administrative action is governed by
the provisions of sections 556 and 557 of Title 5 of the United States
Code and, therefore, is excluded from the requirements of Executive
Order 12866.
Notice is hereby given of a public hearing to be held at Sheraton
Station Square Hotel, 300 West Station Square Drive, Pittsburgh,
Pennsylvania beginning at 8 a.m., on Monday, June 20, 2005, with
respect to proposed amendments to the tentative marketing agreements
and to the orders regulating the handling of milk in the Northeast and
other marketing areas.
The hearing is called pursuant to the provisions of the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), and the applicable rules of practice and procedure governing the
formulation of marketing agreements and marketing orders (7 CFR Part
900).
The purpose of the hearing is to receive evidence with respect to
the economic and marketing conditions which relate to the proposed
amendments, hereinafter set forth, and any appropriate modifications
thereof, to the tentative marketing agreements and to the orders.
Actions under the Federal milk order program are subject to the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This Act seeks to
ensure that, within the statutory authority of a program, the
regulatory and informational requirements are tailored to the size and
nature of small businesses. For the purpose of the Act, a dairy farm is
a ``small business'' if it has an annual gross revenue of less than
$750,000, and a dairy products manufacturer is a ``small business'' if
it has fewer than 500 employees. Most parties subject to a milk order
are considered as a small business. Accordingly, interested parties are
invited to present evidence on the probable regulatory and
informational impact of the hearing proposals on small businesses.
Also, parties may suggest modifications of these proposals for the
purpose of tailoring their applicability to small businesses.
The amendments to the rules proposed herein have been reviewed
under Executive Order 12988, Civil Justice Reform. They are not
intended to have a retroactive effect. If adopted, the proposed
amendments would not preempt any state or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Agricultural Marketing Agreement Act provides that
administrative proceedings must be exhausted before parties may file
suit in court. Under section 8c(15)(A) of the Act, any handler subject
to an order may request modification or exemption from such order by
filing with the Department of Agriculture (Department) a petition
stating that the order, any provision of the order, or any obligation
imposed in connection with the order is not in accordance with the law.
A handler is afforded the opportunity for a hearing on the petition.
After a hearing, the Department would rule on the petition. The Act
provides that the district court of the United States in any district
in which the handler is an inhabitant, or has its principal place of
business, has jurisdiction in equity to review the Department's ruling
on the petition, provided a bill in equity is filed not later than 20
days after the date of the entry of the ruling.
Interested parties who wish to introduce exhibits should provide
the Presiding Officer at the hearing with (6) copies of such exhibits
for the Official Record. Also, it would be helpful if additional copies
are available for the use of other participants at the hearing.
List of Subjects in 7 CFR Parts 1000, 1001, 1005, 1006, 1007, 1030,
1032, 1033, 1124, 1126, and 1131
Milk marketing orders.
PARTS 1000, 1001, 1005, 1006, 1007, 1030, 1032, 1033, 1124, 1126,
AND 1131--[AMENDED]
The authority citation for 7 CFR Parts 1000, 1001, 1005, 1006,
1007, 1030, 1032, 1033, 1124, 1126, and 1131 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
The proposed amendments, as set forth below, have not received the
approval of the Department.
[[Page 19013]]
Proposed by Dairy Farmers of America, Inc.
Proposal No. 1
This proposal seeks to amend the fluid milk product definition to
include products formulated using milk or milk solids for beverage
consumption by removing the 6.5 percent nonfat milk solids standard.
1. Amend Sec. 1000.15 by revising paragraphs (a) and (b)(1), to
read as follows:
Sec. 1000.15 Fluid milk product.
(a) Except as provided in paragraph (b) of this section, fluid milk
product means any product containing milk or milk products in fluid or
frozen form containing less than 9 percent butterfat that are intended
to be used as beverages, including any beverage products that are
flavored, cultured, modified with added nonfat solids, sterilized,
concentrated, or reconstituted. As used in this part, the term
concentrated milk means milk that contains not less than 25.5 percent,
and not more than 50 percent, total milk solids.
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use (meal replacement) that are packaged in
hermetically-sealed containers, and whey; and
* * * * *
Proposal No. 2
This proposal seeks to amend the fluid milk product definition to
include any dairy ingredient, including whey, when calculating the milk
contained in a product on a protein-equivalent or nonfat solids
equivalent basis.
Proposed by O-AT-KA Milk Products Cooperative, Inc.
Proposal No. 3
This proposal seeks to amend the fluid milk product definition by
adding a true-protein standard. In determining the protein content and
milk equivalent of a product, the proposal seeks to include all dairy
solids--such as caseinates, milk protein concentrates and whey
protein--and non-dairy sources while pricing only the milk equivalent
of the dairy solids. Furthermore, this proposal seeks to add exemptions
for alcoholic beverages containing dairy ingredients and formulas
prepared for dietary use (meal replacements or nutritional supplements)
having a true-protein content from any source greater than 6.2 percent
on a protein-equivalent basis.
1. Amend Sec. 1000.15 by revising paragraph (b)(1), redesignating
paragraph (b)(2) as paragraph (b)(4), and adding new paragraphs (b)(2)
and (b)(3) to read as follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk and sweetened
condensed milk/skim milk,
(2) The following products packaged in containers that are shelf
stable at ambient temperatures:
(i) Formulas especially prepared for infant feeding;
(ii) Formulas especially prepared for meal replacement and contain
at least 25 percent of the Daily Values per serving reference amounts
defined by the Food and Drug Administration in 21 CFR 101.9 for
calories and protein and at least 16 of the 25 listed vitamins and
minerals.
(iii) Formulas especially prepared for high protein drinks and have
a true protein solids content greater than 8 percent.
(iv) Beverages that contain alcohol and are licensed by the Federal
Tax and Trade Bureau, U.S. Department of the Treasury, and
(v) Packaged milk products that are specifically formulated and
labeled for animal use.
(3) Any product that contains by weight less than 6.5 percent
nonfat milk solids and 2.24 percent true protein. Provided further that
all protein sources (including non-dairy sources) will be included in
establishing the true protein content of the beverage product.
* * * * *
Proposed by Select Milk Producers Inc. and Continental Dairy Products,
Inc.
Proposal No. 4
This proposal seeks to amend the fluid milk product definition by
including only stand-alone beverages that are determined by a skim-
equivalent standard, removing the 6.5 percent nonfat milk solids
standard, and excluding other dairy products in fluid form that are not
intended to be used as stand-alone beverages.
1. Amend Sec. 1000.15 by revising paragraphs (a) and (b)(1),
redesignating paragraph (b)(2) as paragraph (b)(3), and adding new
paragraphs (b)(2) and (c), to read as follows:
Sec. 1000.15 Fluid milk product.
(a) Except as provided in paragraph (b) of this section, fluid milk
product means any product containing milk or milk products in fluid or
frozen form that is intended to be used as a stand-alone beverage.
Fluid milk product includes any beverage products that are flavored,
cultured, modified with added nonfat solids, sterilized, concentrated,
or reconstituted. As used in this part, the term concentrated milk
means milk that contains not less than 25.5 percent and not more than
50 percent total milk solids.
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use (meal replacement) that are packaged in
hermetically-sealed containers, and whey;
(2) Products such as half-and-half, light cream, heavy cream, and
whipping creams which, although fluid in form, are not intended for use
as stand-alone beverages; and
(3) * * *
(c) The quantity of milk that is used in a product defined in
paragraph (a) of this section shall be determined on a skim-equivalent
basis.
Proposed by H.P. Hood LLC
Proposal No. 5
This proposal seeks to amend the fluid milk product definition to
include any product that, based upon substantial evidence as determined
by the Department, directly competes with other fluid milk products and
whose classification would enhance producer revenues.
1. Amend Sec. 1000.15 by revising paragraph (b)(2), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(2) The quantity of skim milk equivalent in any modified product
specified in paragraph (a) of this section that is greater than an
equal volume of an unmodified product of the same nature and butterfat
content, provided that any product that would otherwise be excluded
from the fluid milk product definition because it contains by weight
less than 6.5 percent nonfat milk solids will nonetheless be deemed a
fluid milk product if the Department makes a written determination,
based on substantial evidence, that:
(i) The product directly competes with other fluid milk products;
and
(ii) Treating the product as a fluid milk product will enhance
producer revenues under the orders, taking into account both the
revenues generated by the minimum class price resulting from that
classification and the impact of that class price on consumer demand
for the
[[Page 19014]]
product and the substitution of non-dairy ingredients.
Proposal No. 6
As an alternative to Proposal 5, this proposal seeks to amend the
fluid milk product definition by authorizing, but not requiring, the
Department to determine a product's nonfat milk solids content by
applying only a skim milk equivalent standard with respect to any dried
dairy ingredient.
1. Amend Sec. 1000.15 by revising paragraph (b)(2), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(2) The quantity of skim milk equivalent in any modified product
specified in paragraph (a) of this section that is greater than an
equal volume of an unmodified product of the same nature and butterfat
content, provided that, in determining whether a product contains by
weight less than 6.5 percent nonfat milk solids, the Department shall
be authorized, but not required to apply that test on a skim milk
equivalent basis only with respect to any dairy ingredient utilized in
dried form.
Proposed by National Milk Producers Federation
Proposal No. 7
This proposal seeks to amend the fluid milk product definition by
removing the reference to the 6.5 percent nonfat milk solids standard
and whey, and adopting a milk protein standard.
1. Amend Sec. 1000.15 by revising paragraph (b)(1), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use (meal replacement) that are packaged in
hermetically-sealed containers, and any product that contains by weight
less than 2.25 percent milk protein; and
* * * * *
Proposed by The Dannon Company Inc.
Proposal No. 8
This proposal seeks to amend the fluid milk product definition by
excluding yogurt-containing beverages.
1. Amend Sec. 1000.15 by revising paragraph (b)(1), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use (meal replacement) that are packaged in
hermetically-sealed containers, yogurt-containing beverages, any
product that contains by weight less than 6.5 percent nonfat milk
solids, and whey; and
* * * * *
Proposed by General Mills, Inc.
Proposal No. 9
This proposal seeks to amend the fluid milk product definition to
exclude drinkable food products with no more than 2.2 percent skim milk
protein provided the product contains at least 20 percent yogurt
(nonfat yogurt, lowfat yogurt or yogurt) by weight.
Proposed by Novartis Nutrition Corporation
Proposal No. 10
This proposal seeks to amend the fluid milk product definition to
exclude formulas prepared for dietary use by removing the words ``(meal
replacement) that are packaged in hermitically-sealed containers.'' The
proposal removes the 6.5 percent nonfat milk solids standard.
1. Amend Sec. 1000.15 by revising paragraph (b)(1), to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding or dietary use, and whey; and
* * * * *
Proposed by Hormel Foods, LLC
Proposal No. 11
This proposal seeks to amend the fluid milk product definition and
the corresponding classification of milk utilization provision to
exclude health-care beverages as fluid milk products.
1. Amend Sec. 1000.15 by revising paragraph (b)(1) to read as
follows:
Sec. 1000.15 Fluid milk product.
* * * * *
(b) * * *
(1) Plain or sweetened evaporated milk/skim milk, sweetened
condensed milk/skim milk, formulas especially prepared for infant
feeding, nutrient enhanced (fortified) formulas especially prepared for
the health care industry or dietary use (meal replacement) 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. Amend Sec. 1000.40 by revising paragraph (b)(2)(vi) to read as
follows:
Sec. 1000.40 Classes of utilization.
* * * * *
(b) * * *
(2) * * *
(vi) Formulas especially prepared for infant feeding; nutrient
enhanced (fortified) formulas especially prepared for the health care
industry, or dietary use (meal replacement) that are packaged in
hermetically-sealed containers;
* * * * *
Proposed by Dairy Programs, Agricultural Marketing Service
Proposal No. 12
For all Federal Milk Marketing Orders, make such changes as may be
necessary to make the entire marketing agreements and the orders
conform with any amendments thereto that may result from this hearing.
Copies of this notice of hearing and the orders may be procured
from the Market Administrator of each of the aforesaid marketing areas,
or from the Hearing Clerk, United States Department of Agriculture,
STOP 9200--Room 1083, 1400 Independence Avenue, SW., Washington, DC
20250-9200, or may be inspected there.
Copies of the transcript of testimony taken at the hearing will not
be available for distribution through the Hearing Clerk's Office. If
you wish to purchase a copy, arrangements may be made with the reporter
at the hearing.
From the time that a hearing notice is issued and until the
issuance of a final decision in a proceeding, Department employees
involved in the decision-making process are prohibited from discussing
the merits of the hearing issues on an ex parte basis with any person
having an interest in the proceeding. For this particular proceeding,
the prohibition applies to employees in the following organizational
units:
Office of the Secretary of Agriculture;
Office of the Administrator, Agricultural Marketing Service;
Office of the General Counsel; and
Dairy Programs, Agricultural Marketing Service (Washington office)
and the Offices of all Market Administrators.
Procedural matters are not subject to the above prohibition and may
be discussed at any time.
[[Page 19015]]
Dated: April 6, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-7271 Filed 4-11-05; 8:45 am]
BILLING CODE 3410-02-P
