NORTHEAST DAIRY COMPACT COMMISSION
In Re Petitions of Elmhurst Dairy, ) Docket Numbers HEP-97-007 and 008
Inc. and Byrne Dairy, Inc. )
Final Decision of the Commission
I. Findings of Fact:
The Northeast Dairy Compact Commission, having received and considered the hearing panel’s Proposed Findings of Fact, Conclusions of Law and Decision and the record developed in the proceedings, finds the following facts:
1. Elmhurst Dairy, Inc. is a New York corporation with principal corporate offices and a milk processing plant at 155-25 Styler Road, Jamaica, New York 11433. Elmhurst bottles milk for its own account and for other dealers. Milk supplied to Elmhurst comes from dairy farms located in New York. Class I fluid milk processed by Elmhurst is sold in Connecticut by dealers to which Elmhurst sells bottled milk.
2. Byrne Dairy, Inc. is a New York corporation with its principal corporate office at 240 Oneida Street, Syracuse, New York 13202. Byrne Dairy, Inc. owns and operates fluid milk processing facilities in Syracuse, New York and distributes fluid milk products in New York, Pennsylvania, and New England. Byrne Dairy, Inc. receives its raw milk from dairy farms exclusively outside of New England, in New York counties of Onondaga, Cayuga, Senaca, Wayne and Oswego.
3. During the summer and fall of 1996, the Compact Commission was organized pursuant to specific requirements of Article III of the Northeast Interstate Dairy Compact. § 4 of the Compact requires that:
"There is hereby created a commission to administer the compact, composed of delegations from each state in the region. A delegation shall include not less than three nor more than five persons. Each delegation shall include at least one dairy farmer who is engaged in the production of milk at the time of appointment or reappointment and one consumer representative. Delegation members shall be residents and voters of, and subject to such confirmation process as is provided for in, the appointing state. Delegation members shall serve no more than three consecutive terms with no single term of more than four years, and be subject to removal for cause."
4. There is at least one dairy farmer and one consumer representative, so designated by the appointing authority of each of the six New England states as required by the Compact, duly appointed and serving. The Commission includes the following members with their representative affiliation indicated:
William R. Brophy III Retailer
Shirley Ferris Dairy Farmer
Robert Jacquier Dairy Farmer
Mae S. Schmidle Consumer Representative
Frank A. Starvel Dairy Processor
Fred Hardy Dairy Farmer
Edward McLaughlin Commissioner, Dept. of Agriculture
Michael A. Wiers Consumer Representative
Charles Arbing Dairy Processor
Gordon Cook Dairy Farmer
Jonathan Healy Commissioner, Dept. of Food and Agriculture Mary Kelligrew Kassler Consumer Rep. (Director, WIC Program)
Samuel Shields Dairy Farmer
Powell Cabot Dairy Processor
Debora Erb Dairy Farmer
William Zweigbaum Consumer Representative
Al Bettencourt Consumer Representative
Aaron W. Briggs Dairy Farmer
Stephen Volpe Acting Chief, DEM, Div. of Agriculture
John L. Smith Director, RI WIC Program
Christine Jabour Asst. Atty. Gen.(Chief, Consumer Protection.)
Jacques Couture Dairy Farmer
Andy Dykstra Dairy Farmer
Harold Howrigan Dairy Farmer
Millicent Rooney Dairy Processor
Robert Starr Consumer Representative
5. § 4 of the Compact further provides that in all respects other than those referred to in Finding #6, "delegation members shall serve in accordance with the laws of the state represented." Each member of the Commission currently serving was duly appointed in accordance with the laws of each of the states.
6. During the period from December 1996 to April 1997, the Compact Commission conducted meetings and public hearings on price regulation, and received written comments and proposals. The Commission takes official notice that 52 witnesses appeared during the hearings, advocating a variety of approaches to an over-order price structure including specific prices and limits on outside milk from coming into the regulated area. The Commission also received 79 written comments and exhibits on the proposed rule during the informal rulemaking process. In its published Final Rule, the Commission noted that it:
"was persuaded by the reasoning of economists Reenie DeGeus and Bill Gillmeister, dairy economists for the Vermont and Massachusetts Departments of Agriculture, respectively. They jointly proposed, and the Commission adopted, an over-order price regulation based in part on an inflation adjustment. Using the Class I, Zone 1 price for 1991 as the base year (a year in which prices were markedly low), and adjusting forward using the 1990 Consumer Price Index (CPI), yielded the amount of $16.94." See: 62 FR 29634 (May 30, 1997).
7. Based on Finding #6, officially noticed from the public rulemaking record, petitioners’ alleged Statements of Fact 11 and 13 are deemed irrelevant and immaterial as evidence of how the Commission decided on the over-order price of $16.94. Further, the Commission finds that petitioners’ allegations regarding AgriMark and its economist are not credible to prove petitioners’ inference of bias in the Commission or irregularity in its rulemaking process.
8. The Commission published a narrative Decision and Final Rule, See: 62 FR 29626 (May 30, 1997). The Commission conducted a producer referendum which approved the Final Rule, codified at 7 CFR §§ 1300.1 et. seq.
9. The Final Rule established a Class I, Zone 1, over-order price of $16.94/cwt. The over-order price regulation applies to the route distributions of Class I milk in New England by pool plants and partially regulated pool plants, and other handlers. 7 CFR § 1301.9.
10. The Compact over-order price obligation for milk marketed in July 1997, to be paid by pool plants and partially regulated plants, was $3.00/cwt., representing the difference between the July Class I milk price under Federal Milk Marketing Order #1 at Boston (Zone 1) ($13.94), and the Compact over-order price ($16.94). The August, 1997 over-order price obligation was $ 2.96. The September, 1997 over-order price obligation was $2.84. The October, 1997 over-order price obligation was $ 1.63. The November, 1997 over-order price obligation will be $0.91.
11. 7 CFR § 1301.1 requires all handlers to file reports of monthly milk receipts and Class I distributions in the regulated area on or before the 8th of each month. 7 CFR § 1307.2 requires the Commission to render a statement of the Compact over-order obligation to handlers on or before the 15th day of each month. 7 CFR § 1307.3 requires payment by handlers of the Compact over-order obligation on or before the 18th day of each month. It also requires payment by the Commission to the handlers of their producer-settlement fund credit by the 20th day of each month. Handlers are then required by 7 CFR § 1307.4 to pay their producers the over-order producer price/cwt. of production on or before the 20th day of each month.
12. As found in Findings # 1 and 2 above, each petitioner has a plant which is located outside the regulated area of the six New England states and has Class I distributions within the regulated area. Both petitioners thereby come under the definition of "handler" under 7 CFR § 1301.9, each being a "partially regulated plant" within the meaning of § 1301.6.
13. The Compact over-order price regulation requires distribution to producers of a "compact over-order producer price" per cwt. of production. See: 7 CFR §§ 1306.3 and 1307.4. Distribution is made to all New England farmers supplying pool plants and partially regulated plants and to out-of-region farmers supplying such plants.
14. Out-of-region producers who ship to pool plants qualify for distribution,
"provided that on more than half of the days on which the handler caused milk to be moved from the dairy farmer’s farm during December 1996, all of that milk was physically moved to a pool plant in the regulated [area] OR: to be considered a qualified producer, on more than half of the days on which the handler caused milk to be moved from the dairy farmer’s farm during the current month and for five (5) months subsequent to July of the preceding calendar year, all of that milk must have moved to a pool plant;" 7 CFR § 1301.11(b).
15. Any out-of-region producer who ships to a partially regulated plant under the rule qualifies for disbursement. 7 CFR § 1301.11(c).
16. For August, 1997, the over-order producer price was $1.30/cwt. The actual amount distributed was $1.28/cwt., reflecting the payment amounts into the court registry escrow account by the petitioners in this case and in In re Petitions of Crowley Foods, Inc., et. al. and In re Marcus Dairy, Inc.
17. The over-order producer price in September was $1.33/cwt., which was adjusted for the payments into escrow to $1.31.cwt. The October distribution was $1.39/cwt., which was adjusted for payments into escrow to $1.36 /cwt. The distribution for November, was $.82/cwt., which was adjusted for escrow payments to $.81/cwt.
18. The New England traditional milk market has historically been supplied by, among others, milk processing plants located outside the physical boundaries of the six New England states, such as those owned by petitioners. See: 62 FR 29635 and 23039-23040.
19. Most of the dairy farms in the New England milkshed are organized into dairy cooperatives.
20. In general, milk processing plants do not, as a matter of practice, segregate producer milk received from differing locations for processing purposes. Rather milk is generally co-mingled as a joint supply of raw product for processing purposes.
21. Under the Compact over-order price regulation, all pool plants and partially regulated plants are subject to an identical over-order price obligation. For example, all pool plants and partially regulated plants were subject on August 18 to the identical $3.00 over-order obligation for their route distributions in the New England regulated area for July milk. Similarly, all pool plants and partially regulated plants were subject on October 18 to the identical $1.63 over-order obligation for their route distributions in the New England regulated area for September milk.
22. All producers supplying pool plants receive the pool price distribution for all milk supplied to such plants, regardless of producer location. For example, producers who supplied milk to a pool plant received $1.28/cwt.for that milk on August 20. All producers supplying partially regulated plants receive a pro rata share of the disbursement made to such plant for its Class I distributions in the New England regulated area. For example, on August 20, partially regulated plants received the over-order producer price of $1.28 on the volume of all Class I distributions in the New England marketing area for disbursement pro rata to all producers supplying such plants.
23. Pursuant to § 18(a) of the Compact, on November 5, 1996, the Commission established a start-up assessment for one year, imposed upon "each handler who purchases milk from producers within the region," for Class I distributions in the New England marketing area by such handlers. The start-up assessment was in the amount of 1/10th of 1% the Federal Milk Market Order #1, Zone 1, Blend Price. The start-up assessment was not imposed on either of the petitioners.
24. Also pursuant to § 18(a) of the Compact, the Commission imposed an administrative assessment as part of the Compact over-order price regulation. See: 7 C.F.R. Part 1308. Pursuant to § 18(a) of the Compact, the administrative assessment was imposed "for the specific purpose of [the regulation’s] administration, in the amount of 3.2 cents/cwt., upon all Class I route distributions in the New England marketing area.
25. Congress expressly approved the text of the Compact in §147 of the 1996 Farm Bill, 7 U.S.C. § 7256, referenced as S.J. Res. 28(1)(b). In discussing that section as part of the Conference Report on the 1996 Farm Bill, Senator Leahy and Senator Lugar noted that:
"This compact will allow the six New England States to regulate the price of all class I drinking milk sold in those States. The regulation may apply to any class I milk sold in the New England States but produced elsewhere, as well as to such milk produced by New England farmers. The compact also provides that farmers from beyond New England receive its benefits as well as their New England counterparts." 142 Cong. Rec. S3056 (Mar, 28, 1996).
Senator Leahy and Senator Lugar also noted that Congressional Consent to the Compact did not:
"limit the compact commission’s authority to establish a compact over-order price regulation for all fluid milk marketed into the compact region in any form, packaged or bulk, produced in another production region in the United States." Id. at 3057.
26. The Federal District Court referred in its Order of August 13, 1997 to the affidavit of Carmen L. Ross which reads that the:
"Compact price regulation provides no incentive or basis for the New England-based plant to switch or add supply from a farmer associated with one of the plaintiffs [including the petitioner]. Based on the fundamental principle of marketing area-based pricing, the New England-based plant must always pay the same price for milk. Thus, there is no incentive for the New England-based plant to switch supply to that provided by a farmer associated with one of the plaintiffs [including the petitioner]. Indeed, to do so would likely mean disrupting well-established patterns of supply with individual farmers and cooperatives." Affidavit of Carmen L. Ross, New York State Dairy Foods, Inc., et. al. v. Northeast Dairy Compact Commission, et. al., Civil Action No. 97-11576-PBS
After referring to the above quoted affidavit, the judge then writes that:
"Also, Ross points out that because there are ample supplies of milk, there should be no disruption." Order, August 13, 1997, New York State Dairy Foods, Inc., et. al. v. Northeast Dairy Compact Commission, et. al., Civil Action No. 97-11576-PBS at 3 (citing affidavit of Carmen L. Ross).
27. Insofar as petitioners’ alleged Statements of Fact 1, 2, 3, 4, 5, 6, 7, 8, 9, 17, and 18 characterize the law and its application, rather than facts, they are dealt with in the Commission’s Conclusions of Law.
28. Insofar as Statements of Fact 23 through 28 in the Elmhurst petition and 22 through 27 in the Byrne petition and the allegations of facts in the appended affidavits describe alleged economic harm to petitioners, they are dealt with in the Commission’s Conclusions of Law.
II. Conclusions of Law
The Commission notes that the petitions filed on behalf of these two processors are substantially the same as those filed in In re Petition of Crowley Foods, Inc., et. al., HEP-97-001 and In re Marcus Dairy, Inc., HEP-97-003. As found in its Final Decisions in those cases, the Commission continues to find the presentation of petitioners’ legal claims, and the alleged facts upon which those claims are based, to be confusing and speculative. Notwithstanding the failure of these petitioners broadly to meet their burdens of production and persuasion, the Commission will go forward with its decision in the interest of administrative justice as it did in the Crowley Foods and Marcus Dairy cases. To the degree necessary and possible, the Commission has again had to interpret and clarify the petitioners’ claims based on their submissions, as was the case in the Crowley Foods and Marcus cases.
Insofar as these petitioners have submitted the same legal claims as had the similarly situated petitioners in Crowley and Marcus, the Commission finds that its reasoning in the Final Decisions in those cases controls here, and is adopted and is incorporated by reference. On that basis, the Commission concludes that those claims not addressed expressly below are without merit.
Elmhurst Dairy, however, raises two additional and apparently separate "Grounds on Which the Regulation and its Application are Challenged as not Being in Accordance With Law." In ground # 8, at page 12 of its petition, Elmhurst alleges that "extension of the Compact Commission over-order price regulation and charges for Compact Commission administrative and start up expenses, to Class I milk produced by dairy farmers outside of New England, packaged and processed outside of New England, distributed by the processor outside of New England but ultimately sold by a third party in packaged form to New England customers" violates Article I, Section 8 of the U.S. Constitution, the geographic limitations on Congressional Consent to the Compact and the regional limitations of the Secretary of Agriculture’s determinations of public interest, the express mandate of Congressional Consent (7), and is in conflict with the requirements of due process of law.
In ground # 9, at page 13 of its petition, Elmhurst asserts that "the unequal application of the pooling and equalization rules adopted by the Commission to New York plants and to New England plants which both purchase milk from outside the Compact region violates the guarantees of equal protection" in that the plants in New York (designated as "partially regulated") receive a return from the pool significantly lower than the return received by a New England plant, without any rational basis related to a legitimate governmental interest for that difference.
Byrne Dairy, at page 9 of its petition, has raised a separate and additional claim that the "extension of the Compact Commission over-order milk price regulation, and charges for Compact Commission administrative and start up expenses, to Class I milk produced by dairy farmers outside of New England, packaged and processed outside of New England, but sold in packaged form to New England customers: … (E) as applied, violates equal protection guarantees." At page 10 of its petition, it also asserts a new and additional ground for the previous argument that the "Compact Rules, as written or as applied to establish and distribute proceeds of a Compact over-order revenue pool applied to producers located without the regulated area" in that, "as applied to distribute such proceeds unequally outside of New England violates Federal and State Equal Protection guarantees."
1. Elmhurst’s Ground # 8 at page 12 of its petition: Authority to Regulate Class I Milk Produced, Packaged and Processed Outside of New England, but ultimately sold by a third party in packaged form to New England Customers
The Commission finds that the only differences in this argument from that presented in petitioner’s Ground #1 at page 10 of the petition are that the milk is "ultimately sold by a third party" and the assertion that application of the regulation to this milk violates due process in that two different handlers could be charged and assessed for the same milk.
In the Final Decision in In re Petition of Crowley Foods, Inc., et. al., the Commission concluded that the plain language of the Congressional Consent, the Compact itself, and the relevant legislative history expressly authorize regulation of Class I fluid milk marketed in New England, regardless of where the milk was produced and processed. Uniform regulation of the sales of all similarly situated plants is a benchmark of traditional milk market regulation. Any other regulatory pattern would allow processors outside of the regulated area to undercut the regulated price imposed upon the regulated competition in New England and would result in irrational market regulation. In the Commission’s view, neither the Congress, nor the legislatures of the participating states intended such a result. The fact that the milk is sold in New England by a third party does not change the economic advantage that petitioner and the third party would gain if the regulation were not applied to those sales. Petitioner operates a partially regulated plant that receives milk from producers providing the raw supply for such sales. The Commission, therefore, concludes that the application of regulation to these sales of milk processed by petitioner and distributed by a third party is authorized and in accordance with law.
B. Substantive Due Process
The petitioner argues that application of the regulation to these sales of Class I milk in New England is in conflict with the requirements of due process of law mandated by the Fifth and Fourteenth Amendments to the United States Constitution and/or due process provisions of one or more of the Constitutions of the Compact participating states in that, under 7 CFR § 1301.9, two different handlers could be charged and assessed for the same milk. The Commission notes that nowhere in the record of this proceeding is there any evidence that two different handlers were, in fact, charged and assessed for the same milk.
Accordingly, the Commission finds the petitioner’s claim speculative and unsubstantiated.
Petitioner was assessed for the over-order price obligation and the administrative costs on Class I fluid milk it processed and which was sold in the regulated area. As indicated above, the regulation is applied to the processors which receive milk from producers, and not to the distributor. Again, this practice is a benchmark of milk market regulation. There would, therefore, be no double assessment of either the over-order obligation or the administrative costs. And there is no allegation or evidence that that happened in this case. The petitioner is not, therefore, in a position to complain of an application of the regulation which did not and would not occur. The Commission finds its argument, therefore, to be without merit.
2. Elmhurst’s Ground # 9 at page 13 of its petition: Unequal application of the pooling rules adopted by the Commission to New York and New England plants purchasing milk from outside the Compact region as violating the guarantees of equal protection.
The Commission adopts the analysis in In re Crowley Foods, Inc. et. al. where it denied petitioners’ claim #6 that "Section 18 (a) assessments only with respect [to] Class I milk, is also unlawfully inconsistent with … Federal and State Equal Protection guarantees." That same analysis applies here in that state and federal laws, such as the Compact, are generally entitled to a presumption of validity against attack under the equal protection clause. The petitioner must show that the discriminatory treatment alleged has no rational basis related to a legitimate state interest for purposes of finding a violation of equal protection guarantees. See: Kite v. Marshall (CA, 1981) 661 F.2d 1027, rehearing denied 666 F.2d 591, cert. denied 457 U.S. 1120. Petitioner has not met that burden.
In Finding # 12, the Commission found that petitioners operate "partially regulated plants". In Finding #21, the Commission found that all pool plants and partially regulated plants are subject to an identical over-order price obligation on Class I sales of milk in New England. In Finding #22, the Commission found that all producers supplying pool plants receive the pool price distribution and that all producers supplying partially regulated plants receive a pro rata share of the disbursement made to partially regulated plants.
The fact that petitioner receives and passes on to its producers a pro rata over-order producer price based on its Class I milk sales in New England does not establish unlawful discrimination. The Compact Commission’s regulation treats all pool plants and partially regulated plants similarly with regard to distribution of payments to dairy farmers supplying such plants. Though the manner of distribution for each type of plant is different, the underlying principle of uniform treatment of all farmers supplying a plant, regardless of the farmer’s location, is the same.
The pooling mechanism for the New England plant, which is treated as a "pool plant" under the regulation, provides that all Class I milk processed by the plant and distributed in the regulated area will be subject to the over-order obligation. It also provides that all producers who supply the pool plant will be treated similarly since milk from individual farms is not, generally, segregated from the other milk processed. See: Finding # 20. The over-order producer price for Class I milk distributed from a New England plant must, therefore, be distributed equally among all producers supplying the pool plant, wherever those producers are located.
Similarly, the pooling mechanism for partially regulated plants outside of New England provides that all Class I milk processed by those plants distributed in New England will be subject to the over-order obligation. All producers who supply the partially regulated plant, in turn, will receive the same over-order producer price on a pro rata basis for the Class I milk sold in New England. Again, producer milk is generally not segregated for processing and sale and cannot, therefore, be identified as the milk distributed only in the regulated area. The over-order producer price distribution must, therefore, be equal among all producers supplying the partially regulated plant, wherever those producers are located.
The Commission concludes that this regulatory pattern reflects techniques historically associated with milk marketing regulation. This pattern thereby provides the most appropriate and efficient method for applying the over-order obligation to processors and for distributing the over-order producer price to farmers and, therefore, has a rational basis related to the ultimate purposes of the Compact as outlined in § 1. On that basis, the Commission concludes that the petitioner has not met the burden of proving lack of a rational basis and it, therefore, rejects the claim that the "pooling" rules violate equal protection.
3. Byrne Dairy’s Ground #1(E): The Compact Over-order Price Regulation and
Administrative Assessments Violate Equal Protection
Petitioner states, at page 9 of the petition, that the "extension of the Compact Commission over-order milk price regulation, and charges for Compact Commission administrative and start up expenses, to Class I milk produced by dairy farmers outside of New England, packaged and processed outside of New England, but sold in packaged form to New England customers: … (E) as applied, violates equal protection guarantees of Federal and State Constitutions." There is nothing further beyond this bald assertion in its Statement of Grounds on Which the Regulation and its Application are Challenged as not Being in Accordance With Law. Petitioner has failed to meet its burden of production and persuasion once again and the Commission, therefore, rejects petitioner’s claim.
Even if the petitioner had met these burdens, however, there is no showing that the regulatory pattern lacks a rational basis. As discussed in Section 2 above, the Commission finds that there is a rational basis for the regulatory pattern it adopted in its over-order price regulation in that the pattern is consistent with and parallel to the pattern of the federal Milk Market Order #1. Accordingly, the Commission rejects petitioner’s claim for this additional reason.
4. Byrne’s Ground # 3: The Compact Rules violate Federal and State Equal Protection guarantees.
Petitioner has added to Ground # 3 at page 10 of its petition, that "the Compact Rules, as applied to distribute [such] proceeds [of a Compact over-order revenue pool] unequally outside of New England violates Federal and State Equal Protection guarantees." Again, as discussed above in Section 3, the petitioner has offered no further elaboration or support for its claim. On the basis of the conclusions reached in Section 2 and 3 above, the Commission concludes that petitioner has not here met its burden for producing any evidence or for persuading the Commission that the pattern of producer price distribution prescribed by the regulation is without a rational basis. Indeed, the Commission finds a rational basis in that the Compact over-order price regulation follows the federal Milk Market Order #1 for ease of administration and consistency. Further, the Commission’s regulatory pattern parallels the federal regulation in conformity with the requirement of the Compact that the Commission apply and adapt the regulatory techniques historically associated with milk marketing. The Commission, therefore, rejects this additional claim of petitioner.
III. Based on the above findings of fact and conclusions of law, the Commission orders the following:
Each and every prayer for Specific Relief, A through K of petitioner Elmhurst Dairy, Inc, and A through J [sic] of petitioner Byrne Dairy, Inc., is denied.
Petitioners’ prayer that their petitions be consolidated with those of In re Petition of Crowley Foods, Inc., et. al., Docket Nos. HEP-97-001, et. seq. [sic] was denied by Notice and Order of hearing panel on September 25, 1997 as out of time. The petitions were ordered consolidated, however, and the consolidated action is referred to as In re Petition of Elmhurst Dairy, Inc., et. al., HEP-97-007. The Commission affirms the order and reasoning of the panel.
The petitioners’ further prayer that pursuant to 7 CFR § 1381.4, the Chair select from the Commission members a panel to adjudicate this matter, members of which:
(a) have no pecuniary interest in the distribution of Compact over-order producer prices;
(b) are not in direct or indirect competition with the petitioners or other processors or milk suppliers outside the New England region;
(c) have not, by their participation in the milk over-order pricing proceedings, by their state delegation vote, or otherwise, evidenced a bias or predisposition to establish, maintain, or defend a regulated Class I milk price in excess of that which the United States Secretary of Agriculture, in the Federal Milk Marketing Order Program, has found to be in the public interest
was denied by the panel on September 25, 1997 and that denial is affirmed by the Commission on the same basis as Section 8 of the Final Decision of the Commission issued on September 25, 1997 in In re Petition of Crowley Foods, Inc. et. al., HEP-97-001, at page 26.
Petitioners further request that no member, employee, staff or other person who participated in the deliberations concerning, and writing or promulgation of, the over-order price regulation be involved in advising or contacting the panel adjudicating this petition. The request was denied by the panel on September 25, 1997 and that denial is affirmed by the Commission on the same basis as Section 9 of the Commission’s Final Decision issued on September 25, 1997 in In re Petition of Crowley Foods, Inc., HEP-97-001, at page 27.
Petitioners’ request that members of the panel and any person participating in or advising the panel fully comply with the adjudicatory requirements of the federal Administrative Procedure Act and comparable state administrative procedure requirements was denied by the panel on September 25, 1997 and that denial is affirmed by the Commission on the basis of Section 10 of the Final Decision of the Commission issued on September 25, 1997 in In re Petition of Crowley Foods, Inc., et. al., HEP-97-001, at page 28.
Entered this 3rd day of December, 1997
IT IS SO ORDERED
For the Commission:
Michael Wiers, Chair