wholesale distributor in the business of buying food products and distributing those products to its customers. (PX 4; Tr. 40-41, 191.) The Assistant Market Administrator's testimony indicates that, during the period Petitioner distributed fluid milk products to D.B. Brown, Inc., Petitioner did not have complete and exclusive control over the distribution of its fluid milk products as required for designation as a producer-handler under former Milk Marketing Order No. 2. Petitioner has the burden of establishing that it meets the requirements for designation as a producer-handler. 19 Petitioner failed to carry the burden of establishing that it met the requirements for designation as a producer-handler with respect to D.B. Brown, Inc. Therefore, I conclude, during the 7 months (July 1997 through January 1998) that Petitioner distributed fluid milk products to D.B. Brown, Inc., Petitioner was not a producer-handler under former Milk Marketing Order No. 2. Petitioner distributed fluid milk products to FPPTLC in each month during the period May 1997 through December 1999 (PX 4; Tr. 131, 191). Consequently, Petitioner emphasizes the facts concerning its distribution of fluid milk products to FPPTLC in this "post-Ahava" period. FPPTLC is a cooperative that purchases kosher dairy products and sells those products to its members. FPPTLC considers its members, its customers. (Tr. 89, 94-95.) One of FPPTLC's customers, Beth Medrash Govoha Cooperative, purchases fluid milk products from FPPTLC but buys other dairy products from other sources (Tr. 93-94). Another FPPTLC customer, Green Spring Dairy, which has purchased fluid milk products from FPPTLC, is a handler and accordingly has access to the milk pool to purchase milk and dairy products (Tr. 47). Since FPPTLC has its own customers, Petitioner lacks complete and exclusive control over its distribution of fluid milk products. Ronald Kreider, one of the Petitioner's owners, testified that Petitioner did not know who FPPTLC was selling to, as follows: BY MS. DESKINS: Q. Mr. Kreider, when you sell milk to FPPTLC do you bill Green Spring? [BY MR. KREIDER:] A. I don't know. 197 C.F.R. § 1002.12(e) (1999). 62 Agric. Dec. 406 Q. You wouldn't be billing BMG Coop? A. I don't know. Those are two new names to me today. Q. Okay. Because you wouldn't have known who FPPTLC was selling milk to? A. That's correct. Q. Now when you sell milk within your own restaurants or stores if someone wants to if someone returns milk they bring it back to your store, correct? It probably never happened. A. I'm not sure that that ever happened. Q. It probably never happens. If it ever did and someone for some reason brought milk back they'd bring it back to your store if they brought it from your store, right? A. Most likely you're right. Q. But if they brought milk from say the BMG Coop store they'd bring it back to the coop store, right? it. A. Most people take products back to where they paid the cash for Q. Okay. So let me just ask you another question to understand distribution. If I walked into a Kreider store and bought milk in theory you might know -- you would know who your customers are, maybe not their names but their faces, correct? A. Me? Q. Well, your Store Manager? A. I'm not sure. Q. You don't know who the customers are for FPPTLC, do you? A. No, I don't. Q. So you don't know where the milk that you sell to FPPTLC finally ends up in someone's house? A. That's correct. Q. So you didn't know that, for example, FPPTLC said they're selling milk in Michigan? A. That's correct. Q. So it would be a surprise to you if you walked into a house in Michigan and found Kreider milk? Is that correct? A. Yeah. That's pretty far. Tr. 137-39. Petitioner's lack of control over its distribution of fluid milk products is demonstrated by Petitioner's lack of knowledge of the locations where FPPTLC distributed fluid milk products purchased from Petitioner. Therefore, I conclude, during the months (May 1997 through December 1999) that Petitioner distributed milk to FPPTLC, Petitioner was not a producer-handler under former Milk Marketing Order No. 2. The Regulated Pool Plants During May 1997 through December 1999, Petitioner's former Milk Marketing Order No. 2 customers included two regulated pool plants: (a) Farmland Dairies, Wallington, New Jersey; and (b) Readington Farms, Whitehouse, New Jersey (Tr. 39-40; PX 4; RX 1). Petitioner's distribution to Farmland Dairies and to Readington Farms did not disqualify Petitioner from designation as a producer-handler. Under former Milk Marketing Order No. 2, a producer-handler could distribute fluid milk products to regulated pool plants without losing its producer-handler status. (Tr. 55-57.) Judge Cahn's Decision in Kreider I 62 Agric. Dec. 406 In Kreider 1, Judge Cahn held Petitioner should not be denied producer-handler status unless Petitioner was riding the pool. Judge Cahn remanded Kreider I, stating, to determine whether Petitioner is riding the pool, the Secretary of Agriculture must determine whether it is feasible for the subdealers to which Petitioner distributes fluid milk products to turn to other handlers in a period of short production.20 Kreider II is not on remand from the United States District Court for the Eastern District of Pennsylvania. Nevertheless, a reviewing court may conclude that Judge Cahn's decision in Kreider I is the law of the case in Kreider II, as Petitioner argues in its "Appeal of Petitioner, Kreider Dairy Farms, Inc." [hereinafter Appeal Petition]. Therefore, I find facts that would have been required if Kreider II were being decided on remand from Judge Cahn. If I were deciding Kreider II as directed by Judge Cahn, I would find Petitioner was riding the pool because it was feasible for subdealers to which 20 Kreider Dairy Farms, Inc. v. Glickman, No. Civ. A. 95-6648, 1996 WL 472414 (E.D. Pa. Aug. 15, 1996), reprinted in 55 Agric. Dec. 749 (1996). Judge Cahn's use of the word "feasible" indicates that the Secretary of Agriculture must determine whether subdealers to which Petitioner distributed fluid milk products could obtain kosher fluid milk products from other handlers, not whether those subdealers actually obtained kosher fluid milk products from other handlers. See generally, e.g., Merriam Webster's Collegiate Dictionary 425 (10th ed. 1997): feasible... adj... 1: capable of being done or carried out <a ~ plan> 2 : capable The Oxford English Dictionary, vol. V, 783 (2d ed. 1991): feasible.... 1. Of a design, project, etc.: Capable of being done, accomplished or carried out; possible, practicable. 3. Of a proposition, theory, story, etc.: Likely, probable. See also, e.g., American Textile Manufactures Institute, Inc. v. Donovan, 452 U.S. 490, 508-09 (1981) (citing Webster's Third New International Dictionary of the English Language (1976) for the plain meaning of the word feasible: "capable of being done, executed, or effected"); Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881,885 (8th Cir. 1995) (concluding feasible means capable of being done or physically possible); Friends of the Boundary Waters Wilderness v. (continued...) Petitioner distributed fluid milk products to turn to other handlers to obtain kosher fluid milk products in periods of short production. The Assistant Market Administrator for former Milk Marketing Order No. 2 testified that there were several sources of kosher milk in the area covered by former Milk Marketing Order No. 2, as follows: BY MS. DESKINS: Q. Other than Kreider Dairy are there other sources for kosher milk in the Order 2 area from May 1997 through December 1999? [BY MR. JOHN POOLE:] A. Several that I'm aware of. Ahava being one of the them. Farmland Dairies had a kosher supply and I believe Tuscan had a kosher supply. Q. So FPPTLC wanted to buy kosher milk -- you're talking about just this time period May '97 to December '99 could they have gone to other sources being Kreider? A. To the best of my knowledge, yes. Tr. 48-49. Similarly Rabbi Joseph Tendler, the president of FPPTLC, testified that, while FPPTLC did not actually purchase fluid milk products from sources other than Petitioner, FPPTLC could have purchased fluid milk products from sources other than Petitioner (Tr. 97). 21 (...continued) Robertson, 978 F.2d 1484, 1487-88 (8th Cir. 1992) (concluding feasible means capable of being done or physically possible), cert. denied, 508 U.S. 972 (1993); Asarco, Inc. v. OSHA, 746 F.2d 483,495 (9th Cir. 1984) (stating feasible is defined as capable of being done); Turner Co. v. Secretary of Labor, 561 F.2d 82, 83 (7th Cir. 1977) (stating the ordinary and common sense meaning of feasible is "practicable"); Smith v. Chickamauga Cedar Co., 82 So.2d 200, 202 (Ala. 1955) (citing with approval the definition of feasible in Webster's New International Dictionary (2d ed.): "[c]apable of being done, executed, or effected; possible of realization....); Mastorgi v. Valley View Farms, Inc., 83 A.2d 919, 921 (Conn. 1951) (stating to be feasible is to be capable of being successfully done or accomplished); Lowe v. Chicago Lumber Co., 283 N.W. 841, 844 (Neb. 1939) (citing with approval the definition of feasible in Webster's New International Dictionary: "capable of being done, executed, or [e]ffected"); Gilmartin v. D. & N. Transportation Co., 193 A. 726, 729 (Conn. 1937) (stating to be feasible is to be capable of being successfully done or accomplished). |