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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-50873
Summary Calendar
_______________
BOS DAIRY, L.C.; DESERT VIEW DAIRY, L.C.; RIO GRANDE DAIRY, L.C.,
Plaintiffs-Appellants,
VERSUS
UNITED STATES DEPARTMENT OF AGRICULTURE,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
May 1, 2000
Before SMITH, BARKSDALE, and
Dairy Producers, who operate farms in El
PARKER, Circuit Judges.
Paso County, Texas, contest the district
court's interpretation of two repealed statutory
JERRY E. SMITH, Circuit Judge:
sections, the Dairy Price Reduction Program
of 7 U.S.C. § 1446e(h)(2) (1996) and the
Bos Dairy, L.C., Desert View Dairy, L.C.,
Dairy Refund Provisions of id. § 1446e(h)(3)
and Rio Grande Dairy, L.C. (collectively
(1996).1 Under § 1446e, the USDA supported
"Dairy Producers") appeal a summary
the domestic dairy industry by acting as a
judgment in favor of the United States
Department of Agriculture ("USDA"). We
affirm.
1 These provisions were repealed in 1996. See
I.
Pub. L. No. 104-127, tit. I, § 141(g), 110 Stat. 915
(1996).

buyer of last resort for storable dairy products2
language to be unambiguous. If, using
and, to offset the cost of the program, assessed
traditional tools of statutory construction, a
producers on the milk they produced, then
statute is unambiguous, we give effect to that
refunded part or all of that assessment to those
unambiguous interpretation. See Chevron,
producers that did not increase their
U.S.A., Inc., v. NRDC, Inc., 467 U.S. 837,
marketings from year to year. See § 1446e.
842-43 (1984); Rublee v. Fleming, 160 F.3d
213, 215 (5th Cir. 1998).
In 1995, Dairy Producers marketed a
portion of their milk production in Mexico.
Section 1446e provided:
They did not report this milk for purposes of
the assessment, and they applied for and
(a) In general
received a refund by not including the milk in
their overall 1995 marketings. When USDA
During the period beginning on Janu-
learned of the milk marketed in Mexico, it
ary 1, 1991, and ending on Decem-
requested a return of the refund and assessed
ber 31, 1996, the price of milk produced
Dairy Producers for that milk.
in the 48 contiguous States shall be sup-
ported as provided in this section.
Dairy Producers sought administrative re-
lief, arguing that milk marketed outside the
. . .
United States is not relevant to either program.
Failing to achieve an administrative remedy,
(g) Excess purchases
Dairy Producers sought relief in district court,
which entered summary judgment in favor of
(1) In general
USDA.
In order to offset any cost to the
II.
Commodity Credit Corporation
We review a summary judgment de novo,
associated with the purchase . . . of milk
employing the same standards as did the
and the products of milk in excess of
district court. See Urbano v. Continental
7,000,000,000 pounds . . . the Secretary
Airlines, Inc., 138 F.3d 204, 205 (5th Cir.),
shall, if necessary, provide for a
cert. denied, 119 S. Ct. 509 (1998). The
reduction to be made in the price
district court found the contested statutory
received by producers for all milk
produced in the 48 contiguous States
and marketed by producers for
commercial use.
2 While cows produce more milk in the spring,
and less in the fall, demand for milk follows an
(2) Calculation
opposite trend. Therefore, sufficient fall supplies
equate to excess spring supplies. Milk perishes too
. . . [T]he amount of reduction in the
quickly to store, but it can be stored by conversion
price received by producers in such fol-
into butter, powder, and cheese. In the
lowing calendar year shall be an amount
Agricultural Act of 1949, 63 Stat. 1051, Congress
began to support the domestic dairy industry by
per hundredweight calculated by
becoming the buyer of last resort at fixed prices for
dividingSS
butter, powder, and cheese.
2

(A) the cost of the purchases . . . in
USDA contends that milk produced in the
excess of 7,000,000,000 pounds . . . by
forty-eight contiguous states and marketed
outside the United States is included in "milk
(B) the total quantity of hundredweights
produced in the 48 contiguous States and mar-
of milk the Secretary estimates will be
keted by producers for commercial use."
produced and marketed in the United
7 U.S.C. § 1446e(h)(1) (1996). The relevant
States for commercial use in such
USDA Regulations reflect this interpretation.
following calendar year.
See 7 C.F.R. §§ 1430.340-.341 (1998). Dairy
Producers disagree, arguing that the language
. . .
should be considered to read "milk produced
and marketed for commercial use in the 48
(h) Reduction in price received
contiguous States." The parties likewise dis-
pute the meaning of "marketings" in
(1) In general
subsection (h)(3), which provides a refund of
the subsection (h) assessment for those
Beginning January 1, 1991, the
producers that do not increase their
Secretary shall provide for a reduction in
marketings above that of the preceding year.
the price received by producers for all
milk produced in the 48 contiguous
A literal reading of the contested subsection
States and marketed by producers for
(h)(1) phrase unambiguously favors USDA's
commercial use, in addition to any
interpretation, because Dairy Producers' inter-
reduction in price required under
pretation requires relocating a portion of the
subsection (g) of this section.
statutory text. Dairy Producers therefore ar-
gue that their interpretation is supported by a
(2) Amount
holistic interpretation including subsection (g).
The amount of the reduction under para-
In that subsection, an additional assessment
graph (1) . . . shall beSS
is structured to offset costs from predicted ex-
cess government purchases of dairy products.
. . .
The predicted excess cost is offset by a "re-
duction to be made in the price received by
(3) Refund
producers for all milk produced in the 48 con-
tiguous States and marketed by producers for
The Secretary shall provide a refund of
commercial use." 7 U.S.C. § 1446e(g)(1)
the entire reduction under paragraph (2)
(1996). Thus, this reduction applies to the
. . . if the producer provides evidence
same group affected by the contested
that the producer did not increase
subsection (h) reduction.
marketings in the calendar year that such
reduction was in effect when compared
The amount of the subsection (g) reduction,
to the immediately preceding calendar
however, is calculated using "the total quantity
year.
. . . of milk the Secretary estimates will be
produced and marketed in the United States
III.
for commercial use in such following calendar
3

year." 7 U.S.C. § 1446e(g)(2)(B). Thus, for
evidence of such inconsistency,3 but they fail
purposes of the subsection (g) calculation,
to refute USDA's evidence that it has
Dairy Producers' milk marketed in Mexico is
consistently interpreted the disputed statutory
irrelevant.
language to include milk marketed outside the
United States.
This distinction does not alter the
unambiguous nature of the subsection (h)
A previous price reduction program
language. Because the subsection (g)
instructed the Secretary of Agriculture to
assessment is meant to predict and directly
"provide for a reduction to be made in the
offset excess USDA purchases of milk
price received by producers for all milk
products, the calculation of the amount of that
produced in the United States and marketed by
assessment does not include milk products
producers for commercial use." 7 U.S.C. §
predicted to be marketed outside the United
1446(d)(2)(A) (1988). In language identical
States. The subsection (g) assessment is still
to that currently adopted by USDA, its
levied on such milk, however, because, as
regulations implementing this reduction
subsection (a) notes and USDA persuasively
included marketing outside the United States.
argues, § 1446e supported the production of
See 7 C.F.R. § 1430.341(j)(2)(ii) (1988).
all milk produced in the continental United
States wherever it might be sold.
When Congress enacted § 1446e(h) in
1990, it used language identical to that the
By setting a price floor for milk products
Secretary had previously interpreted as
sold within the contiguous states, the USDA
applying to milk marketed outside the United
gave producers the option, irrespective of
States. This implicit Congressional acceptance
whether they exercised it, of making milk into
is consistent with our conclusion that USDA's
products that would be purchased by the
interpretation of the disputed statutory
USDA. Therefore, consideration of
provisions is correct. See United States v.
subsection (g) does not alter the plain meaning
Rutherford, 442 U.S. 544, 554 n.10 (1979).
of the subsection (h) language. Further, the
use of the phrase "produced and marketed in
We therefore decide that the language "all
the United States" in subsection (g)
milk produced in the 48 contiguous States and
demonstrates that when it wanted to, Congress
marketed by producers for commercial use,"
knew how to designate solely milk marketed in
§ 1446e(h)(1), and "the producer did not
the United States. See Russello v. United
States, 464 U.S. 16, 23 (1983).
3
Dairy Producers further contend that
Dairy Producers' argument concerning the
USDA has taken inconsistent positions on this
Dairy Termination Program, which allowed
farmers to contract out of the dairy producing
issue when interpreting similar text in related
business, is irrelevant. Permanently exporting
statutory provisions. Not only do Dairy
one's cattle is markedly different from exporting
Producers fail to produce any credible
milk produced by that cattle. The former
permanently removes the government's burden of
support, while the latter indirectly takes advantage
of the price floor that
support maintains.
4

increase marketings," § 1446e(h)(3), required
Dairy Producers to include milk marketed in
Mexico in determining the price reduction for
which Dairy Producers were assessed pursuant
to § 1446e(h)(1), and should have been
included in determining whether Dairy
Producers qualified for a § 1446e(h)(1)
assessment refund pursuant to § 1446e(h)(3).
IV.
The district court awarded USDA interest
on Dairy Producers' debts. Because USDA
regulations permit the agency to waive such
interest on debts that are appealed, see
7 C.F.R. § 1403.10(b), Dairy Producers argue
that such interest may not be assessed without
a hearing. Not only did Dairy Producers fail to
make this argument before the district court,
but the argument is made without legal citation
and has no merit. That an agency has
discretion to waive interest logically does not
mean that such agency must conduct a hearing
before not waiving that interest.
AFFIRMED.
5