[Federal Register Volume 59, Number 6 (Monday, January 10, 1994)]
[Rules and Regulations]
[Pages 1273-1274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-420]


[[Page Unknown]]

[Federal Register: January 10, 1994]


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DEPARTMENT OF AGRICULTURE
7 CFR Part 1106

[DA-94-03]

 

Milk in the Southwest Plains Marketing Area; Suspension of 
Certain Provisions of the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Suspension of rule.

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SUMMARY: This document suspends indefinitely certain portions of a 
provision of the Southwest Plains Federal milk marketing order (Order 
106), beginning on the date this document is published in the Federal 
Register. The suspension will allow transfers of Class I fluid milk 
products from a distributing plant to other plants regulated under 
Order 106 to be counted as part of the distributing plant's route sales 
for the purpose of determining the plant's pool status under the order. 
The suspension was requested by Associated Milk Producers, Inc. (AMPI), 
and Mid-America Dairymen, Inc. (Mid-America), who stated that it was 
necessary to restore equity among producers supplying handlers 
regulated under Order 106.

EFFECTIVE DATE: January 10, 1994.

FOR FURTHER INFORMATION CONTACT: Nicholas Memoli, Marketing Specialist, 
USDA/AMS/Dairy Division, Order Formulation Branch, room 2971, South 
Building, P.O. Box 96456, Washington, DC 20090-6456, (202) 690-1932.

SUPPLEMENTARY INFORMATION: Prior document in this proceeding: Notice of 
Proposed Suspension: Issued November 23, 1993; published November 30, 
1993 (58 FR 63120).
    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires the 
Agency to examine the impact of a proposed rule on small entities. 
Pursuant to 5 U.S.C. 605(b), the Administrator of the Agricultural 
Marketing Service has certified that this final rule would not have a 
significant economic impact on a substantial number of small entities. 
This suspension will lessen the opportunity for disorderly marketing 
conditions and will tend to ensure that dairy farmers continue to have 
their milk priced under the order and thereby receive the benefits that 
accrue from such pricing.
    The Department is issuing this rule in conformance with Executive 
Order 12866.
    This final rule has been reviewed under Executive Order 12778, 
Civil Justice Reform. This rule is not intended to have a retroactive 
effect. This rule will not preempt any state or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with the rule.
    The Agricultural Marketing Agreement Act of 1937, as amended (7 
U.S.C. 601-674), provides that administrative proceedings must be 
exhausted before parties may file suit in court. Under section 
608c(15)(A) of the Act, any handler subject to an order may file with 
the Secretary a petition stating that the order, any provisions of the 
order, or any obligation imposed in connection with the order is not in 
accordance with law and request a modification of an order or to be 
exempted from the order. A handler is afforded the opportunity for a 
hearing on the petition. After a hearing, the Secretary 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 Secretary'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.
    This order of suspension is issued pursuant to the provisions of 
the Agricultural Marketing Agreement Act and the rules of practice and 
procedure governing the formulation of marketing agreements and 
marketing orders (7 CFR part 900).
    Notice of proposed rulemaking was published in the Federal Register 
on November 30, 1993 (58 FR 63120), concerning the proposed suspension 
of certain words from the route disposition definition of Order 106. 
The public was afforded the opportunity to comment on the notice by 
submitting written data, views, and arguments by December 7, 1993. One 
comment letter was received.
    After consideration of all relevant material, including the 
proposal in the notice and other available information, it is hereby 
found and determined that the following provision of the order 
regulating the handling of milk in the Southwest Plains marketing area 
will not tend to effectuate the declared policy of the Act for an 
indefinite period commencing with the publication of this document in 
the Federal Register:
    In Sec. 1106.3, the parenthetical phrase ``(except to a plant)''.

Statement of Consideration

    This document will suspend certain words from the route disposition 
definition of the order. The effect of this change will be to include 
transfers of fluid milk products to other plants regulated under Order 
106 in determining if the transferor plant meets the pool qualification 
requirements specified in Sec. 1106.7(a) of the order.
    According to Mid-America and AMPI, two cooperative associations 
representing a substantial number of producers whose milk is pooled 
under Order 106, a Tulsa, Oklahoma, handler receiving milk from non-
member producers is also supplied supplemental milk from cooperative 
associations that pool milk on the Southwest Plains milk order. The 
proponents argued that as a result of excluding transfers of fluid milk 
products to other plants regulated under Order 106, the handler has 
been a partially regulated plant in recent months and could be again in 
the future. Mid-America and AMPI explained that, since the handler's 
Class I utilization is higher than the market's average, the handler 
has been able to pay its non-member producers a price in excess of the 
order's blend price. In addition to the inequity resulting from this 
price disparity, AMPI, during the month of September, was required to 
depool milk that it had diverted from the Tulsa plant because the plant 
otherwise would have failed to qualify as a pool plant during the month 
of September. This resulted in additional financial loss to the 
cooperative.
    A letter supporting the suspension was filed on behalf of the 
proponents. There were no comment letters received in opposition to the 
suspension.
    It is hereby found and determined that thirty days' notice of the 
effective date hereof is impractical, unnecessary, and contrary to the 
public interest in that:
    (a) The suspension is necessary to reflect current marketing 
conditions and to assure orderly marketing conditions in the marketing 
area;
    (b) This suspension does not require of persons affected 
substantial or extensive preparation prior to the effective date; and
    (c) Notice of proposed rulemaking was given to interested parties, 
and they were afforded opportunity to file written data, views, or 
arguments concerning this suspension.
    Therefore, good cause exists for making this order effective upon 
publication in the Federal Register.

List of Subjects in 7 CFR Part 1106

    Milk marketing orders.

    For the reasons set forth in the preamble, title 7, part 1106 is 
amended as follows:

PART 1106--MILK IN THE SOUTHWEST PLAINS MARKETING AREA

    1. The authority citation for 7 CFR part 1106, continues to read as 
follows:

    Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-
674.


Sec. 1106.3  [Suspended]

    2. In Sec. 1106.3 the phrase ``(except to a plant)'' is suspended.

    Dated: January 3, 1994.
Patricia Jensen,
Acting Assistant Secretary.
[FR Doc. 94-420 Filed 1-7-94; 8:45 am]
BILLING CODE 3410-02-P