[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5489]


[[Page Unknown]]

[Federal Register: March 10, 1994]


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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service

7 CFR Part 1106

[DA-94-08]

 

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, for the months of February 1, 1994 
through August 31, 1996, a portion of the supply plant shipping 
requirement and the producer delivery requirement of the Southwest 
Plains Federal milk marketing order (Order 106). The suspension was 
requested by Kraft General Foods (Kraft), which contends the suspension 
is necessary to prevent the uneconomical and inefficient movement of 
milk and to ensure that producers historically associated with the 
market will continue to have their milk pooled under Order 106.

EFFECTIVE DATE: February 1, 1994, through August 31, 1996.

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 February 7, 1994; published 
February 14, 1994 (59 FR 6915).
    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 rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule lessens the regulatory impact of the order on certain milk 
handlers and tends to ensure that dairy farmers will 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 this 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 the law and requesting 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 of the order regulating 
the handling of milk in the Southwest Plains marketing area.
    Notice of proposed rulemaking was published in the Federal Register 
on February 14, 1994 (59 FR 6915) concerning a proposed suspension of 
certain provisions of the order. Interested persons were afforded 
opportunity to file written data, views, and arguments thereon. One 
comment was received in support of the suspension.
    After consideration of all relevant material, including the 
proposal in the notice, the comment received, and other available 
information, it is hereby found and determined that for the months of 
February through August of 1994 through 1996, the following provisions 
of the order do not tend to effectuate the declared policy of the Act:
    1. In Sec. 1106.6, the words ``during the month''.
    2. In Sec. 1106.7(b)(1), beginning with the words ``of February 
through August'' and continuing to the end of the paragraph.
    3. In Sec. 1106.13, paragraph (d)(1) in its entirety.

Statement of Consideration

    This suspension order temporarily removes the requirement that 
producers ``touch-base'' at a pool plant with at least one day's 
production during the month before their milk is eligible for diversion 
to a nonpool plant. By suspending the touch-base provision, producer 
milk will not be required to be delivered to pool plants before going 
to unregulated manufacturing plants.
    Additionally, the suspension allows a supply plant that has been 
associated with the Southwest Plains order during the months of 
September through January of each year to qualify as a pool plant--
without shipping any milk to a pool distributing plant--during the 
following months of February through August. Without the suspension, a 
supply plant would be required to ship 20 percent of its producer 
receipts to pool distributing plants to qualify as a pool plant during 
each of the months of February through August.
    According to Kraft's letter requesting the suspension, supplemental 
milk supplies from supply plants will not be needed to meet the fluid 
needs of distributing plants because there will be an adequate supply 
of direct-ship producer milk located in the general area of 
distributing plants to meet the fluid needs of the market. 
Consequently, it states, there is no need to require supply plants to 
uneconomically ship milk to distributing plants, nor is there any 
reason to require producers located some distance from pool 
distributing plants to deliver their milk to those plants simply for 
qualifying purposes when it can more economically be diverted directly 
to manufacturing plants in the production area.
    One comment letter was received in support of the suspension 
request; none were received in opposition to it. A letter submitted by 
Mid-America Dairymen, Inc. (Mid-Am), stated that Mid-Am and Associated 
Milk Producers, Inc., two cooperative associations with a substantial 
number of producers on the market, were in support of the action.
    A similar suspension of the supply plant shipping requirements and 
touch-base requirements has been effective for the past two years 
during the months of February through August. In both years, there 
were, in fact, adequate supplies of milk within direct-ship distance of 
pool distributing plants to meet the fluids needs of the market during 
these months. Producer milk deliveries in recent months indicate that a 
similar pattern will hold true for 1994.
    For the reasons discussed above, it is appropriate to suspend the 
touch-base requirement and the specified supply plant shipping 
requirements for the months of February through August of 1994 through 
1996. This suspension period, while unusually long, will preclude the 
necessity of similar suspensions in each of the next two years. In the 
event that the market experiences a reduction of direct-ship milk 
supplies and a need for supplemental milk from supply plants in 1995 or 
1996, the suspended provisions can be easily reinstated by terminating 
this suspension order.
    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, in that such rule is necessary to permit the continued pooling of 
the milk of dairy farmers who have historically supplied the market 
without the need for making costly and inefficient movements of milk;
    (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 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 less 
than 30 days from the date of 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 effective February 1, 1994, through August 31, 1996:

PART 1106--MILK IN THE SOUTHWEST PLAINS MARKETING AREA

    1. The authority citation for 7 CFR part 1106 is revised to read as 
follows:

    Authority: 7 U.S.C. 601-674.


Sec. 1106.6  [Suspended in part]

    2. In Sec. 1106.6, the words ``during the month'' are suspended.


Sec. 1106.7  [Suspended in part]

    3. In Sec. 1106.7(b)(1), the words beginning with ``of February 
through August'' and continuing to the end of the paragraph are 
suspended.


Sec. 1106.13  [Suspended in part]

    4. In Sec. 1106.13, paragraph (d)(1) in its entirety is suspended.

    Dated: March 1, 1994.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Inspection Services.
[FR Doc. 94-5489 Filed 3-9-94; 8:45 am]
BILLING CODE 3410-02-P