[Federal Register Volume 59, Number 124 (Wednesday, June 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15715]


[[Page Unknown]]

[Federal Register: June 29, 1994]


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DEPARTMENT OF AGRICULTURE
7 CFR Part 1040

[Docket No. AO-225-A45-R01; DA-92-10]

 

Milk in the Southern Michigan Marketing Area; Order Amending 
Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This rule amends the pooling provisions of the Southern 
Michigan Federal milk order. The amendment provides that a distributing 
plant located in the marketing area that processes and distributes 
primarily aseptically processed fluid milk products is fully regulated 
under the order irrespective of the market or markets in which the 
products may be distributed. The action is based on a proprietary 
handler's proposal considered at a public hearing held March 1, 1994, 
in Grand Rapids, Michigan. The change, which has been approved by more 
than two-thirds of the producers in the market, is necessary to reflect 
current marketing conditions and to assure orderly marketing conditions 
in the regulated area.

EFFECTIVE DATE: June 29, 1994.

FOR FURTHER INFORMATION CONTACT: Constance M. Brenner, Marketing 
Specialist, USDA/AMS/Dairy Division, Order Formulation Branch, Room 
2971, South Building, P.O. Box 96456, Washington, DC 20090-6456, (202) 
720-7183.

SUPPLEMENTARY INFORMATION: This administrative action is governed by 
the provisions of Sections 556 and 557 of Title 5 of the United States 
Code and, therefore, is excluded from the requirements of Executive 
Order 12866.
    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires the 
Agency to examine the impact of a final rule on small entities. 
Pursuant to 5 U.S.C. 605(b), the Administrator of the Agricultural 
Marketing Service has certified that this action will not have a 
significant economic impact on a substantial number of small entities. 
The amended order will lessen the regulatory impact of the order on 
certain milk handlers and will promote orderly marketing of milk by 
producers and regulated handlers.
    This final rule, which has been reviewed under Executive Order 
12778, Civil Justice Reform, is not intended to have a retroactive 
effect. It 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) (``the Act'') provides that administrative proceedings 
must be exhausted before parties may file suit in court. Under section 
8c(15)(A) of the Act, any handler subject to an order may file with the 
Secretary a petition stating that the order, any provision 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 is the 
handler's 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.
    Prior documents in this proceeding:
    Notice of Hearing: Issued December 3, 1992; published December 10, 
1992 (57 FR 58418).
    Supplemental Notice of Hearing: Issued January 19, 1993; published 
January 29, 1993 (58 FR 6447).
    Recommended Decision: Issued November 29, 1993; published December 
6, 1993 (58 FR 64176).
    Notice of Reopened Hearing: Issued February 18, 1994; published 
February 24, 1994 (59 FR 8874).
    Extension of Time for Filing Briefs: Issued April 6, 1994; 
published April 13, 1994 (59 FR 17497).
    Emergency Final Decision: Issued May 12, 1994; published May 
23,1994 (59 FR 26603).

Findings and Determinations

    The findings and determinations hereinafter set forth supplement 
those that were made when the Southern Michigan order was first issued 
and when it was amended. The previous findings and determinations are 
hereby ratified and confirmed, except where they may conflict with 
those set forth herein.
    (a) Findings upon the basis of the hearing record. Pursuant to the 
provisions of the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), and the applicable rules of practice and 
procedure governing the formulation of marketing agreements and 
marketing orders (7 CFR Part 900), a public hearing was held upon 
certain proposed amendments to the tentative marketing agreement and to 
the order regulating the handling of milk in the Southern Michigan 
marketing area.
    Upon the basis of the evidence introduced at such hearing and the 
record thereof, it is found that:
    (1) The said order as hereby amended, and all of the terms and 
conditions thereof, will tend to effectuate the declared policy of the 
Act;
    (2) The parity prices of milk, as determined pursuant to section 2 
of the Act, are not reasonable in view of the price of feeds, available 
supplies of feeds, and other economic conditions which affect market 
supply and demand for milk in the marketing area, and the minimum 
prices specified in the order as hereby amended, are such prices as 
will reflect the aforesaid factors, insure a sufficient quantity of 
pure and wholesome milk, and be in the public interest; and
    (3) The said order as hereby amended regulates the handling of milk 
in the same manner as, and is applicable only to persons in the 
respective classes of industrial and commercial activity specified in, 
a marketing agreement upon which a hearing has been held.
    (b) Additional findings. It is necessary in the public interest to 
make this order amending the order effective not later than the date of 
publication in the Federal Register. Any delay beyond that date would 
tend to disrupt the orderly marketing of milk in the marketing area.
    The provisions of this order are known to handlers. The decision of 
the Acting Assistant Secretary containing all amendment provisions of 
this order was issued May 12, 1994; published May 23, 1994 (59 FR 
26603). The changes effected by this order will not require extensive 
preparation or substantial alteration in methods of operation for 
handlers. In view of the foregoing, it is hereby found and determined 
that good cause exists for making this order amending the order 
effective upon publication in the Federal Register, and that it would 
be contrary to the public interest to delay the effective date of this 
order for 30 days after its publication in the Federal Register. (Sec. 
553(d), Administrative Procedure Act, 5 U.S.C. 551-559).
    (c) Determinations. It is hereby determined that:
    (1) The refusal or failure of handlers (excluding cooperative 
associations specified in section 8c(9) of the Act) of more than 50 
percent of the milk which is marketed within the marketing area to sign 
a proposed marketing agreement tends to prevent the effectuation of the 
declared policy of the Act;
    (2) The issuance of this order amending the order is the only 
practical means pursuant to the declared policy of the Act of advancing 
the interests of producers as defined in the respective orders; and
    (3) The issuance of the order amending the order is approved or 
favored by at least two-thirds of the producers who during the 
determined representative period were engaged in the production of milk 
for sale in the marketing area.

List of Subjects in 7 CFR Part 1040

    Milk marketing orders.

Order Relative to Handling

    It is therefore ordered, That on and after the effective date 
hereof, the handling of milk in the Southern Michigan marketing area 
shall be in conformity to and in compliance with the terms and 
conditions of the aforesaid order, as amended, and as hereby further 
amended, as follows:

PART 1040--MILK IN THE SOUTHERN MICHIGAN MARKETING AREA

    1. The authority citation for 7 CFR Part 1040 continues to read as 
follows:

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


Sec. 1040.5  [Amended]

    2. Section 1040.5 is amended by removing the words ``in the 
marketing area'' at the end of the text.
    3. Section 1040.7 is amended by revising the introductory text, 
paragraph (a), and the first sentence in paragraph (b) introductory 
text to read as follows:


Sec. 1040.7  Pool plant.

    Pool plant means:
    (a) A distributing plant:
    (1) From which total route disposition, except filled milk, during 
the month is not less than 50 percent of the combined Grade A milk 
received in bulk at such plant direct from producers, from supply 
plants, from a cooperative association as described in Sec. 1040.9(c) 
or diverted by the plant operator or by a cooperative association 
pursuant to Sec. 1040.13 as producer milk, except as provided in 
paragraph (c) of this section; or
    (2) That qualified as a pool plant in either of the immediately 
preceding 2 months on the basis of performance standards described in 
paragraph (a)(1) of this section, except as provided in paragraph (c) 
of this section; or
    (3) That meets the following conditions, regardless of the 
provisions of paragraph (c) of this section:
    (i) The plant is located in the marketing area;
    (ii) The plant has total route disposition, except filled milk, 
during the month of not less than 50 percent of the combined Grade A 
milk received in bulk at such plant direct from producers, from supply 
plants, from a cooperative association as described in Sec. 1040.9(c) 
or diverted by the plant operator or by a cooperative association 
pursuant to Sec. 1040.13 as producer milk; and
    (iii) The principal activity of such plant is the processing and 
distributing of aseptically processed fluid milk products.
    (b) Except as provided in paragraph (c) of this section, a supply 
plant which during the month meets one of the performance requirements 
specified in paragraph (b) (1), (2), (3) or (4) of this section. * * *
* * * * *
    Dated: June 22, 1994.
Patricia A. Jensen,
Acting Assistant Secretary for Marketing and Inspection Services.
[FR Doc. 94-15715 Filed 6-28-94; 8:45 am]
BILLING CODE 3410-02-P