[Federal Register Volume 59, Number 172 (Wednesday, September 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21881]
Federal Register / Vol. 59, No. 172 / Wednesday, September 7, 1994 /
[[Page Unknown]]
[Federal Register: September 7, 1994]
VOL. 59, NO. 172
Wednesday, September 7, 1994
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1137
[DA-94-13]
Milk in the Eastern Colorado 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 certain performance standards of the
Eastern Colorado Federal milk marketing order. The action was proposed
by Mid-America Dairymen, Inc., a cooperative association that supplies
milk for the market's fluid needs. The suspension will make it easier
for handlers to qualify milk for pool status and prevent uneconomic
milk movements that otherwise would be required to maintain pool status
for milk of producers who have been historically associated with the
market.
EFFECTIVE DATE: The suspension to Sec. 1137.7 is effective from
September 1, 1994 through February 28, 1995. The suspensions to
Sec. 1137.12 is effective from September 1, 1994 through August 31,
1995.
FOR FURTHER INFORMATION CONTACT: Clifford M. Carman, Marketing
Specialist, USDA/AMS/Dairy Division, Order Formulation Branch, Room
2971, South Building, P.O. Box 96456, Washington, DC 20090-6456, (202)
720-9368.
SUPPLEMENTARY INFORMATION: Prior document in this proceeding:
Notice of Proposed Suspension: Issued June 23, 1994; published June
29, 1994 (59 FR 33455).
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 who have been
historically associated with this market 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 final 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 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 Eastern Colorado marketing area.
Notice of proposed rulemaking was published in the Federal Register
on June 29, 1994 (59 FR 33455) 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 supporting the proposed action was filed. No opposing views
were received.
After consideration of all relevant material, including the
proposal in the notice, the comments received, and other available
information, it is hereby found and determined that the following
provisions of the order do not tend to effectuate the declared policy
of the Act:
1. For the months of September 1994 through February 1995: In the
second sentence of Sec. 1137.7(b), the words ``plant which has
qualified as a'' and ``of March through August''; and
2. For the months of September 1994 through August 1995:
In the first sentence of Sec. 1137.12(a)(1), the words ``from whom
at least three deliveries of milk are received during the month at a
distributing pool plant''; and in the second sentence, the words ``30
percent in the months of March, April, May, June, July, and December
and 20 percent in other months of'', and the word ``distributing''.
Statement of Consideration
This action suspends certain portions of the ``pool plant'' and
``producer'' definitions of the Eastern Colorado order (Order 137). The
suspension will make it easier for handlers to qualify milk for pooling
under the order.
The suspension action was requested by Mid-America Dairymen, Inc.
(Mid-Am), a cooperative association that has pooled milk of dairy
farmers under Order 137 for several years. Mid-Am requested the
suspension to prevent the uneconomic and inefficient movement of milk
for the sole purpose of pooling the milk of producers who have been
historically associated with the order.
For the months of September 1994 through February 1995, the
restriction on the months when automatic pool plant status applies for
supply plants will be removed. For the months of September 1994 through
August 1995, the touch-base requirement will not apply and the
diversion allowance for cooperatives will be raised.
These provisions have been suspended in prior years to maintain the
pool status of producers who have historically supplied the fluid needs
of Order 137 distributing plants. The marketing conditions which
justified the prior suspensions continue to exist.
Mid-Am asserts that they have made a commitment to supply the fluid
milk requirements of distributing plants if their suspension request is
granted. Without the suspension, to qualify certain of its milk for
pooling it would be necessary for the cooperative to ship milk from
distant farms to Denver-area bottling plants. The distant milk would
displace milk produced on nearby farms that would then have to be
shipped from the Denver area to manufacturing plants located in
outlying areas.
There are ample supplies of locally-produced milk that can be
delivered directly from farms to distributing plants to meet the
market's fluid needs without requiring shipments from supply plants.
Also, neither the elimination of the touch-base requirement for
producers nor the increase in the amount of milk that may be diverted
to nonpool plants by a cooperative should jeopardize the needs of the
market's fluid processors.
This suspension is found to be necessary for the purpose of
assuring that producers' milk will not have to be moved in an
uneconomic and inefficient manner to ensure that producers whose milk
has long been associated with the Eastern Colorado marketing area will
continue to benefit from pooling and pricing under the 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. One comment supporting the suspension was
filed. No opposing views were received.
Therefore, good cause exists for making this order effective upon
publication in the Federal Register.
List of Subjects in 7 CFR Part 1137
Milk marketing orders.
For the reasons set forth in the preamble, the following provisions
in Title 7, Part 1137, are amended as follows:
PART 1137--MILK IN THE EASTERN COLORADO MARKETING AREA
1. The authority citation for 7 CFR Part 1137 continues to read as
follows:
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-
674.
Sec. 1137.7 [Suspended in part]
2. In Sec. 1137.7(b), the second sentence is amended by suspending
the words ``plant which has qualified as a'' and ``of March through
August'' from September 1, 1994 through February 28, 1995.
Sec. 1137.12 [Suspended in part]
3. In Sec. 1137.12(a)(1), the first sentence is amended by
suspending the words ``from whom at least three deliveries of milk are
received during the month at a distributing pool plant'' from September
1, 1994 through August 31, 1995.
4. In Sec. 1137.12(a)(1), the second sentence is amended by
suspending the words ``30 percent in the months of March, April, May,
June, July and December and 20 percent in other months of'', and the
word ``distributing'' are suspended from September 1, 1994 through
August 31, 1995.
Dated: August 29, 1994.
Patricia Jensen,
Assistant Secretary, Marketing and Inspection Services.
[FR Doc. 94-21881 Filed 9-6-94; 8:45 am]
BILLING CODE 3410-02-P