[Federal Register Volume 59, Number 187 (Wednesday, September 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23921]


[Federal Register: September 28, 1994]


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DEPARTMENT OF AGRICULTURE
7 CFR Part 1036

[DA-94-20]


Milk in the Eastern Ohio-Western Pennsylvania Marketing Area; 
Temporary Revision of Rule

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Temporary revision of rule.

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SUMMARY: This document temporarily revises the supply plant shipping 
standards under the Eastern Ohio-Western Pennsylvania Federal milk 
order (Order 36) for the months of September 1994 through February 
1995. Required shipping percentages for pool supply plants are reduced 
by 10 percentage points for each of the affected months. This action is 
necessary to prevent the uneconomic and inefficient movements of milk 
to qualify plants for pooling.

EFFECTIVE DATE: September 1, 1994, through February 28, 1995.

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) 
720-2357.

SUPPLEMENTARY INFORMATION: Prior document in this proceeding: Notice of 
Proposed Temporary Revision: Issued August 22, 1994; published August 
26, 1994 (59 FR 44088).
    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 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 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 temporary revision is issued pursuant to the provisions of the 
Agricultural Marketing Agreement Act and the provisions of 
Sec. 1036.7(f) of the Eastern Ohio-Western Pennsylvania order.
    Notice of proposed rulemaking was published in the Federal Register 
(59 FR 44088) concerning a proposed temporary relaxation of the supply 
plant shipping standards under the Eastern Ohio-Western Pennsylvania 
milk order. The revisions were proposed to be effective for the months 
of September 1, 1994, through February 28, 1995. The public was 
afforded the opportunity to comment on the proposed notice by 
submitting written data, views and arguments by September 2, 1994. One 
comment supporting the proposed revision was received. No opposing 
comments were received.

Statement of Consideration

    Currently, the order provides that for a supply plant to be 
considered a pool plant, a minimum percentage of the total quantity of 
milk received at the supply plant must be transferred or diverted to 
and physically received at pool distributing plants regulated under the 
order or disposed of as route disposition in the marketing area. This 
provision is subject to the following two conditions: (1) Not less than 
45,000 pounds of Grade A fluid milk must be shipped from the supply 
plant to a pool distributing plant during either September, October, or 
November; and (2) shipments used to determine qualifying percentages 
must be milk transferred or diverted to and physically received by pool 
distributing plants, less any transfers or diversions of bulk fluid 
milk products from such distributing pool plants.
    This rule temporarily revises the minimum requirement from 40 
percent to 30 percent for the months of September through November 
1994, from 30 percent to 20 percent for the month of December 1994, and 
from 35 percent to 25 percent for the months of January and February 
1995.
    The Eastern Ohio-Western Pennsylvania milk order provides authority 
for the Director of the Dairy Division to increase or decrease the 
required shipping percentages for supply plants by up to 10 percentage 
points if such a revision is necessary to obtain needed shipments or to 
prevent uneconomic shipments.
    The temporary revision was requested by Brewster Dairy, Inc. 
(Brewster), a proprietary handler who operates a pool supply plant 
regulated under the order. Brewster contends that in Fall 1993 the 
plant was unable to accept surplus distributing plant milk associated 
with Order 36 and still meet supply plant qualifications. Consequently, 
milk from a distributing plant located 10 miles from Brewster had to be 
diverted to a manufacturing facility 92 miles away. At the same time, 
Brewster had to procure surplus milk from greater distances to fulfill 
manufacturing obligations. Brewster contends that this situation 
represents inequitable and inefficient movements of milk for both 
supply and distributing plants, undertaken to meet order shipping 
requirements. Brewster asserts that the same inequitable and 
inefficient movements of milk are expected again for Fall 1994. Thus, 
Brewster contends, a reduction of supply plant shipping percentages is 
necessary to prevent uneconomic and inefficient shipments of milk.
    Milk Marketing Inc. (MMI), a dairy farmer cooperative representing 
1,350 dairy farmers whose milk is pooled under Order 36, supported 
Brewster's request for reducing shipping percentages for pool supply 
plants. MMI's comment stated the cooperative supports Brewster's 
request for the same reasons MMI gave in a recent continued reduction 
of shipping requirements for cooperative association reserve processing 
plants (59 FR 48557) in the Eastern Ohio-Western Pennsylvania milk 
order. In this continued reduction, MMI's comments included a 
description of milk marketing conditions for June 1994 that show milk 
production for the market increased over 4 percent from the same month 
of the previous year, representing 12 million additional pounds of milk 
in the Order 36 pool. For the same month, Class I sales decreased by 
nearly 2.5 percent from June 1993, representing a reduction of 
approximately 3.4 million pounds of Class I sales. As a result of the 
market's increasing production and declining Class I use, nearly 15.5 
million more pounds of milk had to be used in manufactured products 
than in the same month the previous year.
    In view of the current supply and demand relationship for the 
market, the supply plant shipping percentages should be reduced for the 
months of September 1994 through February 1995. A reduction of the 
shipping percentages will contribute to orderly marketing in that 
costly and inefficient shipments of milk from distant supply plants 
will not be necessary. Thus, dairy farmers who have supplied the market 
will continue to have their milk pooled under the order.
    After consideration of all relevant material, including the 
proposal set forth in the aforesaid notice, and other available 
information, it is hereby found and determined that the supply plant 
shipping percentage set forth in Sec. 1036.7(b) should be reduced to 30 
percent for the months of September, October, and November 1994, 
reduced to 20 percent for the month of December 1994, and reduced to 25 
percent for the months of January and February 1995.
    It is hereby found and determined that 30 days' notice of the 
effective date hereof is impractical, unnecessary, and contrary to the 
public interest in that:
    (a) This temporary revision is necessary to reflect current 
marketing conditions and to maintain orderly marketing conditions in 
the marketing area for the months of September 1994 through February 
1995;
    (b) This temporary revision does not require of persons affected 
substantial or extensive preparation prior to the effective date; and
    (c) Notice of the proposed temporary revision was given interested 
parties and they were afforded opportunity to file written data, views, 
or arguments concerning this temporary revision. One comment supporting 
the proposed temporary revision was received, with no comments 
opposing.
    Therefore, good cause exists for making this temporary revision 
effective less than 30 days from the date of publication in the Federal 
Register.

List of Subjects in 7 CFR Part 1036

    Milk marketing orders.

    For the reasons set forth in the preamble, the following provision 
in Title 7, Part 1036, is amended as follows:

PART 1036--MILK IN THE EASTERN OHIO-WESTERN PENNSYLVANIA MARKETING 
AREA

    1. The authority for 7 CFR part 1036 continues to read as follows:

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


Sec. 1036.7  [Amended]

    2. In Sec. 1036.7(b), the introductory text is temporarily revised 
for the months of September 1, 1994, through February 28, 1994, by 
changing the ``40 percent'' to ``30 percent'', the ``35 percent'' to 
``25 percent'', and the ``30 percent'' to ``20 percent''.

    Dated: September 22, 1994.
Richard M. McKee,
Director, Dairy Division.
[FR Doc. 94-23921 Filed 9-27-94; 8:45 am]
BILLING CODE 3410-02-P