[Federal Register Volume 60, Number 152 (Tuesday, August 8, 1995)]
[Rules and Regulations]
[Pages 40260-40262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19461]



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DEPARTMENT OF AGRICULTURE
7 CFR Part 1126

[DA-95-16]


Milk in the Texas 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 continues the suspension of segments of the pool 
plant and producer milk definitions of the Texas order for a two-year 
period. Associated Milk Producers, Inc., a cooperative association that 
represents producers who supply milk to the market, requested 
continuation of the suspension. Continuation of this suspension is 
necessary to insure that dairy farmers who have historically supplied 
the Texas market will continue to have their milk priced under the 
Texas order without incurring costly and inefficient movements of milk.

EFFECTIVE DATE: August 1, 1995, through July 31, 1997.

FOR FURTHER INFORMATION CONTACT: Clifford M. Carman, Marketing 
Specialist, USDA/AMS/Dairy Division, Order Formulation Branch, Room 
2968, 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 May 26, 1995; published June 
2, 1995 (60 FR 28745).
    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 proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule will tend 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 suspension of rule has been reviewed under Executive Order 
12778, Civil Justice Reform. This rule is not intended to have a 
retroactive effect and 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 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 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 date of the entry of the ruling.
    This order of suspension is issued pursuant to the provisions of 
the Act, as amended, 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 
(60 FR 28745) on June 2, 1995, concerning a proposed suspension of 
certain provisions of the order. Interested persons were afforded 
opportunity to file written data, views and arguments thereon. No 
comments were received.
    After consideration of all relevant material, including the 
proposal in the notice and other available information, it is hereby 
found and determined that for the months of August 1, 1995, through 
July 31, 1997, the following provisions of the order do not tend to 
effectuate the declared policy of the Act:
    1. In section 1126.7(d) introductory text, the words ``during the 
months of 

[[Page 40261]]
February through July'' and the words ``under paragraph (b) or (c) of 
this section''.
    2. In section 1126.7(e) introductory text, the words ``and 60 
percent or more of the producer milk of members of the cooperative 
association (excluding such milk that is received at or diverted from 
pool plants described in paragraphs (b), (c), and (d) of this section) 
is physically received during the month in the form of a bulk fluid 
milk product at pool plants described in paragraph (a) of this section 
either directly from farms or by transfer from plants of the 
cooperative association for which pool plant status under this 
paragraph has been requested''.
    3. In section 1126.13(e)(1), the words ``and further, during each 
of the months of September through January not less than 15 percent of 
the milk of such dairy farmer is physically received as producer milk 
at a pool plant''.
    4. In section 1126.13, paragraph (e)(2).
    5. In section 1126.13(e)(3), the sentence ``The total quantity of 
milk so diverted during the month shall not exceed one-third of the 
producer milk physically received at such pool plant during the month 
that is eligible to be diverted by the plant operator;''.

Statement of Consideration

    This rule continues the suspension of segments of the pool plant 
and producer milk provisions under the Texas order. This suspension 
will be in effect from August 1, 1995, through July 31, 1997. The 
current suspension will expire July 31, 1995. This rule continues the 
suspension of: (1) The 60 percent delivery standard for pool plants 
operated by cooperatives; (2) the diversion limitation applicable to 
cooperative associations; (3) the limits on the amount of milk that a 
pool plant operator may divert to nonpool plants; (4) the shipping 
standards that must be met by supply plants to be pooled under the 
order; and (5) the individual producer performance standards that must 
be met in order for a producer's milk to be eligible for diversion to a 
nonpool plant.
    The order permits a cooperative association plant located in the 
marketing area to be a pool plant if at least 60 percent of the 
producer milk of members of the cooperative association is physically 
received at pool distributing plants during the month. In addition, a 
cooperative association may divert to nonpool plants up to one-third of 
the amount of milk that the cooperative causes to be physically 
received during the month at handlers' pool plants. The order also 
provides that the operator of a pool plant may divert to nonpool plants 
not more than one-third of the milk that is physically received during 
the month at the handler's pool plant. This suspension continues to 
inactivate the 60 percent delivery standard for plants operated by a 
cooperative association and removes the diversion limitations 
applicable to a cooperative association and to the operator of a pool 
plant.
    The order also provides for regulating a supply plant each month in 
which it ships a sufficient percentage of its receipts to distributing 
plants. The order provides for pooling a supply plant that ships 15 
percent of its milk receipts during August and December and 50 percent 
of its receipts during September through November and January. A supply 
plant that is pooled during each of the immediately preceding months of 
September through January is pooled under the order during the 
following months of February through July without making qualifying 
shipments to distributing plants. This suspension continues the current 
suspension of these performance standards for supply plants that were 
regulated under the Texas order during each of the immediately 
preceding months of September through January.
    The order also specifies that the milk of each producer must be 
physically received at a pool plant in order to be eligible for 
diversion to a nonpool plant. During the months of September through 
January, 15 percent of a producer's milk must be received at a pool 
plant for diversion eligibility. This rule continues to suspend these 
requirements.
    Renewal of the suspension was requested by Associated Milk 
Producers, Inc., a cooperative association that represents a 
substantial number of dairy farmers who supply the Texas market. The 
cooperative stated that marketing conditions have not changed since the 
provisions were suspended in 1993 or since March 1995 when the 
suspension was expanded to include all of paragraph (e)(2), and 
therefore should be continued until restructuring of the order can be 
achieved through the formal rulemaking process.
    Continuation of the current suspension is necessary to insure that 
dairy farmers who have historically supplied the Texas market will 
continue to have their milk priced under the Texas order, thereby 
receiving the benefits that accrue from such pooling. In addition, the 
suspension will continue to provide handlers the flexibility needed to 
move milk supplies in the most efficient manner and to eliminate costly 
and inefficient movements of milk that would be made solely for the 
purpose of pooling the milk of dairy farmers who have historically 
supplied the market.
    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. No comments were received.
    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 1126

    Milk marketing orders.

    For the reasons set forth in the preamble, the following provisions 
in Title 7, part 1126, are amended as follows:

PART 1126--MILK IN THE TEXAS MARKETING AREA

    1. The authority citation for 7 CFR Part 1126 is revised to read as 
follows:

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


Sec. 1126.7  [Suspended in part]

    2. In Sec. 1126.7(d) introductory text, the words ``during the 
months of February through July'' and the words ``under paragraph (b) 
or (c) of this section'' are suspended.
    3. In Sec. 1126.7(e) introductory text, the words ``and 60 percent 
or more of the producer milk of members of the cooperative association 
(excluding such milk that is received at or diverted from pool plants 
described in paragraphs (b), (c), and (d) of this section) is 
physically received during the month in the form of a bulk fluid milk 
product at pool plants described in paragraph (a) of this section 
either directly from farms or by transfer from plants of the 
cooperative association for which pool plant status under this 
paragraph has been requested'' are suspended. 

[[Page 40262]]



Sec. 1126.13  [Suspended in part]

    4. In Sec. 1126.13(e)(1), the words ``and further, during each of 
the months of September through January not less than 15 percent of the 
milk of such dairy farmer is physically received as producer milk at a 
pool plant'' are suspended.
    5. In Sec. 1126.13, paragraph (e)(2) is suspended.
    6. In Sec. 1126.13(e)(3), the sentence ``The total quantity of milk 
so diverted during the month shall not exceed one-third of the producer 
milk physically received at such pool plant during the month that is 
eligible to be diverted by the plant operator;'' is suspended.

    Dated: August 1, 1995.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-19461 Filed 8-7-95; 8:45 am]
BILLING CODE 3410-02-P