[Federal Register Volume 60, Number 164 (Thursday, August 24, 1995)]
[Rules and Regulations]
[Pages 43953-43954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20967]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 164 / Thursday, August 24, 1995 / 
Rules and Regulations  


[[Page 43953]]


DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1004

[DA-95-24]


Milk in the Middle Atlantic 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 pooling provisions of the 
Middle Atlantic Federal milk marketing order for the months of 
September 1995 through February 1996, or until such prior time that the 
rulemaking proceeding to correct the market's pooling problems is 
concluded. The suspension reduces the percentage of receipts that must 
be disposed of as Class I disposition by pool distributing plants, 
provides automatic pool plant status for supply plants and reserve 
processing plants that were pool plants during the preceding months of 
September through February, and removes the limits on the amount of 
milk that may be diverted to nonpool plants by cooperative associations 
and pool plant operators. The suspension was requested by several 
Middle Atlantic cooperatives and handlers. The action is necessary to 
assure that producer milk historically associated with the market will 
continue to be pooled and priced under the order without incurring 
unnecessary and uneconomic movements solely for the purpose of 
maintaining pool status.

EFFECTIVE DATE: September 1, 1995, through February 29, 1996.

FOR FURTHER INFORMATION CONTACT: Gino M. Tosi, Marketing Specialist, 
USDA/AMS/Dairy Division, Order Formulation Branch, Room 2971, South 
Building, P.O. Box 96456, Washington, DC 20090-6456, (202) 690-1366.

SUPPLEMENTARY INFORMATION: Prior documents in this proceeding:
    Notice of Hearing: Issued February 25, 1994; published March 4, 
1994 (59 FR 10326).
    Recommended Decision: Issued July 10, 1995; published July 14, 1995 
(60 FR 36239).
    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 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 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 Middle Atlantic marketing area.
    It is hereby found and determined that for the months of September 
1, 1995, through February 29, 1996, the following provisions of the 
order do not tend to effectuate the declared policy of the Act:
    1. In Sec. 1004.7(a), the words ``40 percent in the months of 
September through February, and'' and the words ``in the months of 
March through August,''.
    2. In Sec. 1004.7(e), the word ``immediately'' and the words ``for 
each of the following months of March through August,''.
    3. In the introductory text of Sec. 1004.12(d), the words ``in 
accordance with the conditions of paragraphs (d)(1) and (d)(2) of this 
section''.
    4. In Sec. 1004.12, paragraphs (d)(1) and (d)(2).

Statement of Consideration

    This suspension reduces the total Class I disposition standard for 
pool distributing plants, provides automatic pool plant status for 
supply plants and reserve processing plants that were pool plants 
during each of the preceding months of September through February, and 
removes the limits on the amount of milk that may be diverted to 
nonpool plants by cooperative associations and pool plant operators. 
The provisions will be suspended starting with the month of September 
1995 and continuing through February 1996 or until such earlier time as 
the hearing proceeding (DA-93-30) which addresses these issues is 
completed.
    The first provision suspended reduces the percentage of a 
distributing plant's receipts that must be disposed of as Class I milk 
to qualify the plant as a pool plant. With the suspension, a pool 
distributing plant must use at least 30 percent, rather than 40 
percent, of its monthly milk receipts as Class I milk during September 
1995 through February 1996.
    The second provision suspended permits supply plants and reserve 
processing plants that were pool plants during the months of September 
1994 through February 1995 to retain pool status for the months of 
September 1995 through August 1996. The shipping 

[[Page 43954]]
requirements that normally would have applied to such plants during the 
months of September 1995 through February 1996 are eliminated by the 
suspension action.

    The third provision included in the suspension removes the limits 
on the amount of milk that may be diverted to nonpool plants by a 
cooperative association or a pool plant operator for the period of 
September 1995 through February 1996.

    The suspension was requested by Pennmarva Dairymen's Federation, 
Inc., Atlantic Processing, Inc., Dairylea, Inc., Milk Marketing, Inc., 
and Lehigh Valley Dairies. Together these organizations represent over 
90 percent of the market's producer milk.

    As proponents contended in their request, there is ample evidence 
to support this suspension action on the basis of the record of the May 
3, 1994, hearing proceeding (DA-93-30) for the Middle Atlantic market. 
On July 10, 1995, a recommended decision in that proceeding, which 
dealt with the same pooling issues involved in this suspension, was 
issued and published on July 14, 1995, (60 F.R. 36239). The recommended 
changes would reduce the pooling standards for distributing plants and 
reserve processing plants and allow cooperatives and pool plant 
operators to divert more milk to nonpool plants. These changes were 
recommended primarily because the market's Class I use of producer milk 
has declined during the past several years.

    Proponents stated that the market's supply/demand balance has 
deteriorated further since the hearing. In April 1995 only 37 percent 
of the market's producer milk was used in Class I compared with 41 
percent in April last year, they indicated.

    Since the amendatory relief resulting from the May 1994 hearing 
cannot be effective by September 1, 1995, when more stringent pooling 
standards take effect, it is necessary to suspend the aforementioned 
pooling provisions. The suspension will begin on September 1, 1995, and 
continue through February 29, 1996 or until such earlier time as the 
rulemaking proceeding (AO-160-A71;DA-93-30) may adopt proposed changes 
to the order.

    It is hereby found and determined that notice of proposed 
rulemaking, public procedure thereon and thirty days' notice of the 
effective date hereof are 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; 
and

    (b) This suspension does not require of persons affected 
substantial or extensive preparation prior to the effective date.

    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 1004

    Milk marketing orders.

    For the reasons set forth in the preamble, the following provisions 
in Title 7, Part 1004 are amended as follows effective September 1, 
1995 through February 29, 1996:

PART 1004--MILK IN THE MIDDLE ATLANTIC MARKETING AREA

    1. The authority citation for 7 CFR Part 1004 continues to read as 
follows:

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

Sec. 1004.7  [Suspended in part]

    2. In Sec. 1004.7(a) introductory text, the words ``40 percent in 
the months of September through February, and'' and the words ``in the 
months of March through August,'' are suspended.

    3. In Sec. 1004.7(e) introductory text, the word ``immediately'' 
and the words ``for each of the following months of March through 
August,'' are suspended.

Sec. 1004.12  [Suspended in part]

    4. In the introductory text of Sec. 1004.12(d), the words ``in 
accordance with the conditions of paragraphs (d)(1) and (d)(2) of this 
section'' are suspended.

    5. In Sec. 1004.12, paragraphs (d)(1) and (d)(2) are suspended.

    Dated: August 17, 1995.

Patricia Jensen,

Acting Assistant Secretary, Marketing and Regulatory Programs.

[FR Doc. 95-20967 Filed 8-23-95; 8:45 am]
BILLING CODE 3410-02-P