[Federal Register Volume 60, Number 172 (Wednesday, September 6, 1995)]
[Rules and Regulations]
[Pages 46214-46215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22005]



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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1137

[DA-95-21]


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 order. Mid-America Dairymen, Inc., a 
cooperative association that supplies milk for the market's fluid 
needs, requested the suspension. The suspension will make it easier for 
handlers to qualify milk for pool status and will 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 DATES: The suspension to Sec. 1137.7 is effective from 
September 1, 1995, through February 29, 1996. The suspensions to 
Sec. 1137.12 are effective from September 1, 1995, through August 31, 
1996.

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 July 24, 1995; published July 
28, 1995 (60 FR 38767).
    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 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 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 Agricultural Marketing Agreement Act, as amended, 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 July 28, 1995 (60 FR 38767), 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 suspension was filed and no opposing views were 
received.
    After consideration of all relevant material, including the 
proposal in the notice, the comment 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 1, 1995, through February 29, 1996: 
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 1, 1995, through August 31, 1996: 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 

[[Page 46215]]
and 20 percent in other months of'', and the word ``distributing''.

Statement of Consideration

    This rule suspends certain portions of the pool plant and producer 
definitions of the Eastern Colorado order. The suspension will make it 
easier for handlers to qualify milk for pooling under the order.
    The suspension was requested by Mid-America Dairymen, Inc. (Mid-
Am), a cooperative association that has pooled milk of dairy farmers on 
the Eastern Colorado order 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 Eastern Colorado order.
    For the months of September 1995 through February 1996, the 
restriction on the months when automatic pool plant status applies for 
supply plants will be removed. For the months of September 1995 through 
August 1996, the touch-base requirement will not apply and the 
diversion allowance for cooperatives will be raised.
    These provisions have been suspended for several years to maintain 
the pool status of producers who have historically supplied the fluid 
needs of Eastern Colorado 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 the suspension request is 
granted. Without the suspension action, 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.
    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 and no comments 
opposing the suspension 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 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: 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, 1995, through February 29, 1996.


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, 1995, through August 31, 1996.
    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'' from September 1, 1995, through August 31, 1996.

    Dated: August 29, 1995.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-22005 Filed 9-5-95; 8:45 am]
BILLING CODE 3410-02-P