[Federal Register Volume 60, Number 188 (Thursday, September 28, 1995)]
[Rules and Regulations]
[Pages 50088-50089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24048]



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DEPARTMENT OF AGRICULTURE
7 CFR Part 1138

[DA-95-20]


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

EFFECTIVE DATE: October 1, 1995, through September 31, 1997.

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 July 14, 1995; published July 
20, 1995 (60 FR 37373).
    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 would 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 final 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 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 law and request 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 New Mexico-West Texas marketing area.
    Notice of proposed rulemaking was published in the Federal Register 
on July 20, 1995 (60 FR 37373) 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 for the months of 
October 1, 1995, through September 30, 1997, the following provisions 
of the order do not tend to effectuate the declared policy of the Act:
    1. In Sec. 1138.7, paragraph (a)(1), the words ``including producer 
milk diverted from the plant,'';
    2. In Sec. 1138.7, paragraph (c), the words ``35 percent or more of 
the producer''; and
    3. In Sec. 1138.13(d), paragraphs (1), (2), and (5).

Statement of Consideration

    This rule continues the suspension of segments of the pool plant 
and producer milk definitions under the New Mexico-West Texas order. 
The provisions that are suspended limit the pooling of diverted milk. 
This suspension will be effective from October 1995 through September 
1997. The current suspension will expire September 30, 1995.
    This rule continues the suspension of:
    1. The requirement that milk diverted to a nonpool plant be 
considered a receipt at the distributing plant from which it was 
diverted;
    2. The requirement that a cooperative must deliver at least 35 
percent of its milk to pool distributing plants in order to pool a 
plant that the cooperative operates which is located in the marketing 
area and is neither a distributing plant nor a supply plant;
    3. The requirement that a producer must deliver one day's 
production to a pool plant during the months of September through 
January to be eligible to be diverted to a nonpool plant;
    4. The provision that limits a cooperative's diversions to nonpool 
plants to an amount equal to the milk it caused to be delivered to, and 
physically received at, pool plants during the month; and
    5. The provision that excludes from the pool milk diverted from a 
pool plant to the extent that it would cause the plant to lose its 
status as a pool plant.
    Continuation of the current suspension was requested by Associated 

[[Page 50089]]
    Milk Producers, Inc., a cooperative association that represents a 
substantial number of dairy farmers who supply the New Mexico-West 
Texas market. The cooperative stated that marketing conditions have not 
changed since the provisions were suspended in 1993 and therefore 
should be continued until restructuring of the order can be achieved 
through the formal rulemaking process.
    Mid-America Dairymen, Inc. (Mid-Am), filed a comment supporting 
continuation of the suspension. In their comment, Mid-Am stated that 
from 1993 to 1995 milk production in New Mexico had increased while the 
Class I utilization on the New Mexico-West Texas order had actually 
decreased. Mid-Am further stated that in the absence of a continuation 
of the current suspension, disorderly marketing conditions would 
prevail.
    During the past two years since implementation of the current 
suspension, milk production in this region has continued to increase 
while Class I utilization has remained constant or decreased slightly. 
Continuation of the current suspension is necessary to insure that 
dairy farmers who have historically supplied the New Mexico-West Texas 
market will continue to have their milk priced under this order. 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.
    Accordingly, it is appropriate to suspend the aforesaid provisions 
from October 1, 1995, through September 30, 1997.
    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 
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 1138

    Milk marketing orders.

    For the reasons set forth in the preamble, the following provisions 
in Title 7, Part 1138, are amended as follows:

PART 1138--MILK IN THE NEW MEXICO-WEST TEXAS MARKETING AREA

    1. The authority citation for 7 CFR Part 1138 continues to read as 
follows:

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


Sec. 1138.7  [Suspended in Part]

    2. In Sec. 1138.7(a)(1), the words ``including producer milk 
diverted from the plant,'' are suspended;
    3. In Sec. 1138.7(c) introductory text, the words ``35 percent or 
more of the producer'' are suspended.


Sec. 1138.13  [Suspended in Part]

    4. In Sec. 1138.13, paragraphs (d)(1), (2), and (5) are suspended.

    Dated: September 22, 1995.
Shirley R. Watkins,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-24048 Filed 9-27-95; 8:45 am]
BILLING CODE 3410-02-P