[Federal Register Volume 60, Number 210 (Tuesday, October 31, 1995)]
[Rules and Regulations]
[Pages 55309-55310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26918]



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 Rules and Regulations
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  Federal Register / Vol. 60, No. 210 / Tuesday, October 31, 1995 / 
Rules and Regulations  

[[Page 55309]]


DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1004

[Docket No. AO-160-A71; DA-93-30]


Milk in the Middle Atlantic Marketing Area; Order Amending the 
Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule implements changes in some provisions of the 
Middle Atlantic milk marketing order based on industry proposals 
considered at a public hearing. The changes reduce the standards for 
regulating distributing plants and cooperative reserve processing 
plants and increase the amount of producer milk that can be diverted to 
nonpool plants. Additionally, the market administrator will be 
authorized to adjust pool plant qualification standards and producer 
milk diversion limits to reflect changes in marketing conditions. Also, 
this final rule provides that a pool distributing plant that meets the 
pooling standards of more than one Federal order will continue to be 
regulated under this order for two consecutive months before regulation 
can shift to the other order. This amended order was approved by 
producers who were eligible to have their milk pooled during the 
representative month. Approval was determined by a poll of cooperative 
associations in the marketing area.

EFFECTIVE DATE: December 1, 1995.

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: This administrative action is governed by 
the provisions of Sections 556 and 557 of Title 5 of the United States 
Code and, therefore, is excluded from the requirements of Executive 
Order 12866.
    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. 
The amended order will promote more orderly marketing of milk by 
producers and regulated handlers.
    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.
    A suspension (DA-95-24) of certain parts of Secs. 1004.7 and 
1004.12 issued on August 17, 1995, which alleviated the market's 
pooling problems until this rulemaking proceeding could be completed, 
will end when this amended order takes effect on December 1, 1995.
    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).
    Suspension of Rule: Issued August 17, 1995; published August 24, 
1995 (60 FR 43953).
    Final Decision: Issued September 13, 1995; published September 21, 
1995 (60 FR 48924).

Findings and Determinations

    The findings and determinations hereinafter set forth supplement 
those that were made when the Middle Atlantic order was first issued 
and when it was amended. The previous findings and determinations are 
hereby ratified and confirmed, except where they may conflict with 
those set forth herein.
    (a) Findings upon the basis of the hearing record. Pursuant to the 
provisions of the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), and the applicable rules of practice and 
procedure governing the formulation of marketing agreements and 
marketing orders (7 CFR Part 900), a public hearing was held upon 
certain proposed amendments to the tentative marketing agreement and to 
the order regulating the handling of milk in the Middle Atlantic 
marketing area.
    Upon the basis of the evidence introduced at such hearing and the 
record thereof, it is found that:
    (1) The said order as hereby amended, and all the terms and 
conditions thereof, will tend to effectuate the declared policy of the 
Act;
    (2) The parity prices of milk as determined pursuant to section 2 
of the Act are not reasonable in view of the price of feeds, available 
supplies of feeds, and other economic conditions which affect market 
supply and demand for milk in the marketing area, and the minimum 
prices specified in the order, as hereby amended, are such prices as 
will reflect the aforesaid factors, insure a sufficient quantity of 
pure and wholesome milk, and be in the public interest; and
    (3) The said order, as hereby amended, will regulate the handling 
of milk in the same manner as, and will be applicable only to persons 
in the respective classes of industrial and commercial activity 
specified, in a marketing agreement upon which a hearing has been held.
    (b) Determinations. It is hereby determined that:
    (1) The refusal or failure of handlers (excluding cooperative 
associations specified in Sec. 8c(9) of the Act) of 

[[Page 55310]]
more than 50 percent of the milk which is marketed within the Middle 
Atlantic marketing area to sign a proposed marketing agreement tends to 
prevent the effectuation of the declared policy of the Act;
    (2) The issuance of this order amending the order is the only 
practical means pursuant to the declared policy of the Act of advancing 
the interests of producers as defined in the order as hereby amended; 
and
    (3) The issuance of the order amending the order is favored by at 
least two-thirds of the producers who during the determined 
representative period were engaged in the production of milk for sale 
in the Middle Atlantic marketing area.

List of Subjects in 7 CFR Part 1004

    Milk marketing orders.

Order Relative to Handling

    It is therefore ordered, that on and after the effective date 
hereof, the handling of milk in the Middle Atlantic marketing area 
shall be in conformity to and in compliance with the terms and 
conditions of the order, as amended, and as hereby further amended, as 
follows:

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

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

PART 1004--MILK IN THE MIDDLE ATLANTIC MARKETING AREA

    2. Section 1004.7 is amended by revising paragraphs (a)(1) and 
(a)(4); revising paragraph (d)(1) and by adding a new paragraph (g) to 
read as follows:


Sec. 1004.7  Pool Plant.

* * * * *
    (a) * * *
    (1) Milk received at such plant directly from dairy farmers 
(excluding milk diverted as producer milk pursuant to Sec. 1004.12, by 
either the plant operator or by a cooperative association, and also 
excluding the milk of dairy farmers for other markets) and from a 
cooperative in its capacity as a handler pursuant to Sec. 1004.9(c); or
* * * * *
    (4) A plant's status as an other order plant pursuant to paragraph 
(f) of this section will become effective beginning the third 
consecutive month in which a plant is subject to the classification and 
pricing provisions of another order.
* * * * *
    (d) * * *
    (1) A reserve processing plant operated by a cooperative 
association at which milk from dairy farmers is received if the total 
of fluid milk products (except filled milk) transferred from such 
cooperative association plant(s) to, and the milk of member producers 
physically received at, pool plants pursuant to Sec. 1004.7(a) is not 
less than 25 percent of the total milk of member producers during the 
month.
* * * * *
    (g) The applicable shipping percentage of paragraphs (a) and (b) or 
(d) of this section may be increased or decreased by the market 
administrator if the market administrator finds that such revision is 
necessary to encourage needed shipments or to prevent uneconomic 
shipments. Before making such a finding, the market administrator shall 
investigate the need for revision either on the market administrator's 
own initiative or at the request of interested parties. If the 
investigation shows that a revision of the shipping percentages might 
be appropriate, the market administrator shall issue a notice stating 
that the revision is being considered and invite data, views and 
arguments. Any request for revision of shipping percentages shall be 
filed with the market administrator no later than the 15th day of the 
month prior to the month for which the requested revision is desired 
effective.
    3. Section 1004.12 is amended by revising paragraphs (d)(2)(i) and 
(d)(2)(ii) and by adding a new paragraph (g) to read as follows:


Sec. 1004.12  Producer.

* * * * *
    (d) * * *
    (2) * * *
    (i) All of the diversions of milk of members of a cooperative 
association or a federation of cooperative associations to nonpool 
plants are for the account of such cooperative association or 
federation, and the amount of member milk so diverted does not exceed 
55 percent of the volume of milk of all members of such cooperative 
association or federation delivered to or diverted from pool plants 
during the month.
    (ii) All of the diversions of milk of dairy farmers who are not 
members of a cooperative association diverting milk for its own account 
during the month are diversions by a handler in his capacity as the 
operator of a pool plant from which the quantity of such nonmember milk 
so diverted does not exceed 45 percent of the total of such nonmember 
milk for which the pool plant operator is the handler during the month.
* * * * *
    (g) The applicable percentages in paragraphs (d)(2)(i) and 
(d)(2)(ii) of this section may be increased or decreased by the market 
administrator if the market administrator finds that such revision is 
necessary to encourage needed shipments or to prevent uneconomic 
shipments. Before making such a finding, the market administrator shall 
investigate the need for revision either on the market administrator's 
own initiative or at the request of interested parties. If the 
investigation shows that a revision of the diversion limit percentages 
might be appropriate, the market administrator shall issue a notice 
stating that the revision is being considered and invite data, views 
and arguments. Any request for revision of the diversion limit 
percentages shall be filed with the market administrator no later than 
the 15th day of the month prior to the month for which the requested 
revision is desired effective.

    Dated: October 25, 1995.
Shirley R. Watkins,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-26918 Filed 10-30-95; 8:45 am]
BILLING CODE 3410-02-P