[Federal Register Volume 61, Number 11 (Wednesday, January 17, 1996)]
[Rules and Regulations]
[Pages 1147-1149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-324]



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 Rules and Regulations
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  Federal Register / Vol. 61, No. 11 / Wednesday, January 17, 1996 / 
Rules and Regulations  

[[Page 1147]]


DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Parts 1005, 1011, and 1046

[Docket No. AO-388-A8 et al.; DA-94-12]


Milk in the Carolina, Tennessee Valley, and Louisville-Lexington-
Evansville Marketing Areas; Order Amending the Orders

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the pooling standards of the Tennessee 
Valley and Carolina orders; modifies the marketing areas of the 
Tennessee Valley and Louisville-Lexington-Evansville orders; changes 
the location adjustment under the Carolina order for plants located in 
the Middle Atlantic marketing area; and changes the base-paying months 
under the Carolina order. The amendments are based upon industry 
proposals considered at a public hearing held on January 4, 1995. Each 
amended order was approved by more than two-thirds of the producers 
voting in the specified marketing area.

EFFECTIVE DATE: February 16, 1996.

FOR FURTHER INFORMATION CONTACT: Nicholas Memoli, Marketing Specialist, 
USDA/AMS/Dairy Division, Order Formulation Branch, Room 2971, South 
Building, P.O. Box 96456, Washington, DC 20090-6456, (202) 690-1932.

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.
    Prior documents in this proceeding:
    Notice of Hearing: Issued November 21, 1994; published November 25, 
1994 (59 FR 60574).
    Recommended Decision: Issued August 17, 1995; published August 24, 
1994 (60 FR 43986).
    Final Decision: Issued December 4, 1995; published December 18, 
1995 (60 FR 65023).

Findings and Determinations

    The findings and determinations hereinafter set forth supplement 
those that were made when the orders were issued and when they were 
amended. The previous findings and determinations are hereby ratified 
and confirmed, except where they may conflict with those set forth 
herein.
    (a) Findings. A public hearing was held upon certain proposed 
amendments to the tentative marketing agreements and to the orders 
regulating the handling of milk in the aforesaid marketing areas. The 
hearing was held 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 (7 CFR Part 900).
    Upon the basis of the evidence introduced at such hearing and the 
record thereof, it is found that:
    (1) The said orders 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 areas. The minimum prices 
specified in the orders, 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 orders, 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, marketing agreements 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 more than 50 
percent of the milk which is marketed within the aforesaid marketing 
areas 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 orders is the only 
practical means pursuant to the declared policy of the Act of advancing 
the interests of producers as defined in the orders as hereby amended; 
and
    (3) The issuance of the order amending the orders is favored by at 
least two-thirds of the producers who during August 1995 were engaged 
in the production of milk for sale in the aforesaid marketing areas.

List of Subjects in 7 CFR Part 1005, 1011, 1046

    Milk marketing orders. 
    
[[Page 1148]]


Order Relative to Handling

    It is therefore ordered, that on and after the effective date 
hereof, the handling of milk in each of the specified marketing areas 
shall be in conformity to and in compliance with the terms and 
conditions of the orders, as amended, and as hereby further amended, as 
follows:
    1. The authority citation for 7 CFR parts 1005, 1011, and 1046 
continues to read as follows:

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

PART 1005--MILK IN THE CAROLINA MARKETING AREA

    2. In Sec. 1005.7, the reference ``(d)'' in the introductory text 
is revised to read ``(e)'', in paragraph (b) the words ``Director of 
the Dairy Division'' and ``Director'' are revised to ``market 
administrator'' wherever they appear, paragraph (d) is redesignated as 
paragraph (e) and revised, and a new paragraph (d) is added to read as 
follows:


Sec. 1005.7  Pool plant.

* * * * *
    (d) A plant located within the marketing area (other than a 
producer-handler plant or a governmental agency plant) that meets the 
qualifications described in paragraph (a) of this section regardless of 
its quantity of route disposition in any other Federal order marketing 
area.
    (e) The term ``pool plant'' shall not apply to the following 
plants:
    (1) A producer-handler plant;
    (2) A governmental agency plant;
    (3) A plant with route disposition in this marketing area that is 
located within the marketing area of another Federal order and that is 
fully regulated under such order;
    (4) A plant qualified pursuant to paragraph (a) of this section 
which is not located within any Federal order marketing area but which 
also meets the pooling requirements of another Federal order and from 
which there is a greater quantity of route disposition, except filled 
milk, during the month in such other Federal order marketing area than 
in this marketing area; and
    (5) A plant qualified pursuant to paragraph (b) of this section if 
the plant has automatic pooling status under another Federal order or 
if the plant meets the pooling requirements of another Federal order 
during the month and makes greater qualifying shipments to plants 
regulated under such other order than to plants regulated under this 
order.


Sec. 1005.32  [Amended]

    3. In Sec. 1005.32(a), the words ``March through June'' are revised 
to read ``February through May'' wherever they appear.
    4. In Sec. 1005.53, paragraph (a)(6) is redesignated as paragraph 
(a)(7) and revised, and a new paragraph (a)(6) is added to read as 
follows:


Sec. 1005.53  Plant location adjustments for handlers.

* * * * *
    (a) * * *
    (6) For a plant located within the Middle Atlantic Federal Order 
Marketing Area (Part 1004), the adjustment shall be computed by 
subtracting the base zone Class I price specified in Sec. 1005.50(a) 
from the Class I price applicable at such plant under the Middle 
Atlantic Federal Order; and
    (7) For a plant located outside the areas specified in paragraphs 
(a)(1) through (a)(6) of this section, the adjustment shall be a minus 
2.5 cents for each 10 miles or fraction thereof (by the shortest hard-
surfaced highway distance as determined by the market administrator) 
that such plant is from the nearer of the city halls in Greenville, 
South Carolina, or Charlotte or Greensboro, North Carolina.


Sec. 1005.61  [Amended]

    5. In Sec. 1005.61 paragraphs (a) introductory text and (a)(5), the 
words ``July through February'' are revised to read ``June through 
January'' and in paragraph (b) introductory text the words ``March 
through June'' are revised to read ``February through May''.


Secs. 1005.90 and 1005.91  [Amended]

    6. In Secs. 1005.90 and 1005.91, the words ``March through June'' 
are revised to read ``February through May'' wherever they appear.


Sec. 1005.93  [Amended]

    7. In Sec. 1005.93 paragraph (b), the words ``March through June'' 
are revised to read ``February through May'' wherever they appear, the 
words ``February 1'' are revised to read ``January 1'', and in 
paragraph (e) introductory text the words ``March 1'' are revised to 
read ``February 1''.


Sec. 1005.94  [Amended]

    8. In Sec. 1005.94, the words ``February 1'' are revised to read 
``January 1''.

PART 1011--MILK IN THE TENNESSEE VALLEY MARKETING AREA

    9. Section 1011.2 is amended by revising paragraph (b) to read as 
follows:


Sec. 1011.2  Tennessee Valley Marketing Area.

* * * * *
    (b) In Kentucky, the counties of Bell, Breathitt, Clay, Harlan, 
Jackson, Knott, Knox, Laurel, Leslie, Letcher, McCreary, Owsley, Perry, 
Pulaski, Rockcastle, and Whitley.
* * * * *
    10. In Sec. 1011.7, the reference ``(d)'' in the introductory text 
is revised to read ``(e)'', paragraph (b) is revised, paragraph (d) is 
redesignated as paragraph (e) and revised, and a new paragraph (d) is 
added to read as follows:


Sec. 1011.7  Pool plant.

* * * * *
    (b) A plant, other than a plant described in paragraph (a) of this 
section, from which fluid milk products, except filled milk, are 
shipped to plants described in paragraph (a) of this section subject to 
the following additional conditions:
    (1) During the months of August through November, January and 
February, such shipments must equal not less than 60 percent (40 
percent during the months of December and March through July) of the 
total quantity of milk approved by a duly constituted regulatory agency 
for fluid consumption that is received during the month at such plant 
from handlers described in Sec. 1011.9(c) and (d) and from dairy 
farmers, including milk that is diverted from the plant pursuant to 
Sec. 1011.13 but excluding milk diverted to the plant;
    (2) The operator of a plant described in this paragraph may include 
milk diverted from the plant to plants described in paragraph (a) of 
this section for up to one-half of the shipments required pursuant to 
this paragraph;
    (3) A plant which meets the shipping requirements specified in this 
paragraph during the months of July through February shall be a pool 
plant during the following months of March through June unless the milk 
received at the plant does not continue to meet the requirements of a 
duly constituted regulatory agency, the plant fails to meet a shipping 
requirement instituted pursuant to paragraph (b)(4) of this section, or 
a written application is filed by the plant operator with the market 
administrator on or before the first day of any such month requesting 
that the plant be designated a nonpool plant for such month and for 
each subsequent month through June during which it would not otherwise 
qualify as a pool plant; and
    (4) The shipping requirements described in paragraph (b)(1) and 
(b)(3) of this section may be increased or decreased up to 10 
percentage points by the market administrator if he or she 

[[Page 1149]]
finds that revision is necessary to obtain needed shipments or to 
prevent uneconomic shipments. Before making such a finding, the market 
administrator shall investigate the need for revision either at his or 
her own initiative or at the request of interested persons. If the 
investigation shows that a revision may be appropriate, the market 
administrator shall issue a notice stating that the revision is being 
considered and invite data, views, and arguments.
* * * * *
    (d) A plant located within the marketing area (other than a 
producer-handler plant or a governmental agency plant) that meets the 
qualifications described in paragraph (a) of this section regardless of 
its quantity of route disposition in any other Federal order marketing 
area.
    (e) The term ``pool plant'' shall not apply to the following 
plants:
    (1) A producer-handler plant;
    (2) A governmental agency plant;
    (3) A plant with route disposition in this marketing area that is 
located within the marketing area of another Federal order and that is 
fully regulated under such order;
    (4) A plant qualified pursuant to paragraph (a) of this section 
which is not located within any Federal order marketing area but which 
also meets the pooling requirements of another Federal order and from 
which there is a greater quantity of route disposition, except filled 
milk, during the month in such other Federal order marketing area than 
in this marketing area; and
    (5) A plant qualified pursuant to paragraph (b) of this section if 
the plant has automatic pooling status under another Federal order or 
if the plant meets the pooling requirements of another Federal order 
during the month and makes greater qualifying shipments to plants 
regulated under such other order than to plants regulated under this 
order.


Sec. 1011.13  [Amended]

    11. In Sec. 1011.13 paragraph (e)(3), the words ``Director of the 
Dairy Division'' and ``Director'' are revised to read ``market 
administrator'' wherever they appear.
    12. Section 1011.52(a)(3) is revised to read as follows:


Sec. 1011.52  Plant location adjustments for handlers.

    (a) * * *
    (3) For such milk which is physically received at a plant located 
within the Kentucky counties of Bell, Breathitt, Clay, Harlan, Jackson, 
Knott, Knox, Laurel, Leslie, Letcher, McCreary, Owsley, Perry, Pulaski, 
Rockcastle, and Whitley, the Class I price shall be decreased by 32 
cents; and
* * * * *

PART 1046--MILK IN THE LOUISVILLE-LEXINGTON-EVANSVILLE MARKETING 
AREA


Sec. 1046.2  [Amended]

    13. In Sec. 1046.2, in the list of Kentucky counties, the word 
``Pulaski'' is removed.

    Dated: January 2, 1996.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 96-324 Filed 1-16-96; 8:45 am]
BILLING CODE 3410-02-P