[Federal Register Volume 62, Number 124 (Friday, June 27, 1997)]
[Proposed Rules]
[Pages 34676-34677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16790]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / 
Proposed Rules  

[[Page 34676]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1126

[DA-97-06]


Milk in the Texas Marketing Area; Notice of Revised Proposed 
Suspension of Certain Provisions of the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule; revised suspension.

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SUMMARY: This notice invites written comments on a revised proposed 
suspension that would increase the diversion limitation applicable to 
cooperatives from one-third to an amount equal to the amount of 
producer milk the cooperative association delivered to pool plants 
under the Texas order for the months of August 1997 through July 1999. 
As originally noticed in a proposed suspension the diversion limitation 
would be suspended completely. Associated Milk Producers, Inc., a 
cooperative association that represents producers who supply milk to 
the market and the proponent of the proposed suspension, requested 
modification to the suspension of diversion limitation to achieve 
orderly marketing conditions within the Texas marketing area. Written 
comments are invited regarding this modification, as well as on the 
other segments of the pool plant and producer milk definitions 
previously noticed.

DATES: Comments are due no later than July 11, 1997.

ADDRESSES: Comments (two copies) should be sent to USDA/AMS/Dairy 
Division, Order Formulation Branch, Room 2968, South Building, PO Box 
96456, Washington, DC 20090-6456.

FOR FURTHER INFORMATION CONTACT: Clifford M. Carman, Marketing 
Specialist, USDA/AMS/Dairy Division, Order Formulation Branch, Room 
2968, South Building, PO Box 96456, Washington, DC 20090-6456, (202) 
720-9368, e-mail address: Clifford__M__C[email protected].

SUPPLEMENTARY INFORMATION: Prior document in this proceeding:
    Notice of Proposed Suspension: Issued May 7, 1997; published May 
13, 1997 (62 FR 26255).
    The Department is issuing this proposed rule in conformance with 
Executive Order 12866.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have a retroactive 
effect. If adopted, this proposed rule 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 request 
modification or exemption from such order by filing 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 law. 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.

Small Business Consideration

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), the Agricultural Marketing Service has considered the economic 
impact of this action on small entities and has certified that this 
proposed rule will not have a significant economic impact on a 
substantial number of small entities. For the purpose of the Regulatory 
Flexibility Act, a dairy farm is considered a ``small business'' if it 
has an annual gross revenue of less than $500,000, and a dairy products 
manufacturer is a ``small business'' if it has fewer than 500 
employees. For the purposes of determining which dairy farms are 
``small businesses,'' the $500,000 per year criterion was used to 
establish a production guideline of 326,000 pounds per month. Although 
this guideline does not factor in additional monies that may be 
received by dairy producers, it should be an inclusive standard for 
most ``small'' dairy farmers. For purposes of determining a handler's 
size, if the plant is part of a larger company operating multiple 
plants that collectively exceed the 500-employee limit, the plant will 
be considered a large business even if the local plant has fewer than 
500 employees.
    For the month of March 1997, the milk of 1,805 producers was pooled 
on the Texas Federal milk order. Of these producers, 1,350 producers 
were below the 326,000-pound production guideline and are considered 
small businesses. During this same period, there were 24 handlers 
operating pool plants under the Texas order. Five of these handlers 
would be considered small businesses.
    This rule would lessen the regulatory impact of the order on 
certain milk handlers by increasing diversion limitations applicable to 
cooperatives and would tend to ensure that dairy farmers would continue 
to have their milk priced under the order and thereby receive the 
benefits that accrue from such pricing.
    Interested parties are invited to submit comments on the probable 
regulatory and informational impact of this proposed rule on small 
entities. Also, parties may suggest modifications of this proposal for 
the purpose of tailoring their applicability to small businesses.

Preliminary Statement

    Notice is hereby given that, pursuant to the provisions of the Act, 
the suspension of the following provisions of the order regulating the 
handling of milk in the Texas marketing area are being considered for 
the months of August 1, 1997, through July 31, 1999:
    1. In Sec. 1126.7(d) introductory text, the words ``during the 
months of February through July'' and the words ``under paragraph (b) 
or (c) of this section''.
    2. In Sec. 1126.7(e) introductory text, the words ``and 60 percent 
or more of the producer milk of members of the cooperative association 
(excluding such milk that is received at or diverted from pool plants 
described in paragraphs (b), (c), and (d) of this section) is 
physically received during the month in the form

[[Page 34677]]

of a bulk fluid milk product at pool plants described in paragraph (a) 
of this section either directly from farms or by transfer from plants 
of the cooperative association for which pool plant status under this 
paragraph has been requested''.
    3. In Sec. 1126.13(e)(1), the words ``and further, during each of 
the months of September through January not less than 15 percent of the 
milk of such dairy farmer is physically received as producer milk at a 
pool plant''.
    4. In Sec. 1126.13(e)(2), the words ``one-third of'' and the words 
``(a), (b), (c), and (d)''.
    5. In Sec. 1126.13(e)(3), the sentence ``The total quantity of milk 
so diverted during the month shall not exceed one-third of the producer 
milk physically received at such pool plant during the month that is 
eligible to be diverted by the plant operator;''.
    All persons who desire to submit written data, views or arguments 
about the revised proposed suspension should send two copies to USDA/
AMS/Dairy Division, Order Formulation Branch, Room 2968, South 
Building, P.O. Box 96456, Washington, DC 20090-6456, by the 14th day 
after publication of this notice in the Federal Register. Comments 
filed in response to the proposed suspension will be considered and do 
not need to be resubmitted unless amended due to the revision addressed 
in this docket.
    The period for filing comments is limited to 14 days because a 
longer period would not provide the time needed to complete the 
required procedures before the requested suspension is to be effective.
    All written submissions made pursuant to this notice will be made 
available for public inspection in the Dairy Division during regular 
business hours (7 CFR 1.27(b)).

Statement of Consideration

    This action revises the proposed suspension of Sec. 1126.13(e)(2) 
as noticed in the May 13, 1997, Federal Register (62 FR 26255). The 
proposed suspension requested the suspension of paragraph 
Sec. 1126.13(e)(2) which would remove the diversion limitation 
applicable to cooperative associations. The revised proposed suspension 
of portions of Sec. 1126.13(e)(2) would increase the diversion 
limitation applicable to cooperatives from one-third to an amount equal 
to the amount of producer milk the cooperative association delivered to 
pool plants.
    Associated Milk Producers, Inc. (AMPI), a cooperative association 
that represents a substantial number of dairy farmers who supply the 
Texas market and the proponent of the proposed suspension of paragraph 
Sec. 1126.13(e)(2), requested the modification. AMPI stated that the 
modification is necessary to achieve orderly marketing conditions in 
the Texas market. AMPI asserts that changes have occurred in the 
marketplace caused by a continued increase in production accompanied by 
a decrease in the number of dairy farms since the suspension was first 
granted. AMPI believes that the revised proposed suspension will 
maintain a balance of milk within the production area while allowing 
reserve supplies to move to the most efficient alternative market. AMPI 
contends that this will assure a more distinct association with the 
Class I market and limit sharing in the uniform price by cooperative 
associations that do not make milk available for fluid use.
    Accordingly, it may be appropriate to suspend the aforesaid 
provision from August 1, 1997, through July 31, 1999.

List of Subjects in 7 CFR Part 1126

    Milk marketing orders.

    The authority citation for 7 CFR Part 1126 continues to read as 
follows:

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

    Dated: June 23, 1997.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 97-16790 Filed 6-26-97; 8:45 am]
BILLING CODE 3410-02-P