[Federal Register Volume 62, Number 128 (Thursday, July 3, 1997)]
[Rules and Regulations]
[Pages 35947-35948]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17508]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 62, No. 128 / Thursday, July 3, 1997 / Rules 
and Regulations  

[[Page 35947]]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1137

[DA-97-05]


Milk in the Eastern Colorado Marketing Area; Suspension of 
Certain Provisions of the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule; suspension.

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

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. The suspension will be effective through 1999.

EFFECTIVE DATE: The suspension to Sec. 1137.7 is effective from 
September 1, 1997, through February 28, 1999. The suspensions to 
Sec. 1137.12 are effective from September 1, 1997, through August 31, 
1999.

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, e-mail address: Clifford __ M __ C[email protected].


SUPPLEMENTARY INFORMATION: Prior document in this proceeding:
    Notice of Proposed Suspension: Issued April 30, 1997; published May 
6, 1997 (62 FR 24610).
    The Department is issuing this final rule in conformance with 
Executive Order 12866.
    This final rule has been reviewed under Executive Order 12988, 
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 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 the 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 
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 415 producers was pooled 
on the Eastern Colorado Federal milk order. Of these producers, 308 
producers were below the 326,000-pound production guideline and are 
considered small businesses. During this same period, there were 10 
handlers operating 11 pool plants under the Eastern Colorado order. 
Five of these handlers would be considered small businesses.
    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. This suspension will not result in any 
additional regulatory burden on handlers in the Eastern Colorado 
marketing area.

Preliminary Statement

    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 Eastern Colorado marketing area.
    Notice of proposed rulemaking was published in the Federal Register 
on May 6, 1997 (62 FR 24610) concerning a proposed suspension of 
certain provisions of the order. Interested persons were afforded 
opportunity to file written data, views and arguments thereon. Two 
comments supporting the proposed suspension were received.
    After consideration of all relevant material, including the 
proposal in the notice, the comments 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, 1997, through February 28, 1999: 
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, 1997, through August 31, 1999: In 
the first sentence of Sec. 1137.12(a)(1), the words ``from whom at 
least three

[[Page 35948]]

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 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.
    Mid-Am and Western Dairymen Cooperative, Inc. (WDCI) filed comments 
in support of the suspension. 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. WDCI further reiterates 
the need for the suspension to assure continued pooling of producers 
associated with the market and to prevent such uneconomic milk 
movements.
    Both Mid-Am and WDCI requested continuation of the suspension 
beyond the time period noticed in the proposed suspension. Both 
cooperatives expressed a desire to have the suspension extend until the 
Federal order reform process under the Federal Agriculture Improvement 
and Reform Act of 1996 is implemented.
    For the months of September 1997 through February 1999, the 
restriction on the months when automatic pool plant status applies for 
supply plants will be removed. For the months of September 1997 through 
August 1999, 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. 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.
    Since the suspension has been granted on a continual basis since 
1985, and the marketing conditions that originally warranted the 
suspension continue to exist, it is found appropriate to extend the 
suspension period from 1998 to 1999.
    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.

List of Subjects in 7 CFR Part 1137

    Milk marketing orders.

    For the reasons set forth in the preamble 7 CFR Part 1137, is 
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, 1997, through February 28, 1999.


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, 1997, through August 31, 1999.
    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, 1997, through August 31, 1999.

    Dated: June 27, 1997.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 97-17508 Filed 7-2-97; 8:45 am]
BILLING CODE 3410-02-P