[Federal Register Volume 62, Number 131 (Wednesday, July 9, 1997)]
[Rules and Regulations]
[Pages 36650-36651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17868]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1006

[DA-97-03]


Milk in the Upper Florida Marketing Area; Suspension of Certain 
Provisions of the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule; suspension.

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SUMMARY: This document suspends indefinitely certain provisions of the 
Upper Florida Federal milk marketing order. The suspension removes the 
standard that a cooperative association operating a plant have at least 
50 percent of the producer milk of its members received at pool 
distributing plants to retain its pool plant status. Florida Dairy 
Farmers Association, a cooperative association representing producers 
whose milk is pooled on the 3 Florida orders, requested the suspension. 
The suspension is necessary to prevent the uneconomical and inefficient 
movements of milk.

EFFECTIVE DATE: September 1, 1997.

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, e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION: Prior document in this proceeding:
    Notice of Proposed Suspension: Issued April 21, 1997; published 
April 24, 1997 (62 FR 19939).
    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

[[Page 36651]]

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 January 1997, the milk of 80 producers was pooled 
on the Upper Florida Federal milk order. Of these producers, 23 were 
below the 326,000-pound production guideline and are considered to be 
small businesses. A majority of these producers produce more than 
100,000 pounds per month. Of the total number of producers whose milk 
was pooled during that month, all were members of Florida Dairy Farmers 
Association.
    In January 1997, there were 2 handlers operating 2 plants under the 
Upper Florida order. One of these would be considered a small business.
    This rule suspends indefinitely part of a provision of the Upper 
Florida marketing order which specifies that a cooperative association 
have at least 50 percent of its members' producer milk received at pool 
distributing plants to retain its pool plant status. The suspension 
promotes orderly marketing of milk by permitting a plant operated by a 
cooperative association to qualify as a pool plant with minimal 
deliveries of milk by the cooperative to pool distributing plants in 
the market. This facilitates the shipment of surplus milk to the 
cooperative's plant, where it will then be concentrated and shipped to 
distant plants for its ultimate disposition. This rule lessens the 
regulatory impact of the order on certain milk handlers and tends 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.

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 Upper Florida marketing area.
    Notice of proposed rulemaking was published in the Federal Register 
on April 24, 1997 (62 FR 19939) concerning a proposed suspension of 
certain provisions of the order. Interested persons were afforded 
opportunity to file written data, views and arguments thereon. No 
comments were received.
    After consideration of all relevant material, including the 
proposal in the notice 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) In Sec. 1006.7, the introductory text of paragraph (c), the 
words ``50 percent or more of the''; and
    (2) In Sec. 1006.7, paragraph (c)(2).

Statement of Consideration

    This rule suspends indefinitely part of a provision of the Upper 
Florida marketing order which specifies that a cooperative association 
have at least 50 percent of its members' producer milk received at pool 
distributing plants to retain its pool plant status.
    The suspension was requested by Florida Dairy Farmers Association 
(FDFA), a cooperative association representing producers whose milk is 
pooled on the 3 Florida orders. FDFA contends that the suspension of 
the requirement would allow the continued pooling of the cooperative's 
Jacksonville, Florida, plant under the Upper Florida order irrespective 
of the quantity of producer milk received at pool distributing plants. 
With assurance of pooling, surplus producer milk from the Tampa Bay and 
Southeastern Florida marketing areas could be diverted to the 
Jacksonville plant for processing into concentrated milk and shipment 
to manufacturing plants. Also, in order to prevent the pooling of the 
Jacksonville plant under another Federal order, FDFA requested the 
suspension of Sec. 1006.7(c)(2), which would yield regulation of the 
plant to another Federal order if the plant met the other order's 
supply plant shipping requirements. With this paragraph suspended, 
however, the plant would remain regulated under the Upper Florida order 
even if it were to qualify as a pool plant under another order.
    In order to maintain the pooling of the cooperative association's 
manufacturing plant, a suspension of the pooling standard specifying 
that a cooperative association have 50 percent of the producer milk of 
its members received at pool distributing plants is reasonable. The 
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 assure that producers whose milk has long been 
associated with the 3 Florida marketing areas will continue to benefit 
from pooling and pricing under the order.

List of Subjects in 7 CFR Part 1006

    Milk marketing orders.

    For the reasons set forth in the preamble 7 CFR Part 1006 is 
amended as follows:

PART 1006--MILK IN THE UPPER FLORIDA MARKETING AREA

    1. The authority citation for 7 CFR Part 1006 continues to read as 
follows:

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

Sec. 1006.7  [Suspended in part]

    2. In Sec. 1006.7, the words ``50 percent or more of the'' in the 
introductory text of paragraph (c) and paragraph (c)(2) are suspended 
indefinitely.
    Dated: July 2, 1997.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 97-17868 Filed 7-8-97; 8:45 am]
BILLING CODE 3410-02-P