[Federal Register Volume 64, Number 243 (Monday, December 20, 1999)]
[Rules and Regulations]
[Pages 70985-70986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32905]



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  Federal Register / Vol. 64, No. 243 / Monday, December 20, 1999 / 
Rules and Regulations  

[[Page 70985]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1032

[DA-00-02]


Milk in the Southern Illinois-Eastern Missouri 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 certain sections of the Southern 
Illinois-Eastern Missouri Federal milk marketing order (Order 32). The 
suspension removes a portion of the pool supply plant definition of 
Order 32. The action was requested by Prairie Farms Dairy, Inc. 
(Prairie Farms), and is necessary to prevent inefficient movements of 
milk and to ensure that producers historically associated with Order 32 
will continue to have their milk priced and pooled under the order.

EFFECTIVE DATE: December 1, 1999, through December 31, 1999.

FOR FURTHER INFORMATION CONTACT: Nicholas Memoli, Marketing Specialist, 
USDA/AMS/Dairy Programs, 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 November 23, 1999; published 
December 1, 1999 (64 FR 67201).
    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.
    During August 1999, 1,312 dairy farmers were producers under Order 
32. Of these producers, 1,277 producers (i.e., 97%) were considered 
small businesses. For the same month, 10 handlers were pooled under 
Order 32, of which three were considered small businesses.
    The supply plant shipping standard is designed to ensure that the 
market's fluid needs will be met. The suspension will allow a supply 
plant operated by a cooperative association that delivered milk to 
Order 32 pool distributing plants during each of the months of 
September 1998 through August 1999 to meet the Order's pool supply 
plant standard by shipping at least 25 percent of its milk to pool 
distributing plants during the month of December 1999.
    Marketing conditions in Order 32 indicate that there should be a 
sufficient amount of local milk available during the requested 
suspension period to supply the fluid needs of the market. The 
suspension should reduce or eliminate the need to make uneconomical and 
inefficient movements of milk simply to meet the Order's supply plant 
shipping standard. Thus, 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.
    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 Southern Illinois-Eastern Missouri 
marketing area.

Statement of Consideration

    This rule suspends a portion of the pool supply plant definition of 
the Southern Illinois-Eastern Missouri Federal milk marketing order for 
the month of December 1999. The action allows a plant operated by a 
cooperative association to qualify as a pool supply plant by shipping 
at least 25 percent of its milk to pool distributing plants during 
December 1999 if such plant delivered milk to Order 32 pool 
distributing plants during each of the immediately preceding months of 
September 1998 through August 1999. Without the suspension, such plants 
would have to meet the minimum 25 percent pool supply plant standard 
and at least 75 percent of the total producer milk marketed in that 12-
month period would have to have been delivered or

[[Page 70986]]

physically received at pool distributing plants to qualify as a pool 
supply plant.
    In Prairie Farms' letter requesting the suspension, the cooperative 
indicates that they currently operate processing plants in Carlinville, 
Olney, and Quincy, Illinois, and a multi-product plant in Granite City, 
Illinois, which are all regulated under the Southern Illinois-Eastern 
Missouri order. Prairie Farms notes that, from fiscal year 1998 to 
fiscal year 1999, milk processed at their Order 32 plants was 
approximately 6 percent higher and milk production of their member 
producers also increased about 8 percent. Based on current market 
trends and experiences in prior years, the cooperative expects an 
increase in milk production from its member producers during December 
1999. Accordingly, it anticipates having a problem pooling all of its 
member producers' milk and the milk of its suppliers during the 
proposed suspension period.
    Prairie Farms states that the suspension would provide some relief 
for December 1999 and prevent large amounts of milk from being 
disassociated with the order. The cooperative contends that the action 
is necessary to prevent inefficient movements of milk and to ensure 
that producers historically associated with Order 32 will continue to 
have their milk priced and pooled under the order. The cooperative 
points out that a portion of the supply plant provision was suspended 
in December 1994 and January 1995 for virtually the same reasons.
    A notice of proposed rulemaking was published in the Federal 
Register on December 1, 1999 (64 FR 67201), concerning the proposed 
suspension. Interested persons were afforded an opportunity to file 
written data, views and arguments thereon. One comment letter, from 
Land O'Lakes, Inc., was received. Land O'Lakes, stated that it 
supported the proposed suspension and that their ability to keep their 
milk pooled under the Southern Illinois order would be jeopardized 
without it. No comments were received in opposition to the suspension.
    The letter from Prairie Farms requesting this suspension requested 
a 2-month suspension period, from December 1999 through January 2000. 
This 2-month suspension period was supported in the data, views, and 
comments submitted by Prairie Farms and Land O'Lakes. However, on 
December 8, 1999, the Department issued an order implementing 11 new 
consolidated Federal orders on January 1, 2000. Accordingly, there is 
no reason to suspend provisions from the Southern Illinois-Eastern 
Missouri order for the month of January 2000 because that order will 
cease to exist on January 1, 2000.
    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 Order 32 marketing area will continue to benefit 
from pooling and pricing under the order. With the suspension, Order 32 
supply plants will still be required to serve the Class I needs of the 
market. However, the suspension should reduce or eliminate the need to 
make expensive and inefficient movements of milk simply to meet the 
Order's supply plant shipping standard.
    After consideration of all relevant material, including the 
proposal in the notice, and other available information, it is hereby 
found and determined that for the period of December 1, 1999, through 
December 31, 1999, the following provision of the order does not tend 
to effectuate the declared policy of the Act:
    In Sec. 1032.7(b), the words ``and 75 percent of the total producer 
milk marketed in that 12-month period by such cooperative association 
was delivered'' and the words ``and physically received at''.
    It is hereby found and determined that thirty days' notice of the 
effective date hereof is impractical, unnecessary and contrary to the 
public interest in that:
    (a) The suspension is necessary to reflect current marketing 
conditions and to assure orderly marketing conditions in the marketing 
area, in that such rule is necessary to permit the continued pooling of 
the milk of dairy farmers who have historically supplied the market 
without the need for making costly and inefficient movements of milk;
    (b) This suspension does not require of persons affected 
substantial or extensive preparation prior to the effective date; and
    (c) Notice of proposed rulemaking was given interested parties and 
they were afforded opportunity to file written data, views or arguments 
concerning this suspension. One comment was received in support of the 
action; none were received in opposition to it.
    Therefore, good cause exists for making this order effective less 
than 30 days from the date of publication in the Federal Register.

List of Subjects in 7 CFR Part 1032

    Milk marketing orders.

    For the reasons set forth in the preamble, 7 CFR part 1032 is 
amended as follows:

PART 1032--MILK IN THE SOUTHERN ILLINOIS-EASTERN MISSOURI MARKETING 
AREA

    1. The authority citation for 7 CFR part 1032 continues to read as 
follows:

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


Sec. 1032.7  [Suspended in part]

    2. In Sec. 1032.7 paragraph (b), the words ``and at least 75 
percent of the total producer milk marketed in that 12-month period by 
such cooperative association was delivered'' and the words ``and 
physically received at'' are suspended effective December 1, 1999, 
through December 31, 1999.

    Dated: December 14, 1999.
Richard M. McKee,
Deputy Administrator, Dairy Programs.
[FR Doc. 99-32905 Filed 12-17-99; 8:45 am]
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