[Federal Register Volume 60, Number 152 (Tuesday, August 8, 1995)]
[Rules and Regulations]
[Pages 40260-40262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19461]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1126
[DA-95-16]
Milk in the Texas Marketing Area; Suspension of Certain
Provisions of the Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Suspension of rule.
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SUMMARY: This document continues the suspension of segments of the pool
plant and producer milk definitions of the Texas order for a two-year
period. Associated Milk Producers, Inc., a cooperative association that
represents producers who supply milk to the market, requested
continuation of the suspension. Continuation of this suspension is
necessary to insure that dairy farmers who have historically supplied
the Texas market will continue to have their milk priced under the
Texas order without incurring costly and inefficient movements of milk.
EFFECTIVE DATE: August 1, 1995, through July 31, 1997.
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.
SUPPLEMENTARY INFORMATION: Prior document in this proceeding:
Notice of Proposed Suspension: Issued May 26, 1995; published June
2, 1995 (60 FR 28745).
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 proposed rule will not have a
significant economic impact on a substantial number of small entities.
This rule will tend 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.
The Department is issuing this rule in conformance with Executive
Order 12866.
This suspension of rule has been reviewed under Executive Order
12778, Civil Justice Reform. This rule is not intended to have a
retroactive effect and 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 date of the entry of the ruling.
This order of suspension is issued pursuant to the provisions of
the Act, as amended, and the rules of practice and procedure governing
the formulation of marketing agreements and marketing orders (7 CFR
part 900).
Notice of proposed rulemaking was published in the Federal Register
(60 FR 28745) on June 2, 1995, 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 for the months of August 1, 1995, through
July 31, 1997, the following provisions of the order do not tend to
effectuate the declared policy of the Act:
1. In section 1126.7(d) introductory text, the words ``during the
months of
[[Page 40261]]
February through July'' and the words ``under paragraph (b) or (c) of
this section''.
2. In section 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 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 section 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 section 1126.13, paragraph (e)(2).
5. In section 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;''.
Statement of Consideration
This rule continues the suspension of segments of the pool plant
and producer milk provisions under the Texas order. This suspension
will be in effect from August 1, 1995, through July 31, 1997. The
current suspension will expire July 31, 1995. This rule continues the
suspension of: (1) The 60 percent delivery standard for pool plants
operated by cooperatives; (2) the diversion limitation applicable to
cooperative associations; (3) the limits on the amount of milk that a
pool plant operator may divert to nonpool plants; (4) the shipping
standards that must be met by supply plants to be pooled under the
order; and (5) the individual producer performance standards that must
be met in order for a producer's milk to be eligible for diversion to a
nonpool plant.
The order permits a cooperative association plant located in the
marketing area to be a pool plant if at least 60 percent of the
producer milk of members of the cooperative association is physically
received at pool distributing plants during the month. In addition, a
cooperative association may divert to nonpool plants up to one-third of
the amount of milk that the cooperative causes to be physically
received during the month at handlers' pool plants. The order also
provides that the operator of a pool plant may divert to nonpool plants
not more than one-third of the milk that is physically received during
the month at the handler's pool plant. This suspension continues to
inactivate the 60 percent delivery standard for plants operated by a
cooperative association and removes the diversion limitations
applicable to a cooperative association and to the operator of a pool
plant.
The order also provides for regulating a supply plant each month in
which it ships a sufficient percentage of its receipts to distributing
plants. The order provides for pooling a supply plant that ships 15
percent of its milk receipts during August and December and 50 percent
of its receipts during September through November and January. A supply
plant that is pooled during each of the immediately preceding months of
September through January is pooled under the order during the
following months of February through July without making qualifying
shipments to distributing plants. This suspension continues the current
suspension of these performance standards for supply plants that were
regulated under the Texas order during each of the immediately
preceding months of September through January.
The order also specifies that the milk of each producer must be
physically received at a pool plant in order to be eligible for
diversion to a nonpool plant. During the months of September through
January, 15 percent of a producer's milk must be received at a pool
plant for diversion eligibility. This rule continues to suspend these
requirements.
Renewal of the suspension was requested by Associated Milk
Producers, Inc., a cooperative association that represents a
substantial number of dairy farmers who supply the Texas market. The
cooperative stated that marketing conditions have not changed since the
provisions were suspended in 1993 or since March 1995 when the
suspension was expanded to include all of paragraph (e)(2), and
therefore should be continued until restructuring of the order can be
achieved through the formal rulemaking process.
Continuation of the current suspension is necessary to insure that
dairy farmers who have historically supplied the Texas market will
continue to have their milk priced under the Texas order, thereby
receiving the benefits that accrue from such pooling. In addition, the
suspension will continue to provide handlers the flexibility needed to
move milk supplies in the most efficient manner and to eliminate costly
and inefficient movements of milk that would be made solely for the
purpose of pooling the milk of dairy farmers who have historically
supplied the market.
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. No comments were received.
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 1126
Milk marketing orders.
For the reasons set forth in the preamble, the following provisions
in Title 7, part 1126, are amended as follows:
PART 1126--MILK IN THE TEXAS MARKETING AREA
1. The authority citation for 7 CFR Part 1126 is revised to read as
follows:
Authority: 7 U.S.C. 601-674.
Sec. 1126.7 [Suspended in part]
2. 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'' are suspended.
3. 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 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'' are suspended.
[[Page 40262]]
Sec. 1126.13 [Suspended in part]
4. 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'' are suspended.
5. In Sec. 1126.13, paragraph (e)(2) is suspended.
6. 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;'' is suspended.
Dated: August 1, 1995.
Patricia Jensen,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 95-19461 Filed 8-7-95; 8:45 am]
BILLING CODE 3410-02-P