[Federal Register Volume 61, Number 11 (Wednesday, January 17, 1996)]
[Rules and Regulations]
[Pages 1147-1149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-324]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 61, No. 11 / Wednesday, January 17, 1996 /
Rules and Regulations
[[Page 1147]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1005, 1011, and 1046
[Docket No. AO-388-A8 et al.; DA-94-12]
Milk in the Carolina, Tennessee Valley, and Louisville-Lexington-
Evansville Marketing Areas; Order Amending the Orders
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule amends the pooling standards of the Tennessee
Valley and Carolina orders; modifies the marketing areas of the
Tennessee Valley and Louisville-Lexington-Evansville orders; changes
the location adjustment under the Carolina order for plants located in
the Middle Atlantic marketing area; and changes the base-paying months
under the Carolina order. The amendments are based upon industry
proposals considered at a public hearing held on January 4, 1995. Each
amended order was approved by more than two-thirds of the producers
voting in the specified marketing area.
EFFECTIVE DATE: February 16, 1996.
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.
SUPPLEMENTARY INFORMATION: This administrative action is governed by
the provisions of Sections 556 and 557 of Title 5 of the United States
Code and, therefore, is excluded from the requirements of Executive
Order 12866.
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 rule will not have a
significant economic impact on a substantial number of small entities.
The amended order will promote more orderly marketing of milk by
producers and regulated handlers.
This final rule has been reviewed under Executive Order 12778,
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 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 the date of the entry of the ruling.
Prior documents in this proceeding:
Notice of Hearing: Issued November 21, 1994; published November 25,
1994 (59 FR 60574).
Recommended Decision: Issued August 17, 1995; published August 24,
1994 (60 FR 43986).
Final Decision: Issued December 4, 1995; published December 18,
1995 (60 FR 65023).
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the orders were issued and when they were
amended. The previous findings and determinations are hereby ratified
and confirmed, except where they may conflict with those set forth
herein.
(a) Findings. A public hearing was held upon certain proposed
amendments to the tentative marketing agreements and to the orders
regulating the handling of milk in the aforesaid marketing areas. The
hearing was held pursuant to the provisions of the Agricultural
Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the
applicable rules of practice and procedure (7 CFR Part 900).
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The said orders as hereby amended, and all the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) The parity prices of milk, as determined pursuant to section 2
of the Act, are not reasonable in view of the price of feeds, available
supplies of feeds, and other economic conditions which affect market
supply and demand for milk in the marketing areas. The minimum prices
specified in the orders, as hereby amended, are such prices as will
reflect the aforesaid factors, insure a sufficient quantity of pure and
wholesome milk, and be in the public interest; and
(3) The said orders, as hereby amended, will regulate the handling
of milk in the same manner as, and will be applicable only to persons
in the respective classes of industrial and commercial activity
specified in, marketing agreements upon which a hearing has been held.
(b) Determinations. It is hereby determined that:
(1) The refusal or failure of handlers (excluding cooperative
associations specified in Sec. 8c(9) of the Act) of more than 50
percent of the milk which is marketed within the aforesaid marketing
areas to sign a proposed marketing agreement tends to prevent the
effectuation of the declared policy of the Act;
(2) The issuance of this order amending the orders is the only
practical means pursuant to the declared policy of the Act of advancing
the interests of producers as defined in the orders as hereby amended;
and
(3) The issuance of the order amending the orders is favored by at
least two-thirds of the producers who during August 1995 were engaged
in the production of milk for sale in the aforesaid marketing areas.
List of Subjects in 7 CFR Part 1005, 1011, 1046
Milk marketing orders.
[[Page 1148]]
Order Relative to Handling
It is therefore ordered, that on and after the effective date
hereof, the handling of milk in each of the specified marketing areas
shall be in conformity to and in compliance with the terms and
conditions of the orders, as amended, and as hereby further amended, as
follows:
1. The authority citation for 7 CFR parts 1005, 1011, and 1046
continues to read as follows:
Authority: 7 U.S.C. 601-674.
PART 1005--MILK IN THE CAROLINA MARKETING AREA
2. In Sec. 1005.7, the reference ``(d)'' in the introductory text
is revised to read ``(e)'', in paragraph (b) the words ``Director of
the Dairy Division'' and ``Director'' are revised to ``market
administrator'' wherever they appear, paragraph (d) is redesignated as
paragraph (e) and revised, and a new paragraph (d) is added to read as
follows:
Sec. 1005.7 Pool plant.
* * * * *
(d) A plant located within the marketing area (other than a
producer-handler plant or a governmental agency plant) that meets the
qualifications described in paragraph (a) of this section regardless of
its quantity of route disposition in any other Federal order marketing
area.
(e) The term ``pool plant'' shall not apply to the following
plants:
(1) A producer-handler plant;
(2) A governmental agency plant;
(3) A plant with route disposition in this marketing area that is
located within the marketing area of another Federal order and that is
fully regulated under such order;
(4) A plant qualified pursuant to paragraph (a) of this section
which is not located within any Federal order marketing area but which
also meets the pooling requirements of another Federal order and from
which there is a greater quantity of route disposition, except filled
milk, during the month in such other Federal order marketing area than
in this marketing area; and
(5) A plant qualified pursuant to paragraph (b) of this section if
the plant has automatic pooling status under another Federal order or
if the plant meets the pooling requirements of another Federal order
during the month and makes greater qualifying shipments to plants
regulated under such other order than to plants regulated under this
order.
Sec. 1005.32 [Amended]
3. In Sec. 1005.32(a), the words ``March through June'' are revised
to read ``February through May'' wherever they appear.
4. In Sec. 1005.53, paragraph (a)(6) is redesignated as paragraph
(a)(7) and revised, and a new paragraph (a)(6) is added to read as
follows:
Sec. 1005.53 Plant location adjustments for handlers.
* * * * *
(a) * * *
(6) For a plant located within the Middle Atlantic Federal Order
Marketing Area (Part 1004), the adjustment shall be computed by
subtracting the base zone Class I price specified in Sec. 1005.50(a)
from the Class I price applicable at such plant under the Middle
Atlantic Federal Order; and
(7) For a plant located outside the areas specified in paragraphs
(a)(1) through (a)(6) of this section, the adjustment shall be a minus
2.5 cents for each 10 miles or fraction thereof (by the shortest hard-
surfaced highway distance as determined by the market administrator)
that such plant is from the nearer of the city halls in Greenville,
South Carolina, or Charlotte or Greensboro, North Carolina.
Sec. 1005.61 [Amended]
5. In Sec. 1005.61 paragraphs (a) introductory text and (a)(5), the
words ``July through February'' are revised to read ``June through
January'' and in paragraph (b) introductory text the words ``March
through June'' are revised to read ``February through May''.
Secs. 1005.90 and 1005.91 [Amended]
6. In Secs. 1005.90 and 1005.91, the words ``March through June''
are revised to read ``February through May'' wherever they appear.
Sec. 1005.93 [Amended]
7. In Sec. 1005.93 paragraph (b), the words ``March through June''
are revised to read ``February through May'' wherever they appear, the
words ``February 1'' are revised to read ``January 1'', and in
paragraph (e) introductory text the words ``March 1'' are revised to
read ``February 1''.
Sec. 1005.94 [Amended]
8. In Sec. 1005.94, the words ``February 1'' are revised to read
``January 1''.
PART 1011--MILK IN THE TENNESSEE VALLEY MARKETING AREA
9. Section 1011.2 is amended by revising paragraph (b) to read as
follows:
Sec. 1011.2 Tennessee Valley Marketing Area.
* * * * *
(b) In Kentucky, the counties of Bell, Breathitt, Clay, Harlan,
Jackson, Knott, Knox, Laurel, Leslie, Letcher, McCreary, Owsley, Perry,
Pulaski, Rockcastle, and Whitley.
* * * * *
10. In Sec. 1011.7, the reference ``(d)'' in the introductory text
is revised to read ``(e)'', paragraph (b) is revised, paragraph (d) is
redesignated as paragraph (e) and revised, and a new paragraph (d) is
added to read as follows:
Sec. 1011.7 Pool plant.
* * * * *
(b) A plant, other than a plant described in paragraph (a) of this
section, from which fluid milk products, except filled milk, are
shipped to plants described in paragraph (a) of this section subject to
the following additional conditions:
(1) During the months of August through November, January and
February, such shipments must equal not less than 60 percent (40
percent during the months of December and March through July) of the
total quantity of milk approved by a duly constituted regulatory agency
for fluid consumption that is received during the month at such plant
from handlers described in Sec. 1011.9(c) and (d) and from dairy
farmers, including milk that is diverted from the plant pursuant to
Sec. 1011.13 but excluding milk diverted to the plant;
(2) The operator of a plant described in this paragraph may include
milk diverted from the plant to plants described in paragraph (a) of
this section for up to one-half of the shipments required pursuant to
this paragraph;
(3) A plant which meets the shipping requirements specified in this
paragraph during the months of July through February shall be a pool
plant during the following months of March through June unless the milk
received at the plant does not continue to meet the requirements of a
duly constituted regulatory agency, the plant fails to meet a shipping
requirement instituted pursuant to paragraph (b)(4) of this section, or
a written application is filed by the plant operator with the market
administrator on or before the first day of any such month requesting
that the plant be designated a nonpool plant for such month and for
each subsequent month through June during which it would not otherwise
qualify as a pool plant; and
(4) The shipping requirements described in paragraph (b)(1) and
(b)(3) of this section may be increased or decreased up to 10
percentage points by the market administrator if he or she
[[Page 1149]]
finds that revision is necessary to obtain needed shipments or to
prevent uneconomic shipments. Before making such a finding, the market
administrator shall investigate the need for revision either at his or
her own initiative or at the request of interested persons. If the
investigation shows that a revision may be appropriate, the market
administrator shall issue a notice stating that the revision is being
considered and invite data, views, and arguments.
* * * * *
(d) A plant located within the marketing area (other than a
producer-handler plant or a governmental agency plant) that meets the
qualifications described in paragraph (a) of this section regardless of
its quantity of route disposition in any other Federal order marketing
area.
(e) The term ``pool plant'' shall not apply to the following
plants:
(1) A producer-handler plant;
(2) A governmental agency plant;
(3) A plant with route disposition in this marketing area that is
located within the marketing area of another Federal order and that is
fully regulated under such order;
(4) A plant qualified pursuant to paragraph (a) of this section
which is not located within any Federal order marketing area but which
also meets the pooling requirements of another Federal order and from
which there is a greater quantity of route disposition, except filled
milk, during the month in such other Federal order marketing area than
in this marketing area; and
(5) A plant qualified pursuant to paragraph (b) of this section if
the plant has automatic pooling status under another Federal order or
if the plant meets the pooling requirements of another Federal order
during the month and makes greater qualifying shipments to plants
regulated under such other order than to plants regulated under this
order.
Sec. 1011.13 [Amended]
11. In Sec. 1011.13 paragraph (e)(3), the words ``Director of the
Dairy Division'' and ``Director'' are revised to read ``market
administrator'' wherever they appear.
12. Section 1011.52(a)(3) is revised to read as follows:
Sec. 1011.52 Plant location adjustments for handlers.
(a) * * *
(3) For such milk which is physically received at a plant located
within the Kentucky counties of Bell, Breathitt, Clay, Harlan, Jackson,
Knott, Knox, Laurel, Leslie, Letcher, McCreary, Owsley, Perry, Pulaski,
Rockcastle, and Whitley, the Class I price shall be decreased by 32
cents; and
* * * * *
PART 1046--MILK IN THE LOUISVILLE-LEXINGTON-EVANSVILLE MARKETING
AREA
Sec. 1046.2 [Amended]
13. In Sec. 1046.2, in the list of Kentucky counties, the word
``Pulaski'' is removed.
Dated: January 2, 1996.
Michael V. Dunn,
Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 96-324 Filed 1-16-96; 8:45 am]
BILLING CODE 3410-02-P