[Federal Register Volume 61, Number 208 (Friday, October 25, 1996)]
[Rules and Regulations]
[Pages 55205-55206]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27457]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1137
[DA-96-13]
Milk in the Eastern Colorado 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 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.
EFFECTIVE DATES: The suspension to Sec. 1137.7 is effective from
September 1, 1996, through February 28, 1997. The suspensions to
Sec. 1137.12 are effective September 1, 1996, through August 31, 1997.
FOR FURTHER INFORMATION CONTACT: Clifford M. Carman, Marketing
Specialist, USDA/AMS/Dairy Division, Order Formulation Branch, Room
2971, 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 August 30, 1996; published
September 6, 1996 (61 FR 47092).
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 file with
the Secretary a petition stating that the order, any provisions 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.
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 milk marketings guideline of 326,000 pounds per month.
Although this guideline does not factor in additional monies that may
be received by dairy farmers, 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 June 1996, 429 dairy farmers were producers under
the Eastern Colorado milk order. Of these, all but 108 would be
considered small businesses, having less than 326,000 pounds of milk
marketings a month. Of the dairy farmers in the small business
category, 181 marketed less than 100,000 pounds of milk, 105 marketed
between 100,000 to 200,000 pounds, and 35 marketed between 200,000 to
326,000 pounds of milk during June.
There were 10 handlers operating 11 plants for the month of June
1996 which were pooled, or regulated, under the Eastern Colorado order.
The individual plants, for the most part, would meet
[[Page 55206]]
the Small Business Administration's definition of a small business,
having less than 500 employees. However, most of these plants are part
of larger businesses that operate multiple plants and meet the
definition of large entities on that basis.
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, as amended, 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 September 6, 1996 (61 FR 46214), 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 and no comments opposing the 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, 1996, through February 28, 1997:
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, 1996, through August 31, 1997: In
the first sentence of Sec. 1137.12(a)(1), the words ``from whom at
least three 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.
For the months of September 1996 through February 1997, the
restriction on the months when automatic pool plant status applies for
supply plants will be removed. For the months of September 1996 through
August 1997, 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.
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.
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.
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.
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. Two comments supporting the suspension 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 1137
Milk marketing orders.
For the reasons set forth in the preamble 7 CFR Part 1137, are
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, paragraph (b), the second sentence is amended by
suspending the words ``plant which has qualified as a'' and ``of March
through August'' for the months of September 1, 1996, through February
28, 1997.
Sec. 1137.12 [Suspended in part]
3. In Sec. 1137.12, paragraph (a)(1), the first sentence the words
``from whom at least three deliveries of milk are received during the
month at a distributing pool plant'' are suspended from September 1,
1996, through August 31, 1997.
4. In Sec. 1137.12, paragraph (a)(1), 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'' are suspended from September 1, 1996, through August
31, 1997.
Dated: October 17, 1996.
Terry Medley,
Acting Assistant Secretary, Marketing and Regulatory Programs.
[FR Doc. 96-27457 Filed 10-24-96; 8:45 am]
BILLING CODE 3410-02-P