[Federal Register Volume 62, Number 92 (Tuesday, May 13, 1997)]
[Proposed Rules]
[Pages 26257-26258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12501]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1138
[DA-97-07]
Milk in the New Mexico-West Texas Marketing Area; Notice of
Proposed Suspension of Certain Provisions of the Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed suspension of rule.
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SUMMARY: This document invites written comments on a proposal that
would continue the suspension of certain segments of the pool plant and
producer milk definitions of the New Mexico-West Texas order for a two-
year period. Associated Milk Producers, Inc. (AMPI), a cooperative
association that represents a substantial number of the producers who
supply milk to the market, has requested continuation of the
suspension. The cooperative asserts that continuation of the suspension
is necessary to ensure that dairy farmers who have historically
supplied the New Mexico-West Texas order will continue to have their
milk priced under the order without incurring costly and inefficient
movements of milk.
DATES: Comments are due no later than June 12, 1997.
ADDRESSES: Comments (two copies) should be filed with the USDA/AMS/
Dairy Division, Order Formulation Branch, Room 2971, South Building,
P.O. Box 96456, Washington, DC 20090-6456.
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, e-mail address: Clifford __ M __ C[email protected].
SUPPLEMENTARY INFORMATION: The Department is issuing this proposed rule
in conformance with Executive Order 12866.
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have a retroactive
effect. If adopted, this proposed rule will not preempt any state or
local laws, regulations, or policies, unless they present an
irreconcilable conflict with the 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 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
proposed 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.
For the month of March 1997, the milk of 174 producers was pooled
on the New Mexico-West Texas Federal milk order. Of these producers, 26
producers were below the 326,000-pound production guideline and are
considered small businesses. During this same period, there were 19
handlers operating pool plants under the New Mexico-West Texas order.
Twelve of these handlers would be considered small businesses.
The proposed suspension would continue the current suspension of
segments of the pool plant and producer milk definitions under the New
Mexico-West Texas order. The provisions proposed for continued
suspension limit the pooling of diverted milk. This rule would lessen
the regulatory impact of the order on certain milk handlers and would
tend to ensure that dairy farmers would continue to have their milk
priced under the order and thereby receive the benefits that accrue
from such pricing.
Interested parties are invited to submit comments on the probable
regulatory and informational impact of this proposed rule on small
entities. Also, parties may suggest modifications of this proposal for
the purpose of tailoring their applicability to small businesses.
Proposed Rule
Notice is hereby given that, pursuant to the provisions of the
Agricultural Marketing Agreement Act, the suspension of the following
provisions of the order regulating the handling of milk in the New
Mexico-West Texas marketing area is being considered for the months of
October 1, 1997, through September 30, 1999:
1. In Sec. 1138.7, paragraph (a)(1), the words ``including producer
milk diverted from the plant,'';
2. In Sec. 1138.7, paragraph (c), the words ``35 percent or more of
the producer''; and
3. In Sec. 1138.13(d), paragraphs (1), (2), and (5).
All persons who want to submit written data, views or arguments
about the proposed suspension should send two copies of their views to
the USDA/AMS/Dairy Division, Order Formulation Branch, Room 2971, South
Building, P.O. Box 96456, Washington, DC 20090-
[[Page 26258]]
6456, by the 30th day after publication of this notice in the Federal
Register.
All written submissions made pursuant to this notice will be made
available for public inspection in the Dairy Division during regular
business hours (7 CFR 1.27(b)).
Statement of Consideration
The proposed suspension would continue the current suspension of
segments of the pool plant and producer milk definitions under the New
Mexico-West Texas order. The provisions that are suspended limit the
pooling of diverted milk. The proposed suspension would be in effect
from October 1997 through September 1999. The current suspension will
expire September 30, 1997.
The proposed suspension would continue the suspension of the
following:
1. The requirement that milk diverted to a nonpool plant be
considered a receipt at the distributing plant from which it was
diverted;
2. The requirement that a cooperative must deliver at least 35
percent of its milk to pool distributing plants in order to pool a
plant that the cooperative operates which is located in the marketing
area and is neither a distributing plant nor a supply plant;
3. The requirement that a producer must deliver one day's
production to a pool plant during the months of September through
January to be eligible to be diverted to a nonpool plant;
4. The provision that limits a cooperative's diversions to nonpool
plants to an amount equal to the milk it caused to be delivered to, and
physically received at, pool plants during the month; and
5. The provision that excludes from the pool milk diverted from a
pool plant to the extent that it would cause the plant to lose its
status as a pool plant.
The continuation of the current suspension was requested by
Associated Milk Producers, Inc., a cooperative association that
represents a substantial number of dairy farmers who supply the New
Mexico-West Texas market. The cooperative stated that marketing
conditions have not changed since the provisions were suspended in
1993, and therefore should be continued until restructuring of the
Federal order program is achieved as mandated in the 1996 Farm Bill.
The cooperative states that the continuation of the current
suspension is necessary to ensure that dairy farmers who have
historically supplied the New Mexico-West Texas market will continue to
have their milk priced under this order. In addition, they maintain
that the suspension would 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.
Accordingly, it may be appropriate to suspend the aforesaid
provisions from October 1, 1997, through September 30, 1999.
List of Subjects in 7 CFR Part 1138
Milk marketing orders.
The authority citation for 7 CFR Part 1138 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Dated: May 7, 1997.
Richard M. McKee,
Director, Dairy Division.
[FR Doc. 97-12501 Filed 5-12-97; 8:45 am]
BILLING CODE 3410-02-P