Milk in the Eastern Ohio-Western Pennsylvania Marketing Area; Proposed Temporary Revision of Certain Provisions of the Order

DEPARTMENT OF AGRICULTURE

7 CFR Part 1036

[DA-94-20]

Milk in the Eastern Ohio-Western Pennsylvania Marketing Area;

Proposed Temporary Revision of Certain Provisions of the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed temporary revision of rule.

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SUMMARY: This document invites written comments on a proposal to revise

the supply plant shipping standards under the Eastern Ohio-Western

Pennsylvania order for the months of September 1994 through February

1995. The proposal would reduce shipping percentages for pool supply

plants by 10 percentage points for each month during the requested

period. The temporary revision was requested by Brewster Dairy, Inc., a

proprietary handler who operates a pool supply plant. The handler

contends that the action is necessary to prevent inefficient and

uneconomic movements of milk.

DATES: Comments are due no later than September 2, 1994.

ADDRESSES: Comments (two copies) should be sent to USDA/AMS/Dairy

Division, Order Formulation Branch, room 2971, South Building, P.O. Box

96456, Washington, DC 20090-6456.

FOR FURTHER INFORMATION CONTACT: Constance M. Brenner, Marketing

Specialist, USDA/AMS/Dairy Division, Order Formulation Branch, room

2971, South Building, P.O. Box 96456, Washington, DC 20090-6456 (202)

720-2357.

SUPPLEMENTARY INFORMATION: 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 would not have a significant economic impact on a substantial

number of small entities. 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.

The Department of Agriculture (Department) is issuing this proposed

rule in conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12778,

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 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 law and request 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.

Notice is hereby given that, pursuant to the provisions of the

Agricultural Marketing Agreement Act and the provisions of

Sec. 1036.7(f) of the order, the temporary revision of certain

provisions of the order regulating the handling of milk in the Eastern

Ohio-Western Pennsylvania marketing area is being considered for the

months of September 1, 1994, through February 28, 1995.

All persons who desire to submit written data, views or arguments

about the proposed revision should send two copies of their views to

USDA/AMS/Dairy Division, Order Formulation Branch, room 2971, South

Building, P.O. Box 96456, Washington, DC 20090-6456 by the 7th day

after publication of this notice in the Federal Register. The period

for filing comments is limited to 7 days because a longer period would

not provide the time needed to complete the required procedures and

include September 1994 in the temporary revision period.

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 provisions proposed to be revised are the supply plant shipping

percentages for the months of September 1994 through February 1995. The

proposed action would reduce the amount of milk that supply plants must

ship to pool distributing plants by 10 percentage points.

Currently, the order provides that for a supply plant to be

considered a pool plant, a minimum percentage of the total quantity of

milk received at the supply plant must be transferred or diverted to

and physically received at pool distributing plants regulated under the

order. The minimum percentages are: 40 percent for September, October,

and November; 30 percent for December; and 35 percent for January and

February.

The Eastern Ohio-Western Pennsylvania order provides that the

Director of the Dairy Division may increase or decrease the percentage

delivery requirement by up to 10 percentage points if the Director

finds that such revision is necessary to obtain needed shipments or to

prevent uneconomic shipments.

The revision was requested by Brewster Dairy, Inc. (Brewster), a

proprietary handler who operates a pool supply plant regulated under

the order. Brewster contends that in Fall 1993 the plant was unable to

accept surplus distributing plant milk associated with Order 36 and

still meet supply plant qualifications. Consequently, milk from a

distributing plant located 10 miles from Brewster had to be diverted to

a manufacturing facility 92 miles away. At the same time, Brewster had

to procure surplus milk from greater distances to fulfill manufacturing

obligations. Brewster contends that this situation represents

inequitable and inefficient movements of milk for both supply and

distributing plants, undertaken to meet order shipping requirements.

Brewster asserts that the same inequitable and inefficient movements of

milk are expected again for Fall 1994. Thus, Brewster contends, a

reduction of supply plant shipping percentages is necessary to prevent

uneconomic and inefficient shipments of milk.

In view of the current supply and demand relationship, it may be

necessary to reduce the supply plant shipping percentage requirements

as proposed to provide for the efficient and economic marketing of milk

during the months of September 1, 1994, through February 28, 1994.

List of Subjects in 7 CFR Part 1036

Milk marketing orders.

PART 1036--[AMENDED]

The authority citation for 7 CFR Part 1036 continues to read as

follows:

Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-

674.

Dated: August 22, 1994.

Silvio Capponi, Jr.,

Deputy Director, Dairy Division.

[FR Doc. 94-21080 Filed 8-25-94; 8:45 am]

BILLING CODE 3410-02-P