Milk in the Carolina, Georgia, Tennessee Valley, and Louisville- Lexington-Evansville Marketing Areas; Proposed Suspension of Certain Provisions of the Orders

DEPARTMENT OF AGRICULTURE

7 CFR Parts 1005, 1007, 1011, and 1046

[DA-95-06]

Milk in the Carolina, Georgia, Tennessee Valley, and Louisville-

Lexington-Evansville Marketing Areas; Proposed Suspension of Certain

Provisions of the Orders

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed suspension of rules.

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SUMMARY: This document invites written comments on a proposal that

would extend a suspension of certain provisions of the Carolina,

Georgia, Tennessee Valley, and Louisville-Lexington-Evansville Federal

milk orders from March 1, 1995, through February 28, 1996, or until the

conclusion of an amendatory proceeding that has been scheduled to deal

with these matters.

DATES: Comments are due no later than December 27, 1994.

FOR FURTHER INFORMATION CONTACT: Nicholas Memoli, Marketing Specialist,

USDA/AMS/Dairy Division, Order Formulation Branch, Room 2968, South

Building, P.O. Box 96456, Washington, DC. 20090-6456, (202) 690-1932.

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 action would

not have a significant economic impact on a substantial number of small

entities. This action would lessen the regulatory burden on small

entities by removing pricing disparities that are causing or could

cause financial hardship for certain regulated plants.

The Department is issuing this proposed action in conformance with

Executive Order 12866.

This proposed suspension has been reviewed under Executive Order

12778, Civil Justice Reform. This action is not intended to have a

retroactive effect. This action 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 Sec. 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 requesting a modification of the 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 of 1937, as amended (7 U.S.C. 601-

674), the suspension of the following provisions of the orders

regulating the handling of milk in the Carolina, Georgia, Tennessee

Valley, and Louisville-Lexington-Evansville marketing areas is being

considered for a 12-month period beginning March 1, 1995:

1. In Sec. 1005.7(d)(3) of the Carolina order, the words ``from'',

``there'', ``a greater quantity of route disposition, except filled

milk, during the month'', and ``than in this marketing area'';

2. In Sec. 1007.7(e)(3) of the Georgia order, the words ``, except

as provided in paragraph (e)(4) of this section,'';

3. In Sec. 1007.7 of the Georgia order, paragraph (e)(4);

4. In Sec. 1011.7(d)(3) of the Tennessee Valley order, the words

``from'', ``there'', ``a greater quantity of route disposition, except

filled milk, during the month'', and ``than in this marketing area'';

and

5. In Sec. 1046.2 of the Louisville-Lexington-Evansville order, the

word ``Pulaski''.

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

about the proposed suspension should send two copies of them to the

USDA/AMS/Dairy Division, Order Formulation Branch, Room 2968, South

Building, P.O. Box 96456, Washington, DC 20090-6456, by the 30th day

after publication of this notice in the Federal Register.

The comments that are sent will be made available for public

inspection in the Dairy Division during normal business hours (7 CFR

1.27(b)).

Statement of Consideration

This proposed suspension would extend an existing suspension that

has been in effect since March 1, 1994. This suspension allows a

distributing plant at Kingsport, Tennessee, that is located within the

Tennessee Valley marketing area and that meets all of the pooling

standards of the Tennessee Valley order to be regulated under that

order rather than the Carolina order despite the plant having greater

sales in the Carolina marketing area. It also allows a distributing

plant located at Somerset, Kentucky, that has been regulated under the

Tennessee Valley order to remain regulated there even if it has greater

sales in the Louisville-Lexington-Evansville (Order 46) marketing area.

In addition, the suspension allows a supply plant at Springfield,

Kentucky, that has been supplying the Somerset plant to remain pooled

under the Tennessee Valley order without having to make uneconomic

shipments of milk that it contends would be necessary to remain pooled

if the Southern Belle plant were regulated under Order 46.

The problems prompting the existing suspension of these provisions

were thoroughly explained in a suspension order issued on March 28,

1994 (published April 1, 1994 [59 FR 15315]). In that document, it was

noted that ``orderly marketing will be best preserved by adopting the

proposed suspension, for a 12-month period only, to allow the industry

time to develop proposals for a hearing to be held before the

suspension period expires.'' [emphasis added]

Due to significant changes that have occurred in these markets

within the past year, the Department was delayed in scheduling the

promised proceeding to hear industry proposals for resolving the

problems which lead to the suspension order. Although a hearing has now

been scheduled for January 4, 1995, to hear these proposals, this will

not allow sufficient time to evaluate the record and to extend the

suspension, if found to be warranted, by the time the current

suspension expires on February 28, 1995.

Advised of these facts, both Southern Belle Dairy Company and Land-

O-Sun Dairies, Inc., who were proponents of the existing suspension,

submitted requests to extend the current suspension until the

amendatory proceeding was concluded. This notice is in response to

those requests.

Accordingly, it may be appropriate to suspend the aforesaid

provisions from March 1, 1995, through February 28, 1996, or until such

earlier time as an order amending the aforesaid orders may be issued on

the basis of the hearing that has been scheduled for January 4, 1995.

List of Subjects in 7 CFR Parts 1005, 1007, 1011, and 1046

Milk marketing orders.

The authority citation for 7 CFR Parts 1005, 1007, 1011, and 1046

continues to read as follows:

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

674.

Dated: November 21, 1994.

Lon Hatamiya,

Administrator.

[FR Doc. 94-29090 Filed 11-23-94; 8:45 am]

BILLING CODE 3410-02-P