Milk in the Southwest Plains Marketing Area; Suspension of Certain Provisions of the Order

DEPARTMENT OF AGRICULTURE

7 CFR Part 1106

[DA-94-03]

Milk in the Southwest Plains 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 indefinitely certain portions of a

provision of the Southwest Plains Federal milk marketing order (Order

106), beginning on the date this document is published in the Federal

Register. The suspension will allow transfers of Class I fluid milk

products from a distributing plant to other plants regulated under

Order 106 to be counted as part of the distributing plant's route sales

for the purpose of determining the plant's pool status under the order.

The suspension was requested by Associated Milk Producers, Inc. (AMPI),

and Mid-America Dairymen, Inc. (Mid-America), who stated that it was

necessary to restore equity among producers supplying handlers

regulated under Order 106.

EFFECTIVE DATE: January 10, 1994.

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: Prior document in this proceeding: Notice of

Proposed Suspension: Issued November 23, 1993; published November 30,

1993 (58 FR 63120).

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 final rule would not have a

significant economic impact on a substantial number of small entities.

This suspension will lessen the opportunity for disorderly marketing

conditions and will tend to ensure that dairy farmers continue to have

their milk priced under the order and thereby receive the benefits that

accrue from such pricing.

The Department is issuing this rule in conformance with Executive

Order 12866.

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 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.

This order of suspension is issued pursuant to the provisions of

the Agricultural Marketing Agreement Act and the rules of practice and

procedure governing the formulation of marketing agreements and

marketing orders (7 CFR part 900).

Notice of proposed rulemaking was published in the Federal Register

on November 30, 1993 (58 FR 63120), concerning the proposed suspension

of certain words from the route disposition definition of Order 106.

The public was afforded the opportunity to comment on the notice by

submitting written data, views, and arguments by December 7, 1993. One

comment letter was received.

After consideration of all relevant material, including the

proposal in the notice and other available information, it is hereby

found and determined that the following provision of the order

regulating the handling of milk in the Southwest Plains marketing area

will not tend to effectuate the declared policy of the Act for an

indefinite period commencing with the publication of this document in

the Federal Register:

In Sec. 1106.3, the parenthetical phrase ``(except to a plant)''.

Statement of Consideration

This document will suspend certain words from the route disposition

definition of the order. The effect of this change will be to include

transfers of fluid milk products to other plants regulated under Order

106 in determining if the transferor plant meets the pool qualification

requirements specified in Sec. 1106.7(a) of the order.

According to Mid-America and AMPI, two cooperative associations

representing a substantial number of producers whose milk is pooled

under Order 106, a Tulsa, Oklahoma, handler receiving milk from non-

member producers is also supplied supplemental milk from cooperative

associations that pool milk on the Southwest Plains milk order. The

proponents argued that as a result of excluding transfers of fluid milk

products to other plants regulated under Order 106, the handler has

been a partially regulated plant in recent months and could be again in

the future. Mid-America and AMPI explained that, since the handler's

Class I utilization is higher than the market's average, the handler

has been able to pay its non-member producers a price in excess of the

order's blend price. In addition to the inequity resulting from this

price disparity, AMPI, during the month of September, was required to

depool milk that it had diverted from the Tulsa plant because the plant

otherwise would have failed to qualify as a pool plant during the month

of September. This resulted in additional financial loss to the

cooperative.

A letter supporting the suspension was filed on behalf of the

proponents. There were no comment letters received in opposition to the

suspension.

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;

(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 to interested parties,

and they were afforded opportunity to file written data, views, or

arguments concerning this suspension.

Therefore, good cause exists for making this order effective upon

publication in the Federal Register.

List of Subjects in 7 CFR Part 1106

Milk marketing orders.

For the reasons set forth in the preamble, title 7, part 1106 is

amended as follows:

PART 1106--MILK IN THE SOUTHWEST PLAINS MARKETING AREA

1. The authority citation for 7 CFR part 1106, continues to read as

follows:

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

674.

Sec. 1106.3 [Suspended]

2. In Sec. 1106.3 the phrase ``(except to a plant)'' is suspended.

Dated: January 3, 1994.

Patricia Jensen,

Acting Assistant Secretary.

[FR Doc. 94-420 Filed 1-7-94; 8:45 am]

BILLING CODE 3410-02-P