Milk in the Southern Illinois-Eastern Missouri Marketing Area; Suspension of Certain Provisions of the Order

DEPARTMENT OF AGRICULTURE

7 CFR Part 1032

[DA-95-04]

Milk in the Southern Illinois-Eastern Missouri 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 a portion of the supply plant shipping

requirement of the Southern Illinois-Eastern Missouri Federal milk

marketing order (Order 32) for the months of December 1994 and January

1995. The suspension is necessary to ensure that producers historically

associated with Order 32 will continue to have their milk pooled under

the order without having to move milk uneconomically.

EFFECTIVE DATE: December 1, 1994, through January 31, 1995.

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 21, 1994; published November 25,

1994 (59 FR 60573).

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 rule will not have a

significant economic impact on a substantial number of small entities.

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.

The Department is issuing this final 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 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 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, [[Page 321]] 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 order regulating the

handling of milk in the Southern Illinois-Eastern Missouri marketing

area.

Notice of proposed rulemaking was published in the Federal Register

on November 25, 1994 (59 FR 60573), concerning the proposed suspension

of a portion of the supply plant shipping requirement for Order 32. The

public was afforded the opportunity to comment on the notice by

submitting written data, views, and arguments by December 2, 1994. Two

comment letters supporting the proposed suspension were received.

After consideration of all relevant material, including the

proposal in the notice, the comment received, and other available

information, it is hereby found and determined that for the period of

December 1, 1994, through January 31, 1995, the following provision of

the order does not tend to effectuate the declared policy of the Act:

In Sec. 1032.7(b), the words ``and at least 75 percent of the total

producer milk marketed in that 12-month period by such cooperative

association was delivered'' and the words ``and physically received

at''.

Statement of Consideration

This document will suspend a portion of the supply plant shipping

requirement for a cooperative association that operates a supply plant

under Order 32. It will permit a supply plant operated by a cooperative

association to qualify as a pool plant if the cooperative shipped 25

percent of the plant's total producer receipts to pool distributing

plants during the month and milk from the plant was delivered to a pool

distributing plant during each of the immediately preceding months of

September through August. It removes a requirement that the cooperative

must have shipped 75 percent of its milk to pool distributing plants

during the September through August period.

The suspension was requested by Prairie Farms, a dairy farmer

cooperative based in Carlinville, Illinois, which owns and operates

four fluid milk processing plants and a cultured product/supply plant

regulated under the Southern Illinois-Eastern Missouri Federal milk

order. These plants are supplied by Prairie Farm's own member dairy

farmers and balanced by four cooperative associations, two of which

operate supply plants.

Prairie Farms indicates that for recent months its producer milk at

its plants is about 12 to 14 percent higher than the same period in

1993 from approximately the same number of producers. It states that

the increased production from its members--primarily due to improved

growing conditions that resulted in an abundant supply of high quality

feed--has caused it to reduce purchases from other cooperative

associations. As a result, it states that two pool supply plants

operated by the cooperative associations barely met the shipping

requirements for the month of October. Prairie Farms anticipates that a

similar situation will occur in November and expects the problem to

worsen in the months of December 1994 and January 1995.

Mid-America Dairymen, Inc., and Wisconsin Dairies, a cooperative

which operates an Order 32 supply plant located in Waukon, Iowa, filed

letters supporting the proposed suspension.

Wisconsin Dairies indicates that it has been supplying milk to

Prairie Farms from the Waukon plant for 27 years. The cooperative

states that shipments to Prairie Farms in October 1994 were less than

55 percent of plant receipts, compared to 66 percent during October of

1993. It states that it will be impossible for it to ship the required

40 percent in December and 50 percent in January without costly

backhauls that would be difficult to justify.

The suspension request should be granted. It will continue to

require Order 32 supply plants to serve the market, but at a level that

should reduce or eliminate the need to make expensive and inefficient

movements of milk simply to meet the supply plant shipping requirement.

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 less

than 30 days from the date of publication in the Federal Register.

List of Subjects in 7 CFR Part 1032

Milk marketing orders.

For the reasons set forth in the preamble, Title 7, Part 1032, is

amended as follows:

PART 1032--MILK IN THE SOUTHERN ILLINOIS-EASTERN MISSOURI MARKETING

AREA

1. The authority citation for 7 CFR, Part 1032, continues to read

as follows:

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

674.

Sec. 1032.7 [Suspended in part]

2. In Sec. 1032.7(b), the words ``and at least 75 percent of the

total producer milk marketed in that 12-month period by such

cooperative association was delivered'' and the words ``and physically

received at'' are suspended for the period of December 1, 1994, through

January 31, 1995.

Dated: December 23, 1994

Patricia Jensen,

Acting Assistant Secretary, Marketing and Regulatory Programs.

[FR Doc. 95-157 Filed 1-3-95; 8:45 am]

BILLING CODE 3410-02-P