Milk in the New Mexico-West Texas Marketing Area; Notice of Proposed Suspension of Certain Provisions of the Order

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 majority 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

insure 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 August 21, 1995.

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.

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 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 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, 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, 1995, through September 30, 1997:

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 20090-6456, 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 1995 through September 1997. The current suspension will

expire September 30, 1995.

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

[[Page 37374]]

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 order can be achieved through the

formal rulemaking process.

The cooperative states that the continuation of the current

suspension is necessary to insure 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, 1995, through September 30, 1997.

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: July 14, 1995.

Lon Hatamiya,

Administrator, Agricultural Marketing Service.

[FR Doc. 95-17861 Filed 7-19-95; 8:45 am]

BILLING CODE 3410-02-P