Milk in the Eastern Colorado Marketing Area; Notice of Proposed Suspension of Certain Provisions of the Order

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1137

[DA-95-21]

Milk in the Eastern Colorado Marketing Area; Notice of Proposed

Suspension of Certain Provisions of the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed suspension of rule.

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SUMMARY: This document invites written comments on a proposal to

suspend certain performance standards of the Eastern Colorado Federal

milk order. The suspension was requested by Mid-America Dairymen, Inc.,

a cooperative association that supplies milk for the market's fluid

needs. The suspension was requested to prevent uneconomic milk

movements that otherwise would be required to maintain pool status for

milk of producers who have been historically associated with the order.

DATES: Comments are due no later than August 17, 1995.

ADDRESSES: Comments (two copies) should be filed with the USDA/AMS/

Dairy Division, Order Formulation Branch, Room 2968, 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

2968, 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

action would not have a significant economic impact on a substantial

number of small entities. Such action 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.

[[Page 38768]]

The Department is issuing this proposed rule in conformance with

Executive Order 12866.

This proposed suspension 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, 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

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 Act,

the suspension of the following provisions of the order regulating the

handling of milk in the Eastern Colorado marketing area is being

considered:

1. For the months of September 1, 1995, through February 29, 1996:

In Sec. 1137.7(b), the second sentence is amended by suspending the

words ``plant which has qualified as a'' and ``of March through

August''; and

2. For the months of September 1, 1995, through August 31, 1996: In

Sec. 1137.12(a)(1), the first sentence is amended by suspending the

words ``from whom at least three deliveries of milk are received during

the month at a distributing pool plant''; and in the second sentence

``30 percent in the months of March, April, May, June, July, and

December and 20 percent in other months of'', and the word

``distributing''.

All persons who want to send written data, views or arguments about

the proposed suspension should send two copies to USDA/AMS/Dairy

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

96456, Washington, DC 20090-6456, by the 20th day after publication of

this notice in the Federal Register. The period for filing comments is

limited to 20 days because a longer period would not provide the time

needed to complete the required procedures before the requested

suspension is to be effective.

All written submissions made pursuant to this notice will be made

available for public inspection in the Dairy Division during normal

business hours (7 CFR 1.27(b)).

Statement of Consideration

The proposed rule would suspend certain portions of the pool plant

and producer definitions of the Eastern Colorado order. The proposed

suspension would make it easier for handlers to qualify milk for

pooling under the order.

The proposed suspension was requested by Mid-America Dairyman, Inc.

(Mid-Am), a cooperative association that has pooled milk of dairy

farmers on the Eastern Colorado order for several years. Mid-Am has

requested the suspension to prevent the uneconomic and inefficient

movement of milk for the sole purpose of pooling the milk of producers

who have been historically associated with the Eastern Colorado order.

Mid-Am requests, for the months of September 1995 through February

1996, the removal of the restriction on the months when automatic pool

plant status applies for supply plants. Mid-Am also proposes that, for

the months of September 1995 through August 1996, the touch-base

requirement not apply and the diversion allowance for cooperatives be

raised.

These provisions have been suspended previously in order to

maintain the pool status of producers who have historically supplied

the fluid needs of Eastern Colorado distributing plants. Mid-Am states

that the marketing conditions that justified the prior suspensions

continue to exist.

Mid-Am asserts that they have made a commitment to meet the fluid

milk requirements of distributing plants if the suspension request is

granted. Without the suspension, Mid-Am contends that it will be

necessary to ship milk from distant farms to Denver-area bottling

plants to qualify milk for pooling. The distant milk will displace

locally-produced milk that would then have to be shipped from the

Denver area to manufacturing plants located in outlying areas.

In addition, Mid-Am maintains that ample supplies of locally-

produced milk that can be delivered directly to distributing plants

will be available to meet the market's fluid needs without requiring

shipments from supply plants. Mid-Am also claims that neither the

elimination of the touch-base requirement for producers nor the

increase in the amount of milk that can be diverted to nonpool plants

by a cooperative should jeopardize the needs of the market's fluid

processors.

Accordingly, it may be appropriate to suspend the aforesaid

provisions for the time periods stated.

List of Subjects in 7 CFR Part 1137

Milk marketing orders.

The authority citation for 7 CFR Part 1137 continues to read as

follows:

Authority: 7 U.S.C. 601-674.

Dated: July 24, 1995.

Lon Hatamiya,

Administrator.

[FR Doc. 95-18593 Filed 7-27-95; 8:45 am]

BILLING CODE 3410-02-P