Milk in the Central Illinois Marketing Area; Suspension of Certain Provisions of the Order

DEPARTMENT OF AGRICULTURE

7 CFR Part 1050

[DA-95-09]

Milk in the Central Illinois 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 the aggregate limits on the amount of

producer milk that may be diverted from a pool plant under the Central

Illinois Federal milk marketing order for an indefinite period

beginning with the month of January 1995. The proposal was submitted by

Prairie Farms Dairy, Inc., and Associated Milk Producers, Inc. Both

cooperatives contend the suspension is necessary to ensure that

producers historically associated with the market will continue to have

their milk pooled under the order without having to move milk

uneconomically.

EFFECTIVE DATE: February 8, 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 December 28, 1994; published

January 4, 1995 (60 FR 379).

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 the law and requesting 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

[[Page 7435]] 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 of the order regulating

the handling of milk in the Central Illinois marketing area.

Notice of proposed rulemaking was published in the Federal Register

on January 4, 1995 (60 FR 379), concerning a proposed suspension of the

aggregate diversion limits for a pool distributing plant regulated

under Order 50. Interested persons were afforded opportunity to file

written data, views and arguments thereon. No comments were received.

After consideration of all relevant material, including the

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

found and determined that for an indefinite period beginning January 1,

1995, the following provision of the order does not tend to effectuate

the declared policy of the Act:

In Sec. 1050.13(d)(2), the words ``: Provided, That the total

quantity of producer milk diverted does not exceed 35 percent of the

physical receipts of producer milk at the handler's pool plant during

the month, exclusive of milk of producers who are members of a

cooperative association that is diverting milk and the milk of other

producers that is diverted pursuant to paragraph (d)(3) of this

section''.

Statement of Consideration

This rule suspends the aggregate limit on the amount of milk that

may be diverted from a pool plant during the months of August through

April. At the present time, for each day's production of a producer's

milk that is delivered to a pool plant during these months, another

day's production may be diverted to a nonpool plant. However, in

addition to this individual producer limit, there is an aggregate limit

of 35 percent that applies to the total amount of milk that a pool

plant operator may divert during the month. The suspension removes this

35 percent aggregate limit, effectively increasing the aggregate limit

to 50 percent of a pool plant operator's total producer receipts during

the month.

In their letter requesting the suspension, Prairie Farms Dairy,

Inc. (Prairie Farms) and the Morning Glory Farms region of Associated

Milk Producers, Inc. (AMPI), explained that Prairie Farms now operates

the only distributing plant under the Central Illinois order (Order 50)

and that both cooperatives supply milk to this plant, which is located

in Peoria. For several reasons, including the availability of abundant

quantities of good quality feed, milk production is up substantially in

recent months compared to the same period of last year. This has

resulted in both cooperatives having to divert additional milk to

nearby unregulated manufacturing plants on weekends, holidays, and

other days when the Peoria plant is not in operation.

Prairie Farms and AMPI state that the suspension will allow them to

continue to balance the supply of milk needed at the Peoria plant while

at the same time eliminate the need to haul milk in and out of the

plant merely to keep their milk pooled under the order.

Market statistics indicate that the average daily milk marketed per

farm in the Central Illinois marketing area during August through

November 1994 was about 300 pounds greater than for the same period in

1993. This increase in production, in conjunction with the single pool

plant outlet available in this market, supports a suspension of the

aggregate diversion limitations for an indefinite period so that

producers whose milk has long been associated with the Central Illinois

marketing area will continue to benefit from pooling and pricing under

the order.

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, in that such rule is necessary to permit the continued pooling of

the milk of dairy farmers who have historically supplied the market

without the need for making costly and inefficient movements of milk;

(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 interested parties and

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

concerning this suspension. No comments were received.

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 1050

Milk marketing orders.

For the reasons set forth in the preamble, the following provision

in Title 7, Part 1050, is amended as follows:

PART 1050--MILK IN THE CENTRAL ILLINOIS MARKETING AREA

1. The authority citation for 7 CFR Part 1050 continues to read as

follows:

Authority: Secs. 1-19, 48 Stat 31, as amended; 7 U.S.C. 601-674.

Sec. 1050.13 [Suspended in part]

Note: This amendment will not be published in the annual Code of

Federal Regulations.

2. In Sec. 1050.13(d)(2), the words ``: Provided, That the total

quantity of producer milk diverted does not exceed 35 percent of the

physical receipts of producer milk at the handler's pool plant during

the month, exclusive of milk of producers who are members of a

cooperative association that is diverting milk and the milk of other

producers that is diverted pursuant to paragraph (d)(3) of this

section'' are suspended for an indefinite period beginning January 1,

1995.

Dated: February 2, 1995.

Patricia Jensen,

Acting Assistant Secretary, Marketing and Regulatory Programs.

[FR Doc. 95-3149 Filed 2-7-95; 8:45 am]

BILLING CODE 3410-02-P