[Federal Register Volume 59, Number 124 (Wednesday, June 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15715]
[[Page Unknown]]
[Federal Register: June 29, 1994]
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DEPARTMENT OF AGRICULTURE
7 CFR Part 1040
[Docket No. AO-225-A45-R01; DA-92-10]
Milk in the Southern Michigan Marketing Area; Order Amending
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule amends the pooling provisions of the Southern
Michigan Federal milk order. The amendment provides that a distributing
plant located in the marketing area that processes and distributes
primarily aseptically processed fluid milk products is fully regulated
under the order irrespective of the market or markets in which the
products may be distributed. The action is based on a proprietary
handler's proposal considered at a public hearing held March 1, 1994,
in Grand Rapids, Michigan. The change, which has been approved by more
than two-thirds of the producers in the market, is necessary to reflect
current marketing conditions and to assure orderly marketing conditions
in the regulated area.
EFFECTIVE DATE: June 29, 1994.
FOR FURTHER INFORMATION CONTACT: Constance M. Brenner, Marketing
Specialist, USDA/AMS/Dairy Division, Order Formulation Branch, Room
2971, South Building, P.O. Box 96456, Washington, DC 20090-6456, (202)
720-7183.
SUPPLEMENTARY INFORMATION: This administrative action is governed by
the provisions of Sections 556 and 557 of Title 5 of the United States
Code and, therefore, is excluded from the requirements of Executive
Order 12866.
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires the
Agency to examine the impact of a final rule on small entities.
Pursuant to 5 U.S.C. 605(b), the Administrator of the Agricultural
Marketing Service has certified that this action will not have a
significant economic impact on a substantial number of small entities.
The amended order will lessen the regulatory impact of the order on
certain milk handlers and will promote orderly marketing of milk by
producers and regulated handlers.
This final rule, which has been reviewed under Executive Order
12778, Civil Justice Reform, is not intended to have a retroactive
effect. It 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) (``the Act'') provides that administrative proceedings
must be exhausted before parties may file suit in court. Under section
8c(15)(A) of the Act, any handler subject to an order may file with the
Secretary a petition stating that the order, any provision 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 is the
handler's 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.
Prior documents in this proceeding:
Notice of Hearing: Issued December 3, 1992; published December 10,
1992 (57 FR 58418).
Supplemental Notice of Hearing: Issued January 19, 1993; published
January 29, 1993 (58 FR 6447).
Recommended Decision: Issued November 29, 1993; published December
6, 1993 (58 FR 64176).
Notice of Reopened Hearing: Issued February 18, 1994; published
February 24, 1994 (59 FR 8874).
Extension of Time for Filing Briefs: Issued April 6, 1994;
published April 13, 1994 (59 FR 17497).
Emergency Final Decision: Issued May 12, 1994; published May
23,1994 (59 FR 26603).
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the Southern Michigan order was first issued
and when it was amended. The previous findings and determinations are
hereby ratified and confirmed, except where they may conflict with
those set forth herein.
(a) Findings upon the basis of the hearing record. Pursuant to the
provisions of the Agricultural Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601-674), and the applicable rules of practice and
procedure governing the formulation of marketing agreements and
marketing orders (7 CFR Part 900), a public hearing was held upon
certain proposed amendments to the tentative marketing agreement and to
the order regulating the handling of milk in the Southern Michigan
marketing area.
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The said order as hereby amended, and all of the terms and
conditions thereof, will tend to effectuate the declared policy of the
Act;
(2) The parity prices of milk, as determined pursuant to section 2
of the Act, are not reasonable in view of the price of feeds, available
supplies of feeds, and other economic conditions which affect market
supply and demand for milk in the marketing area, and the minimum
prices specified in the order as hereby amended, are such prices as
will reflect the aforesaid factors, insure a sufficient quantity of
pure and wholesome milk, and be in the public interest; and
(3) The said order as hereby amended regulates the handling of milk
in the same manner as, and is applicable only to persons in the
respective classes of industrial and commercial activity specified in,
a marketing agreement upon which a hearing has been held.
(b) Additional findings. It is necessary in the public interest to
make this order amending the order effective not later than the date of
publication in the Federal Register. Any delay beyond that date would
tend to disrupt the orderly marketing of milk in the marketing area.
The provisions of this order are known to handlers. The decision of
the Acting Assistant Secretary containing all amendment provisions of
this order was issued May 12, 1994; published May 23, 1994 (59 FR
26603). The changes effected by this order will not require extensive
preparation or substantial alteration in methods of operation for
handlers. In view of the foregoing, it is hereby found and determined
that good cause exists for making this order amending the order
effective upon publication in the Federal Register, and that it would
be contrary to the public interest to delay the effective date of this
order for 30 days after its publication in the Federal Register. (Sec.
553(d), Administrative Procedure Act, 5 U.S.C. 551-559).
(c) Determinations. It is hereby determined that:
(1) The refusal or failure of handlers (excluding cooperative
associations specified in section 8c(9) of the Act) of more than 50
percent of the milk which is marketed within the marketing area to sign
a proposed marketing agreement tends to prevent the effectuation of the
declared policy of the Act;
(2) The issuance of this order amending the order is the only
practical means pursuant to the declared policy of the Act of advancing
the interests of producers as defined in the respective orders; and
(3) The issuance of the order amending the order is approved or
favored by at least two-thirds of the producers who during the
determined representative period were engaged in the production of milk
for sale in the marketing area.
List of Subjects in 7 CFR Part 1040
Milk marketing orders.
Order Relative to Handling
It is therefore ordered, That on and after the effective date
hereof, the handling of milk in the Southern Michigan marketing area
shall be in conformity to and in compliance with the terms and
conditions of the aforesaid order, as amended, and as hereby further
amended, as follows:
PART 1040--MILK IN THE SOUTHERN MICHIGAN MARKETING AREA
1. The authority citation for 7 CFR Part 1040 continues to read as
follows:
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-
674.
Sec. 1040.5 [Amended]
2. Section 1040.5 is amended by removing the words ``in the
marketing area'' at the end of the text.
3. Section 1040.7 is amended by revising the introductory text,
paragraph (a), and the first sentence in paragraph (b) introductory
text to read as follows:
Sec. 1040.7 Pool plant.
Pool plant means:
(a) A distributing plant:
(1) From which total route disposition, except filled milk, during
the month is not less than 50 percent of the combined Grade A milk
received in bulk at such plant direct from producers, from supply
plants, from a cooperative association as described in Sec. 1040.9(c)
or diverted by the plant operator or by a cooperative association
pursuant to Sec. 1040.13 as producer milk, except as provided in
paragraph (c) of this section; or
(2) That qualified as a pool plant in either of the immediately
preceding 2 months on the basis of performance standards described in
paragraph (a)(1) of this section, except as provided in paragraph (c)
of this section; or
(3) That meets the following conditions, regardless of the
provisions of paragraph (c) of this section:
(i) The plant is located in the marketing area;
(ii) The plant has total route disposition, except filled milk,
during the month of not less than 50 percent of the combined Grade A
milk received in bulk at such plant direct from producers, from supply
plants, from a cooperative association as described in Sec. 1040.9(c)
or diverted by the plant operator or by a cooperative association
pursuant to Sec. 1040.13 as producer milk; and
(iii) The principal activity of such plant is the processing and
distributing of aseptically processed fluid milk products.
(b) Except as provided in paragraph (c) of this section, a supply
plant which during the month meets one of the performance requirements
specified in paragraph (b) (1), (2), (3) or (4) of this section. * * *
* * * * *
Dated: June 22, 1994.
Patricia A. Jensen,
Acting Assistant Secretary for Marketing and Inspection Services.
[FR Doc. 94-15715 Filed 6-28-94; 8:45 am]
BILLING CODE 3410-02-P
