[Federal Register Volume 62, Number 171 (Thursday, September 4, 1997)]
[Rules and Regulations]
[Pages 46665-46666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23568]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 62, No. 171 / Thursday, September 4, 1997 /
Rules and Regulations
[[Page 46665]]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1011
[DA-97-09]
Milk in the Tennessee Valley Marketing Area; Suspension of
Certain Provisions of the Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule; suspension.
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SUMMARY: This document suspends certain provisions of the Tennessee
Valley Federal milk marketing order during the period of consideration
of the termination of the Tennessee Valley order. The suspension
deactivates the provisions that allow funds to be transferred from the
Producer-Settlement Fund to the Transportation Credit Balancing Fund
when the latter fund does not have sufficient funds to cover the amount
of credits to be disbursed.
EFFECTIVE DATE: September 5, 1997.
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, e-
mail address Nicholas__Memoli@usda.gov.
SUPPLEMENTARY INFORMATION: Prior document in this proceeding:
Notice of Proposed Termination: Issued June 30, 1997; published
July 3, 1997 (62 FR 36022).
Notice of Extension of Time for Filing Comments: Issued July 9,
1997; published July 14, 1997.
The Department is issuing this final rule in conformance with
Executive Order 12866.
This final rule has been reviewed under Executive Order 12988,
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 request
modification or exemption from such order by filing 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. 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.
Small Business Consideration
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the Agricultural Marketing Service has considered the economic
impact of this action on small entities and has certified that this
rule will not have a significant economic impact on a substantial
number of small entities. For the purpose of the Regulatory Flexibility
Act, a dairy farm is considered a ``small business'' if it has an
annual gross revenue of less than $500,000, and a dairy products
manufacturer is a ``small business'' if it has fewer than 500
employees. For the purposes of determining which dairy farms are
``small businesses,'' the $500,000 per year criterion was used to
establish a production guideline of 326,000 pounds per month. Although
this guideline does not factor in additional monies that may be
received by dairy producers, it should be an inclusive standard for
most ``small'' dairy farmers. For purposes of determining a handler's
size, if the plant is part of a larger company operating multiple
plants that collectively exceed the 500-employee limit, the plant will
be considered a large business even if the local plant has fewer than
500 employees.
During the representative month of February 1997, the milk of 1,469
producers was pooled on the Tennessee Valley order. Of these producers,
1,442 are considered as small businesses.
There were 7 handlers operating 8 pool distributing plants
regulated under the Tennessee Valley milk order for February 1997. Of
these handlers, 3 are considered small businesses.
This rule lessens the regulatory impact of the order on dairy
farmers by prohibiting an unwarranted reduction of their blend price to
cover costs associated with obtaining supplemental milk.
Preliminary Statement
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 Tennessee Valley marketing area.
After consideration of all relevant material and available
information, it is hereby found and determined that during the period
of consideration involving the termination of the Tennessee Valley milk
order, the following provisions of the order do not tend to effectuate
the declared policy of the Act:
1. In Sec. 1011.61, paragraph (a)(4); and
2. Sec. 1011.81, paragraph (b).
Statement of Consideration
This suspension order removes a provision of the Tennessee Valley
order that requires the market administrator to transfer money from the
producer-settlement fund (psf) to the transportation credit balancing
fund (TCBF) when the latter fund has an insufficient balance from which
to pay the current month's transportation costs associated with
supplemental milk obtained from outside the marketing area. This
suspension is effective pending consideration of the termination of the
Tennessee Valley milk order.
On May 12, 1997, the Department issued a partial final decision on
proposed amendments to the Carolina, Southeast, Tennessee Valley, and
Louisville-Lexington-Evansville milk orders which was published on May
20, 1997 (62 FR 27525). The final decision contained proposed amended
orders for the 4 southeast marketing areas, including the Tennessee
Valley order, and directed the respective market
[[Page 46666]]
administrators of the 4 orders to ascertain whether at least two-thirds
of the producers marketing their milk under each of the orders approved
the issuance of the amended orders. The final decision concluded that
amended orders were needed to effectuate the declared policy of the
Agricultural Marketing Agreement Act. That Act requires that at least
two-thirds of the producers voting in a referendum must vote
affirmatively before an order can be issued.
Less than two-thirds of the producers whose milk is pooled under
the Tennessee Valley order approved the issuance of the proposed
amended order. Consequently, on July 3 the Department issued a notice
of proposed termination of the Tennessee Valley order. It is now
evaluating comments received in response to that notice.
At the present time, the Tennessee Valley milk order is being
administered under the interim provisions adopted in August 1996,
whereas the surrounding orders with transportation credit provisions
are being administered with revised provisions that became effective on
August 1, 1997.
In July 1997, an extraordinary volume of supplemental milk was
received in the neighboring Southeast order. As a result of these
receipts, the transportation credit balancing fund for that order was
virtually depleted in July. There is now good reason to believe that
shipments of supplemental milk may be rerouted to handlers under the
Tennessee Valley order in September since that order still has the
interim provision allowing unlimited payments for transportation
credits even if the money to pay for the credits must come from the
producer-settlement fund. Although the Tennessee Valley order has a
viable balance in the TCBF at the present time, it is likely that funds
from the producer-settlement fund will be necessary for transportation
credit payments for September's milk. Were this to happen, it would
reduce blend prices to producers in the Tennessee Valley order while
their counterparts in the surrounding markets with transportation
credit provisions would suffer no such reduction under the revised
August 1997 amendments. This situation would be inconsistent with the
premises upon which the psf transfer provision was included in the
Tennessee Valley order.
This suspension is necessary to ensure that producers' milk will
not be moved in an uneconomic and inefficient manner simply to obtain
unlimited transportation credits under the Tennessee Valley order and
to ensure that producers in the Tennessee Valley order will be treated
in an equitable manner in relation to producers supplying the adjacent
Southeast, Carolina, and Louisville-Lexington-Evansville orders.
Accordingly, it is appropriate to suspend the aforesaid provisions
during the period of consideration of terminating the Tennessee Valley
milk 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;
and
(b) This suspension does not require of persons affected
substantial or extensive preparation prior to the effective date.
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 1011
Milk marketing orders.
For the reasons set forth in the preamble, 7 CFR Part 1011 is
amended as follows:
PART 1011--MILK IN THE TENNESSEE VALLEY MARKETING AREA
1. The authority citation for 7 CFR Part 1011 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
Sec. 1011.61 [Suspended in part]
2. In Sec. 1011.61, paragraph (a)(4) is suspended.
Sec. 1011.81 [Suspended in part]
3. In Sec. 1011.81, paragraph (b) is suspended.
Dated: August 29, 1997.
Lon Hatamiya,
Administrator.
[FR Doc. 97-23568 Filed 9-3-97; 8:45 am]
BILLING CODE 3410-02-P
