[Federal Register: August 22, 2003 (Volume 68, Number 163)]
[Rules and Regulations]
[Page 50686-50687]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22au03-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1030
[Docket No. DA-01-03; AO-361-A35]
Milk in the Upper Midwest Marketing Area: Order Amending the
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This document adopts as a final rule, without change an
interim final rule concerning pooling provisions of the Upper Midwest
Federal milk order. Specifically, this final rule continues to prohibit
the ability to simultaneously pool the same milk on the Upper Midwest
Federal milk order and a State-operated milk order that has market-wide
pooling. Additionally, the final rule limits the amount of milk that
can be diverted to nonpool plants from pool distributing plants
regulated under the order. More than the required number of producers
in the Upper Midwest marketing area have approved the issuance of the
final order amendments.
EFFECTIVE DATE: September 1, 2003.
FOR FURTHER INFORMATION CONTACT: Gino Tosi, Marketing Specialist, USDA/
AMS/Dairy Programs, Order Formulation and Enforcement Branch, Stop
0231-Room 2971, 1400 Independence Avenue, SW., Washington, DC 20250-
0231, (202) 690-1366, e-mail: gino.tosi@usda.gov.
SUPPLEMENTARY INFORMATION: This administrative rule 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.
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule is not intended to have retroactive
effect. This 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 request
modification or exemption from such order by filing with the Department
of Agriculture (USDA) 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 Department 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 Department'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.
Regulatory Flexibility Act and Paperwork Reduction Act
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 $750,000, 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 $750,000 per year criterion was used to establish a
production guideline of 500,000 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.
In June 2001, there were 12,748 producers pooled on, and 57
handlers regulated by, the Upper Midwest order. Based on these
criteria, the vast majority of the producers and handlers would be
considered as small businesses. The adoption of the proposed pooling
standards serves to revise established criteria that determine those
producers, producer milk, and plants that have a reasonable association
with, and are consistently serving the fluid needs of, the Upper
Midwest milk marketing area and are not associated with other market-
wide pools concerning the same milk. Criteria for pooling are
established on the basis of performance levels that are considered
adequate to meet the Class I fluid needs and, by doing so, determine
those that are eligible to share in the revenue that arises from the
[[Page 50687]]
classified pricing of milk. Criteria for pooling are established
without regard to the size of any dairy industry organization or
entity. The criteria established are applied in an identical fashion to
both large and small businesses and do not have any different economic
impact on small entities as opposed to large entities. Therefore, the
amendments will not have a significant economic impact on a substantial
number of small entities.
A review of reporting requirements was completed under the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was
determined that these amendments would have no impact on reporting,
recordkeeping, or other compliance requirements because they would
remain identical to the current requirements. No new forms are proposed
and no additional reporting requirements would be necessary.
This action does not require additional information collection that
requires clearance by the Office of Management and Budget (OMB) beyond
currently approved information collection. The primary sources of data
used to complete the forms are routinely used in most business
transactions. Forms require only a minimal amount of information which
can be supplied without data processing equipment or a trained
statistical staff. Thus, the information collection and reporting
burden is relatively small. Requiring the same reports for all handlers
does not significantly disadvantage any handler that is smaller than
the industry average.
Prior documents in this proceeding:
Notice of Hearing: Issued June 5, 2001; published June 11, 2001 (66
FR 31185).
Tentative Final Decision: Issued February 8, 2002; published
February 14, 2002 (67 FR 7040).
Interim Final Rule: Issued April 16, 2002; published April 22, 2002
(67 FR 19507).
Final Decision: Issued June 18, 2003; published June 24, 2003 (68
FR 37674).
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the Upper Midwest 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.
The following findings are hereby made with respect to the Upper
Midwest order:
(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 Upper Midwest
marketing area.
Upon the basis of the evidence introduced at such hearing and the
record thereof it is found that:
(1) The Upper Midwest 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 Upper Midwest 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 these amendments to the Upper Midwest order effective September 1,
2003. Any delay beyond that date would tend to disrupt the orderly
marketing of milk in the aforesaid marketing area.
The amendments to these orders are known to handlers. The final
decision containing the proposed amendments to these orders was issued
on June 18, 2003. These proposed amendments are identical to the
amendments in the Interim Final Rule published in the Federal Register
on April 22, 2002 (67 FR 19507) regulating the handing of milk in the
Upper Midwest marketing area.
The changes that result from these amendments will not require
extensive preparation or substantial alteration in the method of
operation for handlers. In view of the foregoing, it is hereby found
and determined that good cause exists for making these order amendments
effective September 1, 2003. It would be contrary to the public
interest to delay the effective date of these amendments for 30 days
after their 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 Sec. 8c(9) of the Act) of more than 50
percent of the milk, which is marketed within the specified 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 Upper Midwest order is
the only practical means pursuant to the declared policy of the Act of
advancing the interests of producers as defined in the order(s) as
hereby amended;
(3) The issuance of the order amending the Upper Midwest order is
favored by at least two-thirds of the producers who were engaged in the
production of milk for sale in the marketing area.
List of Subjects in 7 CFR Parts 1030
Milk marketing orders.
Order Relative to Handling
0
It is therefore ordered, that on and after the effective date of this
document, the handling of milk in the Upper Midwest marketing area
shall be in conformity to and in compliance with the terms and
conditions of the order, as amended, and as hereby further amended, as
follows:
PART 1030--MILK IN THE UPPER MIDWEST MARKETING AREA
0
The interim final rule amending 7 CFR part 1030 which was published at
(67 FR 19507) on April 16, 2002, is adopted as a final rule without
change.
Dated: August 18, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-21530 Filed 8-21-03; 8:45 am]
BILLING CODE 3410-02-U