[Federal Register: June 22, 2004 (Volume 69, Number 119)]
[Rules and Regulations]
[Page 34554-34555]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jn04-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1033
[Docket No. AO-361-A35; DA-01-04]
Milk in the Mideast 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, with changes, an interim
final rule concerning pooling provisions of the Mideast Federal milk
order. More than the required number of producers in the Mideast
marketing area have approved the issuance of the final order
amendments. Conforming changes are made to clarify references to order
provision paragraphs.
EFFECTIVE DATE: July 1, 2004.
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 document adopts as a final rule, with
changes, an interim final rule, concerning pooling provisions of the
Mideast Federal milk order. Specifically, this final rule continues to
amend the Pool plant provisions which: Eliminate automatic pool plant
status for the 6-month period of March through August, eliminate milk
shipments to a distributing plant regulated by another Federal milk
order as pool-qualifying shipments under the Mideast order, eliminate
the ``split plant'' feature, eliminate including diversions made by a
pool supply plant located outside the marketing area to a second pool
plant, and establish a ``net shipments'' provision for pool supply
plants not operated by a cooperative. For the Producer milk provisions,
this final rule continues amendments which: Seasonally adjust and
increase the number of days that the milk of a producer needs to be
delivered to a pool plant and establish year-round diversion limits,
adjusted seasonally, for producer milk for handlers pooled under the
Mideast order.
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 have been reviewed under the 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.
On the producer side, 10,756 of the 11,133 dairy farmers, or 97
percent, whose milk was pooled under the Mideast order at the time of
the hearing (October 2001) would meet the definition of small
businesses. On the processing side, 27 of the 58 milk plants associated
with the Mideast order during October 2001 would qualify as small
businesses, constituting 47 percent of the total. 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 serve 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 Mideast milk marketing area and are not
associated with other marketwide 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 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.
[[Page 34555]]
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 September 21, 2001; published September
28, 2001 (66 FR 49571).
Tentative Final Decision: Issued June 4, 2002; published June 11,
2002 (67 FR 39871).
Interim Final Rule: Issued July 22, 2002; published July 26, 2002
(67 FR 48743).
Final Decision: Issued April 5, 2004; published April 12, 2004 (69
FR 19291).
Findings and Determinations
A conforming change is made to section 1033.13(d)(7) to clarify
that the delivery day requirements that may be increased by the market
administrator are specified in paragraphs (d)(2) and (d)(3) of this
section and that the diversion percentages are specified in paragraph
(d)(4) of this section.
The findings and determinations hereinafter set forth supplement
those that were made when the Mideast 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 Mideast
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 Mideast marketing
area.
Upon the basis of the evidence introduced at such hearing and the
record thereof it is found that:
(1) The Mideast 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 Mideast 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 Mideast order effective July 1, 2004. Any
delay beyond that date would tend to disrupt the orderly marketing of
milk in the aforesaid marketing area.
The amendments to these order are known to handlers. The final
decision containing the proposed amendments to these orders was issued
on April 5, 2004 (69 FR 19291).
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 July 1, 2004. 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 Mideast 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 Mideast 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 Part 1033
Milk marketing orders.
Order Relative to Handling
0
It is therefore ordered, that on and after the effective date hereof,
the handling of milk in the Mideast marketing area shall be in
conormity to and in compliance with the terms and conditions of the
order, as amended, and as hereby further amended, as follows:
0
The authority citation for 7 CFR part 1033 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
PART 1033--MILK IN THE MIDEAST MARKETING AREA
0
The interim final rule amending 7 CFR part 1033 which was published on
July 26, 2002, (67 FR 48743), is adopted as a final rule, with the
following changes:
0
1. Section 1033.7 is amended by revising paragraph (d)(2) to read as
follows:
Sec. 1033.7 Pool plant.
* * * * *
(d) * * *
(2) The 30 percent delivery requirement may be met for the current
month or it may be met on the basis of deliveries during the preceding
12-month period ending with the current month.
* * * * *
0
2. Section 1033.13 is amended by revising the first sentence in
paragraph (d)(7) to read as follows:
Sec. 1033.13 Producer milk.
* * * * *
(d) * * *
(7) The delivery day requirement in paragraphs (d)(2) and (d)(3) of
this section and the diversion percentages in paragraph (d)(4) of this
section may be increased or decreased by the market administrator if
the market administrator finds that suhc revision is necessary to
assure orderly marketing and efficient handling of milk in the
marketing area.
Dated: June 16, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-14060 Filed 6-21-04; 8:45 am]
BILLING CODE 3410-02-M