[Federal Register: February 24, 2004 (Volume 69, Number 36)]
[Rules and Regulations]
[Page 8327-8328]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24fe04-3]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1135
[Docket No. AO-380-A18; DA-01-08-W]
Milk in the Western Marketing Area; Termination of the Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule terminates the Western Federal milk marketing order,
effective April 1, 2004. A referendum held to determine approval by
producers did not obtain the necessary two-thirds percent for adopting
the amended order. In these circumstances, the continuation of the
existing Western order would not be in conformity with the declared
policy of the Agricultural Marketing Agreement Act (AMAA), the statute
providing for milk marketing orders.
EFFECTIVE DATE: April 1, 2004.
FOR FURTHER INFORMATION CONTACT: Gino M. Tosi, Marketing Specialist,
Order Formulation and Enforcement Branch, USDA/AMS/Dairy Programs, Stop
0231--Room 2971, 1400 Independence Avenue, SW., Washington, DC 20250-
0231, (202) 690-1366, e-mail address: gino.tosi@usda.gov.
SUPPLEMENTARY INFORMATION: 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. 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 proposed action will not have a significant economic impact on a
substantial number of small entities. This rule would eliminate the
regulatory impact of the order on dairy farmers and regulated handlers.
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. In the Western Federal
milk order 550 of the 860 dairy producers (farmers), or 64 percent,
whose milk was pooled under the order in June 2003 would meet the
definition of small businesses. On the processing side, 15 of the 42
milk plants or 36 percent associated with the Western milk order during
June 2003 would qualify as ``small businesses''.
This rule terminates the Western Federal milk marketing order,
effective April 1, 2004. It is likely that market conditions would tend
to become less orderly or stable. However, it must be assumed that the
consequences of the termination of the Western order have been
considered by those producers who rejected the proposed amended order,
and that possibly other methods have or will be made to replace the
stabilizing influence of the marketing order. Less than two-thirds
percent of the voting producers in the referendum approved the issuance
of the proposed amended order.
The Department is issuing this 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 may request a modification of an order or
to be exempted from the order. After a hearing, the Secretary would
rule on the petition. The Act provides that the 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.
This order of termination is issued pursuant to the provisions of
the Agricultural Marketing Agreement Act and of the order regulating
the handling of the milk in the Western marketing area.
Prior Documents in This Proceeding:
Proposed Termination of Order: Issued January 7, 2004; published
January 13, 2004 (69 FR 1957).
Tentative Final Decision: Issued August 8, 2003; published August
18, 2003 (68 FR 49375).
Statement of Consideration
This rule terminates the Western Federal milk marketing order,
effective April 1, 2004.
In total, eight comments were received from interested parties.
Five comments were from dairy interests regulated under the terms of
the Western milk marketing order. Of these five comments, two supported
termination and three expressed support for retaining the current
Western order.
Three interested parties who are not regulated or pool milk on the
Western order also submitted comments. Of these three comments, one
comment did not either support or oppose termination and two supported
retaining the current Western order.
Comments that supported retaining the current Western order
expressed concern for the potential consequences to producers in other
Federal milk
[[Page 8328]]
marketing orders if the Western order is terminated. In this regard,
concerns were offered, most notably, that milk currently pooled on the
Western order would seek to be pooled on other orders which may give
rise to disorderly marketing conditions in other markets and lower
prices received by producers who pool milk under the terms of another
milk marketing order.
One comment that supported the termination of the Western order was
of the opinion that the current and the proposed amended Western order
harmed specific dairy interests in Utah. A second comment supporting
termination of the Western order stressed the dairy-farmer orientation
of the Federal milk marketing order program and that the Agricultural
Marketing Agreement Act (AMAA) (the enabling legislation for milk
marketing orders) requires the proper endorsement of producers before
milk order regulations can be implemented. This comment stressed that
the Western order lacks this needed endorsement. In this regard, the
comment stressed that the lack of the required two-thirds support of
producers leaves the Department with no other recourse than to
terminate the Western order so as to be in conformity with the
requirements of the AMAA.
Termination of the Western order will remove government enforcement
of minimum prices to handlers and to producers that are established by
the order. It will also remove other stabilizing features of the
regulatory program such as: An impartial audit of handler records to
insure payment to dairy farmers and to verify the reported uses of
milk; the assurance to farmers of accurate weighing, testing,
classification and accounting for milk; and the existence of marketing
information to evaluate market performance. Thus, it is likely that
market conditions would tend to become less orderly or stable. However,
it must be assumed that the consequences of the termination of the
Western order have been considered by those producers who rejected the
proposed amended order, and that possibly other methods have or will be
made to replace the stabilizing influence of the marketing order.
Regardless of the possible economic effects of terminating the
Western order, a termination is required by the AMAA. As stated in the
proposed termination, less than two-thirds percent of the voting
producers in the referendum approved the issuance of the proposed
amended order. In these circumstances, where it has been determined
that the order should be amended to effectuate the declared policy of
the AMAA, and that the amended order was not approved by producers, it
is concluded that the existing Western order should be terminated
because it is not in conformity with the AMAA.
List of Subjects in 7 CFR Part 1135
Milk marketing orders.
Order
It is therefore ordered, that the terms and provisions of the
order, as amended, regulating the handling of milk in the Western
marketing area (7 CFR part 1135), except Sec. 1135.1 which
incorporates the General Provisions in Part 1000, are hereby
terminated, effective on April 1, 2004.
0
Accordingly, 7 CFR part 1135 is amended as follows:
PART 1135--MILK IN THE WESTERN MARKETING AREA
0
1. The authority citation for 7 CFR Part 1135 continues to read as
follows:
Authority: 7 U.S.C. 601-674 and 7253.
Sec. Sec. 1135.2 through 1135.86 [Removed]
0
2. Sections 1135.2 through 1135.86 and the undesignated center headings
in part 1135 are removed, effective on April 1, 2004.
Dated: February 18, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-3952 Filed 2-19-04; 3:20 pm]
BILLING CODE 3410-02-P