[Federal Register: January 12, 2004 (Volume 69, Number 7)]
[Rules and Regulations]
[Page 1654-1655]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja04-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1124
[Docket No. AO-368-A30; DA-01-08-PNW]
Milk in the Pacific Northwest Marketing Area; Interim Order
Amending the Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule.
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SUMMARY: This order amends the Producer milk provision of the Pacific
Northwest milk marketing order to eliminate the ability to
simultaneously pool the same milk on the order and on a State-operated
order that provides for marketwide pooling. More than the required
number of producers on the Pacific Northwest order have approved the
issuance of the interim order as amended.
EFFECTIVE DATE: February 1, 2004.
FOR FURTHER INFORMATION CONTACT: Gino M. Tosi, Marketing Specialist,
Stop 0231, Room 2971, USDA/AMS/Dairy Programs, Order Formulation and
Enforcement Branch, 1400 Independence Avenue, SW., Washington, DC
20250-0231, (202) 690-1366, e-mail address 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 interim 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
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.
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
interim 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 the Pacific Northwest Federal milk order, 805 of the 1,164 dairy
producers (farmers), or about 69 percent, whose milk was pooled under
the Pacific Northwest Federal milk order at the time of the hearing,
April 2002, would meet the definition of small businesses. On the
processing side, 9 of the 20 milk plants associated with the Pacific
Northwest milk order during April 2002 would qualify as ``small
businesses,'' constituting about 45 percent of the total.
Based on these criteria, at least 69 percent of the producers in
the order would be considered as small businesses. The adoption of the
proposed pooling standard serves to
[[Page 1655]]
revise established criteria that determine the producer milk that has a
reasonable association with--and consistently serves the fluid needs
of--the Pacific Northwest milk marketing area and is 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 established criteria 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 proposed amendment will not have a significant
economic impact on a substantial number of small entities.
Prior documents in this proceeding:
Notice of Hearing: Issued February 26, 2002; published March 4,
2002 (67 FR 9622).
Correction to Notice of Hearing: Issued March 14, 2002; published
March 19, 2002 (67 FR 12488).
Tentative Final Decision: Issued August 8, 2003; published August
18, 2003 (68 FR 49375).
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the Pacific Northwest 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 Pacific Northwest
marketing area.
Upon the basis of the evidence introduced at such hearing and the
record thereof it is found that:
(1) The Pacific Northwest order, as hereby amended on an interim
basis, 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 on an interim basis,
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 Pacific Northwest order, as hereby amended on an interim
basis, 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 and in the public interest
to make these interim amendments to the Pacific Northwest order
effective February 1, 2004. Any delay beyond that date would tend to
disrupt the orderly marketing of milk in the aforesaid marketing area.
The interim amendments to this order are known to handlers. The
final decision containing the proposed amendments to this order was
issued on August 8, 2003.
The changes that result from these interim 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 interim order
amendments effective on February 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 interim order amending the Pacific
Northwest 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 as hereby amended;
(3) The issuance of the interim order amending the Pacific
Northwest 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 1124
Milk marketing orders.
Order Relative to Handling
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It is therefore ordered, that on and after the effective date hereof,
the handling of milk in the Pacific Northwest 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 on an interim basis,
as follows:
The authority citation for 7 CFR part 1124 reads as follows:
Authority: 7 U.S.C. 601-674.
PART 1124--MILK IN THE PACIFIC NORTHWEST MARKETING AREA
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1. Section 1124.13 is amended by:
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a. Revising the introductory text; and
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b. Adding a new paragraph (f).
The revision and addition read as follows:
Sec. 1124.13 Producer milk.
Except as provided for in paragraph (f) of this section, Producer
milk means the skim milk (or skim milk equivalent of components of skim
milk), including nonfat components, and butterfat in milk of a producer
that is:
* * * * *
(f) Producer milk shall not include milk of a producer that is
subject to inclusion and participation in a marketwide equalization
pool under a milk classification and pricing program imposed under the
authority of a State government maintaining marketwide pooling of
returns.
Dated: January 5, 2004.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 04-399 Filed 1-9-04; 8:45 am]
BILLING CODE 3410-02-P