[Federal Register: September 26, 2005 (Volume 70, Number 185)]
[Rules and Regulations]
[Page 56111-56113]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se05-3]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1033
[Docket No. AO-166-A39; DA-05-01-A]
Milk in the Mideast Marketing Area; Interim Order Amending the
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule.
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SUMMARY: This order amends certain features of the pooling standards of
the Mideast milk marketing order on an interim basis. More than the
required number of producers in the Mideast marketing area have
approved the issuance of the interim order as amended.
DATES: Effective October 1, 2005.
FOR FURTHER INFORMATION CONTACT: Gino M. Tosi, Associate Deputy
Administrator, 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: Specifically, this decision adopts
provisions that will: (1) Prohibit the ability to simultaneously pool
the same milk on the Mideast Federal milk order and on a marketwide
equalization pool administered by another government entity; (2) Lower
the diversion limit standards; and (3) Increase the performance
standards for supply plants.
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 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 (the Act), 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 (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.
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
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.
During March 2005, the month during which the hearing occurred,
there were 9,767 dairy producers pooled on, and 36 handlers regulated
by, the Mideast order. Approximately 9,212 producers,
[[Page 56112]]
or 94.3 percent, were considered small businesses based on the above
criteria. Of the 36 handlers regulated by the Mideast order,
approximately 26 handlers, or 72.2 percent, were considered 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. 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 producers who 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 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 adopted amendments will have no impact on
reporting, recordkeeping, or other compliance requirements because they
will remain identical to the current requirements. No new forms are
proposed and no additional reporting requirements will 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:
Amendment to Public Hearing on Proposed Rulemaking: Issued March 1,
2005; published March 3, 2005 (70 FR 10337).
Notice of Hearing: Issued February 14, 2005; published February 17,
2005 (70 FR 8043).
Tentative Partial Decision: Issued July 21, 2005; published July
27, 2005 (70 FR 43335).
Findings and Determinations
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 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 Mideast 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 Mideast order effective October
1, 2005. 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
tentative partial final decision containing the proposed amendments to
this order was issued on July 21, 2005.
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 October 1, 2005.
(c) Determinations. It is hereby determined that:
(1) The refusal or failure of handlers (excluding cooperative
associations specified in Section 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 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 as
hereby amended;
(3) The issuance of the interim 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
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:
PART 1033--MILK IN THE MIDEAST AREA
0
1. The authority citation for 7 CFR Part 1033 reads as follows:
Authority: 7 U.S.C. 601-674.
0
2. Section 1033.7 is amended by:
0
(a) Revising paragraph (c) introductory text.
0
(b) Revising the introductory text of paragraph (d).
0
(c) Revising paragraph (d)(2).
0
(d) Revising paragraph (e)(1).
The revisions read as follows:
Sec. 1033.7 Pool plant.
* * * * *
(c) A supply plant from which the quantity of bulk fluid milk
products shipped to, received at, and physically unloaded into plants
described in paragraph (a) or (b) of this section as a percent of the
Grade A milk received at the plant from dairy farmers (except
[[Page 56113]]
dairy farmers described in Sec. 1033.12(b)) and handlers described in
Sec. 1000.9(c), as reported in Sec. 1033.30(a), is not less than 40
percent of the milk received from dairy farmers, including milk
diverted pursuant to Sec. 1033.13, subject to the following
conditions:
* * * * *
(d) A plant located in the marketing area and operated by a
cooperative association if, during the months of December through July
30 percent, during the month of August 35 percent and during the months
of September through November 40 percent or more of the producer milk
of members of the association is delivered to a distributing pool
plant(s) or to a nonpool plant(s) and classified as Class I. Deliveries
for qualification purposes may be made directly from the farm or by
transfer from such association's plant, subject to the following
conditions:
* * * * *
(2) The 30 percent delivery requirement for the months of December
through July 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.
* * * * *
(e) * * *
(1) The aggregate monthly quantity supplied by all parties to such
an agreement as a percentage of the producer milk receipts included in
the unit during the months of August through November is not less than
45 percent and during the months of December through July is not less
than 35 percent;
* * * * *
0
3. Section 1033.13 is amended by:
0
(a) Revising paragraph (d)(4).
0
(b) Adding paragraph (e).
The revisions read as follows:
Sec. 1033.13 Producer milk.
* * * * *
(d) * * *
(4) Of the total quantity of producer milk received during the
month (including diversions but excluding the quantity of producer milk
received from a handler described in Sec. 1000.9(c) or which is
diverted to another pool plant), the handler diverted to nonpool plants
not more than 50 percent in each of the months of August through
February and 60 percent in each of the months of March through July.
* * * * *
(e) 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 plan imposed under the
authority of another government entity.
Dated: September 20, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-19086 Filed 9-23-05; 8:45 am]
BILLING CODE 3410-02-P