[Federal Register: December 9, 2005 (Volume 70, Number 236)]
[Rules and Regulations]
[Page 73126-73128]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09de05-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1030
[Docket No. AO-361-A39; DA-04-03-A]
Milk in the Upper Midwest Marketing Area; Order Amending the
Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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[[Page 73127]]
SUMMARY: This document adopts as a final rule, without change, an
interim final rule concerning pooling standards and transportation
credit provisions of the Upper Midwest Federal milk order. More than
the required number of producers for the Upper Midwest marketing area
approved the issuance of the final order amendments.
DATES: Effective February 1, 2006.
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,
without change, an interim final rule concerning pooling standards and
transportation credit provisions of the Upper Midwest Federal milk
order. Specifically, this final rule permanently adopts provisions to
allow only supply plants located in the States that comprise the UMW
marketing area to use milk delivered directly from producer farms for
qualification purposes, eliminate the ability to pool diversions to
nonpool plants located outside of the States that comprise the UMW
marketing area as producer milk and limit the transportation credit
received by handlers to the first 400 miles of applicable milk
movements.
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
marketing 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 August 2004, the month during which the hearing occurred,
there were 15,608 dairy producers pooled on, and 60 handlers regulated
by, the UMW order. Approximately 15,082 producers, or 97 percent, were
considered small businesses based on the above criteria. Of the 60
handlers regulated by the UMW order during August 2004, approximately
49 handlers, or 82 percent, were considered ``small businesses.''
The adoption of the proposed pooling standards and transportation
credit provisions serve to revise established criteria that determine
the producer milk that has a reasonable association with and
consistently serves the fluid needs of the Upper Midwest 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 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 equal 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 16, 2004; published June 23, 2004
(69 FR 34963).
Notice of Hearing Delay: Issued July 14, 2004; published July 21,
2004 (69 FR 43538).
Tentative Partial Decision: Issued April 8, 2005; published April
14, 2005 (70 FR 19709).
Interim Final Rule: Issued May 26, 2005; published June 1, 2005 (70
FR 31321).
Final Partial Decision: Issued September 29, 2005; published
October 5, 2005 (70 FR 58086).
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.
[[Page 73128]]
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.
The amendments to these orders are known to handlers. A final
partial decision containing the proposed amendments to these orders was
issued on September 29, 2005.
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 February 1, 2006. 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.)
(b) 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 that 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 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 Part 1030
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 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
70 FR 31321 on June 1, 2005, is adopted as a final rule without change.
Dated: December 5, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-23820 Filed 12-8-05; 8:45 am]
BILLING CODE 3410-02-P