[Federal Register: April 20, 2006 (Volume 71, Number 76)]
[Rules and Regulations]
[Page 20335-20336]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20ap06-1]
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Rules and Regulations
Federal Register
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[[Page 20335]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1033
[Docket No. AO-166-A72; DA-05-01-A]
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, without change, an
interim final rule concerning pooling standards of the Mideast Federal
milk order. More than the required number of producers for the Mideast
marketing area approved the issuance of the final order amendments.
DATES: Effective Date: May 1, 2006.
FOR FURTHER INFORMATION CONTACT: Gino Tosi, Associate Deputy
Administrator for Order Formulation and Enforcement, USDA/AMS/Dairy
Programs, 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 of
the Mideast Federal milk order. 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 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 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, 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 the producer milk that has a
reasonable association with and consistently serves 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 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
[[Page 20336]]
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 February 14, 2005; published February 17,
2005 (70 FR 8043).
Amendment to Public Hearing on Proposed Rulemaking: Issued March 1,
2005; published March 3, 2005 (70 FR 10337).
Tentative Partial Decision: Issued July 21, 2005; published July
27, 2005 (70 FR 43335).
Interim Final Rule: Issued September 20, 2005; published September
26, 2005 (70 FR 56111).
Final Partial Decision: Issued January 17, 2006; published January
23, 2006 (71 FR 3435).
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 in regard
to 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 feed, available
supplies of feed, 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.
The amendments to these orders are known to handlers. A final
partial decision containing the proposed amendments to these orders was
issued on January 17, 2006. An interim final rule adopting these
pooling standards on an interim basis was issued on September 20, 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 May 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 the 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 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
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, as follows:
PART 1033--MILK IN THE MIDEAST MARKETING AREA
The interim final rule amending 7 CFR part 1033 which was published
at 70 FR 56111 on September 26, 2005, is adopted as a final rule
without change.
Dated: April 17, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-3775 Filed 4-19-06; 8:45 am]
BILLING CODE 3410-02-P