[Federal Register: July 31, 2008 (Volume 73, Number 148)]
[Rules and Regulations]
[Page 44617-44619]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31jy08-2]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1000
[Docket No. AMS-DA-07-0026; AO-14-A77, et al.; DA-07-02-A]
Milk in the Northeast and Other Marketing Areas; Interim Order
Amending the Orders
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule.
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SUMMARY: This order amends the manufacturing cost allowances and the
butterfat yield factor used in the Class III and Class IV product-price
formulas applicable to all Federal milk marketing orders. More than the
required producers approved the issuance of the interim order as
amended.
DATES: Effective Date: September 1, 2008.
FOR FURTHER INFORMATION CONTACT: Jack Rower, Marketing Specialist,
USDA/AMS/Dairy Programs, Order Formulation and Enforcement Branches,
STOP 0231-Room 2971, 1400 Independence Avenue, SW., Washington, DC
20250-0231, (202) 720-2357, e-mail address: jack.rower@usda.gov.
SUPPLEMENTARY INFORMATION: This decision adopts provisions to amend the
manufacturing (make) allowances for cheese, butter, nonfat dry milk
(NFDM) and dry whey powder contained in the Class III and Class IV
product-price formulas. Specifically, this decision adopts the
following make allowances: cheese--$0.2003 per pound; butter--$0.1715
per pound; NFDM--$0.1678 per pound; and dry whey--$0.1991 per pound.
This decision also increases the butterfat yield factor in the
butterfat price formula from 1.20 to 1.211.
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, as amended (7
U.S.C. 601-674) (AMAA), provides that administrative proceedings must
be exhausted before parties may file suit in court. Under Section
608c(15)(A) of the AMAA, 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 AMAA 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-
612), 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
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 February 2007, the month the initial public hearing was
held, the milk of 49,712 dairy farmers was pooled on the Federal order
system. Of the total, 46,729 dairy farmers, or 94 percent, were
considered small businesses. During the same month, 352 plants were
regulated by or reported their milk receipts to be pooled and priced on
a Federal order. Of the total, 186 plants, or 53 percent, were
considered small businesses.
This interim final rule amends all orders by changing the make
allowances
[[Page 44618]]
contained in the formulas used to compute component prices and the
minimum class prices in all Federal milk orders. Specifically, the make
allowance for butter increases from $0.1202 to $0.1715 per pound; the
make allowance for cheese increases from $0.1682 to $0.2003 per pound;
the make allowance for NFDM increases from $0.1570 to $0.1678 per
pound; and the make allowance for dry whey increases from $0.1956 to
$0.1991 per pound. The butterfat yield factor in the butterfat price
formulas is increased from 1.20 to 1.211.
The adoption of these new make allowances serves to approximate the
average cost of producing cheese, butter, NFDM and dry whey for
manufacturing plants located in Federal milk marketing areas.
The established criteria for the make allowance changes are applied
in an identical fashion to both large and small businesses and will not
have any different impact on those businesses producing manufactured
milk products. An economic analysis has been performed that discusses
impacts of the amendments on industry participants including producers
and manufacturers. It can be found on the AMS Dairy Web site at http://
www.ams.usda.gov/dairy. Based on the economic analysis, we have
concluded that the amendments will not have a significant economic
impact on a substantial number of small entities.
The Agricultural Marketing Service (AMS) is committed to complying
with the E-Government Act, to promote the use of the Internet and other
information technologies to provide increased opportunities for citizen
access to Government information and services, and for other purposes.
This interim final rule does not require additional information
collection that needs 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 that 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 5, 2007; published February 9,
2007 (72 FR 6179).
Supplemental Notice of Hearing: Issued February 14, 2007; published
February 20, 2007 (72 FR 7753).
Notice to Reconvene Hearing: Issued March 15, 2007; published March
21, 2007 (72 FR 13219).
Notice to Reconvene Hearing: Issued May 2, 2007; published May 8,
2007 (72 FR 25986).
Tentative Partial Final Decision: Issued June 16, 2008; published
June 20, 2008 (73 FR 35306).
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the Northeast and other orders were first
issued and when they were 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
Northeast and other marketing orders:
(a) Findings upon the basis of the hearing record.
A public hearing was held upon certain proposed amendments to the
tentative marketing agreements and to the orders regulating the
handling of milk in the Northeast and other marketing areas. The
hearing was held 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 (7 CFR part 900).
Upon the basis of the evidence introduced at such hearing and the
record thereof, it is found that:
(1) The said orders 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 aforesaid marketing areas. The
minimum prices specified in the orders 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 said orders, as hereby amended on an interim basis,
regulate the handling of milk in the same manner as, and is applicable
only to persons in the respective classes of industrial or 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 Northeast and other orders
effective [insert effective date]. Any delay beyond that date would
tend to disrupt the orderly marketing of milk in the aforesaid
marketing areas.
The interim amendments to this order are known to handlers. The
tentative partial decision containing the proposed amendments to this
order was issued on June 16, 2008.
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
amendments effective on [insert effective date].
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
areas, 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 Northeast and
other marketing orders is the only practical means pursuant to the
declared policy of the Act of advancing the interests of producers as
defined in the orders as hereby amended;
(3) The issuance of the interim orders amending the Northeast and
other orders is favored by at least two-thirds of the producers who
were engaged in the production of milk for sale in the respective
marketing areas.
Order Relative to Handling
It is therefore ordered, that on and after the effective date
hereof, the handling of milk in the Northeast and other marketing areas
shall be in conformity to and in compliance with the terms and
conditions of the orders, as amended, and as hereby amended, as
follows:
List of Subjects in 7 CFR Part 1000
Milk marketing orders.
0
For the reasons set forth in the preamble, the Agricultural Marketing
Service amends Chapter X of Title 7 of the Code of Federal Regulations
as follows:
[[Page 44619]]
PART 1000--GENERAL PROVISIONS OF FEDERAL MILK MARKETING ORDERS
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1. The authority citation for 7 CFR part 1000 continues to read as
follows:
Authority: 7 U.S.C. 601-674, and 7253.
0
2. Section 1000.50 is amended by:
0
A. Revising paragraph (l);
0
B. Revising paragraph (m);
0
C. Revising paragraph (n)(2);
0
D. Revising paragraph (n)(3)(i);
0
E. Revising paragraph (o); and
0
F. Revising paragraph (q)(3).
The revisions read as follows:
Sec. 1000.50 Class prices, component prices, and advanced pricing
factors.
* * * * *
(l) Butterfat price. The butterfat price per pound, rounded to the
nearest one-hundredth cent, shall be the U.S. average NASS AA Butter
survey price reported by the Department for the month, less 17.15
cents, with the result multiplied by 1.211.
(m) Nonfat solids price. The nonfat solids price per pound, rounded
to the nearest one-hundredth cent, shall be the U.S. average NASS
nonfat dry milk survey price reported by the Department for the month,
less 16.78 cents and multiplying the result by 0.99.
(n) * * *
(2) Subtract 20.03 cents from the price computed pursuant to
paragraph (n)(1) of this section and multiply the result by 1.383;
(3) * * *
(i) Subtract 20.03 cents from the price computed pursuant to
paragraph (n)(1) of this section and multiply the result by 1.572; and
* * * * *
(o) Other solids price. The other solids price per pound, rounded
to the nearest one-hundredth cent, shall be the U.S. average NASS dry
whey survey price reported by the Department for the month minus 19.91
cents, with the result multiplied by 1.03.
* * * * *
(q) * * *
(3) An advanced butterfat price per pound rounded to the nearest
one-hundredth cent, shall be calculated by computing a weighted average
of the 2 most recent U.S. average NASS AA Butter survey prices
announced before the 24th day of the month, subtracting 17.15 cents
from this average, and multiplying the result by 1.211.
Dated: July 25, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-1482 Filed 7-28-08; 8:45 am]
BILLING CODE 3410-02-P