[Federal Register Volume 67, Number 77 (Monday, April 22, 2002)]
[Rules and Regulations]
[Pages 19507-19508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9785]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 67, No. 77 / Monday, April 22, 2002 / Rules 
and Regulations  

[[Page 19507]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1030

[Docket No. AO-361-A35; DA-01-03]


Milk in the Upper Midwest Marketing Area; Interim Order Amending 
the Order.

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: This order amends the pooling provisions of the Upper Midwest 
Federal milk order on an interim basis. Disorderly marketing conditions 
from the simultaneous pooling of milk on the Upper Midwest Federal 
order and the California State-operated order warrant these amendments. 
This interim order eliminates the ability to pool the same milk on a 
Federal and State-operated order that has marketwide pooling. It also 
establishes diversion limits for distributing plants regulated under 
the order. More than the required number of producers in Upper Midwest 
marketing area have approved the issuance of the interim amendments.

EFFECTIVE DATE: May 1, 2002.

FOR FURTHER INFORMATION CONTACT: Gino M. Tosi, Marketing Specialist, 
USDA/AMS/Dairy Programs, Order Formulation Branch, 1400 Independence 
Avenue, SW. Stop 0231, Washington, DC 20090-6456, (202) 690-1366, e-
mail address [email protected].

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 Secretary 
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 $500,000 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.
    Prior documents in this proceeding:
    Notice of Hearing: Issued June 5, 2001; published June 11, 2001 (66 
FR 31185).
    Tentative Final Decision: Issued February 8, 2002; published 
February 14, 2002 (67 FR 7040).

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.
    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 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 Upper Midwest 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

[[Page 19508]]

industrial and commercial activity specified in, a marketing agreement 
upon which a hearing has been held.
    (b) Additional Findings. It is necessary in the public interest to 
make these interim amendments to the Upper Midwest order effective May 
1, 2002. Any delay beyond that date would tend to disrupt the orderly 
marketing of milk in the aforesaid marketing area.
    The interim amendments to these orders are known to handlers. The 
final decision containing the proposed amendments to these orders was 
issued on February 8, 2002.
    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 May 1, 2002. 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 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 interim 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

    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 on an interim 
basis, as follows:
    The authority citation for 7 CFR Part 1030 reads as follows:

    Authority: 7 U.S.C. 601-674.

PART 1030--MILK IN THE UPPER MIDWEST MARKETING AREA

    1. Section 1030.7(g) is amended by revising the first sentence to 
read as follows:


Sec. 1030.7  Pool Plant.

* * * * *
    (g) The applicable shipping percentages of paragraphs (c) and (f) 
of this section and Sec. 1030.13(d)(2), and (d)(3) may be increased or 
decreased, for all or part of the marketing area, by the market 
administrator if the market administrator finds that such adjustment is 
necessary to encourage needed shipments or to prevent uneconomic 
shipments. * * *
* * * * *

    2. Section 1030.13 is amended as follows:
    (a) By revising the introductory text;
    (b) Redesignating paragraph (d)(3) as paragraph (d)(4); and
    (c) Adding a new paragraph (d)(3) and a new paragraph (e). The 
revision and additions read as follows:


Sec. 1030.13  Producer milk.

    Except as provided for in paragraph (e) of this section, Producer 
milk means the skim milk (or the skim equivalent of components of skim 
milk), including nonfat components, and butterfat in milk of a producer 
that is:
* * * * *
    (d) * * *
    (3) The quantity of milk diverted to nonpool plants by the operator 
of a pool plant described in Sec. 1030.7(a) or (b) may not exceed 90 
percent of the Grade A milk received from dairy farmers (except dairy 
farmers described in Sec. 1030.12(b)) including milk diverted pursuant 
to Sec. 1030.13; and
* * * * *
    (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 program imposed under the 
authority of a State government maintaining marketwide pooling of 
returns.

    Dated: April 16, 2002.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 02-9785 Filed 4-19-02; 8:45 am]
BILLING CODE 3410-02-P