[Federal Register Volume 68, Number 163 (Friday, August 22, 2003)]
[Rules and Regulations]
[Pages 50686-50687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21530]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1030

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


Milk in the Upper Midwest 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 provisions of the Upper Midwest 
Federal milk order. Specifically, this final rule continues to prohibit 
the ability to simultaneously pool the same milk on the Upper Midwest 
Federal milk order and a State-operated milk order that has market-wide 
pooling. Additionally, the final rule limits the amount of milk that 
can be diverted to nonpool plants from pool distributing plants 
regulated under the order. More than the required number of producers 
in the Upper Midwest marketing area have approved the issuance of the 
final order amendments.

EFFECTIVE DATE: September 1, 2003.

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: [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 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 
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.
    In June 2001, there were 12,748 producers pooled on, and 57 
handlers regulated by, the Upper Midwest order. Based on these 
criteria, the vast majority of the producers and handlers would be 
considered as small businesses. The adoption of the proposed pooling 
standards serves 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 Upper 
Midwest milk marketing area and are not associated with other market-
wide pools concerning the same milk. 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

[[Page 50687]]

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 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 
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 5, 2001; published June 11, 2001 (66 
FR 31185).
    Tentative Final Decision: Issued February 8, 2002; published 
February 14, 2002 (67 FR 7040).
    Interim Final Rule: Issued April 16, 2002; published April 22, 2002 
(67 FR 19507).
    Final Decision: Issued June 18, 2003; published June 24, 2003 (68 
FR 37674).

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, 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.
    (b) Additional Findings. It is necessary in the public interest to 
make these amendments to the Upper Midwest order effective September 1, 
2003. Any delay beyond that date would tend to disrupt the orderly 
marketing of milk in the aforesaid marketing area.
    The amendments to these orders are known to handlers. The final 
decision containing the proposed amendments to these orders was issued 
on June 18, 2003. These proposed amendments are identical to the 
amendments in the Interim Final Rule published in the Federal Register 
on April 22, 2002 (67 FR 19507) regulating the handing of milk in the 
Upper Midwest marketing area.
    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 September 1, 2003. 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 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(s) 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 Parts 1030

    Milk marketing orders.

Order Relative to Handling

0
It is therefore ordered, that on and after the effective date of this 
document, 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 
(67 FR 19507) on April 16, 2002, is adopted as a final rule without 
change.

    Dated: August 18, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-21530 Filed 8-21-03; 8:45 am]
BILLING CODE 3410-02-U