[Federal Register Volume 68, Number 229 (Friday, November 28, 2003)]
[Rules and Regulations]
[Pages 66697-66699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-29624]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1032

[Docket No. DA-01-07; AO-313-A44]


Milk in the Central 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 Central milk 
order. More than the required number of producers in the Central 
marketing area have approved the issuance of the final order 
amendments.

EFFECTIVE DATE: December 1, 2003.

FOR FURTHER INFORMATION CONTACT: Jack Rower or Carol S. Warlick, 
Marketing Specialists, USDA/AMS/Dairy Programs, Order Formulation and 
Enforcement Branch, Stop 0231--Room 2971, 1400 Independence Avenue, 
SW., Washington, DC 20250-0231, (202) 720-2357, e-mail address: 
[email protected], or (202) 720-9363, e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: This document adopts as a final rule, 
without change, an interim final rule concerning pooling provisions of 
the Central milk order. Specifically, this final rule continues to 
amend the Pool plant provisions which: Establish lower but year-round 
supply plant performance standards; do not consider the volume of milk 
shipments to distributing plants regulated by another Federal milk 
order as a qualifying shipment on the Central order; exclude from 
receipts diverted milk made by a pool plant to another pool plant in 
determining pool plant diversion limits; and establish a ``net 
shipments'' provision for milk deliveries to distributing plants. For 
Producer milk, this final rule continues to adopt amendments which: 
Establish higher year-round diversion limits; base diversion limits for 
supply plants on deliveries to Central order distributing plants; and 
eliminate the ability to simultaneously pool the same milk on the 
Central order and a State-operated milk order that has marketwide 
pooling.
    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 a 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.

[[Page 66698]]

    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.
    Of the 10,108 dairy producers (farmers) whose milk was pooled under 
the Central order at the time of the hearing (November 2001) 9,695 or 
95.9 percent would meet the definition of small businesses. On the 
processing side, 10 of the 56 milk plants associated with the Central 
order during November 2001 would qualify as ``small businesses,'' 
constituting about 18 percent of the total.
    Based on these criteria, more than 95 percent of the producers 
would be considered as small businesses. The adoption of the proposed 
pooling standards serves to revise the criteria that determine those 
producers, producer milk, and plants that have a reasonable association 
with, and are consistently serving the fluid needs of, the Central milk 
marketing area and are not associated with other marketwide 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 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 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 October 17, 2001; published October 23, 
2001 (66 FR 53551).
    Tentative Final Decision: Issued November 8, 2002; published 
November 19, 2002 (67 FR 69910).
    Interim Final Rule: Issued February 6, 2003; published February 12, 
2003 (68 FR 7070).
    Final Decision: Issued August 18, 2003; published August 27, 2003 
(68 FR 51640).

Findings and Determinations

    The findings and determinations hereinafter set forth supplement 
those that were made when the Central 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 Central 
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 Central marketing 
area.
    Upon the basis of the evidence introduced at such hearing and the 
record thereof it is found that:
    (1) The Central 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 Central 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 Central order effective December 1, 2003.
    The amendments to these orders are known to handlers. The final 
decision containing the proposed amendments to these orders was issued 
on August 18, 2003. These proposed amendments are identical to the 
amendments in the Interim Final Rule published in the Federal Register 
on February 12, 2003 (68 FR 7070), regulating the handling of milk in 
the Central 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 December 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 Central 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 Central 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.

[[Page 66699]]

List of Subjects in 7 CFR Part 1032

    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 Central 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 1032--MILK IN THE CENTRAL MARKETING AREA

0
The interim final rule amending 7 CFR part 1032 which was published at 
68 FR 7070 on February 12, 2003, is adopted as a final rule without 
change.

    Dated: November 19, 2003.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 03-29624 Filed 11-26-03; 8:45 am]
BILLING CODE 3410-02-P