[Federal Register Volume 69, Number 8 (Tuesday, January 13, 2004)]
[Proposed Rules]
[Pages 1957-1958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-689]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1135

[Docket No. AO-380-A18; DA-01-08-W]


Milk in the Western Marketing Area; Proposed Termination of the 
Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed termination of order.

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SUMMARY: This document invites written comments on the proposed 
termination of the order regulating the handling of milk in the Western 
marketing area. A proposal amending the Western order failed to receive 
the required two-thirds

[[Page 1958]]

approval in a recent producer referendum. Since the Department has 
determined that the provisions of the proposed amended order are 
necessary to effectuate the declared policy of the applicable statutory 
authority, it is necessary to consider terminating the present order.

DATES: Comments are due on or before February 12, 2004.

FOR FURTHER INFORMATION CONTACT: Gino M. Tosi, Marketing Specialist, 
Order Formulation and Enforcement Branch, USDA/AMS/Dairy Programs, Room 
2971--Stop 0231, 1400 Independence Avenue, SW., Washington, DC 20250-
0231, (202) 690-1366, e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: The Department is issuing this proposed 
action in conformance with Executive Order 12866.
    This proposed termination has been reviewed under Executive Order 
12988, Civil Justice Reform. This action is not intended to have a 
retroactive effect. If adopted, this proposed action will not preempt 
any state or local laws, regulations, or policies, unless they present 
an irreconcilable conflict with the action.
    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. 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 Secretary'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 
proposed action will not have a significant economic impact on a 
substantial number of small entities. This rule would eliminate the 
regulatory impact of the order on dairy farmers and regulated handlers. 
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.
    In the Western Federal milk order 550 of the 860 dairy producers 
(farmers), or 64 percent, whose milk was pooled under the order in June 
2003 would meet the definition of small businesses. On the processing 
side, 15 of the 42 milk plants or 36 percent associated with the 
Western milk order during June 2003 would qualify as ``small 
businesses''.
    Interested parties are invited to submit comments on the probable 
regulatory and informational impact of this proposed action on small 
entities.

Proposed Termination of Rule

    Notice is hereby given that, pursuant to the provisions of the 
Agricultural Marketing Agreement Act, the termination of the order 
regulating the handling of milk in the Western marketing area is being 
considered.
    All persons who want to send written data, views, or arguments 
about the proposed termination should send two copies to the USDA/AMS/
Dairy Division, Order Formulation and Enforcement Branch Room 2971--
Stop 0231, 1400 Independence Avenue, SW., Washington, DC 20250-0231, by 
the 30th day after the publication of this notice in the Federal 
Register. The period for filing comments is limited to 30 days because 
a longer period would not provide the time needed to complete the 
required procedures before the termination is to be effective.
    The comments that are received will be made available for public 
inspection in the Dairy Division during normal business hours (7 CFR 
1.27 (b)).

Statement of Consideration

    The proposed action would terminate the order regulating the 
handling of milk in the Western marketing area.
    On August 8, 2003, the Department issued a tentative final decision 
on proposed amendments to the Western Federal milk order, which was 
published August 18, 2003 (68 FR 49375). The document was then followed 
by a referendum order for the Western marketing area to ascertain 
whether producers supplying that market approve the issuance of the 
proposed amended order.
    The enabling statute requires that at least two-thirds of the 
producers (measured in terms of either number or volume) voting in a 
referendum must approve the issuance of a order before it can be put 
into effect. Less than two-thirds percent of the voting producers in 
the referendum approved the issuance of the proposed amended order for 
the Western marketing area. In these circumstances, where it has been 
concluded that the order should be amended to effectuate the declared 
policy of the enabling statute and that the amended order was not 
approved by producers, it appears that continuation of the existing 
Western order would not be in conformity with the applicable statutory 
authority. Therefore, it is necessary to consider terminating the 
present order.
    The period for filing comments is limited to 30 days because a 
longer period would not provide the time needed to complete the 
required procedures before and coordinate the termination with 
amendatory action being taken on milk orders for neighboring markets.

List of Subjects in 7 CFR Part 1135

    Milk marketing orders.

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

    Dated: January 7, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-689 Filed 1-12-04; 8:45 am]
BILLING CODE 3410-02-P