[Federal Register Volume 69, Number 119 (Tuesday, June 22, 2004)]
[Rules and Regulations]
[Pages 34554-34555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14060]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1033

[Docket No. AO-361-A35; DA-01-04]


Milk in the Mideast 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, with changes, an interim 
final rule concerning pooling provisions of the Mideast Federal milk 
order. More than the required number of producers in the Mideast 
marketing area have approved the issuance of the final order 
amendments. Conforming changes are made to clarify references to order 
provision paragraphs.

EFFECTIVE DATE: July 1, 2004.

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 document adopts as a final rule, with 
changes, an interim final rule, concerning pooling provisions of the 
Mideast Federal milk order. Specifically, this final rule continues to 
amend the Pool plant provisions which: Eliminate automatic pool plant 
status for the 6-month period of March through August, eliminate milk 
shipments to a distributing plant regulated by another Federal milk 
order as pool-qualifying shipments under the Mideast order, eliminate 
the ``split plant'' feature, eliminate including diversions made by a 
pool supply plant located outside the marketing area to a second pool 
plant, and establish a ``net shipments'' provision for pool supply 
plants not operated by a cooperative. For the Producer milk provisions, 
this final rule continues amendments which: Seasonally adjust and 
increase the number of days that the milk of a producer needs to be 
delivered to a pool plant and establish year-round diversion limits, 
adjusted seasonally, for producer milk for handlers pooled under the 
Mideast order.
    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 have been reviewed under the 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.
    On the producer side, 10,756 of the 11,133 dairy farmers, or 97 
percent, whose milk was pooled under the Mideast order at the time of 
the hearing (October 2001) would meet the definition of small 
businesses. On the processing side, 27 of the 58 milk plants associated 
with the Mideast order during October 2001 would qualify as small 
businesses, constituting 47 percent of the total. 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 serve 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 Mideast 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.

[[Page 34555]]

    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 September 21, 2001; published September 
28, 2001 (66 FR 49571).
    Tentative Final Decision: Issued June 4, 2002; published June 11, 
2002 (67 FR 39871).
    Interim Final Rule: Issued July 22, 2002; published July 26, 2002 
(67 FR 48743).
    Final Decision: Issued April 5, 2004; published April 12, 2004 (69 
FR 19291).

Findings and Determinations

    A conforming change is made to section 1033.13(d)(7) to clarify 
that the delivery day requirements that may be increased by the market 
administrator are specified in paragraphs (d)(2) and (d)(3) of this 
section and that the diversion percentages are specified in paragraph 
(d)(4) of this section.
    The findings and determinations hereinafter set forth supplement 
those that were made when the Mideast 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 Mideast 
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 Mideast marketing 
area.
    Upon the basis of the evidence introduced at such hearing and the 
record thereof it is found that:
    (1) The Mideast 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 Mideast 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 Mideast order effective July 1, 2004. Any 
delay beyond that date would tend to disrupt the orderly marketing of 
milk in the aforesaid marketing area.
    The amendments to these order are known to handlers. The final 
decision containing the proposed amendments to these orders was issued 
on April 5, 2004 (69 FR 19291).
    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 July 1, 2004. 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 Mideast 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 Mideast 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 1033

    Milk marketing orders.

Order Relative to Handling

0
It is therefore ordered, that on and after the effective date hereof, 
the handling of milk in the Mideast marketing area shall be in 
conormity to and in compliance with the terms and conditions of the 
order, as amended, and as hereby further amended, as follows:

0
The authority citation for 7 CFR part 1033 continues to read as 
follows:

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

PART 1033--MILK IN THE MIDEAST MARKETING AREA

0
The interim final rule amending 7 CFR part 1033 which was published on 
July 26, 2002, (67 FR 48743), is adopted as a final rule, with the 
following changes:
0
 1. Section 1033.7 is amended by revising paragraph (d)(2) to read as 
follows:


Sec.  1033.7  Pool plant.

* * * * *
    (d) * * *
    (2) The 30 percent delivery requirement may be met for the current 
month or it may be met on the basis of deliveries during the preceding 
12-month period ending with the current month.
* * * * *
0
2. Section 1033.13 is amended by revising the first sentence in 
paragraph (d)(7) to read as follows:


Sec.  1033.13  Producer milk.

* * * * *
    (d) * * *
    (7) The delivery day requirement in paragraphs (d)(2) and (d)(3) of 
this section and the diversion percentages in paragraph (d)(4) of this 
section may be increased or decreased by the market administrator if 
the market administrator finds that suhc revision is necessary to 
assure orderly marketing and efficient handling of milk in the 
marketing area.

    Dated: June 16, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-14060 Filed 6-21-04; 8:45 am]
BILLING CODE 3410-02-M