[Federal Register Volume 69, Number 120 (Wednesday, June 23, 2004)]
[Rules and Regulations]
[Pages 34912-34913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14061]



[[Page 34912]]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1124

[Docket No. AO-368-A29; DA-01-06]


Milk in the Pacific Northwest 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 order language contained 
in the final decision published in the Federal Register on April 9, 
2004, concerning pooling provisions of the Pacific Northwest Federal 
milk order. More than the required number of producers in the Pacific 
Northwest marketing area approved the issuance of the final order 
amendments.

DATES: 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 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.
    During June 2003, there were 897 producers pooled on, and 71 plants 
associated with, the Pacific Northwest order. Based on these criteria, 
574 producers or 64 percent of producers and 37 plants or 52 percent of 
the associated plants would be considered 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 Pacific Northwest milk marketing. 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 
equal fashion to both large and small businesses. 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 November 14, 2001; published November 19 
2001 (66 FR 57889).
    Tentative Final Decision: Issued August 30 2002; published 
September 6, 2002 (67 FR 56942).
    Interim Final Rule: Issued November 8 2002; published November 19, 
2002 (67 FR 69668).
    Final Decision: Issued April 5, 2004; published April 9, 2004 (69 
FR 18834).

Findings and Determinations

    The findings and determinations hereinafter set forth supplement 
those that were made when the Pacific Northwest 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 Pacific 
Northwest 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

[[Page 34913]]

milk in the Pacific Northwest marketing area.
    Upon the basis of the evidence introduced at such hearing and the 
record thereof it is found that:
    (1) The Pacific Northwest 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 Pacific Northwest 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 Pacific Northwest 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 orders are known to handlers. The final 
decision containing the proposed amendments to these orders was issued 
on April 5, 2004.
    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. (Section 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 that 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 Pacific Northwest 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 Pacific Northwest 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.
    Specifically, this final rule permanently adopts a ``cooperative 
pool manufacturing plant'' provision and continues system pooling for 
cooperative manufacturing plants. Additionally, this final rule 
permanently adopts a diversion limit of 80 percent of total producer 
receipts for a pool plant, continues the standard for the number of 
days during the month that the milk of a producer would need to be 
delivered to a pool plant in order for the rest of the milk of that 
producer to be eligible to be diverted to nonpool plants, and maintains 
the authority granted to the market administrator to adjust the touch-
base standard.

List of Subjects in 7 CFR Part 1124

    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 Pacific Northwest 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 1124--MILK IN THE PACIFIC NORTHWEST MARKETING AREA

0
The interim final rule amending 7 CFR part 1124 which was published at 
67 FR 69668 on November 19, 2002, is adopted as a final rule without 
change.

    Dated: June 16, 2004.
A.J. Yates,
Administrator, Agricultural Marketing Service.
[FR Doc. 04-14061 Filed 6-22-04; 8:45 am]
BILLING CODE 3410-02-P