[Federal Register Volume 70, Number 236 (Friday, December 9, 2005)]
[Rules and Regulations]
[Pages 73126-73128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23820]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1030

[Docket No. AO-361-A39; DA-04-03-A]


Milk in the Upper Midwest Marketing Area; Order Amending the 
Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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[[Page 73127]]

SUMMARY: This document adopts as a final rule, without change, an 
interim final rule concerning pooling standards and transportation 
credit provisions of the Upper Midwest Federal milk order. More than 
the required number of producers for the Upper Midwest marketing area 
approved the issuance of the final order amendments.

DATES: Effective February 1, 2006.

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, 
without change, an interim final rule concerning pooling standards and 
transportation credit provisions of the Upper Midwest Federal milk 
order. Specifically, this final rule permanently adopts provisions to 
allow only supply plants located in the States that comprise the UMW 
marketing area to use milk delivered directly from producer farms for 
qualification purposes, eliminate the ability to pool diversions to 
nonpool plants located outside of the States that comprise the UMW 
marketing area as producer milk and limit the transportation credit 
received by handlers to the first 400 miles of applicable milk 
movements.
    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 
marketing 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 August 2004, the month during which the hearing occurred, 
there were 15,608 dairy producers pooled on, and 60 handlers regulated 
by, the UMW order. Approximately 15,082 producers, or 97 percent, were 
considered small businesses based on the above criteria. Of the 60 
handlers regulated by the UMW order during August 2004, approximately 
49 handlers, or 82 percent, were considered ``small businesses.''
    The adoption of the proposed pooling standards and transportation 
credit provisions serve to revise established criteria that determine 
the producer milk that has a reasonable association with and 
consistently serves the fluid needs of the Upper Midwest milk marketing 
area. 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 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 16, 2004; published June 23, 2004 
(69 FR 34963).
    Notice of Hearing Delay: Issued July 14, 2004; published July 21, 
2004 (69 FR 43538).
    Tentative Partial Decision: Issued April 8, 2005; published April 
14, 2005 (70 FR 19709).
    Interim Final Rule: Issued May 26, 2005; published June 1, 2005 (70 
FR 31321).
    Final Partial Decision: Issued September 29, 2005; published 
October 5, 2005 (70 FR 58086).

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.

[[Page 73128]]

    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.
    The amendments to these orders are known to handlers. A final 
partial decision containing the proposed amendments to these orders was 
issued on September 29, 2005.
    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 February 1, 2006. 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.)
    (b) 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 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 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 Part 1030

    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 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 
70 FR 31321 on June 1, 2005, is adopted as a final rule without change.

    Dated: December 5, 2005.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 05-23820 Filed 12-8-05; 8:45 am]
BILLING CODE 3410-02-P