[Federal Register Volume 71, Number 76 (Thursday, April 20, 2006)]
[Rules and Regulations]
[Pages 20335-20336]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3775]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  Federal Register / Vol. 71, No. 76 / Thursday, April 20, 2006 / Rules 
and Regulations  

[[Page 20335]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1033

[Docket No. AO-166-A72; DA-05-01-A]


Milk in the Mideast Marketing Area; Order Amending the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

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

DATES: Effective Date: May 1, 2006.

FOR FURTHER INFORMATION CONTACT: Gino Tosi, Associate Deputy 
Administrator for Order Formulation and Enforcement, USDA/AMS/Dairy 
Programs, 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 of 
the Mideast Federal milk order. Specifically, this decision adopts 
provisions that will: (1) Prohibit the ability to simultaneously pool 
the same milk on the Mideast Federal milk order and on a marketwide 
equalization pool administered by another government entity; (2) Lower 
the diversion limit standards; and (3) Increase the performance 
standards for supply plants.
    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 March 2005, the month during which the hearing occurred, 
there were 9,767 dairy producers pooled on, and 36 handlers regulated 
by, the Mideast order. Approximately 9,212 producers, or 94.3 percent, 
were considered small businesses based on the above criteria. Of the 36 
handlers regulated by the Mideast order, approximately 26 handlers, or 
72.2 percent, were considered small businesses.
    The adoption of the proposed pooling standards serve to revise 
established criteria that determine the producer milk that has a 
reasonable association with and consistently serves the fluid needs of 
the Mideast 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

[[Page 20336]]

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 February 14, 2005; published February 17, 
2005 (70 FR 8043).
    Amendment to Public Hearing on Proposed Rulemaking: Issued March 1, 
2005; published March 3, 2005 (70 FR 10337).
    Tentative Partial Decision: Issued July 21, 2005; published July 
27, 2005 (70 FR 43335).
    Interim Final Rule: Issued September 20, 2005; published September 
26, 2005 (70 FR 56111).
    Final Partial Decision: Issued January 17, 2006; published January 
23, 2006 (71 FR 3435).

Findings and Determinations

    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 in regard 
to 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 feed, available 
supplies of feed, 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.
    The amendments to these orders are known to handlers. A final 
partial decision containing the proposed amendments to these orders was 
issued on January 17, 2006. An interim final rule adopting these 
pooling standards on an interim basis was issued on September 20, 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 May 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 the 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 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

    It is therefore ordered, that on and after the effective date 
hereof, the handling of milk in the Mideast 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 1033--MILK IN THE MIDEAST MARKETING AREA

    The interim final rule amending 7 CFR part 1033 which was published 
at 70 FR 56111 on September 26, 2005, is adopted as a final rule 
without change.

    Dated: April 17, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-3775 Filed 4-19-06; 8:45 am]
BILLING CODE 3410-02-P