[Federal Register Volume 71, Number 209 (Monday, October 30, 2006)]
[Rules and Regulations]
[Pages 63217-63219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18175]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1033

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


Milk in the Mideast Marketing Area; Order Amending the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends regulations pertaining to 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: December 1, 2006.

FOR FURTHER INFORMATION CONTACT: Gino Tosi, Associate Deputy 
Administrator, Order Formulation and Enforcement Branch, USDA/AMS/Dairy 
Programs, STOP 0231--Room 2968, 1400 Independence Avenue, SW., 
Washington, DC 20250-0231, (202) 690-1366, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This document amends the pooling provisions 
of the Mideast Federal milk order. Specifically, this final rule 
permanently adopts provisions that: (1) Establish a limit on the volume 
of milk a handler may pool during the months of April through February 
to 115 percent of the volume of milk pooled in the prior month; and (2) 
Establish a limit on the volume of milk a handler may pool during the 
month of March to 120 percent of the volume of milk pooled in the prior 
month.
    This administrative action 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. The rule is not intended to have a retroactive effect. 
This rule will not preempt any state or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
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 Secretary 
a petition stating that the order, any provision of the order, or any 
obligation imposed in connection with the order is

[[Page 63218]]

not in accordance with the law. A handler is afforded the opportunity 
for a hearing on the petition. After a hearing, the Secretary 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 
final 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 March 2005, the month 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 during March 2005, 26 handlers, or 72.2 
percent, were considered small businesses.
    The adopted amendments regarding the pooling standards serve to 
revise established criteria that determine those producers, producer 
milk, and plants that have a reasonable association with and 
consistently serve the fluid needs of the Mideast milk marketing area. 
Criteria for pooling milk are established on the basis of performance 
standards that are considered adequate to meet the Class I fluid needs 
of the market and, by doing so, to determine those producers who 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. Therefore, the amendments 
will not have a significant economic impact on a substantial number of 
small entities.
    The Agricultural Marketing Service is committed to complying with 
the E-Government Act, to promote the use of the Internet and other 
information technologies to provide increased opportunities for citizen 
access to Government information and services, and for other purposes.
    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 approved forms are routinely used in most business 
transactions. The 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.
    No other burdens are expected to fall on the dairy industry as a 
result of overlapping Federal rules. This rulemaking proceeding does 
not duplicate, overlap, or conflict with any existing Federal rules.

Prior Documents in This Proceeding

    Notice of Hearing: Issued February 14, 2005; published February 17, 
2005 (70 FR 8043).
    Amended Notice of Hearing: 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).
    Recommended Decision: Issued February 15, 2006; published February 
22, 2006 (71 FR 9033).
    Final Partial Rule: Issued April 17, 2006; published April 20, 2006 
(71 FR 20335).
    Final Decision: Issued September 1, 2006; published September 13, 
2006 (71 FR 54172).

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: A public hearing 
was held upon certain proposed amendment to the tentative marketing 
agreement and to the order regulating the handling of milk in the 
Mideast marketing area. The hearing was held pursuant to the provisions 
of the Agricultural Marketing Agreement act of 1937, as amended (7 
U.S.C. 601-604), the applicable rules of practice and procedure (7 CFR 
part 900).
    Upon the basis of the evidence introduced at such hearing and the 
record thereof, will tend to effectuate the declared policy of the Act;
    (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 tentative marketing agreement and the order, as 
hereby proposed to be 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 or commercial activity specified in, a 
marketing agreement upon which a hearing has been held.
    (b) Additional Findings: It is necessary and in the public interest 
to make these amendments to the Mideast order effective December 1, 
2006. Any delay beyond that date would tend to disrupt the orderly 
marketing of milk in the aforesaid marketing area.
    The amendments to the Mideast order are known to handlers. The 
final decision containing the proposed amendments to the order was 
issued on September 1, 2006.
    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

[[Page 63219]]

and determined that good cause exists for making these order amendments 
effective December 1, 2006.
    (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 Mideast order is the 
only practical means pursuant to the declared policy of the Act of 
advancing the interests of producers as defined by 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

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 
conformity to and in compliance with the terms and conditions of the 
order, as amended, and as hereby amended, as follows:

PART 1033--MILK IN THE MIDEAST MARKETING AREA

0
1. The authority citation for 7 CFR part 1033 is amended to read as 
follows:

    Authority: 7 U.S.C. 601-674, and 7253.

0
2. Section 1033.13 is amended by adding a new paragraph (f), to read as 
follows:


Sec.  1033.13  Producer milk.

* * * * *
    (f) Producer milk of a handler shall not exceed the limits as 
established in Sec.  1033.13(f)(1) through Sec.  1033.13(f)(3).
    (1) Producer milk for the months of April through February may not 
exceed 115 percent of the producer milk receipts of the prior month. 
Producer milk for March may not exceed 120 percent of producer receipts 
of the prior month; plus
    (2) Milk shipped to and physically received at pool distributing 
plants and allocated to Class I use in excess of the volume allocated 
to Class I in the prior month; plus
    (3) If a producer did not have any milk delivered to any plant as 
other than producer milk as defined under the order in this part or any 
other Federal milk order for the preceding three months; and the 
producer had milk qualified as producer milk on any other Federal order 
in the previous month, add the lesser of the following:
    (i) Any positive difference of the volume of milk qualified as 
producer milk on any other Federal order in the previous month, less 
the volume of milk qualified as producer milk on any other Federal 
order in the current month, or
    (ii) Any positive difference of the volume of milk qualified as 
producer milk under the order in this part in the current month, less 
the volume of milk qualified as producer milk under the order in this 
part in the previous month.
    (4) Milk received at pool plants in excess of these limits shall be 
classified pursuant to Sec.  1000.44(a)(3)(v) and Sec.  1000.44(b). 
Milk diverted to nonpool plants reported in excess of this limit shall 
not be producer milk. The handler must designate, by producer pick-up, 
which milk shall not be producer milk. If the handler fails to provide 
this information the provisions of Sec.  1033.13(d)(6) shall apply.
    (5) The market administrator may waive these limitations:
    (i) For a new handler on the order, subject to the provisions of 
Sec.  1033.13(f)(6), or
    (ii) For an existing handler with significantly changed milk supply 
conditions due to unusual circumstances;
    (6) Milk may not be considered producer milk if the market 
administrator determines that handlers altered the reporting of such 
milk for the purpose of evading the provisions of this paragraph.

    Dated: October 25, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E6-18175 Filed 10-27-06; 8:45 am]
BILLING CODE 3410-02-P