[Federal Register Volume 77, Number 166 (Monday, August 27, 2012)]
[Rules and Regulations]
[Pages 51693-51695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20973]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1033

[Doc. No. AO-11-0333; AMS-DA-11-0067; DA-11-04]


Milk in the Mideast Marketing Area; Order Amending the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the Pool Plant provisions of the 
Mideast Federal milk marketing order regulating distributing plants 
physically located within the marketing area, with a Class I 
utilization of at least 30 percent and with combined route disposition 
and transfers of at least 50 percent distributed into Federal milk 
marketing areas, as Pool Distributing Plants under the terms of the 
order. More than the required number of producers for the Mideast 
marketing area approved the issuance of the final order as amended.

FOR FURTHER INFORMATION CONTACT: Erin C. Taylor, Order Formulation and 
Enforcement Division, USDA/AMS/Dairy Programs, STOP 0231-Room 2963, 
1400 Independence Ave. SW., Washington, DC 20250-0231, (202) 720-7183, 
email address: [email protected].

DATES: Effective Date: October 1, 2012.

SUPPLEMENTARY INFORMATION: This final rule more adequately defines the 
plants, and the producer milk associated with those plants, that serve 
the fluid needs

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of the Mideast market and therefore which producers should share in the 
additional revenue arising from fluid milk sales.
    Accordingly, this final rule adopts proposed amendments detailed in 
the final decision (77 FR 38536).
    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.
    The amendment proposed herein has been reviewed under Executive 
Order 12988, Civil Justice Reform. They are not intended to have a 
retroactive effect.
    The Agricultural Marketing Agreement Act of 1937, as amended (7 
U.S.C. 601-674) (the Act), 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 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 U.S. Department of Agriculture (USDA 
or 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 USDA'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-
612), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action on small entities and has certified that 
this proposed 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 farms. 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 October 2011, the time of the hearing, there were 6,651 
dairy farms pooled on the Mideast order. Of these, approximately 6,169 
dairy farms (or 92.8 percent) were considered small businesses. During 
the same month, there were 51 handler operations associated with the 
Mideast order (25 fully regulated handlers, 8 partially regulated 
handlers, 2 producer-handlers, and 16 exempt handlers). Of these, 
approximately 38 handlers (or 74.5 percent) were considered small 
businesses.
    The Pool Plant provisions of the Mideast order define which plants 
have an association with serving the fluid milk market demand of the 
Mideast marketing area, and therefore determine the producers and the 
producer milk that can participate in the marketwide pool as well as 
share in the Class I market revenues. The proposed amendment adopted in 
this final rule will fully regulate some handlers that currently fall 
under partial regulation. As a result, these handlers will be required 
to account to the Mideast order marketwide pool. Consequently, all 
producers whose milk is pooled and priced under the terms of the 
Mideast order will benefit from the additional revenue contributed to 
the marketwide pool by the newly-regulated distributing plant. The 
Department anticipates that while these additional monies will be 
shared with all producers serving the market, the amendment will not 
have a significant economic impact on a substantial number of small 
entities.
    AMS 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.
    A review of reporting requirements was completed under the 
Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). It was 
determined that the amendment will have no impact on reporting, 
recordkeeping, or other compliance requirements because it will remain 
identical to the current requirements. No new forms are proposed and no 
additional reporting requirements are necessary.
    This notice does not require additional information collection that 
will necessitate 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.

Prior Documents in This Proceeding

    Notice of Hearing: Issued September 2, 2011; published September 8, 
2011 (76 FR 55608).
    Recommended Decision: Issued February 24, 2012; published February 
29, 2012 (77 FR 12216).
    Final Decision: Issued June 22, 2012; published June 28, 2012 (77 
FR 38536).

Findings and Determinations

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

(a) Findings Upon the Basis of the Hearing Record

    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. The hearing was held 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 (7 CFR part 900).
    Upon the basis of the evidence introduced at such hearing and the 
record thereof, it is found that:
    (1) The said 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 aforesaid marketing area. 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

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    (3) The said 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

    The amendment to this order is known to handlers. The final 
decision containing the proposed amendment to this order was issued on 
June 22, 2012, and published in the Federal Register on June 28, 2012 
(77 FR 38536).
    The changes that result from this amendment 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 this amendment 
effective following October 1, 2012. (Section 553(d), Administrative 
Procedures 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 section 8c(9) of the AMAA) of more than 50 
percent of the milk, which is marketed within the specified marketing 
areas, to sign a proposed marketing agreement, tends to prevent the 
effectuation of the declared policy of the AMAA;
    (2) The issuance of this order amending the Mideast order is the 
only practical means pursuant to the declared policy of the AMAA of 
advancing the interests of producers as defined in the orders as hereby 
amended; and
    (3) The issuance of this 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 respective marketing areas.

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 amended, as follows:
    For reasons set forth in the preamble, 7 CFR part 1033 is amended 
as follows:

PART 1033--MILK IN THE MIDEAST MARKETING AREA

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

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


0
2. Amend Sec.  1033.7 by revising paragraph (a) to read as follows:


Sec.  1033.7  Pool Plant.

* * * * *
    (a) A distributing plant, other than a plant qualified as a pool 
plant pursuant to paragraph (b) of this section or Sec.  ----.7(b) of 
any other Federal milk order, from which during the month 30 percent or 
more of the total quantity of fluid milk products physically received 
at the plant (excluding concentrated milk received from another plant 
by agreement for other than class I use) are disposed of as route 
disposition or are transferred in the form of packaged fluid milk 
products to other distributing plants. At least 25 percent of such 
route disposition and transfers must be to outlets in the marketing 
area. Plants located within the marketing area that meet the 30 percent 
route disposition standard contained above, and have combined route 
disposition and transfers of at least 50 percent into Federal order 
marketing areas will be regulated as a distributing plant in this 
order.
* * * * *

    Dated: August 21, 2012.
David R. Shipman,
Administrator, Agricultural Marketing Service.
[FR Doc. 2012-20973 Filed 8-24-12; 8:45 am]
BILLING CODE 3410-02-P