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Federal Register / Vol. 70, No.

185 / Monday, September 26, 2005 / Rules and Regulations 56111

submitted by the NAC and PCC and § 917.258 Assessment rate. regulations, or policies, unless they
other available information, it is hereby On and after March 1, 2005, an present an irreconcilable conflict with
found that this rule, as hereinafter set assessment rate of $0.20 per 25-pound this rule.
forth, will tend to effectuate the container or container equivalent of The Agricultural Marketing
declared policy of the Act. peaches is established for California Agreement Act of 1937 (the Act), as
Pursuant to 5 U.S.C. 553, it is also peaches. amended (7 U.S.C. 601–674), provides
found and determined that good cause that administrative proceedings must be
Dated: September 20, 2005.
exists for not postponing the effective exhausted before parties may file suit in
Lloyd C. Day, court. Under Section 608c(15)(A) of the
date of this rule until 30 days after Administrator, Agricultural Marketing Act, any handler subject to an order may
publication in the Federal Register Service. request modification or exemption from
because: (1) The 2005–06 fiscal period [FR Doc. 05–19085 Filed 9–23–05; 8:45 am] such order by filing with the
began on March 1, 2005, and the BILLING CODE 3410–02–P Department of Agriculture (Department)
marketing orders require that the
a petition stating that the order, any
assessment rates for each fiscal period
provision of the order, or any obligation
apply to all nectarines and peaches DEPARTMENT OF AGRICULTURE imposed in connection with the order is
handled during such fiscal period; (2)
not in accordance with the law. A
the committees need to have sufficient Agricultural Marketing Service handler is afforded the opportunity for
funds to pay their expenses, which are
a hearing on the petition. After a
incurred on a continuous basis; and (3) 7 CFR Part 1033 hearing, the Department would rule on
handlers are aware of this action, which the petition. The Act provides that the
[Docket No. AO–166–A39; DA–05–01–A]
was discussed by the committees at District Court of the United States in
public meetings and unanimously Milk in the Mideast Marketing Area; any district in which the handler is an
recommended by a mail vote, and is Interim Order Amending the Order inhabitant, or has its principal place of
similar to other assessment rate actions business, has jurisdiction in equity to
issued in past years. Also, a 10-day AGENCY: Agricultural Marketing Service, review the Department’s ruling on the
comment period was provided for in the USDA. petition, provided a bill in equity is
proposed rule and the comments ACTION: Interim final rule. filed not later than 20 days after the date
received have been considered in of the entry of the ruling.
reaching a final decision on this matter. SUMMARY: This order amends certain
features of the pooling standards of the Regulatory Flexibility Act and
List of Subjects Mideast milk marketing order on an Paperwork Reduction Act
7 CFR Part 916 interim basis. More than the required In accordance with the Regulatory
number of producers in the Mideast Flexibility Act (5 U.S.C. 601 et seq.), the
Marketing agreements, Nectarines, marketing area have approved the Agricultural Marketing Service has
Reporting and recordkeeping issuance of the interim order as considered the economic impact of this
requirements. amended. action on small entities and has certified
7 CFR Part 917 DATES: Effective October 1, 2005. that this interim rule will not have a
FOR FURTHER INFORMATION CONTACT:
significant economic impact on a
Marketing agreements, Peaches, Pears, substantial number of small entities. For
Reporting and recordkeeping Gino M. Tosi, Associate Deputy
Administrator, Stop 0231, Room 2971, the purpose of the Regulatory Flexibility
requirements. Act, a dairy farm is considered a ‘‘small
USDA/AMS/Dairy Programs, Order
■ For the reasons set forth in the Formulation and Enforcement Branch, business’’ if it has an annual gross
preamble, 7 CFR parts 916 and 917 are 1400 Independence Avenue, SW., revenue of less than $750,000, and a
amended as follows: Washington, DC 20250–0231, (202) 690– dairy products manufacturer is a ‘‘small
1366, e-mail address: business’’ if it has fewer than 500
■ 1. The authority citation for 7 CFR
gino.tosi@usda.gov. employees.
parts 916 and 917 continue to read as For the purposes of determining
follows: SUPPLEMENTARY INFORMATION: which dairy farms are ‘‘small
Authority: 7 U.S.C. 601–674. Specifically, this decision adopts businesses,’’ the $750,000 per year
provisions that will: (1) Prohibit the criterion was used to establish a
PART 916—NECTARINES GROWN IN ability to simultaneously pool the same production guideline of 500,000 pounds
CALIFORNIA milk on the Mideast Federal milk order per month. Although this guideline does
and on a marketwide equalization pool not factor in additional monies that may
■ 2. Section 916.234 is revised to read administered by another government be received by dairy producers, it
as follows: entity; (2) Lower the diversion limit should be an inclusive standard for
standards; and (3) Increase the most ‘‘small’’ dairy farmers. For
§ 916.234 Assessment rate. performance standards for supply purposes of determining a handler’s
On and after March 1, 2005, an plants. size, if the plant is part of a larger
assessment rate of $0.20 per 25-pound This administrative rule is governed company operating multiple plants that
container or container equivalent of by the provisions of sections 556 and collectively exceed the 500-employee
nectarines is established for California 557 of title 5 of the United States Code limit, the plant will be considered a
nectarines. and, therefore, is excluded from the large business even if the local plant has
requirements of Executive Order 12866. fewer than 500 employees.
PART 917—PEACHES GROWN IN This interim rule has been reviewed During March 2005, the month during
CALIFORNIA under Executive Order 12988, Civil which the hearing occurred, there were
Justice Reform. This rule is not intended 9,767 dairy producers pooled on, and 36
■ 3. Section 917.258 is revised to read to have a retroactive effect. This rule handlers regulated by, the Mideast
as follows: will not preempt any State or local laws, order. Approximately 9,212 producers,

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56112 Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations

or 94.3 percent, were considered small Tentative Partial Decision: Issued July The changes that result from these
businesses based on the above criteria. 21, 2005; published July 27, 2005 (70 FR interim amendments will not require
Of the 36 handlers regulated by the 43335). extensive preparation or substantial
Mideast order, approximately 26 alteration in the method of operation for
Findings and Determinations
handlers, or 72.2 percent, were handlers. In view of the foregoing, it is
considered small businesses. The findings and determinations hereby found and determined that good
The adoption of the proposed pooling hereinafter set forth supplement those cause exists for making these interim
standards serve to revise established that were made when the Mideast order order amendments effective on October
criteria that determine those producers, was first issued and when it was 1, 2005.
producer milk and plants that have a amended. The previous findings and (c) Determinations. It is hereby
reasonable association with, and are determinations are hereby ratified and determined that:
consistently serving the fluid needs of, confirmed, except where they may (1) The refusal or failure of handlers
the Mideast milk marketing area. conflict with those set forth herein. (excluding cooperative associations
Criteria for pooling are established on The following findings are hereby specified in Section 8c(9) of the Act) of
the basis of performance levels that are made with respect to the Mideast order: more than 50 percent of the milk, which
considered adequate to meet the Class I (a) Findings upon the basis of the is marketed within the specified
fluid needs and, by doing so, determine hearing record. Pursuant to the marketing area, to sign a proposed
those producers who are eligible to provisions of the Agricultural Marketing marketing agreement, tends to prevent
share in the revenue that arises from the Agreement Act of 1937, as amended (7 the effectuation of the declared policy of
classified pricing of milk. Criteria for U.S.C. 601–674), and the applicable the Act;
pooling are established without regard rules of practice and procedure (2) The issuance of this interim order
to the size of any dairy industry governing the formulation of marketing amending the Mideast order is the only
organization or entity. The established agreements and marketing orders (7 CFR practical means pursuant to the
criteria are applied in an identical part 900), a public hearing was held declared policy of the Act of advancing
fashion to both large and small upon certain proposed amendments to the interests of producers as defined in
businesses and do not have any the tentative marketing agreement and the order as hereby amended;
different economic impact on small to the order regulating the handling of (3) The issuance of the interim order
entities as opposed to large entities. milk in the Mideast marketing area. amending the Mideast order is favored
Therefore, the proposed amendments Upon the basis of the evidence by at least two-thirds of the producers
will not have a significant economic introduced at such hearing and the who were engaged in the production of
impact on a substantial number of small record thereof it is found that: milk for sale in the marketing area.
entities. (1) The Mideast order, as hereby
A review of reporting requirements amended on an interim basis, and all of List of Subjects in 7 CFR Part 1033
was completed under the Paperwork the terms and conditions thereof, will Milk marketing orders.
Reduction Act of 1995 (44 U.S.C. tend to effectuate the declared policy of
Order Relative to Handling
Chapter 35). It was determined that the Act;
these adopted amendments will have no (2) The parity prices of milk, as ■ It is therefore ordered, that on and
impact on reporting, recordkeeping, or determined pursuant to section 2 of the after the effective date hereof, the
other compliance requirements because Act, are not reasonable in view of the handling of milk in the Mideast
they will remain identical to the current price of feeds, available supplies of marketing area shall be in conformity to
requirements. No new forms are feeds, and other economic conditions and in compliance with the terms and
proposed and no additional reporting which affect market supply and demand conditions of the order, as amended,
requirements will be necessary. for milk in the marketing area, and the and as hereby further amended on an
This action does not require minimum prices specified in the order, interim basis, as follows:
additional information collection that as hereby amended on an interim basis,
requires clearance by the Office of are such prices as will reflect the PART 1033—MILK IN THE MIDEAST
Management and Budget (OMB) beyond aforesaid factors, insure a sufficient AREA
currently approved information quantity of pure and wholesome milk,
■ 1. The authority citation for 7 CFR
collection. The primary sources of data and be in the public interest; and
(3) The Mideast order, as hereby Part 1033 reads as follows:
used to complete the forms are routinely
used in most business transactions. amended on an interim basis, regulates Authority: 7 U.S.C. 601–674.
Forms require only a minimal amount of the handling of milk in the same ■ 2. Section 1033.7 is amended by:
information which can be supplied manner as, and is applicable only to ■ (a) Revising paragraph (c)
without data processing equipment or a persons in the respective classes of introductory text.
trained statistical staff. Thus, the industrial and commercial activity ■ (b) Revising the introductory text of
information collection and reporting specified in, a marketing agreement paragraph (d).
burden is relatively small. Requiring the upon which a hearing has been held. ■ (c) Revising paragraph (d)(2).
same reports for all handlers does not (b) Additional Findings. It is ■ (d) Revising paragraph (e)(1).
significantly disadvantage any handler necessary and in the public interest to The revisions read as follows:
that is smaller than the industry make these interim amendments to the
average. Mideast order effective October 1, 2005. § 1033.7 Pool plant.
Prior documents in this proceeding: Any delay beyond that date would tend * * * * *
Amendment to Public Hearing on to disrupt the orderly marketing of milk (c) A supply plant from which the
Proposed Rulemaking: Issued March 1, in the aforesaid marketing area. quantity of bulk fluid milk products
2005; published March 3, 2005 (70 FR The interim amendments to this order shipped to, received at, and physically
10337). are known to handlers. The tentative unloaded into plants described in
Notice of Hearing: Issued February 14, partial final decision containing the paragraph (a) or (b) of this section as a
2005; published February 17, 2005 (70 proposed amendments to this order was percent of the Grade A milk received at
FR 8043). issued on July 21, 2005. the plant from dairy farmers (except

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Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56113

dairy farmers described in § 1033.12(b)) imposed under the authority of another milk. Also, the rule did not provide for
and handlers described in § 1000.9(c), as government entity. adjustments in payments based on cow
reported in § 1033.30(a), is not less than Dated: September 20, 2005. herd size. Rather, the rule provided for
40 percent of the milk received from Lloyd C. Day,
payments to be made based on changes
dairy farmers, including milk diverted in milk production from a set base
Administrator, Agricultural Marketing
pursuant to § 1033.13, subject to the Service.
amount. Also, among other provisions,
following conditions: the rule provided that in the case the
[FR Doc. 05–19086 Filed 9–23–05; 8:45 am]
* * * * * limited program funds were not
BILLING CODE 3410–02–P
(d) A plant located in the marketing sufficient to pay all claims for lost
area and operated by a cooperative production and for dumped milk, then
association if, during the months of priority would be given in making
DEPARTMENT OF AGRICULTURE
December through July 30 percent, payments to those persons whose losses
during the month of August 35 percent Commodity Credit Corporation over the whole period were greater than
and during the months of September 20 percent. It was provided additionally
through November 40 percent or more 7 CFR Part 1430 in the proposed rule that the prices at
of the producer milk of members of the which payments would be made would
RIN 0560–AH28 be amounts set out in the rule which
association is delivered to a distributing
pool plant(s) or to a nonpool plant(s) were derived from a series of reported
2004 Dairy Disaster Assistance ‘‘mailbox’’ prices. On these aspects and
and classified as Class I. Deliveries for Payment Program
qualification purposes may be made all others, comment was invited.
directly from the farm or by transfer AGENCIES: Commodity Credit Comments and Changes to Final Rule
from such association’s plant, subject to Corporation, USDA.
ACTION: Final rule.
During the 30-day comment period
the following conditions:
the Agency received public comments
* * * * * SUMMARY: This rule sets forth the from two U.S. Senators, ten U.S.
(2) The 30 percent delivery congressmen, one dairy cooperative, one
regulations for the 2004 Dairy Disaster
requirement for the months of December advocacy group and two private
Assistance Payment Program. This
through July may be met for the current citizens. Some responses contained
program will assist dairy producers by
month or it may be met on the basis of multiple comments.
providing payments to those who
deliveries during the preceding 12- Of the total comments received during
suffered dairy production and milk
month period ending with the current the public comment period, two
spoilage losses due to hurricanes in
month. respondents opposed the program
2004.
* * * * * indicating that private insurance should
(e) * * * DATES: This rule is effective on
adequately compensate dairy producers
(1) The aggregate monthly quantity September 26, 2005. monetarily for losses rather than the
supplied by all parties to such an FOR FURTHER INFORMATION CONTACT: taxpayers or Government. One of those
agreement as a percentage of the Danielle Cooke, Price Support Division, respondents also believed that the
producer milk receipts included in the Farm Service Agency, United States assistance being provided by the Agency
unit during the months of August Department of Agriculture, STOP 0512, was duplicative to that of Federal
through November is not less than 45 1400 Independence Avenue, SW., Emergency Management Agency
percent and during the months of Washington, DC 20250–0512. (FEMA) and that it was misleading for
December through July is not less than Telephone: (202) 720–1919; e-mail: Congress to insert a statute for
35 percent; Danielle.Cooke@wdc.usda.gov. agriculture in a non-related military
* * * * * SUPPLEMENTARY INFORMATION: spending bill. No changes have been
■ 3. Section 1033.13 is amended by: made in the rule based on these
Discussion of Final Rule comments. The agency is charged with
■ (a) Revising paragraph (d)(4).
■ (b) Adding paragraph (e). This rule finalizes the proposed rule implementing statutory provisions as
The revisions read as follows: published in the Federal Register May written and has done so in the final
25, 2005 (70 FR 30009). The 30-day rule. It is not understood to be the case
§ 1033.13 Producer milk. comment period for the proposed 2004 that the relief in the rule duplicates that
* * * * * Dairy Disaster Assistance Payment provided elsewhere, but provision is
(d) * * * Program (DDAP) rule closed on June 24, made in the rule to address that
(4) Of the total quantity of producer 2005. The proposed rule provided that possibility.
milk received during the month the DDAP program would be based on Public comments and suggestions
(including diversions but excluding the hurricane related dairy production and were sought for paying milk marketing
quantity of producer milk received from dairy spoilage losses suffered during the cooperatives directly for milk that was
a handler described in § 1000.9(c) or months of August through October 2004 dumped. Several public comments were
which is diverted to another pool plant), in counties declared a disaster by the received in support of direct payment of
the handler diverted to nonpool plants President in 2004 due to hurricane. The DDAP benefits to a milk handler or
not more than 50 percent in each of the program will end at the conclusion of dairy marketing cooperative rather than
months of August through February and the application period and directly to the producer for spoiled milk
60 percent in each of the months of disbursement of allotted funds. The that was dumped as a result of the
March through July. DDAP program will operate under hurricanes for which the dairy
* * * * * regulations codified in 7 CFR part 1430. marketing cooperative or milk handler
(e) Producer milk shall not include Among other provisions, the proposed compensated the dairy producer.
milk of a producer that is subject to rule provided that in cases where the Respondents indicated that marketing
inclusion and participation in a producers had been paid for qualified cooperatives have adequate records to
marketwide equalization pool under a dumped milk the producer would still verify dumped production and confirm
milk classification and pricing plan qualify for payments related to that payment to producers made by the dairy

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