Milk in the Western Marketing Area; Proposed Termination of the Order

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Proposed termination of order.

SUMMARY:

This document invites written comments on the proposed termination of the order regulating the handling of milk in the Western marketing area. A proposal amending the Western order failed to receive the required two-thirds approval in a recent producer referendum. Since the Department has determined that the provisions of the proposed amended order are necessary to effectuate the declared policy of the applicable statutory authority, it is necessary to consider terminating the present order.

DATES:

Comments are due on or before February 12, 2004.

FOR FURTHER INFORMATION CONTACT:

Gino M. Tosi, Marketing Specialist, Order Formulation and Enforcement Branch, USDA/AMS/Dairy Programs, Room 2971—Stop 0231, 1400 Independence Avenue, SW., Washington, DC 20250-0231, (202) 690-1366, e-mail address: gino.tosi@usda.gov.

SUPPLEMENTARY INFORMATION:

The Department is issuing this proposed action in conformance with Executive Order 12866.

This proposed termination has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have a retroactive effect. If adopted, this proposed action will not preempt any state or local laws, regulations, or policies, unless they present an irreconcilable conflict with the action.

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 not in accordance with the law. A handler is afforded the opportunity for a hearing 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 Secretary'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.

Small Business Consideration

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 proposed action will not have a significant economic impact on a substantial number of small entities. This rule would eliminate the regulatory impact of the order on dairy farmers and regulated handlers. 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.

In the Western Federal milk order 550 of the 860 dairy producers (farmers), or 64 percent, whose milk was pooled under the order in June 2003 would meet the definition of small businesses. On the processing side, 15 of the 42 milk plants or 36 percent associated with the Western milk order during June 2003 would qualify as “small businesses”.

Interested parties are invited to submit comments on the probable regulatory and informational impact of this proposed action on small entities.

Proposed Termination of Rule

Notice is hereby given that, pursuant to the provisions of the Agricultural Marketing Agreement Act, the termination of the order regulating the handling of milk in the Western marketing area is being considered.

All persons who want to send written data, views, or arguments about the proposed termination should send two copies to the USDA/AMS/Dairy Division, Order Formulation and Enforcement Branch Room 2971—Stop 0231, 1400 Independence Avenue, SW., Washington, DC 20250-0231, by the 30th day after the publication of this notice in the Federal Register. The period for filing comments is limited to 30 days because a longer period would not provide the time needed to complete the required procedures before the termination is to be effective.

The comments that are received will be made available for public inspection in the Dairy Division during normal business hours (7 CFR 1.27 (b)).

Statement of Consideration

The proposed action would terminate the order regulating the handling of milk in the Western marketing area.

On August 8, 2003, the Department issued a tentative final decision on proposed amendments to the Western Federal milk order, which was published August 18, 2003 (68 FR 49375). The document was then followed by a referendum order for the Western marketing area to ascertain whether producers supplying that market approve the issuance of the proposed amended order.

The enabling statute requires that at least two-thirds of the producers (measured in terms of either number or volume) voting in a referendum must approve the issuance of a order before it can be put into effect. Less than two-thirds percent of the voting producers in the referendum approved the issuance of the proposed amended order for the Western marketing area. In these circumstances, where it has been concluded that the order should be amended to effectuate the declared policy of the enabling statute and that the amended order was not approved by producers, it appears that continuation of the existing Western order would not be in conformity with the applicable statutory authority. Therefore, it is necessary to consider terminating the present order.

The period for filing comments is limited to 30 days because a longer period would not provide the time needed to complete the required procedures before and coordinate the termination with amendatory action being taken on milk orders for neighboring markets.

List of Subjects in 7 CFR Part 1135

• Milk marketing orders

Authority: 7 U.S.C. 601-674.