Federal Register / Vol. 70, No. 185 / Monday, September 26, 2005 / Rules and Regulations 56111 

submitted by the NAC and PCC and 

other available information, it is hereby 

found that this rule, as hereinafter set 

forth, will tend to effectuate the 

declared policy of the Act. 

Pursuant to 5 U.S.C. 553, it is also 

found and determined that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) The 2005–06 fiscal period 

began on March 1, 2005, and the 

marketing orders require that the 

assessment rates for each fiscal period 

apply to all nectarines and peaches 

handled during such fiscal period; (2) 

the committees need to have sufficient 

funds to pay their expenses, which are 

incurred on a continuous basis; and (3) 

handlers are aware of this action, which 

was discussed by the committees at 

public meetings and unanimously 

recommended by a mail vote, and is 

similar to other assessment rate actions 

issued in past years. Also, a 10-day 

comment period was provided for in the 

proposed rule and the comments 

received have been considered in 

reaching a final decision on this matter. 

List of Subjects 

7 CFR Part 916 

Marketing agreements, Nectarines, 

Reporting and recordkeeping 

requirements. 

7 CFR Part 917 

Marketing agreements, Peaches, Pears, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR parts 916 and 917 are 

amended as follows: 

■ 1. The authority citation for 7 CFR 

parts 916 and 917 continue to read as 

follows: 

Authority: 7 U.S.C. 601–674. 

PART 916—NECTARINES GROWN IN 

CALIFORNIA 

■ 2. Section 916.234 is revised to read 

as follows: 

§ 916.234 Assessment rate. 

On and after March 1, 2005, an 

assessment rate of $0.20 per 25-pound 

container or container equivalent of 

nectarines is established for California 

nectarines. 

PART 917—PEACHES GROWN IN 

CALIFORNIA 

■ 3. Section 917.258 is revised to read 

as follows: 

§ 917.258 Assessment rate. 

On and after March 1, 2005, an 

assessment rate of $0.20 per 25-pound 

container or container equivalent of 

peaches is established for California 

peaches. 

Dated: September 20, 2005. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 05–19085 Filed 9–23–05; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1033 

[Docket No. AO–166–A39; DA–05–01–A] 

Milk in the Mideast Marketing Area; 

Interim Order Amending the Order 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim final rule. 

SUMMARY: This order amends certain 

features of the pooling standards of the 

Mideast milk marketing order on an 

interim basis. More than the required 

number of producers in the Mideast 

marketing area have approved the 

issuance of the interim order as 

amended. 

DATES: Effective October 1, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Gino M. Tosi, Associate Deputy 

Administrator, Stop 0231, Room 2971, 

USDA/AMS/Dairy Programs, Order 

Formulation and Enforcement Branch, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0231, (202) 690–

1366, e-mail address: 

gino.tosi@usda.gov. 

SUPPLEMENTARY INFORMATION: 

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 interim rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. This 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 (the Act), 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 (Department) 

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 interim 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 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, 

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

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 those producers, 

producer milk and plants that have a 

reasonable association with, and are 

consistently serving 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 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. The established 

criteria are applied in an identical 

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 proposed 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 adopted amendments will have no 

impact on reporting, recordkeeping, or 

other compliance requirements because 

they will remain identical to the current 

requirements. No new forms are 

proposed and no additional reporting 

requirements will 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 

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: 

Amendment to Public Hearing on 

Proposed Rulemaking: Issued March 1, 

2005; published March 3, 2005 (70 FR 

10337). 

Notice of Hearing: Issued February 14, 

2005; published February 17, 2005 (70 

FR 8043). 

Tentative Partial Decision: Issued July 

21, 2005; published July 27, 2005 (70 FR 

43335). 

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 

upon 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 on an interim basis, 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 order, 

as hereby amended on an interim basis, 

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 on an interim basis, 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. 

(b) Additional Findings. It is 

necessary and in the public interest to 

make these interim amendments to the 

Mideast order effective October 1, 2005. 

Any delay beyond that date would tend 

to disrupt the orderly marketing of milk 

in the aforesaid marketing area. 

The interim amendments to this order 

are known to handlers. The tentative 

partial final decision containing the 

proposed amendments to this order was 

issued on July 21, 2005. 

The changes that result from these 

interim 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 interim 

order amendments effective on October 

1, 2005. 

(c) Determinations. It is hereby 

determined that: 

(1) The refusal or failure of handlers 

(excluding cooperative associations 

specified in Section 8c(9) of the Act) of 

more than 50 percent of the milk, which 

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 interim 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 interim 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 on an 

interim basis, as follows: 

PART 1033—MILK IN THE MIDEAST 

AREA 

■ 1. The authority citation for 7 CFR 

Part 1033 reads as follows: 

Authority: 7 U.S.C. 601–674. 

■ 2. Section 1033.7 is amended by: 

■ (a) Revising paragraph (c) 

introductory text. 

■ (b) Revising the introductory text of 

paragraph (d). 

■ (c) Revising paragraph (d)(2). 

■ (d) Revising paragraph (e)(1). 

The revisions read as follows: 

§ 1033.7 Pool plant. 

* * * * * 

(c) A supply plant from which the 

quantity of bulk fluid milk products 

shipped to, received at, and physically 

unloaded into plants described in 

paragraph (a) or (b) of this section as a 

percent of the Grade A milk received at 

the plant from dairy farmers (except 

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

dairy farmers described in § 1033.12(b)) 

and handlers described in § 1000.9(c), as 

reported in § 1033.30(a), is not less than 

40 percent of the milk received from 

dairy farmers, including milk diverted 

pursuant to § 1033.13, subject to the 

following conditions: 

* * * * * 

(d) A plant located in the marketing 

area and operated by a cooperative 

association if, during the months of 

December through July 30 percent, 

during the month of August 35 percent 

and during the months of September 

through November 40 percent or more 

of the producer milk of members of the 

association is delivered to a distributing 

pool plant(s) or to a nonpool plant(s) 

and classified as Class I. Deliveries for 

qualification purposes may be made 

directly from the farm or by transfer 

from such association’s plant, subject to 

the following conditions: 

* * * * * 

(2) The 30 percent delivery 

requirement for the months of December 

through July may be met for the current 

month or it may be met on the basis of 

deliveries during the preceding 12- 

month period ending with the current 

month. 

* * * * * 

(e) * * * 

(1) The aggregate monthly quantity 

supplied by all parties to such an 

agreement as a percentage of the 

producer milk receipts included in the 

unit during the months of August 

through November is not less than 45 

percent and during the months of 

December through July is not less than 

35 percent; 

* * * * * 

■ 3. Section 1033.13 is amended by: 

■ (a) Revising paragraph (d)(4). 

■ (b) Adding paragraph (e). 

The revisions read as follows: 

§ 1033.13 Producer milk. 

* * * * * 

(d) * * * 

(4) Of the total quantity of producer 

milk received during the month 

(including diversions but excluding the 

quantity of producer milk received from 

a handler described in § 1000.9(c) or 

which is diverted to another pool plant), 

the handler diverted to nonpool plants 

not more than 50 percent in each of the 

months of August through February and 

60 percent in each of the months of 

March through July. 

* * * * * 

(e) Producer milk shall not include 

milk of a producer that is subject to 

inclusion and participation in a 

marketwide equalization pool under a 

milk classification and pricing plan 

imposed under the authority of another 

government entity. 

Dated: September 20, 2005. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 05–19086 Filed 9–23–05; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1430 

RIN 0560–AH28 

2004 Dairy Disaster Assistance 

Payment Program 

AGENCIES: Commodity Credit 

Corporation, USDA. 

ACTION: Final rule. 

SUMMARY: This rule sets forth the 

regulations for the 2004 Dairy Disaster 

Assistance Payment Program. This 

program will assist dairy producers by 

providing payments to those who 

suffered dairy production and milk 

spoilage losses due to hurricanes in 

2004. 

DATES: This rule is effective on 

September 26, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Danielle Cooke, Price Support Division, 

Farm Service Agency, United States 

Department of Agriculture, STOP 0512, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0512. 

Telephone: (202) 720–1919; e-mail: 

Danielle.Cooke@wdc.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Discussion of Final Rule 

This rule finalizes the proposed rule 

published in the Federal Register May 

25, 2005 (70 FR 30009). The 30-day 

comment period for the proposed 2004 

Dairy Disaster Assistance Payment 

Program (DDAP) rule closed on June 24, 

2005. The proposed rule provided that 

the DDAP program would be based on 

hurricane related dairy production and 

dairy spoilage losses suffered during the 

months of August through October 2004 

in counties declared a disaster by the 

President in 2004 due to hurricane. The 

program will end at the conclusion of 

the application period and 

disbursement of allotted funds. The 

DDAP program will operate under 

regulations codified in 7 CFR part 1430. 

Among other provisions, the proposed 

rule provided that in cases where the 

producers had been paid for qualified 

dumped milk the producer would still 

qualify for payments related to that 

milk. Also, the rule did not provide for 

adjustments in payments based on cow 

herd size. Rather, the rule provided for 

payments to be made based on changes 

in milk production from a set base 

amount. Also, among other provisions, 

the rule provided that in the case the 

limited program funds were not 

sufficient to pay all claims for lost 

production and for dumped milk, then 

priority would be given in making 

payments to those persons whose losses 

over the whole period were greater than 

20 percent. It was provided additionally 

in the proposed rule that the prices at 

which payments would be made would 

be amounts set out in the rule which 

were derived from a series of reported 

‘‘mailbox’’ prices. On these aspects and 

all others, comment was invited. 

Comments and Changes to Final Rule 

During the 30-day comment period 

the Agency received public comments 

from two U.S. Senators, ten U.S. 

congressmen, one dairy cooperative, one 

advocacy group and two private 

citizens. Some responses contained 

multiple comments. 

Of the total comments received during 

the public comment period, two 

respondents opposed the program 

indicating that private insurance should 

adequately compensate dairy producers 

monetarily for losses rather than the 

taxpayers or Government. One of those 

respondents also believed that the 

assistance being provided by the Agency 

was duplicative to that of Federal 

Emergency Management Agency 

(FEMA) and that it was misleading for 

Congress to insert a statute for 

agriculture in a non-related military 

spending bill. No changes have been 

made in the rule based on these 

comments. The agency is charged with 

implementing statutory provisions as 

written and has done so in the final 

rule. It is not understood to be the case 

that the relief in the rule duplicates that 

provided elsewhere, but provision is 

made in the rule to address that 

possibility. 

Public comments and suggestions 

were sought for paying milk marketing 

cooperatives directly for milk that was 

dumped. Several public comments were 

received in support of direct payment of 

DDAP benefits to a milk handler or 

dairy marketing cooperative rather than 

directly to the producer for spoiled milk 

that was dumped as a result of the 

hurricanes for which the dairy 

marketing cooperative or milk handler 

compensated the dairy producer. 

Respondents indicated that marketing 

cooperatives have adequate records to 

verify dumped production and confirm 

payment to producers made by the dairy