Milk in the Pacific Northwest and Arizona-Las Vegas Marketing Areas; Order Amending the Orders, 9430-9434 [06-1587]
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Federal Register / Vol. 71, No. 37 / Friday, February 24, 2006 / Rules and Regulations
skinned, yellow fleshed potatoes shall
grade U.S. Commercial or better.
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Dated: February 17, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. 06–1717 Filed 2–23–06; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1124 and 1131
[Docket No. AO–368–A32, AO–271–A37;
DA–03–04B]
Milk in the Pacific Northwest and
Arizona-Las Vegas Marketing Areas;
Order Amending the Orders
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
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AGENCY:
SUMMARY: This final rule amends
provisions of the producer-handler
definitions of the Pacific Northwest and
Arizona-Las Vegas orders as contained
in the Final Decision published in the
Federal Register on December 14, 2005.
More than the required number of
producers for the Arizona-Las Vegas and
Pacific Northwest marketing areas
approved the issuance of the orders as
amended.
DATES: Effective Date: April 1, 2006.
FOR FURTHER INFORMATION CONTACT: Jack
Rower, Marketing Specialist or Gino
Tosi, Associate Deputy Administrator
for Order Formulation and Enforcement,
USDA/AMS/Dairy Programs, Order
Formulation and Enforcement Branch,
STOP 0231–Room 2971, 1400
Independence Avenue SW.,
Washington, DC 20250–0231, (202) 720–
2357 or (202) 690–1366, e-mail
addresses: jack.rower@usda.gov or
gino.tosi@usda.gov.
SUPPLEMENTARY INFORMATION: This
document amends the producer-handler
and related provisions of the Pacific
Northwest and Arizona-Las Vegas
Federal milk orders. Specifically, this
final rule permanently adopts a
provision that will eliminate the
exemption from pooling and pricing
provisions of the orders for producerhandlers with in-area route disposition
in excess of 3-million pounds per
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.
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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
the 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
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 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.
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 decision 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
milk marketing 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.
Producer-handlers are defined as
dairy farmers that process only their
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own milk production. These entities
must be dairy farmers as a pre-condition
to operating processing plants as
producer-handlers. The size of the dairy
farm determines the production level of
the operation and is the controlling
factor in the capacity of the processing
plant and possible sales volume
associated with the producer-handler
entity. Determining whether a producerhandler is considered a small or large
business must depend on its capacity as
a dairy farm where a producer-handler
with annual gross revenue in excess of
$750,000 is considered a large business.
The amendments will place entities
currently considered to be producerhandlers under the Pacific Northwest or
the Arizona-Las Vegas orders on the
same terms as all other fully regulated
handlers provided they meet the criteria
for being subject to the pooling and
pricing provisions of the two orders.
Entities currently defined as producerhandlers under the terms of these orders
will be subject to the pooling and
pricing provisions of the orders if their
route disposition of fluid milk products
is more than 3 million pounds per
month.
Producer-handlers with route
disposition of less than 3 million
pounds during the month will not be
subject to the pooling and pricing
provisions of the orders. To the extent
that current producer-handlers for each
order have route disposition of fluid
milk products outside of the marketing
areas, such route disposition will be
subject to an order’s pooling and pricing
provisions if total in-area route
disposition causes them to become fully
regulated.
Assuming that some current
producer-handlers will have route
disposition of fluid milk products of
more than 3 million pounds during the
month, such producer-handlers will be
regulated subject to the pooling and
pricing provisions of the orders like
other handlers. Such producer-handlers
will account to the pool for their uses
of milk at the applicable minimum class
prices and pay the difference between
their use-value and the blend price of
the order to the order’s producersettlement fund.
While this may cause an economic
impact on those entities with more than
3 million pounds of route sales who
currently are considered producerhandlers by the two orders, the impact
is offset by the benefit to other small
businesses. With respect to dairy
farmers whose milk is pooled on the
two marketing orders, such dairy
farmers who have not heretofore shared
in the additional revenue that accrues
from the marketwide pooling of Class I
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Federal Register / Vol. 71, No. 37 / Friday, February 24, 2006 / Rules and Regulations
sales by producer-handlers will share in
such revenue. This will have a positive
impact on 486 small dairy farmers in the
Pacific Northwest and Arizona-Las
Vegas marketing areas. Additionally, all
handlers who dispose of more than 3
million pounds of fluid milk products
per month will pay at least the
announced Federal order Class I price
for such use. This will have a positive
impact on 18 small regulated handlers.
The extent that current producerhandlers in the Pacific Northwest and
the Arizona-Las Vegas orders become
subject to the pooling and pricing
provisions will be determined in their
capacity as handlers. Such entities will
no longer have restrictions applicable to
their business operations that were
conditions for producer-handler status
and exemption from the pooling and
pricing provisions of the two orders. In
general, this includes being able to buy
or acquire any quantity of milk from
dairy farmers or other handlers instead
of being limited by the current
constraints of the two orders.
Additionally, the handlers’ burden of
balancing their milk production is
relieved. Milk production in excess of
what is needed to satisfy their Class I
route disposition needs will receive the
minimum price protection established
under the terms of the two orders. The
burden of balancing milk supplies will
be borne by all producers and handlers
who are pooled and regulated under the
terms of the two orders.
During September 2003, the Pacific
Northwest had 16 pool distributing
plants, 1 pool supply plant, 3
cooperative pool manufacturing plants,
7 partially regulated distributing plants,
8 producer-handler plants and 2 exempt
plants. Of the 27 regulated handlers, 16
or 59 percent were considered large
businesses. Of the 691 dairy farmers
whose milk was pooled on the order,
223 or 32 percent were considered large
businesses. If these amendatory actions
were not undertaken, 68 percent of the
dairy farmers (468) in the Pacific
Northwest order who are small
businesses would continue to be
adversely affected by the operations of
large producer-handlers.
For the Arizona-Las Vegas order,
during September 2003 there were 3
pool distributing plants, 1 cooperative
pool manufacturing plant, 18 partially
regulated distributing plants, 2
producer-handler plants and 3 exempt
plants (including an exempt plant
located in Clark County, Nevada)
operated by 22 handlers. Of these
plants, 15 or 68 percent were considered
large businesses. Of the 106 dairy
farmers whose milk was pooled on the
order, 88 or 83 percent were considered
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large businesses. If these amendatory
actions were not undertaken, 17 percent
of the dairy farmers in the Arizona-Las
Vegas order who are small businesses
would continue to be adversely affected
by large producer-handler operations.
In their capacity as producers, 7
producer-handlers would be considered
to be large producers because their
annual marketing exceeds 6 million
pounds of milk. Record evidence
indicates that for the Pacific Northwest
marketing order at the time of the
hearing, four producer-handlers would
potentially become subject to the
pooling and pricing provisions of the
order because of route disposition of
more than 3 million pounds per month
within the marketing area. For the
Arizona-Las Vegas order, one producerhandler would be considered to be a
large producer because its annual
marketing exceeds 6 million pounds of
milk and potentially would be subject to
the pooling and pricing provisions of
the order because of route disposition
exceeding 3 million pounds per month.
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 proposed amendments will have
minimal impact on reporting,
recordkeeping, or other compliance
requirements for entities currently
considered producer-handlers under the
Pacific Northwest and the Arizona-Las
Vegas marketing orders because they
will remain identical to the current
requirements applicable to all other
regulated handlers who are currently
subject to the pooling and pricing
provisions of the two orders. No new
forms are proposed and no additional
reporting requirements are necessary.
This notice 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
Notice of Hearing: Issued July 31,
2003; published August 6, 2003 (68 FR
46505).
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Correction to Notice of Hearing:
Issued August 20, 2003; published
August 26, 2003 (68 FR 51202).
Notice of Reconvened Hearing: Issued
October 27, 2003; published October 31,
2003 (68 FR 62027).
Notice of Reconvened Hearing: Issued
December 18, 2003; published
December 29, 2003 (68 FR 74874).
Recommended Decision: Issued April
7, 2005; published April 13, 2005 (70 FR
19636).
Final Decision: Issued December 9,
2005; published December 14, 2005 (70
FR 74166).
Findings and Determinations
The findings and determinations
hereinafter set forth supplement those
that were made when the orders were
first issued and when they were
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 Pacific
Northwest and Arizona-Las Vegas
orders:
(a) Finding. 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 Pacific Northwest and
Arizona-Las Vegas marketing areas. 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 orders 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
(3) The said orders as hereby
amended regulate the handling of milk
in the same manner as, and are
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.
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(4) All milk and milk products
handled by handlers, as defined in the
tentative marketing agreements and the
orders as hereby amended, are in the
current of interstate commerce or
directly burden, obstruct, or affect
interstate commerce in milk or its
products.
(b) 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
areas 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 Pacific Northwest and
Arizona-Las Vegas orders is the only
practical means pursuant to the
declared policy of the Act of advancing
the interests of producers as defined by
the orders as hereby amended;
(3) The issuance of the order
amending the Pacific Northwest and
Arizona-Las Vegas orders is favored by
at least two-thirds of the producers who
were engaged in the production of milk
for sale in the marketing areas.
List of Subjects in 7 CFR Parts 1124 and
1131
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 Pacific
Northwest and Arizona-Las Vegas
marketing areas shall be in conformity
to and in compliance with the terms and
conditions of the orders, as amended,
and as hereby amended, as follows:
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PARTS 1124 AND 1131—[AMENDED]
1. The authority citation for 7 CFR
parts 1124 and 1131 continues to read
as follows:
I
Authority: 7 U.S.C. 601–674, and 7253.
PART 1124—MILK IN THE PACIFIC
NORTHWEST MARKETING AREA
I
2. Revise § 1124.10 to read as follows:
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§ 1124.10
Producer-handler.
Producer-handler means a person
who operates a dairy farm and a
distributing plant from which there is
route distribution within the marketing
area during the month not to exceed 3
million pounds and who the market
administrator has designated a
producer-handler after determining that
all of the requirements of this section
have been met.
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(a) Requirements for designation.
Designation of any person as a
producer-handler by the market
administrator shall be contingent upon
meeting the conditions set forth in
paragraphs (a)(1) through (5) of this
section. Following the cancellation of a
previous producer-handler designation,
a person seeking to have their producerhandler designation reinstated must
demonstrate that these conditions have
been met for the preceding month.
(1) The care and management of the
dairy animals and the other resources
and facilities designated in paragraph
(b)(1) of this section necessary to
produce all Class I milk handled
(excluding receipts from handlers fully
regulated under any Federal order) are
under the complete and exclusive
control, ownership and management of
the producer-handler and are operated
as the producer-handler’s own
enterprise and its own risk.
(2) The plant operation designated in
paragraph (b)(2) of this section at which
the producer-handler processes and
packages, and from which it distributes,
its own milk production is under the
complete and exclusive control,
ownership and management of the
producer-handler and is operated as the
producer-handler’s own enterprise and
at its sole risk.
(3) The producer-handler neither
receives at its designated milk
production resources and facilities nor
receives, handles, processes, or
distributes at or through any of its
designated milk handling, processing, or
distributing resources and facilities
other source milk products for
reconstitution into fluid milk products
or fluid milk products derived from any
source other than:
(i) Its designated milk production
resources and facilities (own farm
production);
(ii) Pool handlers and plants regulated
under any Federal order within the
limitation specified in paragraph (c)(2)
of this section; or
(iii) Nonfat milk solids which are
used to fortify fluid milk products.
(4) The producer-handler is neither
directly nor indirectly associated with
the business control or management of,
nor has a financial interest in, another
handler’s operation; nor is any other
handler so associated with the
producer-handler’s operation.
(5) No milk produced by the herd(s)
or on the farm(s) that supply milk to the
producer-handler’s plant operation is:
(i) Subject to inclusion and
participation in a marketwide
equalization pool under a milk
classification and pricing program
under the authority of a State
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government maintaining marketwide
pooling of returns, or
(ii) Marketed in any part as Class I
milk to the non-pool distributing plant
of any other handler.
(b) Designation of resources and
facilities. Designation of a person as a
producer-handler shall include the
determination of what shall constitute
milk production, handling, processing,
and distribution resources and facilities,
all of which shall be considered an
integrated operation, under the sole and
exclusive ownership of the producerhandler.
(1) Milk production resources and
facilities shall include all resources and
facilities (milking herd(s), buildings
housing such herd(s), and the land on
which such buildings are located) used
for the production of milk which are
solely owned, operated, and which the
producer-handler has designated as a
source of milk supply for the producerhandler’s plant operation. However, for
purposes of this paragraph, any such
milk production resources and facilities
which do not constitute an actual or
potential source of milk supply for the
producer-handler’s operation shall not
be considered a part of the producerhandler’s milk production resources and
facilities.
(2) Milk handling, processing, and
distribution resources and facilities
shall include all resources and facilities
(including store outlets) used for
handling, processing, and distributing
fluid milk products which are solely
owned by, and directly operated or
controlled by the producer-handler or in
which the producer-handler in any way
has an interest, including any
contractual arrangement, or over which
the producer-handler directly or
indirectly exercises any degree of
management control.
(3) All designations shall remain in
effect until canceled, pursuant to
paragraph (c) of this section.
(c) Cancellation. The designation as a
producer-handler shall be canceled
upon determination by the market
administrator that any of the
requirements of paragraph (a)(1) through
(5) of this section are not continuing to
be met, or under any of the conditions
described in paragraphs (c)(1), (2) or (3)
of this section. Cancellation of a
producer-handler’s status pursuant to
this paragraph shall be effective on the
first day of the month following the
month in which the requirements were
not met or the conditions for
cancellation occurred.
(1) Milk from the milk production
resources and facilities of the producerhandler, designated in paragraph (b)(1)
of this section, is delivered in the name
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of another person as producer milk to
another handler.
(2) The producer-handler handles
fluid milk products derived from
sources other than the milk production
facilities and resources designated in
paragraph (b)(1) of this section, except
that it may receive at its plant, or
acquire for route disposition, fluid milk
products from fully regulated plants and
handlers under any Federal order if
such receipts do not exceed 150,000
pounds monthly. This limitation shall
not apply if the producer-handler’s
own-farm production is less than
150,000 pounds during the month.
(3) Milk from the milk production
resources and facilities of the producerhandler is subject to inclusion and
participation in a marketwide
equalization pool under a milk
classification and pricing plan operating
under the authority of a State
government.
(d) Public announcement. The market
administrator shall publicly announce:
(1) The name, plant location(s), and
farm location(s) of persons designated as
producer-handlers;
(2) The names of those persons whose
designations have been cancelled; and
(3) The effective dates of producerhandler status or loss of producerhandler status for each. Such
announcements shall be controlling
with respect to the accounting at plants
of other handlers for fluid milk products
received from any producer-handler.
(e) Burden of establishing and
maintaining producer-handler status.
The burden rests upon the handler who
is designated as a producer-handler to
establish through records required
pursuant to § 1000.27 that the
requirements set forth in paragraph (a)
of this section have been and are
continuing to be met, and that the
conditions set forth in paragraph (c) of
this section for cancellation of the
designation do not exist.
PART 1131—MILK IN THE ARIZONALAS VEGAS MARKETING AREA
I
3. Revise § 1131.10 to read as follows:
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§ 1131.10
Producer-handler.
Producer-handler means a person
who operates a dairy farm and a
distributing plant from which there is
route distribution within the marketing
area during the month not to exceed 3
million pounds and who the market
administrator has designated a
producer-handler after determining that
all of the requirements of this section
have been met.
(a) Requirements for designation.
Designation of any person as a
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producer-handler by the market
administrator shall be contingent upon
meeting the conditions set forth in
paragraphs (a)(1) through (5) of this
section. Following the cancellation of a
previous producer-handler designation,
a person seeking to have their producerhandler designation reinstated must
demonstrate that these conditions have
been met for the preceding month.
(1) The care and management of the
dairy animals and the other resources
and facilities designated in paragraph
(b)(1) of this section necessary to
produce all Class I milk handled
(excluding receipts from handlers fully
regulated under any Federal order) are
under the complete and exclusive
control, ownership and management of
the producer-handler and are operated
as the producer-handler’s own
enterprise and its own risk.
(2) The plant operation designated in
paragraph (b)(2) of this section at which
the producer-handler processes and
packages, and from which it distributes,
its own milk production is under the
complete and exclusive control,
ownership and management of the
producer-handler and is operated as the
producer-handler’s own enterprise and
at its sole risk.
(3) The producer-handler neither
receives at its designated milk
production resources and facilities nor
receives, handles, processes, or
distributes at or through any of its
designated milk handling, processing, or
distributing resources and facilities
other source milk products for
reconstitution into fluid milk products
or fluid milk products derived from any
source other than:
(i) Its designated milk production
resources and facilities (own farm
production);
(ii) Pool handlers and plants regulated
under any Federal order within the
limitation specified in paragraph (c)(2)
of this section; or
(iii) Nonfat milk solids which are
used to fortify fluid milk products.
(4) The producer-handler is neither
directly nor indirectly associated with
the business control or management of,
nor has a financial interest in, another
handler’s operation; nor is any other
handler so associated with the
producer-handler’s operation.
(5) No milk produced by the herd(s)
or on the farm(s) that supply milk to the
producer-handler’s plant operation is:
(i) Subject to inclusion and
participation in a marketwide
equalization pool under a milk
classification and pricing program
under the authority of a State
government maintaining marketwide
pooling of returns, or
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(ii) Marketed in any part as Class I
milk to the non-pool distributing plant
of any other handler.
(6) The producer-handler does not
distribute fluid milk products to a
wholesale customer who is served by a
plant described in § 1131.7(a), (b), or (e),
or a handler described in § 1000.8(c)
that supplied the same product in the
same-sized package with a similar label
to a wholesale customer during the
month.
(b) Designation of resources and
facilities. Designation of a person as a
producer-handler shall include the
determination of what shall constitute
milk production, handling, processing,
and distribution resources and facilities,
all of which shall be considered an
integrated operation, under the sole and
exclusive ownership of the producerhandler.
(1) Milk production resources and
facilities shall include all resources and
facilities (milking herd(s), buildings
housing such herd(s), and the land on
which such buildings are located) used
for the production of milk which are
solely owned, operated, and which the
producer-handler has designated as a
source of milk supply for the producerhandler’s plant operation. However, for
purposes of this paragraph, any such
milk production resources and facilities
which do not constitute an actual or
potential source of milk supply for the
producer-handler’s operation shall not
be considered a part of the producerhandler’s milk production resources and
facilities.
(2) Milk handling, processing, and
distribution resources and facilities
shall include all resources and facilities
(including store outlets) used for
handling, processing, and distributing
fluid milk products which are solely
owned by, and directly operated or
controlled by the producer-handler or in
which the producer-handler in any way
has an interest, including any
contractual arrangement, or over which
the producer-handler directly or
indirectly exercises any degree of
management control.
(3) All designations shall remain in
effect until canceled pursuant to
paragraph (c) of this section.
(c) Cancellation. The designation as a
producer-handler shall be canceled
upon determination by the market
administrator that any of the
requirements of paragraph (a)(1) through
(5) of this section are not continuing to
be met, or under any of the conditions
described in paragraphs (c)(1), (2) or (3)
of this section. Cancellation of a
producer-handler’s status pursuant to
this paragraph shall be effective on the
first day of the month following the
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month in which the requirements were
not met or the conditions for
cancellation occurred.
(1) Milk from the milk production
resources and facilities of the producerhandler, designated in paragraph (b)(1)
of this section, is delivered in the name
of another person as producer milk to
another handler.
(2) The producer-handler handles
fluid milk products derived from
sources other than the milk production
facilities and resources designated in
paragraph (b)(1) of this section, except
that it may receive at its plant, or
acquire for route disposition, fluid milk
products from fully regulated plants and
handlers under any Federal order if
such receipts do not exceed 150,000
pounds monthly. This limitation shall
not apply if the producer-handler’s
own-farm production is less than
150,000 pounds during the month.
(3) Milk from the milk production
resources and facilities of the producerhandler is subject to inclusion and
participation in a marketwide
equalization pool under a milk
classification and pricing plan operating
under the authority of a State
government.
(d) Public announcement. The market
administrator shall publicly announce:
(1) The name, plant location(s), and
farm location(s) of persons designated as
producer-handlers;
(2) The names of those persons whose
designations have been cancelled; and
(3) The effective dates of producerhandler status or loss of producerhandler status for each. Such
announcements shall be controlling
with respect to the accounting at plants
of other handlers for fluid milk products
received from any producer-handler.
(e) Burden of establishing and
maintaining producer-handler status.
The burden rests upon the handler who
is designated as a producer-handler to
establish through records required
pursuant to § 1000.27 that the
requirements set forth in paragraph (a)
of this section have been and are
continuing to be met, and that the
conditions set forth in paragraph (c) of
this section for cancellation of the
designation do not exist.
Dated: February 15, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. 06–1587 Filed 2–23–06; 8:45 am]
wwhite on PROD1PC61 with RULES
BILLING CODE 3410–02–P
VerDate Aug<31>2005
18:05 Feb 23, 2006
Jkt 208001
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2005–23283; Directorate
Identifier 2005–NM–185–AD; Amendment
39–14483; AD 2006–04–02]
RIN 2120–AA64
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
SUMMARY: The FAA is adopting a new
airworthiness directive (AD) for all
EMBRAER Model EMB–135 airplanes;
and Model EMB–145, –145ER, –145MR,
–145LR, –145XR, –145MP, and –145EP
airplanes. This AD requires repetitive
inspections of the pitot static heating
relay K0057 for damage to the pin-type
contacts, relay enclosure, and finishing
material and corrective actions if
necessary. This AD also requires doing
a terminating modification, which ends
the repetitive inspections. This AD
results from a report of a burning drain
hose and smoke caused by an
overheated pitot static heating relay. We
are issuing this AD to prevent overheating of a certain pitot static heating
relay, which could result in the burning
of the windowsill drain hoses and
consequent smoke or fire in the airplane
cockpit.
DATES: This AD becomes effective
March 31, 2006.
The Director of the Federal Register
approved the incorporation by reference
of certain publications listed in the AD
as of March 31, 2006.
ADDRESSES: You may examine the AD
docket on the Internet at https://
dms.dot.gov or in person at the Docket
Management Facility, U.S. Department
of Transportation, 400 Seventh Street,
SW., Nassif Building, room PL–401,
Washington, DC.
Contact Empresa Brasileira de
Aeronautica S.A. (EMBRAER), P.O. Box
343—CEP 12.225, Sao Jose dos
Campos—SP, Brazil, for service
information identified in this AD.
Frm 00008
Fmt 4700
SUPPLEMENTARY INFORMATION:
Examining the Docket
Airworthiness Directives; Empresa
Brasileira de Aeronautica S.A.
(EMBRAER) Model EMB–135
Airplanes; and Model EMB–145,
–145ER, –145MR, –145LR, –145XR,
–145MP, and –145EP Airplanes
PO 00000
Dan
Rodina, Aerospace Engineer,
International Branch, ANM–116,
Transport Airplane Directorate, FAA,
1601 Lind Avenue, SW., Renton,
Washington 98055–4056; telephone
(425) 227–2125; fax (425) 227–1149.
FOR FURTHER INFORMATION CONTACT:
Sfmt 4700
You may examine the airworthiness
directive (AD) docket on the Internet at
https://dms.dot.gov or in person at the
Docket Management Facility office
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
The Docket Management Facility office
(telephone (800) 647–5227) is located on
the plaza level of the Nassif Building at
the street address stated in the
ADDRESSES section.
Discussion
The FAA issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 to include an AD that would
apply to all EMBRAER Model EMB–135
airplanes; and Model EMB–145,
–145ER, –145MR, –145LR, –145XR,
–145MP, and –145EP airplanes. That
NPRM was published in the Federal
Register on December 13, 2005 (70 FR
73668). That NPRM proposed to require
repetitive inspections of the pitot static
heating relay K0057 for damage to the
pin-type contacts, relay enclosure, and
finishing material and corrective actions
if necessary. That NPRM also proposed
to require doing a terminating
modification, which ends the repetitive
inspections.
Comments
We provided the public the
opportunity to participate in the
development of this AD. We received no
comments on the NPRM or on the
determination of the cost to the public.
Conclusion
We have carefully reviewed the
available data and determined that air
safety and the public interest require
adopting the AD as proposed.
Costs of Compliance
The following table provides the
estimated costs for U.S. operators to
comply with this AD.
E:\FR\FM\24FER1.SGM
24FER1
]]>Agencies
[Federal Register Volume 71, Number 37 (Friday, February 24, 2006)]
[Rules and Regulations]
[Pages 9430-9434]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1587]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1124 and 1131
[Docket No. AO-368-A32, AO-271-A37; DA-03-04B]
Milk in the Pacific Northwest and Arizona-Las Vegas Marketing
Areas; Order Amending the Orders
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends provisions of the producer-handler
definitions of the Pacific Northwest and Arizona-Las Vegas orders as
contained in the Final Decision published in the Federal Register on
December 14, 2005. More than the required number of producers for the
Arizona-Las Vegas and Pacific Northwest marketing areas approved the
issuance of the orders as amended.
DATES: Effective Date: April 1, 2006.
FOR FURTHER INFORMATION CONTACT: Jack Rower, Marketing Specialist or
Gino Tosi, Associate Deputy Administrator for Order Formulation and
Enforcement, USDA/AMS/Dairy Programs, Order Formulation and Enforcement
Branch, STOP 0231-Room 2971, 1400 Independence Avenue SW., Washington,
DC 20250-0231, (202) 720-2357 or (202) 690-1366, e-mail addresses:
jack.rower@usda.gov or gino.tosi@usda.gov.
SUPPLEMENTARY INFORMATION: This document amends the producer-handler
and related provisions of the Pacific Northwest and Arizona-Las Vegas
Federal milk orders. Specifically, this final rule permanently adopts a
provision that will eliminate the exemption from pooling and pricing
provisions of the orders for producer-handlers with in-area route
disposition in excess of 3-million pounds per 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 the 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 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
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.
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 decision 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 milk marketing 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.
Producer-handlers are defined as dairy farmers that process only
their own milk production. These entities must be dairy farmers as a
pre-condition to operating processing plants as producer-handlers. The
size of the dairy farm determines the production level of the operation
and is the controlling factor in the capacity of the processing plant
and possible sales volume associated with the producer-handler entity.
Determining whether a producer-handler is considered a small or large
business must depend on its capacity as a dairy farm where a producer-
handler with annual gross revenue in excess of $750,000 is considered a
large business.
The amendments will place entities currently considered to be
producer-handlers under the Pacific Northwest or the Arizona-Las Vegas
orders on the same terms as all other fully regulated handlers provided
they meet the criteria for being subject to the pooling and pricing
provisions of the two orders. Entities currently defined as producer-
handlers under the terms of these orders will be subject to the pooling
and pricing provisions of the orders if their route disposition of
fluid milk products is more than 3 million pounds per month.
Producer-handlers with route disposition of less than 3 million
pounds during the month will not be subject to the pooling and pricing
provisions of the orders. To the extent that current producer-handlers
for each order have route disposition of fluid milk products outside of
the marketing areas, such route disposition will be subject to an
order's pooling and pricing provisions if total in-area route
disposition causes them to become fully regulated.
Assuming that some current producer-handlers will have route
disposition of fluid milk products of more than 3 million pounds during
the month, such producer-handlers will be regulated subject to the
pooling and pricing provisions of the orders like other handlers. Such
producer-handlers will account to the pool for their uses of milk at
the applicable minimum class prices and pay the difference between
their use-value and the blend price of the order to the order's
producer-settlement fund.
While this may cause an economic impact on those entities with more
than 3 million pounds of route sales who currently are considered
producer-handlers by the two orders, the impact is offset by the
benefit to other small businesses. With respect to dairy farmers whose
milk is pooled on the two marketing orders, such dairy farmers who have
not heretofore shared in the additional revenue that accrues from the
marketwide pooling of Class I
[[Page 9431]]
sales by producer-handlers will share in such revenue. This will have a
positive impact on 486 small dairy farmers in the Pacific Northwest and
Arizona-Las Vegas marketing areas. Additionally, all handlers who
dispose of more than 3 million pounds of fluid milk products per month
will pay at least the announced Federal order Class I price for such
use. This will have a positive impact on 18 small regulated handlers.
The extent that current producer-handlers in the Pacific Northwest
and the Arizona-Las Vegas orders become subject to the pooling and
pricing provisions will be determined in their capacity as handlers.
Such entities will no longer have restrictions applicable to their
business operations that were conditions for producer-handler status
and exemption from the pooling and pricing provisions of the two
orders. In general, this includes being able to buy or acquire any
quantity of milk from dairy farmers or other handlers instead of being
limited by the current constraints of the two orders. Additionally, the
handlers' burden of balancing their milk production is relieved. Milk
production in excess of what is needed to satisfy their Class I route
disposition needs will receive the minimum price protection established
under the terms of the two orders. The burden of balancing milk
supplies will be borne by all producers and handlers who are pooled and
regulated under the terms of the two orders.
During September 2003, the Pacific Northwest had 16 pool
distributing plants, 1 pool supply plant, 3 cooperative pool
manufacturing plants, 7 partially regulated distributing plants, 8
producer-handler plants and 2 exempt plants. Of the 27 regulated
handlers, 16 or 59 percent were considered large businesses. Of the 691
dairy farmers whose milk was pooled on the order, 223 or 32 percent
were considered large businesses. If these amendatory actions were not
undertaken, 68 percent of the dairy farmers (468) in the Pacific
Northwest order who are small businesses would continue to be adversely
affected by the operations of large producer-handlers.
For the Arizona-Las Vegas order, during September 2003 there were 3
pool distributing plants, 1 cooperative pool manufacturing plant, 18
partially regulated distributing plants, 2 producer-handler plants and
3 exempt plants (including an exempt plant located in Clark County,
Nevada) operated by 22 handlers. Of these plants, 15 or 68 percent were
considered large businesses. Of the 106 dairy farmers whose milk was
pooled on the order, 88 or 83 percent were considered large businesses.
If these amendatory actions were not undertaken, 17 percent of the
dairy farmers in the Arizona-Las Vegas order who are small businesses
would continue to be adversely affected by large producer-handler
operations.
In their capacity as producers, 7 producer-handlers would be
considered to be large producers because their annual marketing exceeds
6 million pounds of milk. Record evidence indicates that for the
Pacific Northwest marketing order at the time of the hearing, four
producer-handlers would potentially become subject to the pooling and
pricing provisions of the order because of route disposition of more
than 3 million pounds per month within the marketing area. For the
Arizona-Las Vegas order, one producer-handler would be considered to be
a large producer because its annual marketing exceeds 6 million pounds
of milk and potentially would be subject to the pooling and pricing
provisions of the order because of route disposition exceeding 3
million pounds per month.
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 proposed amendments will have minimal impact on
reporting, recordkeeping, or other compliance requirements for entities
currently considered producer-handlers under the Pacific Northwest and
the Arizona-Las Vegas marketing orders because they will remain
identical to the current requirements applicable to all other regulated
handlers who are currently subject to the pooling and pricing
provisions of the two orders. No new forms are proposed and no
additional reporting requirements are necessary.
This notice 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
Notice of Hearing: Issued July 31, 2003; published August 6, 2003
(68 FR 46505).
Correction to Notice of Hearing: Issued August 20, 2003; published
August 26, 2003 (68 FR 51202).
Notice of Reconvened Hearing: Issued October 27, 2003; published
October 31, 2003 (68 FR 62027).
Notice of Reconvened Hearing: Issued December 18, 2003; published
December 29, 2003 (68 FR 74874).
Recommended Decision: Issued April 7, 2005; published April 13,
2005 (70 FR 19636).
Final Decision: Issued December 9, 2005; published December 14,
2005 (70 FR 74166).
Findings and Determinations
The findings and determinations hereinafter set forth supplement
those that were made when the orders were first issued and when they
were 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 Pacific
Northwest and Arizona-Las Vegas orders:
(a) Finding. 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 Pacific Northwest and Arizona-
Las Vegas marketing areas. 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 orders 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
(3) The said orders as hereby amended regulate the handling of milk
in the same manner as, and are 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.
[[Page 9432]]
(4) All milk and milk products handled by handlers, as defined in
the tentative marketing agreements and the orders as hereby amended,
are in the current of interstate commerce or directly burden, obstruct,
or affect interstate commerce in milk or its products.
(b) 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 areas 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 Pacific Northwest and
Arizona-Las Vegas orders is the only practical means pursuant to the
declared policy of the Act of advancing the interests of producers as
defined by the orders as hereby amended;
(3) The issuance of the order amending the Pacific Northwest and
Arizona-Las Vegas orders is favored by at least two-thirds of the
producers who were engaged in the production of milk for sale in the
marketing areas.
List of Subjects in 7 CFR Parts 1124 and 1131
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 Pacific Northwest and Arizona-Las Vegas
marketing areas shall be in conformity to and in compliance with the
terms and conditions of the orders, as amended, and as hereby amended,
as follows:
PARTS 1124 AND 1131--[AMENDED]
0
1. The authority citation for 7 CFR parts 1124 and 1131 continues to
read as follows:
Authority: 7 U.S.C. 601-674, and 7253.
PART 1124--MILK IN THE PACIFIC NORTHWEST MARKETING AREA
0
2. Revise Sec. 1124.10 to read as follows:
Sec. 1124.10 Producer-handler.
Producer-handler means a person who operates a dairy farm and a
distributing plant from which there is route distribution within the
marketing area during the month not to exceed 3 million pounds and who
the market administrator has designated a producer-handler after
determining that all of the requirements of this section have been met.
(a) Requirements for designation. Designation of any person as a
producer-handler by the market administrator shall be contingent upon
meeting the conditions set forth in paragraphs (a)(1) through (5) of
this section. Following the cancellation of a previous producer-handler
designation, a person seeking to have their producer-handler
designation reinstated must demonstrate that these conditions have been
met for the preceding month.
(1) The care and management of the dairy animals and the other
resources and facilities designated in paragraph (b)(1) of this section
necessary to produce all Class I milk handled (excluding receipts from
handlers fully regulated under any Federal order) are under the
complete and exclusive control, ownership and management of the
producer-handler and are operated as the producer-handler's own
enterprise and its own risk.
(2) The plant operation designated in paragraph (b)(2) of this
section at which the producer-handler processes and packages, and from
which it distributes, its own milk production is under the complete and
exclusive control, ownership and management of the producer-handler and
is operated as the producer-handler's own enterprise and at its sole
risk.
(3) The producer-handler neither receives at its designated milk
production resources and facilities nor receives, handles, processes,
or distributes at or through any of its designated milk handling,
processing, or distributing resources and facilities other source milk
products for reconstitution into fluid milk products or fluid milk
products derived from any source other than:
(i) Its designated milk production resources and facilities (own
farm production);
(ii) Pool handlers and plants regulated under any Federal order
within the limitation specified in paragraph (c)(2) of this section; or
(iii) Nonfat milk solids which are used to fortify fluid milk
products.
(4) The producer-handler is neither directly nor indirectly
associated with the business control or management of, nor has a
financial interest in, another handler's operation; nor is any other
handler so associated with the producer-handler's operation.
(5) No milk produced by the herd(s) or on the farm(s) that supply
milk to the producer-handler's plant operation is:
(i) Subject to inclusion and participation in a marketwide
equalization pool under a milk classification and pricing program under
the authority of a State government maintaining marketwide pooling of
returns, or
(ii) Marketed in any part as Class I milk to the non-pool
distributing plant of any other handler.
(b) Designation of resources and facilities. Designation of a
person as a producer-handler shall include the determination of what
shall constitute milk production, handling, processing, and
distribution resources and facilities, all of which shall be considered
an integrated operation, under the sole and exclusive ownership of the
producer-handler.
(1) Milk production resources and facilities shall include all
resources and facilities (milking herd(s), buildings housing such
herd(s), and the land on which such buildings are located) used for the
production of milk which are solely owned, operated, and which the
producer-handler has designated as a source of milk supply for the
producer-handler's plant operation. However, for purposes of this
paragraph, any such milk production resources and facilities which do
not constitute an actual or potential source of milk supply for the
producer-handler's operation shall not be considered a part of the
producer-handler's milk production resources and facilities.
(2) Milk handling, processing, and distribution resources and
facilities shall include all resources and facilities (including store
outlets) used for handling, processing, and distributing fluid milk
products which are solely owned by, and directly operated or controlled
by the producer-handler or in which the producer-handler in any way has
an interest, including any contractual arrangement, or over which the
producer-handler directly or indirectly exercises any degree of
management control.
(3) All designations shall remain in effect until canceled,
pursuant to paragraph (c) of this section.
(c) Cancellation. The designation as a producer-handler shall be
canceled upon determination by the market administrator that any of the
requirements of paragraph (a)(1) through (5) of this section are not
continuing to be met, or under any of the conditions described in
paragraphs (c)(1), (2) or (3) of this section. Cancellation of a
producer-handler's status pursuant to this paragraph shall be effective
on the first day of the month following the month in which the
requirements were not met or the conditions for cancellation occurred.
(1) Milk from the milk production resources and facilities of the
producer-handler, designated in paragraph (b)(1) of this section, is
delivered in the name
[[Page 9433]]
of another person as producer milk to another handler.
(2) The producer-handler handles fluid milk products derived from
sources other than the milk production facilities and resources
designated in paragraph (b)(1) of this section, except that it may
receive at its plant, or acquire for route disposition, fluid milk
products from fully regulated plants and handlers under any Federal
order if such receipts do not exceed 150,000 pounds monthly. This
limitation shall not apply if the producer-handler's own-farm
production is less than 150,000 pounds during the month.
(3) Milk from the milk production resources and facilities of the
producer-handler is subject to inclusion and participation in a
marketwide equalization pool under a milk classification and pricing
plan operating under the authority of a State government.
(d) Public announcement. The market administrator shall publicly
announce:
(1) The name, plant location(s), and farm location(s) of persons
designated as producer-handlers;
(2) The names of those persons whose designations have been
cancelled; and
(3) The effective dates of producer-handler status or loss of
producer-handler status for each. Such announcements shall be
controlling with respect to the accounting at plants of other handlers
for fluid milk products received from any producer-handler.
(e) Burden of establishing and maintaining producer-handler status.
The burden rests upon the handler who is designated as a producer-
handler to establish through records required pursuant to Sec. 1000.27
that the requirements set forth in paragraph (a) of this section have
been and are continuing to be met, and that the conditions set forth in
paragraph (c) of this section for cancellation of the designation do
not exist.
PART 1131--MILK IN THE ARIZONA-LAS VEGAS MARKETING AREA
0
3. Revise Sec. 1131.10 to read as follows:
Sec. 1131.10 Producer-handler.
Producer-handler means a person who operates a dairy farm and a
distributing plant from which there is route distribution within the
marketing area during the month not to exceed 3 million pounds and who
the market administrator has designated a producer-handler after
determining that all of the requirements of this section have been met.
(a) Requirements for designation. Designation of any person as a
producer-handler by the market administrator shall be contingent upon
meeting the conditions set forth in paragraphs (a)(1) through (5) of
this section. Following the cancellation of a previous producer-handler
designation, a person seeking to have their producer-handler
designation reinstated must demonstrate that these conditions have been
met for the preceding month.
(1) The care and management of the dairy animals and the other
resources and facilities designated in paragraph (b)(1) of this section
necessary to produce all Class I milk handled (excluding receipts from
handlers fully regulated under any Federal order) are under the
complete and exclusive control, ownership and management of the
producer-handler and are operated as the producer-handler's own
enterprise and its own risk.
(2) The plant operation designated in paragraph (b)(2) of this
section at which the producer-handler processes and packages, and from
which it distributes, its own milk production is under the complete and
exclusive control, ownership and management of the producer-handler and
is operated as the producer-handler's own enterprise and at its sole
risk.
(3) The producer-handler neither receives at its designated milk
production resources and facilities nor receives, handles, processes,
or distributes at or through any of its designated milk handling,
processing, or distributing resources and facilities other source milk
products for reconstitution into fluid milk products or fluid milk
products derived from any source other than:
(i) Its designated milk production resources and facilities (own
farm production);
(ii) Pool handlers and plants regulated under any Federal order
within the limitation specified in paragraph (c)(2) of this section; or
(iii) Nonfat milk solids which are used to fortify fluid milk
products.
(4) The producer-handler is neither directly nor indirectly
associated with the business control or management of, nor has a
financial interest in, another handler's operation; nor is any other
handler so associated with the producer-handler's operation.
(5) No milk produced by the herd(s) or on the farm(s) that supply
milk to the producer-handler's plant operation is:
(i) Subject to inclusion and participation in a marketwide
equalization pool under a milk classification and pricing program under
the authority of a State government maintaining marketwide pooling of
returns, or
(ii) Marketed in any part as Class I milk to the non-pool
distributing plant of any other handler.
(6) The producer-handler does not distribute fluid milk products to
a wholesale customer who is served by a plant described in Sec.
1131.7(a), (b), or (e), or a handler described in Sec. 1000.8(c) that
supplied the same product in the same-sized package with a similar
label to a wholesale customer during the month.
(b) Designation of resources and facilities. Designation of a
person as a producer-handler shall include the determination of what
shall constitute milk production, handling, processing, and
distribution resources and facilities, all of which shall be considered
an integrated operation, under the sole and exclusive ownership of the
producer-handler.
(1) Milk production resources and facilities shall include all
resources and facilities (milking herd(s), buildings housing such
herd(s), and the land on which such buildings are located) used for the
production of milk which are solely owned, operated, and which the
producer-handler has designated as a source of milk supply for the
producer-handler's plant operation. However, for purposes of this
paragraph, any such milk production resources and facilities which do
not constitute an actual or potential source of milk supply for the
producer-handler's operation shall not be considered a part of the
producer-handler's milk production resources and facilities.
(2) Milk handling, processing, and distribution resources and
facilities shall include all resources and facilities (including store
outlets) used for handling, processing, and distributing fluid milk
products which are solely owned by, and directly operated or controlled
by the producer-handler or in which the producer-handler in any way has
an interest, including any contractual arrangement, or over which the
producer-handler directly or indirectly exercises any degree of
management control.
(3) All designations shall remain in effect until canceled pursuant
to paragraph (c) of this section.
(c) Cancellation. The designation as a producer-handler shall be
canceled upon determination by the market administrator that any of the
requirements of paragraph (a)(1) through (5) of this section are not
continuing to be met, or under any of the conditions described in
paragraphs (c)(1), (2) or (3) of this section. Cancellation of a
producer-handler's status pursuant to this paragraph shall be effective
on the first day of the month following the
[[Page 9434]]
month in which the requirements were not met or the conditions for
cancellation occurred.
(1) Milk from the milk production resources and facilities of the
producer-handler, designated in paragraph (b)(1) of this section, is
delivered in the name of another person as producer milk to another
handler.
(2) The producer-handler handles fluid milk products derived from
sources other than the milk production facilities and resources
designated in paragraph (b)(1) of this section, except that it may
receive at its plant, or acquire for route disposition, fluid milk
products from fully regulated plants and handlers under any Federal
order if such receipts do not exceed 150,000 pounds monthly. This
limitation shall not apply if the producer-handler's own-farm
production is less than 150,000 pounds during the month.
(3) Milk from the milk production resources and facilities of the
producer-handler is subject to inclusion and participation in a
marketwide equalization pool under a milk classification and pricing
plan operating under the authority of a State government.
(d) Public announcement. The market administrator shall publicly
announce:
(1) The name, plant location(s), and farm location(s) of persons
designated as producer-handlers;
(2) The names of those persons whose designations have been
cancelled; and
(3) The effective dates of producer-handler status or loss of
producer-handler status for each. Such announcements shall be
controlling with respect to the accounting at plants of other handlers
for fluid milk products received from any producer-handler.
(e) Burden of establishing and maintaining producer-handler status.
The burden rests upon the handler who is designated as a producer-
handler to establish through records required pursuant to Sec. 1000.27
that the requirements set forth in paragraph (a) of this section have
been and are continuing to be met, and that the conditions set forth in
paragraph (c) of this section for cancellation of the designation do
not exist.
Dated: February 15, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-1587 Filed 2-23-06; 8:45 am]
BILLING CODE 3410-02-P
