Milk in the New England and Other Marketing Areas; Decision on Proposed Amendments to Marketing Agreements and to Orders

Federal RegisterApr 2, 1999

Ask Donna

What actually matters in this document.

Text

7 CFR Part Marketing area

----------------------------------------------------------------------------------------------------------------

1000............................. General Provisions of Federal Milk Marketing Orders.

1001............................. New England.

1002............................. New York-New Jersey.

1004............................. Middle Atlantic.

1005............................. Carolina.

1006............................. Upper Florida.

1007............................. Southeast.

1012............................. Tampa Bay.

1013............................. Southeastern Florida.

1030............................. Chicago Regional.

1032............................. Southern Illinois-Eastern Missouri.

1033............................. Ohio Valley.

1036............................. Eastern Ohio-Western Pennsylvania.

1040............................. Southern Michigan.

1044............................. Michigan Upper Peninsula.

1046............................. Louisville-Lexington-Evansville.

1049............................. Indiana.

1050............................. Central Illinois.

1064............................. Greater Kansas City.

1065............................. Nebraska-Western Iowa.

1068............................. Upper Midwest.

1076............................. Eastern South Dakota.

1079............................. Iowa.

1106............................. Southwest Plains.

1124............................. Pacific Northwest.

1126............................. Texas.

1131............................. Central Arizona.

1134............................. Western Colorado.

1135............................. Southwestern Idaho-Eastern Oregon.

1137............................. Eastern Colorado.

1138............................. New Mexico-West Texas.

1139............................. Great Basin.

----------------------------------------------------------------------------------------------------------------

SUMMARY: This final decision consolidates the current 31 Federal milk

marketing orders into 11 orders. This consolidation complies with the

1996 Farm Bill which mandates that the current Federal milk orders be

consolidated into between 10 to 14 orders. This decision also conforms

to the Omnibus Consolidated and Emergency Supplemental Appropriations

Bill, which requires that this decision be issued between February 1

and April 4, 1999, and extends the time for implementing Federal milk

order reform amendments to October 1, 1999. This decision sets forth a

replacement for the Class I price structure and replaces the basic

formula price with a multiple component pricing system. This decision

also establishes a new Class IV which would include milk used to

produce nonfat dry milk, butter, and other dry milk powders;

reclassifies eggnog; and addresses other minor classification changes.

Part 1000 is expanded to include sections that are identical to all of

the consolidated orders to assist in simplifying and streamlining the

orders.

This decision does not provide for conducting referendums of

producers to determine if they approve of the issuance of the

consolidated orders.

DATES: A notice to conduct a referendum on each of the consolidated

orders will be published separately at a future date.

FOR FURTHER INFORMATION CONTACT: John F. Borovies, Branch Chief, USDA/

AMS/Dairy Programs, Order Formulation Branch, Room 2971, South

Building, PO Box 96456, Washington, DC 20090-6456, (202) 720-6274, e-

mail address John__F__B[email protected] (after

[[Page 16027]]

April 19, 1999, the e-mail address will change to

John.B[email protected]).

For specific information on the Final Regulatory Impact Analysis

and the Civil Rights Impact Analysis contact: John R. Mengel, Chief

Economist, USDA/AMS/Dairy Programs, Office of Chief Economist, Room

2753, South Building, PO Box 96456, Washington, DC 20090-6456, (202)

720-4664, e-mail address John__R__M[email protected] (after April 19,

1999, the e-mail address will change to John.M[email protected]).

SUPPLEMENTARY INFORMATION:

Major changes from the proposed rule issued on January 21, 1998,

are as follows:

1. Consolidation of Marketing Areas

(a) The Western New York State order was removed from the proposed

Northeast marketing area.

(b) Six currently-unregulated counties were removed from the

consolidated Central marketing area.

(c) The current Western Colorado order was moved from the

consolidated Western order to the consolidated Central marketing area

along with 7 currently-unregulated Colorado counties.

2. Basic Formula Price Replacement

(a) The proposed Class III and Class IV pricing formulas are

revised to adjust for product yields and make allowances that result in

lowering the Class III and IV prices.

(b) Barrel cheese prices (NASS survey) are included in the Class

III price formula.

(c) The basis for measuring the protein content in milk is changed

from a test for total nitrogen to a test for true protein.

(d) Advance pricing for Class I will continue to be provided, but

with a shorter time period (7 days vs. 25 days) prior to the effective

month. The proposed rule had suggested a 6-month declining average

mover.

(e) Provides for advance pricing for skim milk in Class II uses in

the same manner as for Class I.

3. Class I Price Structure

Adopts a Class I price structure that uses the generally higher

differential levels as proposed in Option 1A while retaining the

pricing surface of the Department's preferred option.

4. Classification

(a) Cream cheese is moved from Class II to Class III.

(b) Shrinkage calculations are revised.

Table of Contents

I. Prior documents

II. Legislative and Background Requirements

Legislative Requirements

Background

Actions Completed During Developmental Phase

Actions Completed During Rulemaking Phase

Public Interaction and Input

Executive Order 12988

Executive Order 12866

Civil Rights Analysis Executive Summary

The Regulatory Flexibility Act and the Effects on Small

Businesses

Paperwork Reduction Act of 1995

Request for Public Input on Analyses

Preliminary Statement

III. Discussion of Material Issues and Proposed Amendments to the

Orders

Consolidation of marketing areas

Basic formula price replacement and other class price issues

Class I pricing structure

Classification of milk and related issues

Provisions applicable to all orders

Regional Issues:

Northeast Region

Southeast Region

Midwest Region

Western Region

Miscellaneous and Administrative

Consolidation of the marketing service, administrative expense,

and producer-settlement funds

Consolidation of the transportation credit balancing funds

General findings

IV. Order Language

General provisions

Northeast order provisions

Appalachian order provisions

Florida order provisions

Southeast order provisions

Upper Midwest order provisions

Central order provisions

Mideast order provisions

Pacific Northwest order provisions

Southwest order provisions

Arizona-Las Vegas order provisions

Western order provisions

V. Appendix

A: Summary of Preliminary Suggested Order Consolidation Report

B: Summary of Pricing Options

C: Summary of Classification Report

D: Summary of Identical Provisions Report

E: Summary of Basic Formula Price Report

F: Summary of Revised Preliminary Suggested Order Consolidation

Report

I. Prior Documents

Prior documents in this proceeding include:

Proposed Rule: Issued January 21, 1998; published January 30, 1998

(63 FR 4802).

Correction: Issued February 19, 1998; published February 25, 1998

(63 FR 9686).

Extension of Time: Issued March 10, 1998; published March 13, 1998

(63 FR 12417).

II. Legislative and Background Requirements

Legislative Requirements

Section 143 of the Federal Agriculture Improvement and Reform Act

of 1996 (Farm Bill), 7 USC 7253, required that by April 4,

1999,1 the current Federal milk marketing orders issued

under the Agricultural Marketing Agreement Act of 1937, as amended (7

U.S.C. 601-674), be consolidated into between 10 to 14 orders

2. The Secretary of Agriculture (Secretary) is also directed

to designate the State of California as a Federal milk order if

California dairy producers petition for and approve such an order. In

addition, the Farm Bill provided that the Secretary may address related

issues such as the use of utilization rates and multiple basing points

for the pricing of fluid milk and the use of uniform multiple component

pricing when developing one or more basic prices for manufacturing

milk.3

---------------------------------------------------------------------------

\1\ Section 143(b)(2) requires that a proposed rule be published

by April 4, 1998, and Section 143(b)(3) provides that ``in the event

that the Secretary is enjoined or otherwise restrained by a court

order from publishing or implementing the consolidation and related

reforms under subsection (a), the length of time for which that

injunction or other restraining order is effective shall be added to

the time limitations specified in paragraph (2) thereby extending

those time limitations by a period of time equal to the period of

time for which the injunction or other restraining order is

effective.''

\2\ Since this proceeding was initiated on May 2, 1996, the

Black Hills, South Dakota and the Tennessee Valley orders have been

terminated. Effective October 1, 1996, the operating provisions of

the Black Hills order were terminated (61 FR 47038), and the

remaining administrative provisions were terminated effective

December 31, 1996 (61 FR 67927). Effective October 1, 1997, the

operating provisions of the Tennessee Valley order were terminated

(62 FR 47923). The remaining administrative provisions of the

Tennessee Valley order will be terminated before this consolidation

process is completed.

\3\ The Omnibus Consolidated and Emergency Supplemental

Appropriations Bill, passed in October 1998, extended the time frame

for implementing Federal milk order reform amendments from April 4,

1999, to October 1, 1999. The extension specifies that the final

decision, defined as the final rule for purposes of this

legislation, will be issued between February 1 and April 4, 1999,

with the new amendments becoming effective on October 1, 1999. The

legislation also provides that California has from the date of

issuance of the final decision until September 30, 1999, to become a

separate Federal milk marketing order.

---------------------------------------------------------------------------

Besides designating a date for completion of the required

consolidation, the Farm Bill further required that no later than April

1, 1997, the Secretary shall submit a report to Congress on the

progress of the Federal order reform process that included: a

description of the progress made toward implementation, a review of the

Federal order system in light of the reforms

[[Page 16028]]

required, and any recommendations considered appropriate for further

improvements and reforms. This report was submitted to Congress on

April 1, 1997.4

---------------------------------------------------------------------------

\4\ Copies of the Report to Congress can be obtain- ed from

Dairy Programs at (202) 720-4392 or via the Internet at http://

www.ams.usda.gov/dairy/.

---------------------------------------------------------------------------

Finally, the 1996 Farm Bill specified that USDA use informal

rulemaking to implement these reforms.

Background

The authorization of informal rulemaking to achieve the mandated

reforms of the Farm Bill has resulted in a rulemaking process that is

substantially different from the formal rulemaking process required to

promulgate or amend Federal orders. The formal rulemaking process

requires that decisions by USDA be based solely on the evidentiary

record of a public hearing held before an Administrative Law Judge.

Formal rulemaking involves the presentation of sworn testimony, the

cross-examination of witnesses, the filing of briefs, the issuance of a

recommended decision, the filing of exceptions, the issuance of a final

decision that is voted on by affected producers, and upon approval by

producers, the issuance of a final order.

The informal rulemaking process does not require these procedures.

Instead, informal rulemaking provides for the issuance of a proposed

rule by the Agricultural Marketing Service, a period of time for the

filing of comments by interested parties, and the issuance of a final

decision by the Secretary. Referendums will be conducted to determine

approval of the final decision by the requisite number of producers

before the new orders will become effective.

Full participation by interested parties has been essential in the

reform of Federal milk orders. The issues are too important and complex

to be developed without significant input from all facets of the dairy

industry. The experience, knowledge, and expertise of the industry and

public have been integral to the development of the rule. To ensure

that maximum public input into the process was received, USDA developed

a plan of action and projected time line. The plan of action developed

consists of three phases: Developmental, rulemaking, and

implementation.

The first phase of the plan was the developmental phase. The use of

a developmental phase allowed USDA to interact freely with the public

to develop viable proposals that accomplished the Farm Bill mandates,

as well as related reforms. The USDA met with interested parties to

discuss the reform process, assisted in developing ideas or provided

data and analysis on various possibilities, issued program

announcements, and requested public input on all aspects of the Federal

order program. The developmental phase began on April 4, 1996, and

concluded with the issuance of the proposed rule on January 21, 1998

(68 FR 4802).

The second phase of the plan is the rulemaking phase. The

rulemaking phase began with the issuance and publication of the

proposed rule. The proposed rule provided the public 60 days to submit

written comments on the reform proposals to USDA. On March 10, 1998,

(68 FR 12417) the comment period was extended for an additional 30 days

until April 30, 1998. In addition to requests for written comments,

four listening sessions were held to receive verbal comments on the

proposed rule. All comments were reviewed and considered prior to the

issuance of this rule.

The third and final phase of the plan is the implementation phase.

The implementation phase begins after this rule is published in the

Federal Register. This phase consists of informational meetings

conducted by Market Administrator personnel and

referendums.5 The objective of the informational meetings is

to inform producers and handlers about the newly consolidated orders

and explain the projected effects on producers and handlers in the new

marketing order areas. After informational meetings are held, the

referendums will be conducted. Upon approval of the consolidated orders

and related reforms by the required number of producers in each

marketing area, a final order implementing the new orders will be

issued and published in the Federal Register.

---------------------------------------------------------------------------

\5\ As previously noted, this is also the time period in which

California can consider becoming a Federal order based on the

Omnibus Consolidated and Emergency Supplemental Appropriations Bill

provisions.

---------------------------------------------------------------------------

Although all of the issues regarding Federal milk order reform are

interrelated, USDA established several committees to address specific

issues. The use of committees allowed the reform process to be divided

into more manageable tasks. The committees worked throughout the

developmental and rulemaking phases. The committees established were:

Price Structure, Basic Formula Price, Identical Provisions,

Classification, and Regional. The Regional committee was divided into

four subcommittees: Midwest, Northeast, Southeast, and West. Committee

membership consisted of both field and headquarters Dairy Programs

personnel. The committees were given specific assignments related to

their designated issue and began meeting in May 1996.

In addition to utilizing USDA personnel, partnerships were

established with two university consortia to provide expert analyses on

the issues relating to price structure and basic formula price options.

Dr. Andrew Novakovic of Cornell University led the analysis on price

structure and published a staff paper entitled ``U.S. Dairy Sector

Simulator: A Spatially Disaggregated Model of the U.S. Dairy Industry''

and a research bulletin entitled ``An Economic and Mathematical

Description of the U.S. Dairy Sector Simulator'' 6 Dr.

Ronald Knutson of Texas A&M University led the analysis on basic

formula price options and published three working papers entitled ``An

Economic Evaluation of Basic Formula Price (BFP) Alternatives'', ``The

Modified Product Value and Fresh Milk Base Price Formulas as BFP

Alternatives'', and ``Evaluation of `Final' Four Basic Formula Price

Options''. 7

---------------------------------------------------------------------------

\6\ Copies of these reports may be obtained by contacting Ms.

Wendy Barrett, Cornell University, ARME, 348 Warren Hall, Ithaca, NY

14853-7801, (607) 255-1581,

\7\ Copies of these reports may be obtained by contacting Dr.

Ronald Knutson, Agricultural and Food Policy Center, Dept. of Ag.

Economics, Texas A&M University, College Station, TX 77843-2124,

(409) 845-5913.

---------------------------------------------------------------------------

Actions Completed During Developmental Phase

USDA maintained frequent contact with the industry regarding the

reform process. To begin, on May 2, 1996, the Agricultural Marketing

Service (AMS) Dairy Division issued a memorandum to interested parties

announcing the planned procedures for implementing the Farm Bill

8. In this memorandum, all interested parties were requested

to submit ideas on reforming Federal milk orders, specifically as to

the consolidation and pricing structure of orders. Input was requested

by July 1, 1996.

---------------------------------------------------------------------------

\8\ Copies of this announcement and all subsequent announcements

and reports can be obtained from Dairy Programs at (202) 720-4392,

any Market Administrator office, or via the Internet at http://

www.ams.usda.gov/dairy/.

---------------------------------------------------------------------------

On June 24, 1996, USDA issued a press release announcing that a

public forum would be held in Madison, Wisconsin, on July 29, 1996. The

forum would address price discovery techniques for the value of milk

used in

[[Page 16029]]

manufactured dairy products. Thirty-one Senators, Congressmen,

university professors, representatives of processor and producer

organizations, and dairy farmers made presentations at the forum.

On October 24, 1996, AMS Dairy Division issued a memorandum to

interested parties requesting input regarding all aspects of Federal

milk order reform and specifically as to its impact on small

businesses. USDA anticipated that the consolidation of Federal orders

would have an economic impact on handlers and producers affected by the

program, and USDA wanted to ensure that, while accomplishing their

intended purpose, the newly consolidated Federal orders would not

unduly inhibit the ability of small businesses to compete.

On December 3, 1996, AMS Dairy Division issued a memorandum to

interested parties announcing the release of the preliminary report on

Federal milk order consolidation. The report suggested the

consolidation of the then current 32 Federal milk orders into ten

orders. (See Appendix A for report summary.) The memorandum requested

input from all interested parties on the suggested consolidated orders

and on any other aspect of the milk marketing order program by February

10, 1997.

On March 7, 1997, AMS Dairy Division issued a memorandum to

interested parties announcing the release of three reports that

addressed the Class I price structure, the classification of milk, and

the identical provisions contained in a Federal milk order. The price

structure report consisted of a summary report and a technical report

and discussed several options for modifying the Class I price

structure. (See Appendix B for report summary.) The classification

report recommended the reclassification of certain dairy products,

including the removal of Class III-A pricing for nonfat dry milk. (See

Appendix C for report summary.) The identical provisions report

recommended simplifying, modifying, and eliminating unnecessary

differences in Federal order provisions. (See Appendix D for report

summary.) Comments on the contents of these reports, as well as on any

other aspect of the program, were requested from interested parties by

June 1, 1997.

On April 18, 1997, AMS Dairy Division issued a memorandum to

interested parties announcing the release of the preliminary report on

Alternatives to the Basic Formula Price (BFP). The report contained

suggestions, ideas, and initial findings for BFP alternatives. Over

eight categories of options were identified with four options

recommended for further review and discussion. (See Appendix E for

report summary.) The memorandum requested input from all interested

parties on a BFP alternative and on any other aspect of the milk

marketing order program by June 1, 1997.

On May 20, 1997, AMS Dairy Division issued a memorandum to

interested parties announcing the release of a revised preliminary

report on Federal milk order consolidation. The revisions were based on

the input received from interested parties in response to the initial

preliminary report on order consolidation. (See Appendix F for report

summary.) Instead of suggesting 10 consolidated orders as in the first

report, the revised report suggested 11 consolidated orders and

suggested the inclusion of some currently unregulated territory. The

memorandum requested comments from all interested parties on the

suggested consolidated orders and on any other aspect of the milk

marketing order program by June 15, 1997.

To elicit further input on the role of the National Cheese Exchange

price in calculating the basic formula price, on January 29, 1997, the

Secretary issued a press release announcing steps being taken by USDA

to address concerns raised by dairy producers about how milk prices are

calculated. In the press release, the Secretary requested further

comments from interested parties about the use of the National Cheese

Exchange in the determination of the basic formula price, which is the

minimum price that handlers must pay dairy farmers for milk used to

manufacture Class III products (butter and cheese) and the price used

to establish the Class I and Class II prices. These comments were

requested by March 31, 1997, and were useful in analyzing alternatives

to the basic formula price in context of the order reform process.

Actions Completed During Rulemaking Phase

On January 21, 1998, USDA issued a proposed rule (68 FR 4802) that

recommended consolidating the current 31 orders into 11 orders,

proposed two options for consideration as a replacement for the Class I

price structure, and recommended replacing the basic formula price. The

proposed rule also recommended establishing a new Class IV which would

include milk used to produce nonfat dry milk, butter, and other dry

milk powders; recommended reclassifying eggnog and cream cheese,

addressing other minor classification issues; and recommended expanding

part 1000 to include sections that are identical to all of the

consolidated orders. A Preliminary Regulatory Impact Analysis (PRIA)

was also issued that evaluated the costs and benefits of the proposed

rule contents and alternatives. Comments were requested on the proposed

rule and the PRIA on or before March 31, 1998. An informational packet

describing the contents of the proposed rule was sent to interested

parties.

On March 10, 1998, USDA issued a document that extended the time

for filing comments on the proposed rule an additional 30 days, until

April 30, 1998. The document also announced that USDA would conduct

four listening sessions to assist interested parties in submitting

comments to USDA. The listening sessions were held on March 30 in

Atlanta, Georgia; Liverpool, New York; and Dallas, Texas; and on March

31 in Green Bay, Wisconsin.

On April 15, 1998, AMS Dairy Programs announced the issuance of a

report entitled ``Report on the Impacts of the Federal Order Reform

Proposals on Food and Nutrition Service Programs, Participants, and

Administering Institutions'' by the Food and Nutrition Service of USDA.

The report analyzed the potential impacts of the milk order reform

pricing proposals contained in the proposed rule on the Food Stamp

Program, the Women, Infants, and Children Program, and the National

School Lunch and Breakfast Programs.9 The report indicated

that adoption of the proposed rule with either Class I price structure

would have minimal economic impact on these programs. Comments on the

report were requested by April 30, 1998. No comments were received.

---------------------------------------------------------------------------

\9\ Copies of this report can be obtained from Dairy Programs at

(202) 720-4392, or via the Internet at http://www.ams.usda.gov/

dairy/.

---------------------------------------------------------------------------

Public Interaction and Input

As a result of the developmental phase announcements and forum,

more than 1,600 individual comments were received by USDA. In addition

to the individual comments, more than 2,000 form letters were received.

As a result of the rulemaking phase proposed rule and listening

sessions, nearly 4,500 additional comments were received. A further

breakdown of the rulemaking comments by issue is as follows: 1,273

consolidation; 376 basic formula price; 4,224 Class I price structure;

101 classification; and 79 provisions applicable to all orders.

The proposed rule provided interested parties an opportunity to

file comments until March 31, 1998. This period was later extended to

April 30, 1998. Over 205 comments were

[[Page 16030]]

postmarked after the April 30th deadline. Most of these comments did

not raise any issues that were not previously addressed by comments

timely submitted and considered in this rulemaking.

All comments that were reviewed by USDA personnel were available

for public inspection at USDA. To assist the public in accessing the

comments, USDA contracted to have the comments scanned and published on

compact discs. The use of this technology allowed interested parties

throughout the United States access to the information received by

USDA.

USDA also made all publications and requests for information

available on the Internet. A separate page under the Dairy Programs

section of the AMS Homepage was established to provide information

about the reform process. To assist in transmitting correspondence to

USDA, a special electronic mail account--

[email protected] opened to receive input on Federal

milk order reforms.

USDA personnel met frequently with interested parties from May 1996

through the issuance of the proposed rule to gather information and

ideas on the consolidation and reform of Federal milk orders. During

this time period, USDA personnel addressed over 250 groups comprised of

more than 22,000 individuals on various issues related to Federal order

reform.

USDA personnel also conducted in-person briefings for both the

Senate and House Agricultural Committees on the progress of Federal

milk order reforms. Since May 1996, nine briefings were conducted for

the committees. The briefings advised the committees of the plan of

action for implementing the Farm Bill mandates; explained the

preliminary report on the consolidation of Federal milk orders;

explained the contents of the reports addressing Class I price

structure, classification of milk, identical provisions and basic

formula price; discussed the congressional report; and explained the

proposed rule contents.

To ensure the involvement of all interested parties, particularly

small businesses as defined in the Initial Regulatory Flexibility

Analysis (IRFA), in the process of Federal order reform, three primary

methods of contact were used: direct written notification, publication

of notices through various media forms, and speaking and meeting with

organizations and individuals regarding the issue of Federal order

reforms. In addition, information has been made available to the public

via the Internet. USDA also made one written program announcement

specifically requesting information from small businesses. Comments

were also specifically requested on the IRFA published in the January

21, 1998, proposed rule. More than 1,000 comments were received from

interested parties that specifically stated or documented they were

small businesses. However, this number may not be fully representative

of the number of small businesses that actually submitted comments

because a majority of commenters did not indicate their size. A few

comments specifically addressed the IRFA, Executive Order 12866, and

the paperwork reduction analysis.

All announcements and an information packet summarizing the

proposed rule were mailed to over 20,000 interested parties, State

Governors, State Department of Agriculture Secretaries or

Commissioners, and the national and ten regional Small Business

Administration offices. In addition, most dairy producers under the

orders were notified through regular market service bulletins published

by Market Administrators on a monthly basis. Press releases were issued

by USDA for the May 2, 1996, December 3, 1996, January 29, 1997, March

7, 1997, and May 20, 1997, announcements; for the July 31, 1996, public

forum; for the January 21, 1998, proposed rule; and for the March 30

and 31, 1998, listening sessions and extension of time for submitting

comments.10 These press releases were distributed to

approximately 33 wire services and trade publications and to each State

Department of Agriculture Communications Officer. These methods of

notification helped to ensure that virtually all identified small

businesses were contacted.

---------------------------------------------------------------------------

\10\ Copies of these press releases may be obtained from Dairy

Programs at (202) 720-4392, or via the Internet at http://

www.ams.usda.gov/news/newsrel.htm.

---------------------------------------------------------------------------

Departmental personnel, both in the field and from Washington,

actively met with interested parties to gather input and to clarify and

refine ideas already submitted. Formal presentations, round table

discussions, and individually scheduled meetings between industry

representatives and Departmental personnel were held. Over 250

organizations and more than 22,000 individuals were reached through

this method. Of these individuals, approximately 13,400 were identified

as small businesses.

Executive Order 12988

This final decision has been reviewed under Executive Order 12988,

Civil Justice Reform. This rule is not intended to have a retroactive

effect. If adopted, 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 (AMAA), as

amended, 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 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.

Executive Order 12866

The Department is issuing the final decision in conformance with

Executive Order 12866. The final decision is determined to be

economically significant for the purposes of Executive Order 12866.

When adopting regulations which are determined to be economically

significant, agencies are required, among other things, to: Assess the

costs and benefits of available regulatory alternatives; base

regulatory decisions on the best reasonably-obtainable technical,

economic, and other information; avoid duplicative regulations; and

tailor regulations to impose the least burden on society consistent

with obtaining regulatory objectives. Therefore, to assist in

fulfilling the objectives of Executive Order 12866, the Department

prepared a final Regulatory Impact Analysis (RIA) for this action.

Information contained in the RIA pertains to the costs and benefits of

the revised regulatory structure and is summarized in the following

analysis. Copies of the RIA can be obtained from Dairy Programs at

(202) 720-4392, any Market Administrator office, or via the Internet at

http://www.ams.usda.gov/dairy.

This regulatory action is in accordance with section 143 of the

[[Page 16031]]

Federal Agriculture Improvement and Reform Act of 1996, 7 U.S.C. 7253,

(the Farm Bill) which required the Secretary of Agriculture (Secretary)

to consolidate the existing 31 Federal milk marketing orders, as

authorized by the AMAA, into between 10 and 14 orders. The Farm Bill

further provided that the Secretary may address related issues such as

the use of utilization rates and multiple basing points for the pricing

of fluid milk and the use of uniform multiple component pricing when

developing one or more basic formula prices for manufacturing milk. The

Secretary was also directed to designate the State of California as a

Federal milk order if California dairy producers petition for and

approve such an order. Finally, the Farm Bill specified that the

Department of Agriculture use informal rulemaking to implement these

reforms.

The Farm Bill required that a proposed rule be published by April

4, 1998, and all reforms of the Federal milk order program be completed

by April 4, 1999. However, the Omnibus Consolidated and Emergency

Supplemental Appropriations Bill, passed in October 1998, extended the

time frame for implementing Federal milk order reform amendments from

April 4, 1999, to October 1, 1999. The extension specified that the

final decision, defined as the final rule for purposes of this

legislation, be issued between February 1 and April 4, 1999, with the

new amendments becoming effective on October 1, 1999. The legislation

also provides that California has from the date of issuance of the

final decision until September 30, 1999, to become a separate Federal

milk marketing order.

The final decision sets forth the consolidation of the current 31

Federal milk orders into 11 orders. The marketing areas are: Northeast,

Mideast, Upper Midwest, Central, Appalachian, Southeast, Florida,

Southwest, Arizona-Las Vegas, Western, and Pacific Northwest. Several

issues related to the consolidation of Federal milk orders are also

addressed. The final decision contains a replacement for the current

Class I price structure and the basic formula price (BFP). The final

decision adopts a Class I price structure that uses the proposed Option

1B price surface as modified to provide for better alignment of Class I

prices and increases the differential level by 40 cents. The current

BFP is replaced with a multiple component pricing system that derives

component values from surveyed prices of manufactured dairy products.

These changes set the stage for increasing efficiencies in supplying

the milk needs of Class I markets and address concerns that the BFP is

no longer a statistically significant measure of the value of

manufacturing milk.

The rule also classifies milk into four classes according to the

products made from such milk. Milk used to produce defined fluid milk

products is classified as Class I milk. Milk used to produce defined

soft manufactured products is classified as Class II milk. Class III

milk is milk used to produce cream cheese and defined hard manufactured

cheeses, and Class IV milk is milk used to produce butter and all milk

powders.

The minimum monthly price for milk classified as Class I is equal

to the Class I differential specified for each marketing order plus the

Class I price mover announced on or before the 23rd day of the month

preceding the month for which the price is being announced. The Class I

price mover is equal to the higher result from the formulas used to

establish Class III and Class IV prices using weighted average prices

for manufactured products as published by the National Agricultural

Statistics Service (NASS) for the most recent two weeks preceding the

23rd of the month. Weekly prices are weighted by sales volumes reported

by NASS.

Finally, this rule expands Part 1000 to include provisions that are

identical within each consolidated order to assist in simplifying the

regulations. These provisions include the definitions of route

disposition, plant, distributing plant, supply plant, nonpool plant,

handler, other source milk, fluid milk product, fluid cream product,

cooperative association, and commercial food processing establishment.

In addition, the milk classification section, pricing provisions, and

most of the provisions relating to payments have been included in the

General Provisions. These changes adhere with the efforts of the

National Performance Review--Regulatory Reform Initiative to simplify,

modify, and eliminate unnecessary repetition of regulations. Unique

regional issues or marketing conditions have been considered and

included in each market's order provisions.

In the summary of the initial RIA for the January 21, 1998,

proposed rule, the economic impact of certain individual sections of

the regulations were discussed that were considered to be economically

significant. Not all of the changes contained in the proposed rule were

considered economically significant. The sections individually

addressed in the January 21st proposed rule were marketing area

consolidation, the BFP, the Class I pricing structure and

classification provisions. Since these are adopted together in the

final decision, this analysis reviews the impacts of adopting all of

the provisions simultaneously on the dairy industry. The analysis also

reviews the impacts of adopting the provisions contained in the January

21st proposed rule with two alternative Class I pricing structures.

The final RIA and the final decision explain in detail the

components adopted in the Federal order regulations and analyzed by the

model. A review of the projected economic impacts of the final decision

and the projected economic impacts of the alternatives that were

considered on dairy producers, processors, consumers, and international

trade follows. The projected impacts are compared to the baseline

projections over a 6-year period from the years of 2000-2005. The

baseline assumes that the Class III price would be the BFP, the Class

II price would be the BFP plus 30 cents, each region's Class I price

would be the BFP plus the current Class I differential and the Class

III-a price would continue. The RIA details the impacts of the final

decision and the other options considered on each current order, the

Federal orders combined, the State of California, and the United

States.

The following table summarizes the impacts of adopting the newly

consolidated orders and their specific provisions, including the Class

I price structure adopted in this final decision. The table also

provides data detailing the projected impacts of the consolidated

orders and the specific provisions utilizing the two alternative Class

I price structures--Location-Specific Differentials (Option 1A) and

Relative-Value Specific Differentials (Option 1B). Since adopting new

Federal milk order provisions affect both the regulated dairy industry

and associated producers, as well as the unregulated and State

regulated dairy industries, a comparison of the impacts both Federally

and U.S.-wide are included where possible.

[[Page 16032]]

Comparisons of Certain Impacts of Consolidated Order Changes Utilizing Three Price Structures on Federal Order

(Fed) and U.S. Data: 6-year Averages (2000-2005)1

----------------------------------------------------------------------------------------------------------------

Change from baseline

-----------------------------------------

Unit Baseline Final Modified Modified

decision option 1B option 1A

----------------------------------------------------------------------------------------------------------------

Class I Diff. (Fed).............. $/cwt................ 2.56 -0.29 -0.69 0.04

Class I price (Fed).............. $/cwt................ 16.22 -0.19 -0.49 0.08

Class I price (U.S.)............. $/cwt................ 16.26 -0.14 -0.38 0.06

All-Milk Price (Fed)............. $/cwt................ 15.23 -0.02 -0.10 0.03

All-Milk Price (U.S.)............ $/cwt................ 14.73 0.00 -0.05 0.04

Milk Marketings (Fed) 2.......... mil lbs.............. 111,182.0 8.3 -130.8 149.0

Milk Marketings (U.S.)........... mil lbs.............. 165,142.2 15.2 -90.9 128.7

Class I use (Fed)................ mil lbs.............. 46,955.7 42.0 106.7 -16.6

Class I use (U.S.)............... mil lbs.............. 58,782.2 37.7 98.8 -14.9

Cash Receipts (Fed) 3............ mil $................ 16,944.5 -2.5 -128.4 104.9

Cash Receipts (U.S.) 4........... mil $................ 24,347.9 3.5 -89.9 77.0

Retail Price (Fed)............... $/gal................ ............ -0.02 -0.04 0.01

Fluid Expend. (Fed).............. mil $................ 7,617.8 -80.2 -215.4 36.4

Fluid Expend. (U.S.)............. mil $................ 9,562.0 -79.1 -209.7 31.3

Manufac. Expend. (Fed)........... mil $................ 9,326.7 77.7 87.0 68.5

Manufac. Expend. (U.S.).......... mil $................ 14,785.9 82.5 119.8 45.7

----------------------------------------------------------------------------------------------------------------

\1\ Includes the effects of the Class II, III, and IV pricing formulas.

\2\ Changes in the Final Decision and Modified Option 1A marketings do not include the additional milk from the

Upper Midwest and Chicago Regional orders that is expected to be pooled under these options.

\3\ Cash receipts do not reflect the termination of the $0.15 per hundredweight transportation credit in the New

York-New Jersey order and exclude the income from additional pooled milk in the consolidated Upper Midwest

order for the Final Decision and Modified Option 1A.

\4\ Cash receipts do not reflect the termination of the $0.15 per hundredweight transportation credit in the New

York-New Jersey order and exclude the income from additional pooled milk in the consolidated Upper Midwest

order for the Final Decision and Modified Option 1A.

As is evidenced by the summary table, the economic impacts

resulting from the adoption of the final decision are minimal when

compared to the total values included in the Federal order system and

in the U.S. This is also true with the alternative options that were

considered. Changes in the all-milk price, milk marketings, Class I

use, and cash receipts all represent less than one percent of the total

baseline projections. Although the total impacts are minimal from a

national perspective, producers, processors, and consumers may

experience a greater impact on a more localized level as is described

in the RIA.

The consolidation of Federal milk orders into 11 orders with the

adopted price structure and all other provision modifications of the

final decision best adheres to the requirements of the Farm Bill while

fulfilling the objectives of the AMAA. The changes adopted in the final

decision enhance the efficiencies of fluid milk markets while

maintaining equity among processors of fluid milk selling in marketing

order areas and among dairy farmers supplying the areas' fluid demands.

The final decision provisions achieve this while having minor overall

impacts on the Federal order system and on the U.S. dairy industry.

Although both of the alternatives considered also have minimal impacts,

the final decision best achieves economic efficiencies, equity, and

program objectives.

Final Decision

A brief review of the impacts that are projected to occur with the

implementation of the final decision are:

Producers. In general, producers in markets located in the western,

southwestern, and northeastern areas of the U.S. may not fare as well

as producers located in other parts of the country, as measured by the

all-milk price and cash receipts from milk marketings. The average all-

milk price for the combined Federal order markets is expected to

average $0.02 per hundredweight lower than the baseline. The average

all-milk price is projected to increase in 13 current markets from

$0.01 to $0.52 per hundredweight and decrease in 19 markets from $0.01

to $0.50. One market is estimated to average unchanged. The average

all-milk price throughout the entire U.S. is projected to remain

unchanged. It is important to recognize that the all-milk price can be

impacted considerably by the change in the Class I utilization due to

consolidation and the necessary alignment of Class I prices within

consolidated areas.

Over the 2000-2005 period, gross cash receipts within the Federal

order system are expected to increase an estimated $222.3 million

primarily because of changes in transportation payments and the pooling

of additional milk under the Federal order system. After adjusting for

these changes, annual cash receipts are projected to decline from the

baseline an average of $2.5 million during the 6-year period. With the

baseline cash receipts averaging $16,944.5 million this represents a

very insignificant reduction. Fifteen markets are projected to have

increases with 18 markets projected to have decreases.

Processors. Since the final decision is expected to have little

effect on where milk is produced, little impact is expected on fluid

milk processors or manufacturers of dairy products. Impacts on fluid

milk processors will likely result from changes in the minimum Class I

and Class II prices that are the handler's obligation under the Federal

order system. Fluid processors in 14 of the current Federal order

markets will experience increased differentials, while processors in 17

of the markets will see decreases. Fluid processors in two markets will

see no change. The estimated weighted average Class I differential for

all current Federal order markets would decrease $0.29 per

hundredweight. The all-market average Federal order Class I price would

decrease $0.19 per hundredweight when compared to the baseline during

the years of 2000-2005. The value of manufacturing milk would be

increased, on average, $82.5 million per year during the six-year

period.

Consumers. Since adoption of the final decision is projected to

result in a slight decrease in the average Class I

[[Page 16033]]

price for the years of 2000-2005, it is expected that average retail

prices will decrease about $0.02 per gallon. On an individual order

basis, the changes in the average retail price per gallon may range

from an increase of $0.06 to a decrease of $0.09. Although consumers

will be spending less on fluid milk products, consumption is projected

to remain relatively unchanged.

International Trade. Adopting the final decision is not expected to

have a significant impact on domestic butter and nonfat dry milk prices

and therefore, little change in international trade is expected.

International trade of raw milk and fluid milk products between the

United States, Mexico, and Canada should be unaffected. However, the

increase in the Class II price could negatively affect the Mexican

market for those products.

Other Alternatives

Although implementation of the consolidated orders with either the

Option 1B or Option 1A price surface would still result in less than a

projected one percent change in overall Federal order and U.S. prices,

cash receipts, and marketings, these two alternatives do not promote

market efficiencies, equity or program objectives as well as the

provisions adopted and would not result in the most preferable

allocation of resources over time. A brief review of the impacts that

were projected to occur with the implementation of these two

alternatives are:

Producers. In general, Option 1B would have reduced producer income

in total and would have reduced the proportion of the Class I value

represented in Federal order pools. Mainly producers located in the

Upper Midwest and Florida areas would have benefitted while producers

throughout the rest of the U.S. would have been negatively impacted.

The all-milk price for all Federal order markets combined was expected

to average $0.10 per hundredweight lower than the baseline during the

years of 2000-2005. The average all-milk price was projected to

increase in 10 current markets from $0.06 to $0.42 per hundredweight

and decrease in 23 markets from $0.01 to $0.61 during this time period.

This would have resulted in changing the gross cash receipts on an

individual order basis during this period ranging from an annual

average decrease of $48.4 million to an increase of $38.5 million.

Overall, gross cash receipts would have averaged $128.4 million less

than currently received.

Under Option 1A the all-milk price for all Federal order markets

combined was expected to average $0.03 per hundredweight higher than

the baseline during the years of 2000-2005. The average all-milk price

was projected to increase in 15 current markets from $0.01 to $0.34 per

hundredweight and decrease in 18 markets from $0.01 to $0.66. These

changes would have resulted in changing the gross cash receipts on an

individual order basis during this period ranging from an annual

average decrease of $10.3 million to an increase of $48.4 million.

Overall, gross cash receipts would have averaged $104.9 million higher

than currently received.

Processors. Since Option 1B would have lowered the Class I

differentials by a weighted average of $0.69 per hundredweight, the

all-market average Class I price charged to fluid handlers would have

declined by $0.49 per hundredweight when compared to the baseline

during the years of 2000-2005. Lower Class I prices would have been

expected to increase sales of fluid milk within the Federal order

system by an annual average of 106.7 million pounds, representing less

than a one percent increase. Similar responses would have occurred

throughout the U.S. Fluid processors would have benefitted from lower

fluid milk prices and increased fluid milk sales.

Option 1A would have increased Class I differentials by a weighted

average of $0.04 per hundredweight resulting in the all-market average

Class I price charged to fluid handlers increasing by $0.08 per

hundredweight when compared to the baseline during the years of 2000-

2005. Since the impact of the increased Class I prices would have

resulted in an insignificant decrease in fluid milk consumption within

the Federal order system, a decrease of 16.6 million pounds, and within

the U.S., a decrease of 14.9 million pounds, this option would have

little expected overall effect on processors or manufacturers of dairy

products.

Consumers. Since adoption of Option 1B was projected to result in a

decrease in the average Class I price for the period 2000-2005, it was

expected that retail prices would decrease an average of $0.04 per

gallon. On an individual order basis the changes in the average retail

price per gallon would have ranged from an increase of $0.03 to a

decrease of $0.12. As a result of the overall price decrease, consumers

would have spent less on fluid milk products while increasing

consumption. The increase in fluid consumption was estimated to be less

than one percent.

Since adoption of Option 1A was projected to result in an increase

in the average Class I price for the period of the years 2000-2005, it

was expected to minimally increase retail prices an average of $0.01

per gallon. On an individual order basis the changes in the average

retail price per gallon would have ranged from an increase of $0.05 to

a decrease of $0.01. As a result of the price increase, consumers would

have spent slightly more on fluid milk products and purchased about the

same amount of milk for fluid use.

International Trade. Options 1B or 1A were not expected to have a

significant impact on domestic butter and nonfat dry milk prices and

therefore, little change in international trade would have resulted.

International trade of raw milk and fluid milk products between the

United States, Mexico, and Canada would have been unaffected.

In response to the final decision, the Food and Nutrition Service

updated the analysis on the impacts of Federal Order reform provisions

on Food and Nutrition Service programs, participants, and administering

institutions. The updated report analyzes the potential impacts of the

milk order reform pricing provisions contained in the final decision on

the Food Stamp Program, the Women, Infants, and Children Program, and

the National School Lunch and Breakfast Programs. The report also

analyzes impacts of adopting either of the alternative Class I price

structure options. The report indicates that adoption of the final

decision provisions, as well as either of the alternatives considered,

will have minimal economic impact on these programs. This report is

included in the final RIA appendix.

The impacts of the provisions adopted in the final decision or

either of the alternatives considered are minimal when compared to the

total marketings and revenue generated in the dairy industry both on a

national and Federal order basis. However, neither of the alternative

options considered would appear to improve market efficiencies or

equity as well as adopting the provisions contained in the final

decision. Based on the analyses completed, the final decision

regulations have been tailored to impose the least burden on society

while meeting regulatory objectives. In doing so, these regulations

will replace current regulations and will not duplicate any current

regulations that may exist.

Civil Rights Impact Analysis Executive Summary

Pursuant to Departmental Regulation (DR) 4300-4, a Civil Rights

Impact Analysis (CRIA) reviews the final

[[Page 16034]]

decision regarding reforms to the Federal Milk Marketing Order program

to identify any provisions within the final decision with actual or

potential adverse effects for minorities, women, and persons with

disabilities.

The CRIA includes descriptions of (1) the purpose of performing a

CRIA; (2) the civil rights policy of the U.S. Department of Agriculture

(USDA); and (3) basics of the Federal milk marketing order program are

provided for background information. The civil rights impact analysis

of Federal Order Reform meets the requirements prescribed by DR 4300-4.

As part of the analysis, the extensive outreach efforts of USDA through

the entire reform process and after the final decision is published are

highlighted. Additionally, statistical detail is provided of the

characteristics of the dairy producer and general populations located

within the current and consolidated marketing areas.

The analysis discloses no potential for affecting dairy farmers

with specific characteristics differently than the general population

of dairy farmers. All producers, regardless of race, national origin,

or disability choosing to deliver milk to a Federal order regulated

handler will receive the minimum blend price.

Copies of the Civil Rights Impact Analysis can be obtained from

Dairy Programs at (202) 720-4392; any Market Administrator office; or

via the Internet at http://www.ams.usda.gov/dairy/.

The Regulatory Flexibility Act and the Effects on Small Businesses

Pursuant to the requirements set forth in the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.), the Agricultural Marketing

Service (AMS) has considered the economic impact of the rule on small

entities and has prepared this final regulatory flexibility analysis.

The Regulatory Flexibility Act provides, in summary, that when

preparing such analysis an agency shall address: The need for and

objectives of the rule; summary of the significant issues raised in

public comments, agency assessment of the issues raised, and changes

made to the proposed rule based on these issues; the kind and number of

small entities affected; the recordkeeping, reporting, and other

requirements; and steps taken to minimize the economic impact on small

entities.

This regulatory action is in accordance with section 143 of the

Federal Agriculture Improvement and Reform Act of 1996, 7 U.S.C. 7253,

(the Farm Bill) which required the Secretary of Agriculture (Secretary)

to consolidate the existing 31 Federal milk marketing orders, as

authorized by the Agricultural Marketing Agreement Act of 1937 (AMAA),

into between 10 and 14 orders. The Farm Bill further provided that the

Secretary may address related issues such as the use of utilization

rates and multiple basing points for the pricing of fluid milk and the

use of uniform multiple component pricing when developing one or more

basic prices for manufacturing milk. The Secretary was also directed to

designate the State of California as a Federal milk order if California

dairy producers petition for and approve such an order. Finally, the

Farm Bill specified that the Department of Agriculture use informal

rulemaking to implement these reforms.

The Farm Bill required that a proposed rule be published by April

4, 1998, and all reforms of the Federal milk order program be completed

by April 4, 1999. However, the Omnibus Consolidated and Emergency

Supplemental Appropriations Bill, passed in October 1998, extended the

time frame for implementing Federal milk order reform amendments from

April 4, 1999, to October 1, 1999. The extension specified that the

final decision, defined as the final rule for purposes of this

legislation, be issued between February 1 and April 4, 1999, with the

new amendments becoming effective on October 1, 1999. The legislation

also provides that California has from the date of issuance of the

final decision until September 30, 1999, to become a separate Federal

milk marketing order.

The final decision sets forth the consolidation of the current 31

Federal milk orders into 11 orders. Several issues related to the

consolidation of Federal milk orders are also addressed. The final

decision contains a replacement for the Class I price structure and the

basic formula price. These changes set the stage for increasing

efficiencies in supplying the milk needs of Class I markets and address

concerns that the BFP is no longer a statistically significant measure

of the value of manufacturing milk. The final decision also changes the

classification of milk by (1) establishing Class IV provisions which

would include milk used to produce nonfat dry milk, butter, and other

dry milk powders; (2) reclassifying eggnog; and (3) making other minor

classification changes. These changes recognize the position of butter

and milk powders as residual products that balance the supply of milk

with overall demand, and equalize the cost of competing products.

Finally, this final decision expands part 1000 to include provisions

that are identical within each consolidated order to assist in

simplifying the regulations. These provisions include the definitions

of route disposition, plant, distributing plant, supply plant, nonpool

plant, handler, other source milk, fluid milk product, fluid cream

product, cooperative association, and commercial food processing

establishment. In addition, the milk classification section, pricing

provisions, and some of the provisions relating to payments have been

included in the General Provisions. These changes adhere with the

efforts of the National Performance Review--Regulatory Reform

Initiative to simplify, modify, and eliminate unnecessary repetition of

regulations. Unique regional issues or marketing conditions have been

considered and included in each market's order provisions.

The purpose of the Regulatory Flexibility Act is to fit regulatory

actions to the scale of business subject to the actions in order that

small businesses are not unduly or disproportionately burdened. To

accomplish this purpose, it first is necessary to define a small

business. According to the Small Business Administration's definition

of a ``small business,'' a dairy farm is a ``small business'' if it has

an annual gross revenue of less than $500,000 and a handler is a

``small business'' if it has fewer than 500 employees. For the purposes

of determining which dairy farms are ``small businesses,'' the $500,000

per year criterion was used to establish a production guideline of

326,000 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.

Based on 1996 data, USDA identified approximately 80,000 of the

83,000 dairy producers (farmers) that had their milk pooled under a

Federal order as small businesses. Thus, small businesses represent

approximately 96 percent of the producers in the United States. By 1997

the total number of dairy producers that had their milk pooled under a

Federal order had declined to about 79,000. It is estimated that nearly

76,000 are small businesses.

During 1997, 78,590 dairy farmers delivered over 105.2 billion

pounds of milk to handlers regulated under the milk orders. This volume

represents 68 percent of all milk marketed in the U.S.

[[Page 16035]]

and 70 percent of the milk of bottling quality (Grade A) sold in the

country. The value of the milk delivered to Federal milk order handlers

at minimum order blend prices was nearly $14.0 billion. Producer

deliveries of milk used in Class I products (fluid milk products)

totaled 44.9 billion pounds-- 42.7 percent of total Federal order

producer deliveries. More than 200 million Americans reside in Federal

order marketing areas--77 percent of the total U.S. population.

On the processing side, there are over 1,200 individual plants

associated with Federal orders, and of these plants, approximately 700

qualify as ``small businesses'' representing about 55 percent of the

total. During October 1997, there were more than 485 fully regulated

handlers (306 distributing plants of which 111 were small businesses

and nearly 180 supply plants of which about 50 percent were small

businesses), 51 partially regulated handlers of which 28 were small

businesses and 111 producer-handlers of which all were considered small

businesses for purposes of this final RFA, submitting reports under the

Federal milk marketing order program.

The Federal milk order program is designed to set forth the terms

of trade between buyers and sellers of fluid milk. A Federal order

enforces the minimum price that processors (handlers) in a given

marketing area must pay producers for milk according to how it is

utilized. A Federal order further requires that the payments for milk

be pooled and paid to individual dairy producers or cooperative

associations on the basis of a uniform or average price. It is

important to note that a Federal milk order, including the pricing and

all other provisions, only becomes effective after approval, through a

referendum, by dairy producers associated with the order.

Development of this final decision began with the premise that no

additional burdens should be placed on the industry as a result of

Federal order consolidation and reform. As a step in accomplishing the

goal of imposing no additional regulatory burdens, a review of the

current reporting requirements was completed pursuant to the Paperwork

Reduction Act of 1995 (44 U.S.C. Chapter 35). In light of this review,

it was determined that this final decision would have little impact on

reporting, recordkeeping, or other compliance requirements because

these would remain almost identical to the current Federal order

program. No new forms are required; however, some additional reporting

will be necessary in the orders that are adopting multiple component

pricing if the current orders do not contain these provisions. Overall,

there would be slight change in the burdens placed on the dairy

industry.

There are two principal reporting forms for handlers to complete

each month that are needed to administer the Federal milk marketing

orders. The forms are used to establish the quantity of milk used and

received by handlers, the pooling status of the handler, the class-use

of the milk used by the handler, the butterfat content and amounts of

other components of the milk. This information is used to compute the

monthly uniform price paid to producers in each of the markets.

Handlers in the marketing areas adopting multiple component pricing

will be required to complete additional information regarding the

components of the milk and to assure that proper payments are made to

producers. This information is necessary to establish the values of

milk on the basis of milk components and to assure that producers are

paid correctly. Many handlers already collect and report this

information.

This rule does not involve additional information collection that

requires clearance by the Office of Management and Budget beyond the

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.

New territory, or pockets of unregulated territory within and

between current order areas has been included in the consolidated

marketing areas where such expansion will not have the effect of fully

regulating plants that are not now regulated. The addition of these

areas benefits regulated handlers by eliminating the necessity of

reporting sales outside the Federal order marketing area for the

purpose of determining pool qualification. Where such areas can be

added to a consolidated area without having the effect of causing the

regulation of any currently-unregulated handler, they are added.

Handlers not currently fully regulated under Federal orders may

become regulated for two main reasons: first, in the process of

consolidating marketing areas, some handlers who currently are

partially regulated may become fully regulated because their sales in

the combined marketing areas meet the pooling standards of a

consolidated order area. Second, a previously unregulated area in New

York, Vermont, New Hampshire and Massachusetts was added on the basis

of supporting information. As a result, previously unregulated handlers

would become fully regulated. Because of these two reasons, 11

additional plants are expected to become fully regulated under the

program. Of these 11 plants, it is estimated that 5 are small

businesses that would need to comply with the reporting, recordkeeping,

and compliance requirements. The completion of these reports will

require a person knowledgeable about the receipt and utilization of

milk and milk products handled at the plant. This most likely will be a

person already on the payroll of the business such as a bookkeeper,

controller or plant manager. The completion of the necessary reporting,

recordkeeping, and compliance requirements does not require any highly

specialized skills and should not require the addition of personnel to

complete. In fact, much of the information that handlers report to the

market administrator is readily available from normally maintained

business records, and as such, the burden on handlers to complete these

recordkeeping and reporting requirements is minimal. In addition,

assistance in completing forms is readily available from market

administrator offices. A description of the forms and a complete

Paperwork Reduction Act analysis follows this section.

No other burdens are expected to fall upon the dairy industry as a

result of overlapping Federal rules. The regulations contained in this

final decision do not duplicate, overlap or conflict with any existing

Federal rules.

Public Comments

More than 1,000 comments were received from interested parties that

specifically stated or documented they were small businesses. However,

this number may not be fully representative of the number of small

businesses that actually submitted comments because a majority of

commenters did not indicate their size. Of the comments submitted, the

majority were received from dairy producers. The comments from the

producers primarily addressed the issues of Class I pricing and

consolidation.

A few comments were received that specifically addressed the

initial regulatory flexibility analysis (IRFA).

[[Page 16036]]

These comments also addressed the issues of Class I pricing and

consolidation and further addressed the issue of producer-handler

regulation. The Small Business Administration submitted views

specifically addressing exempt plant status and requesting further

analysis of the impact of consolidation on previously unregulated

entities, if possible.

Nearly all of the 1,000 comments addressed Class I pricing and

discussed the impact of Option 1A or Option 1B on dairy producers'

income. A majority of these comments supported Option 1A because it

would maintain the revenue necessary to stay in business. Many

commenters opposing Option 1B argued that the Class I differential

decreases that would occur under this option would result in financial

losses that would force many dairy farmers out of business. Comments

filed by service providers such as feed and implement stores that

claimed to be small businesses commented on the negative impact lower

prices received by dairy producers had on surrounding community

businesses. One commenter supporting Option 1A further stated that in

order to comply with the purposes and objectives of the Regulatory

Flexibility Act, as stated in the IRFA, a Class I price structure that

avoids a burdensome financial impact on dairy farmers must be adopted.

About 200 of the comments received from declared small businesses

addressed consolidation issues. These comments focused on the impact of

including or excluding currently-unregulated areas. A majority of the

comments focused on the Northeast order and the inclusion or exclusion

of the currently-unregulated territories in New York, Pennsylvania, and

Maryland. Comments supporting the inclusion of currently-unregulated

territory discussed the need to include this territory to prevent

inequitable, unfair and disorderly marketing conditions. One supporting

commenter noted that the expansion into unregulated areas would result

in more small businesses becoming subject to Federal order regulation

but the commenter did not believe that it would unduly impact their

ability to compete. Commenters opposing the inclusion of currently-

unregulated Pennsylvania territory argued that producer returns would

decline if handlers in this area were subject to Federal order

regulations.

A few comments were received addressing the extent of regulation

applied to producer-handlers. One commenter, a small business producer-

handler, indicated that the combination of new definitions and

classification of milk provisions will result in its regulation. The

commenter argued that this effect is contrary to the IRFA that stated

``no additional regulatory burdens should be placed on the industry''

and to the intent of the proposed rule that stated the changes were not

intended to fully regulate any producer-handler that is currently

exempt from regulation. Other commenters suggested that producer-

handlers should not be exempt from regulation if their route

disposition of Class I products at wholesale exceeds 500,000 pounds per

month or if they have retail sales other than at a retail establishment

located on the premises of the producer-handler's plant. They argued

that producer-handlers with route disposition above this limit cannot

be considered small businesses and should be subject to regulation.

After reviewing the public comments filed by small businesses in

combination with updated marketing data and information and updated

analyses, changes were made to the provisions contained in the proposed

rule. Not all of the changes requested by small businesses were

feasible but when changes were beneficial to small businesses without

affecting the objectives of the rule, they were incorporated. The

changes made to the proposed rule, based in part on small business

comments, are discussed below by issue.

Consolidation

The proposed rule advanced 11 consolidated Federal milk marketing

orders. The marketing areas of these orders were expanded to include

currently-unregulated areas if this did not result in the regulation of

any currently-unregulated handlers or was not an area in which handlers

are subject to minimum Class I pricing provisions under State

regulations. After reviewing the issue in light of the public comments

and updating the initial analysis based on more recent marketing data,

11 consolidated orders are adopted in the final decision, the same

number as proposed in the January 21, 1998, rule, but with significant

modifications being made to the marketing areas of the proposed

Northeast and Western orders, and minor modifications to the marketing

areas of the proposed Southeast, Mideast, Upper Midwest and Central

orders. The final decision continues to omit currently-unregulated

areas specified in the January 21st proposed rule and also omits

currently-unregulated areas that comprise a significant distribution

area for currently-unregulated handlers, some of which were proposed to

be included in consolidated areas.

Numerous comments were received from small businesses supporting

the inclusion of currently-nonregulated areas in the Northeast order.

However, after considering the requirements of the Farm Bill, the

consolidation of the existing orders does not necessitate expansion of

the consolidated orders into unregulated areas or areas in which

handlers are subject to minimum Class I pricing under State regulation,

especially when the states' Class I prices exceed or equal those that

would be established under Federal milk order regulation. Such

regulation could have the effect of reducing returns to producers

already included under State regulation without significantly affecting

prices paid by handlers who compete with Federally-regulated handlers.

Two changes made to the prior proposed rule as a result of comments

submitted by small businesses related to the exclusion of territory in

the consolidated marketing areas. These changes occurred in the Mideast

and Central orders. The changes ensure that two currently-unregulated

handlers maintain this status.

One change occurred in the Mideast order. Based on a comment

received from Toft Dairy, Incorporated (Toft Dairy), a small business

dairy processor, and Sandusky County Milk Producers Association, a

dairy cooperative representing dairy farmers classified as small

businesses, one partial and three entire counties in north Central Ohio

are excluded from the Mideast marketing area. These areas are currently

unregulated. The proposed rule had suggested including this currently-

unregulated territory in the Mideast marketing area which would have

resulted in the regulation of Toft Dairy. Since the intent of the

consolidating marketing orders was not to cause the regulation of any

currently-unregulated handler, these areas have been removed from the

marketing area of the Mideast order. Toft Dairy will remain an

unregulated processor unless its sales area changes significantly.

Another change occurred in the Central order. Based on a comment

received from Central Dairy, Incorporated (Central Dairy), a small

business dairy processor, six currently-unregulated counties in

northeast Missouri that were proposed to be included in the Central

order are excluded from the marketing area. These areas are currently

unregulated. Central Dairy opposed inclusion of these six counties

because the handler plans to expand its distribution into this

[[Page 16037]]

area. Again, since the intent of consolidating marketing orders was not

to cause the regulation of any currently-unregulated handler these

areas have been removed from the marketing area of the Central order.

Producer-Handlers

Another change to the proposed rule resulting from public comments

involves producer-handlers. Since the intent of the proposed rule was

not to increase regulation to any currently-unregulated producer-

handlers, minor modifications have been made to the classification of

milk provisions applicable to all orders and to the producer-handler

definition in certain individual orders.

A comment submitted by Promised Land Dairy, a producer-handler

defined as a small business, stated that the change in the

classification of milk provisions combined with other order changes

would result in their regulation. Promised Land Dairy argues that the

addition of the words ``or acquired for distribution'' in

Sec. 1000.44(a)(3)(iv) would force milk delivered by a producer-handler

to any store associated with a regulated handler to be sold at no more

than the Class III price because it would be considered a receipt from

a producer-handler. Promised Land Dairy argued that this would force

producer-handlers to become fully regulated. In addition, they argued

that changes made to the Southwest order's producer-handler definition

are not warranted and would further result in the regulation of

Promised Land Dairy.

The changes in the proposed rule were not intended to fully

regulate any producer-handler that is currently exempt from regulation.

Producer-handlers have been exempt from the pricing and pooling

provisions of the orders for several reasons. First, the care and

management of the dairy farm and other resources necessary for own-farm

production and the management and operation of the processing are the

personal enterprise and risk of the owner. Second, typically producer-

handlers are small businesses that operate in a self-sufficient manner.

Finally, producer-handlers do not have an advantage as either producers

or handlers so long as they are responsible for balancing their fluid

milk needs and cannot transfer balancing costs to other market

participants.

While the provisions objected to by Promise Land Dairy would not

directly regulate this entity, they could have a very serious negative

economic impact on its continued operations as a producer-handler.

Because it is still the intent of the Department to allow currently-

unregulated producer-handlers to maintain this status, changes have

been made to Sec. 1000.44(a)(3)(iv) in the general provisions by

removing the words ``or acquired for distribution'' and re-adding these

words to Sec. 1124.44, and changes have been made to the individual

order definitions of producer-handlers. Hence, no changes are made in

the final decision to regulate a producer-handler that is currently

exempt from regulation.

Additional comments submitted by small businesses regarding

producer-handlers advocated implementing a limitation on the exemption

of producer-handlers based on size. The commenters suggested that the

producer-handler exemption should be limited to those whose Class I

route disposition is 500,000 pounds or less, or whose entire Class I

disposition of fluid milk is made as retail sales from a retail

establishment located on the premises of the producer-handler's

processing plant.

Since the intent of the final decision is not to regulate any

currently-unregulated producer-handlers, these requests have been

denied. A review of October 1997 producer-handler route disposition

data indicates that if a 500,000 pound Class I route disposition limit

were implemented, 20 producer-handlers out of 111 producer-handlers,

would become regulated. The Department's reasons for exempting

producer-handlers as discussed previously have not changed and the

intent of this rule is not to make changes to regulate currently-

unregulated producer-handlers regardless of size. Consequently, these

suggested changes have not been included in the final decision.

Class I Price Structure

Another change to the proposed rule, resulting in part from the

public comments received, involves the Class I price structure. In the

proposed rule the Department advanced two main price options--1A and

1B. The Department indicated a preference for Option 1B because it was

more market-oriented. However, the Department recognized in the

proposed rule that Option 1B would result in lower Class I prices and

lower blend prices which would have a significant economic impact on

small businesses, particularly producers. To lessen the impact, three

phase-in program options were proposed to be adopted in conjunction

with Option 1B. The objective of the phase-in programs was to provide

dairy producers and processors the opportunity to adjust marketing

practices to adapt to more market-determined Class I prices.

A majority of the public comments received from small businesses

supported Option 1A. Many of the commenters opposing Option 1B

indicated that the price levels established under this price structure

would be significantly lower than present levels, and as a result,

they--primarily dairy producers--would be forced out of business. Of

the commenters supporting Option 1B, few supported the adoption of a

phase-in program.

Option 1B was preferred by the Department because it would move the

dairy industry into a more market-determined pricing system.

Establishing a national Class I price structure based on results from

the U.S. Dairy Sector Simulator model,11 developed and

administered by Cornell University, may increase market efficiencies in

the dairy industry and lowering the differentials would allow marketing

conditions to have a greater impact on actual Class I prices paid to

producers who service the Class I market. The Department recognized

that this would impact small businesses, both producer and processors,

because less of the actual value of Class I milk would be regulated. In

the proposed rule the Department stated the following:

---------------------------------------------------------------------------

\11\ The U.S. Dairy Sector Simulator model is used to evaluate

the geographic or ``spatial'' value of milk and milk components

across the U.S. under the assumption of globally efficient markets.

A more detailed description of the model is contained in the

decision.

``Smaller, less efficient producers would likely have a greater

responsibility to bargain with processors for over-order premiums

that adequately cover their costs. With processors less likely to

face similar raw product costs, less efficient small processors may

have to negotiate and/or sustain over-order price levels necessary

to attract and maintain a sufficient supply of milk. Large

businesses, both producers and processors, may be in a better

---------------------------------------------------------------------------

competitive position to do this.'' (63 FR 4912)

After reviewing the public comments and updating marketing data and

analyses of Option 1A and Option 1B, the Department adopted a Class I

price structure that provides greater structural efficiencies in the

assembly and shipment of milk and dairy products. The adopted Class I

pricing structure establishes a price surface that utilizes USDSS model

results adjusted for all known plant locations and establishes

differential levels that will result in prices that generate sufficient

revenue to assure an adequate supply of milk. The differential levels

will better maintain equity by raising the level 40 cents per

hundredweight higher than the level proposed in Option 1B. The higher

differential level reduces the likelihood

[[Page 16038]]

of class-price inversions, where the Class I prices are below the

manufacturing milk prices for the month. Updated analysis conducted by

the Interagency Dairy Analysis Team in the final Regulatory Impact

Analysis 12 indicates that increasing the differential level

lessens the economic impact of moving toward more market-orientation on

small businesses.

---------------------------------------------------------------------------

\12\ Copies of the Regulatory Impact Analysis can be obtained

from Dairy Programs at (202) 720-4392, any Market Administrator

office, or via the Internet at http://www.ams.usda.gov/dairy.

---------------------------------------------------------------------------

Exempt Plant Limits

The Office of the Chief Counsel for Advocacy (Office of Advocacy)

of the U.S. Small Business Administration submitted views on the IRFA

pursuant to its authority under the Regulatory Flexibility Act, 5

U.S.C. 601, as amended by the Small Business Regulatory Enforcement

Fairness Act, Pub. L. 104-121, 110 Stat. 866 (1996). With regard to the

impact of the order consolidation and pricing formulae, the Office of

Advocacy stated that these issues should be left to the regulated

community and the Department. The Office of Advocacy did comment that a

system that ``best resembles the free market and imposes the least

burden on the industry would be the best alternative.''

The Office of Advocacy requested an explanation of how the 150,000

pound handler exemption was derived and a determination of whether this

exemption could be increased. They questioned whether a greater number

of small entities would benefit from an increase in the limit. The

Office of Advocacy further requested additional analysis on the impact

of the consolidation of orders on previously unregulated entities, if

possible.

The 150,000 pound handler exemption was determined after reviewing

provisions currently contained in the Federal milk marketing orders.

The 150,000 pound exemption was the highest level currently utilized,

with some orders containing no such exemption. A review of the impact

of this exemption level on distributing plants that were fully

regulated in October 1997 indicated that 15 plants, 14 of which are

small businesses, would become exempt from regulation based on this

provision. In addition, five partially-regulated plants, four of which

are small businesses, would also become exempt. No public comments were

received addressing this issue.

Federal milk order regulations must balance the interests of small

business dairy producers versus small business dairy processors.

Although only processors are regulated under Federal milk orders,

producers receive benefits from the regulations. Thus, whenever dairy

processors are exempt from Federal order regulations they are not

required to pay dairy producers minimum Federal order prices. Exempting

processors from regulation directly impacts dairy producers.

Based on October 1997 data, a review of the impacts of increasing

the exemption levels on processors was completed. As expected,

increasing the level would allow additional processors to become

exempt. In October 1997, 54 handlers had route disposition equal to or

less than 150,000 pounds. An additional 57 handlers had route

disposition between 150,000 to 1,000,000 pounds and 327 handlers had

route disposition greater than 1 million pounds.

Although it may appear that increasing the exemption level would

not result in exempting many additional plants, these plants receive

milk from a significant number of producers, a majority of whom are

small businesses. In addition, contrary to the intent of benefitting

small businesses by increasing the exemption level, more handlers that

are considered large businesses could become exempt from regulation.

Implementing the 150,000 pound level results in two large businesses

currently regulated (one fully-regulated and one partially-regulated)

becoming exempt plants. When more large businesses become exempt it not

only impacts producers, but also impacts other regulated handlers.

In an attempt to maintain a balance between the interests of both

small handlers and small dairy producers, the 150,000 pound exemption

is maintained. Based on previous experience, the exemption of plants of

this size poses no economic threat to the order's regulated handlers.

Minimization of Significant Economic Impacts on Small Businesses

The Department developed the final decision aware of the impacts of

its adoption on small businesses, both dairy producers and processors.

In the final decision, the Department has minimized the significant

economic impacts of these regulations on small entities to the fullest

extent reasonably possible while adhering to the stated objectives. The

Department reviewed the regulatory and financial burdens resulting from

these regulations and determined, to the fullest extent possible, the

impact on small businesses' abilities to compete in the market place.

The Department reviewed the regulations from both the small producer

and small processor perspectives attempting to maintain a balance

between these competing interests.

The Farm Bill mandated that the current 31 orders be consolidated

into between 10 to 14 orders. The Farm Bill also specified that other

issues could be addressed. Eleven orders are adopted in the final

decision as well as a new Class I price structure, a basic formula

price replacement, classification of milk provisions, and the

establishment of identical provisions in all orders where possible. The

objectives of the final decision are (1) to comply with the

requirements of the Farm Bill and (2) to make other changes in order

provisions consistent with the goals and requirements of the AMAA. The

focus of these changes is to enhance the efficiencies of fluid milk

markets while maintaining equity among processors of fluid milk selling

in marketing order areas and among dairy producers supplying the areas'

fluid demands.

Federal milk order regulations do not disparately apply to small

and large businesses. If a handler is regulated under a Federal milk

order, the provisions of that order apply the same to all handlers

regardless of size. Likewise, if a producer's milk is associated with a

Federal order pool, the same pricing and payment provisions will be

utilized for all producers regardless of size. This final decision

addresses several issues and adopts provisions that will continue to

apply equally to all businesses, both large and small. The provisions

adopted herein attempt to reduce the economic impact of Federal milk

order regulations on small businesses to the most reasonable extent

possible.

After reviewing submitted comments and updating marketing data and

analyses, changes were made to the provisions contained in the proposed

rule. The IRFA discussed the projected impacts of the primary

components of the proposed rule on small entities. These included

consolidation, basic formula price, Class I price structure, and

classification. Because Federal order provisions are interrelated, it

was difficult to determine the overall impact of each component on

small entities because the proposed rule contained two pricing options.

To the fullest extent possible, such estimations were set forth in the

proposed rule.

Below is a description of the primary components contained in the

final decision that were discussed in the IRFA. For comparison

purposes, impacts resulting from each component

[[Page 16039]]

are briefly discussed. Because this rule establishes the specific

provisions to be contained in Federal milk marketing orders, analysis

of the impacts of the consolidated orders on small businesses is

provided.

Consolidation

The IRFA discussed three order consolidation options: (1) The

consolidated marketing areas suggested in the December 1996 Initial

Preliminary Report on Order Consolidation; (2) the consolidated

marketing areas suggested in the May 1997 Revised Preliminary Report on

Order Consolidation; and (3) the consolidated marketing areas suggested

in the proposed rule. Determining the specific economic impacts of

marketing area consolidation on handlers, producers, and consumers is

difficult. The IRFA detailed the assumptions utilized to quantify the

economic effects of consolidation. The IRFA included an analysis of

each of the three consolidation options on the weighted average use

value to determine the potential impacts of each option on producers.

The IRFA also included projections regarding the number of handlers

that would be regulated under the consolidation options and the number

of these handlers that are small businesses.

The consolidation of orders adopted in the final decision is a

result of the examination and analysis of more recent marketing data in

combination with the comments received on the proposed rule. This

resulted in modifying significantly from the proposed rule the

marketing areas of the Northeast and Western orders, and in making

minor modifications to the marketing areas of the proposed Southeast,

Mideast, Upper Midwest and Central orders. The consolidated orders

adopted in the final decision are as follows (* denotes changes made

from the proposed rule):

*1. NORTHEAST--current marketing areas of the New England, New

York-New Jersey and Middle Atlantic Federal milk orders, with the

addition of: the contiguous unregulated areas of New Hampshire,

northern New York and Vermont; and the non-Federally regulated portions

of Massachusetts. *The Western New York State order area (ten entire

and 5 partial western New York counties) proposed to be included in the

expanded Northeast order area has been omitted.

2. APPALACHIAN--Current marketing areas of the Carolina and

Louisville-Lexington-Evansville (minus Logan County, Kentucky) Federal

milk orders plus the marketing area of the former Tennessee Valley

order, with the addition of 21 currently-unregulated counties in

Indiana and Kentucky.

3. FLORIDA--current marketing areas of the Upper Florida, Tampa

Bay, and Southeastern Florida Federal milk orders.

*4. SOUTHEAST--current marketing area of the Southeast Federal milk

order, plus 1 county from the Louisville-Lexington-Evansville Federal

milk order marketing area; plus 11 northwest Arkansas counties and 22

entire Missouri counties that currently are part of the Southwest

Plains marketing area; plus 6 Missouri counties that currently are part

of the Southern Illinois-Eastern Missouri marketing area; plus 16

currently unregulated southeast Missouri counties (including 4 that

were part of the former Paducah marketing area); plus 20 currently-

unregulated Kentucky counties (including 5 from the former Paducah

marketing area).

*A partial Missouri county that has been part of the Southwest

Plains marketing area will become completely unregulated.

*5. MIDEAST--current marketing areas of the Ohio Valley, Eastern

Ohio-Western Pennsylvania, Southern Michigan and Indiana Federal milk

orders, plus Zone 2 of the Michigan Upper Peninsula Federal milk order,

and most currently-unregulated counties in Michigan, Indiana and Ohio.

*One partial and 3 entire counties in north central Ohio are left

unregulated, as they represent the distribution area of a currently-

partially regulated distributing plant (Toft Dairy in Sandusky, Ohio).

*6. UPPER MIDWEST--current marketing areas of the Chicago Regional,

Upper Midwest, Zones I and I(a) of the Michigan Upper Peninsula Federal

milk orders, and unregulated portions of Wisconsin. *The Iowa Federal

order marketing area portion of one Illinois county is added to the

consolidated Upper Midwest marketing area and the Chicago Regional

portion of another Illinois county is removed and added to the

consolidated Central area.

*7. CENTRAL--current marketing areas of the Southern Illinois-

Eastern Missouri, Central Illinois, Greater Kansas City, Southwest

Plains, Eastern Colorado, Nebraska-Western Iowa, Eastern South Dakota,

Iowa (* less the portion of an Illinois county that will become part of

the consolidated Upper Midwest area) and *Western Colorado Federal milk

orders, * plus the portion of an Illinois county currently in the

Chicago Regional Federal order area, minus 11 northwest Arkansas

counties and 1 partial and 22 entire Missouri counties that are part of

the current Southwest Plains marketing area, minus 6 Missouri counties

that are part of the current Southern Illinois-Eastern Missouri

marketing area, plus 54 currently-unregulated counties in Kansas,

Missouri, Illinois, Iowa, Nebraska and Colorado, plus 8 counties in

central Missouri *(six fewer than in the proposed rule) that are not

considered to be part of the distribution area of an unregulated

handler in central Missouri, *plus 7 currently unregulated Colorado

counties located between the current Western and Eastern Colorado order

areas.

8. SOUTHWEST--current marketing areas of Texas and New Mexico-West

Texas Federal milk orders, with the addition of two currently-

unregulated northeast Texas counties and 47 currently-unregulated

counties in southwest Texas.

9. ARIZONA-LAS VEGAS--current marketing area of Central Arizona,

plus the Clark County, Nevada, portion of the current Great Basin

marketing area, plus eight currently-unregulated Arizona counties.

*10. WESTERN--current marketing areas of the Southwestern Idaho-

Eastern Oregon and Great Basin Federal milk orders, minus Clark County,

Nevada. *The Western Colorado order area, proposed to be included in

the Western order area, is instead included in the consolidated Central

order.

11. PACIFIC NORTHWEST--current marketing area of the Pacific

Northwest Federal milk order plus 1 currently-unregulated county in

Oregon.

The consolidated orders presented herein reflect the most

appropriate boundaries for the purpose of implementing the requirements

of the Farm Bill. These orders attempt to avoid extending regulation to

handlers whose primary sales areas are outside current Federal order

marketing areas and who are not subject to Federal order regulation.

These orders also minimize the regulatory burden placed on handlers.

Based on October 1997 data, it is projected that 306 distributing

plants will be fully regulated and 32 distributing plants will be

exempt. The number of fully-regulated small businesses will be 111. The

number of fully-regulated small businesses is down from 164, a 32

percent decline from the proposed rule. This is mainly a result from

either large business acquisitions of these small businesses or because

they have gone out of business. Two small businesses that are currently

unregulated will become regulated and, as mentioned previously, 14

fully regulated and four partially-regulated small businesses will

become exempt.

[[Page 16040]]

Basic Formula Price

The IRFA reviewed the basic formula price replacement options

considered. These options included pricing components based on their

value in manufactured products which was proposed and is adopted in the

final decision, economic formulas, futures markets, cost of production,

competitive pay pricing, and pricing differentials only.

The rule closely follows the pricing plan described in the proposed

rule by replacing the current basic formula price (BFP) with a multiple

component pricing system that derives component values from surveyed

prices of manufactured dairy products. The adopted pricing system

determines butterfat prices for milk used in Class II, Class III and

Class IV products from a butter price; protein and other solids prices

for milk used in Class III products from cheese and whey prices; and

nonfat solids prices for milk used in Class II and Class IV products

from nonfat dry milk product prices. The specific formulas used to

calculate the prices are described in complete detail in the final

decision.

All market participants, both large and small, would be affected by

the BFP replacement in the same manner. There would be no uneven impact

on market participants on the basis of size. However, the existence of

minimum order pricing serves to assure that large handlers pay no less

for their milk than smaller entities, and that small producers receive

at least the same minimum uniform price for the milk or components of

milk they produce as large producers. Consumers can be assured that the

prices generally charged for dairy products are prices that reflect, as

closely as possible, the forces of supply and demand in the market.

Impact of Multiple Component Pricing Provisions on Small Entities

As set forth in the proposed rule, seven of the 11 orders adopted

in the final decision provide for milk to be paid for on the basis of

its components--multiple component pricing (MCP).

Five of the seven MCP orders also provide for milk values to be

adjusted according to the somatic cell count of producer milk. The

equipment needed for testing milk for its component content can be very

expensive to purchase, and requires highly-skilled personnel to

maintain and operate. The cost of infra-red analyzers ranges from just

under $100,000 to $200,000. The infra-red machines that are used by

most laboratories would test for total solids and somatic cells at the

same time the butterfat and protein tests are done.

No new report forms are needed under multiple component pricing;

however, some additional reporting is necessary to enable handlers'

values of milk to be determined on the basis of components, and to

assure that producers are paid correctly. For the market administrators

to compute the producer price differential, handlers would need to

supply additional information on their currently-required monthly

reports of receipts and utilization. In addition to the product pounds

and butterfat currently reported, handlers would be required to report

pounds of protein, pounds of other solids, and, in 5 of the orders,

somatic cell information. This data would be required from each handler

for all producer receipts, including milk diverted by the handler,

receipts from cooperatives as 9(c) handlers (that is, the cooperative

acts as a handler); and, in some cases, receipts of bulk milk received

by transfer or diversion.

Since producers would be receiving payments based on the component

levels of their milk, the payroll reports that handlers supply to

producers must reflect the basis for such payment. Therefore the

handler would be required to supply the producer not only with the

information currently supplied, but also, (a) the pounds of butterfat,

the pounds of protein, and the pounds of other solids contained in the

producer's milk, as well as the producer's average somatic cell count,

and (b) the minimum rates that are required for payment for each

pricing factor and, if a different rate is paid, the effective rate

also. Many handlers already report this additional information. It

should be noted that handlers already are required to report

information relative to pounds of production, butterfat and rates of

payment for butterfat and hundredweight of milk to the appropriate

Market Administrator.

Of over 74,000 producers whose milk was pooled in December 1996

under 23 of the current orders that would be part of consolidated

orders providing for multiple component pricing, the milk of 52,500 of

these producers was pooled under 13 current orders that have MCP.

Handlers in these markets already have incurred the initial costs of

testing milk for its component content, and have made the needed

transition to reporting the component contents of milk receipts on

their handler reports to the market administrators, and on their

reports of what they have paid producers.

Of the remaining 21,750 producers who would be affected by MCP

provisions under a Federal order (including an estimated 20,650

producers qualifying as small businesses), the milk of approximately

13,000, or 60 percent, currently is received by handlers who test or

have the capability of testing for multiple components and, in many

cases, somatic cells. Many of these handlers also report component

results to the producers with their payments. Almost all of the

producers whose milk currently is not being tested or paid for on the

basis of components are located in the New England and New York-New

Jersey marketing areas, which would be consolidated with the Middle

Atlantic area into the Northeast order.

Accommodation has been made to ameliorate handlers' expenses of

testing producer milk for component content. As component pricing plans

have been adopted under a number of the present Federal milk orders

since 1988, the component testing needed to implement these pricing

plans has been performed by the market administrators responsible for

the administration of the orders involved for handlers who have not

been equipped to make all of the determinations required under the

amended orders. It has been made clear in the decisions under which

these plans have been adopted that handlers who would find it unduly

burdensome to obtain the equipment and personnel needed to accomplish

the required testing may rely on the market administrators to verify or

establish the tests under which producers are paid. As noted above,

however, many handlers not now subject to MCP provisions under Federal

orders have nevertheless already undertaken multiple component testing

and payment programs.

Class I Price Structure

The IRFA discussed two price structure options--location-specific

differentials (Option 1A) and relative-value specific differentials

(Option 1B). The IRFA set forth the projected impacts that these two

price structures would have on producers and processors.

The price structure adopted in this final decision resulted from an

examination and review of more recent marketing data in combination

with the comments received on the proposed rule. As discussed

previously, the Department adopted a Class I price structure that

provides greater structural efficiencies in the assembly and shipment

of milk and dairy products. The adopted Class I pricing structure

establishes a price surface that utilizes

[[Page 16041]]

USDSS model results adjusted for all known plant locations and

establishes differential levels that will result in prices that

generate sufficient revenue to assure an adequate supply of milk. The

differential levels will better maintain equity by raising the level 40

cents per hundredweight higher than the level proposed in Option 1B.

The higher differential level reduces the likelihood of class-price

inversions, where the Class I prices are below the manufacturing milk

prices for the month. Updated analysis conducted by the Interagency

Dairy Analysis Team in the final Regulatory Impact Analysis

13 indicates that increasing the differential level lessens

the economic impact of moving toward more market-orientation on small

businesses.

---------------------------------------------------------------------------

\13\ Copies of the Regulatory Impact Analysis can be obtained

from Dairy Programs at (202) 720-4392, any Market Administrator

office, or via the Internet at http://www.ams.usda.gov/dairy.

---------------------------------------------------------------------------

The adopted Class I price structure reduces Class I differentials

from current levels in 17 markets ranging from $0.04 per hundredweight

in the Ohio Valley order to $1.18 per hundredweight in the Eastern

Colorado order. Option 1B would have reduced differentials from current

levels in 29 markets ranging from $0.01 in Central Illinois order to

$1.58 in the Eastern Colorado order. The adopted Class I price

structure will increase Class I differentials in 14 markets ranging

from $0.08 in the Greater Kansas City order to $0.57 in the

Southeastern Florida order and leaves two orders unchanged. Option 1B

would have increased Class I differentials in only two markets--$0.15

in Chicago Regional and $0.17 in Southeastern Florida--and would have

left two orders unchanged. Option 1A would have increased differentials

in 21 markets ranging from $0.01 per hundredweight in New England, New

York-New Jersey, and Unregulated New York and New England to $0.50 in

the Upper Midwest order, lowered differentials in seven markets from

$0.04 in Ohio Valley to $0.18 in Eastern Colorado, and left four

markets unchanged.

Although the adopted Class I price structure will result in price

changes that affect both large and small entities, this option best

meets the objectives of the AMAA. The adopted Class I price structure

recognizes that there are limitations in the extent that the

marketplace can be relied upon to establish prices to producers that

are equitable and reasonable given marketing conditions. Similarly, it

recognizes that handlers will be assured a higher degree of price

equity. The adopted Class I price structure best provides the

incentives necessary for increased efficiency in the organization and

distribution of the milk supply and dairy products.

Classification Provisions

The IRFA discussed the classification of milk provisions contained

in the proposed rule. The IRFA concluded that the classification of

milk provisions would not have a significant economic impact on a

substantial number of small entities. With two primary exceptions,

these changes are adopted in the final decision. The two exceptions

are: (1) Leaving cream cheese as a Class III product as currently

classified, and (2) leaving the fluid milk product exclusion standard

for products packaged in ``all-metal, hermetically-sealed containers''

as currently classified. In addition, other minor changes have been

made including revising the shrinkage provisions to more closely

resemble current provisions, re-adding the provision for milk that is

dumped or used for animal feed, and classifying inventory of fluid milk

products and fluid cream products in bulk form in Class IV. One

additional change, as previously discussed in the comment section, was

made to ensure that producer-handlers that are not currently regulated

by the Federal order program will maintain this status. The provisions

improve reporting and accounting procedures for handlers and provide

for greater market efficiencies.

Conclusion

A review of the impacts on small entities of consolidating the

current Federal milk orders into 11 orders in conjunction with the

basic formula price replacement, classification provisions, and the

three different Class I price structure options, indicates that the

provisions set forth in the final decision adhere to the mandates of

the Farm Bill, and provides more market efficiencies while minimizing

the impact of these regulations on small entities. Since the Federal

order program serves to benefit dairy producers by regulating dairy

processors through classified pricing, provisions must be established

that maintain a balance between the interests of small dairy producers

and processors. The provisions contained in the final decision best

maintain this balance.

The adoption of the consolidated orders and the provisions

contained therein, including the adopted Class I price structure, will

affect some small entities. Producers located in the western,

southwestern, and northeastern areas may not fare as well as producers

in other parts of the country when comparing the all-milk prices and

cash receipts from milk marketings to current baseline projections.

These producers represent approximately one-third of the total

producers associated with Federal orders. Of these producers, about 30

percent are considered small businesses. When compared to the baseline,

over a 6-year period from the years of 2000-2005, the all-milk price

for all Federal orders is expected to decrease an average of $0.02 per

hundredweight. Changes in the all-market price on an individual order

basis is projected to range from a decrease of $0.50 per hundredweight

to an increase of $0.52 per hundredweight. Cash receipts are expected

to increase by an estimated $222.3 million primarily because of changes

in transportation payments and the pooling of additional milk. After

adjusting for these changes, cash receipts are projected to decline

from the baseline an average of $2.5 million during the 6-year period.

With the baseline cash receipts averaging $16,944.5 million this

represents a very small reduction.

Since the final decision is projected to have minor effects on

where milk is produced, little impact is expected on processors or

manufacturers of dairy products. A majority of the fully-regulated

processors associated with Federal orders will benefit from a decrease

in Class I prices. About 209 processors, 74 of which are small

businesses, would experience decreases ranging from $0.04 to $1.18 per

hundredweight. About 69 processors, 22 of which are small businesses,

located primarily in the Midwest and Florida areas, would experience

Class I price increases ranging from $0.08 to $0.57 per hundredweight.

About 28 processors, 14 of which are small businesses, would experience

no change in Class I prices.

Implementing the consolidated orders with the modified Option 1B

price structure would have a significant impact on many small entities,

both producers and processors. Producers located everywhere except the

Midwest and Florida regions would have been negatively impacted. When

compared to the baseline, over a 6-year period from the years of 2000-

2005, the all-milk price for all Federal orders was projected to

annually average $0.09 per hundredweight lower, with individual order

changes ranging from -$0.61 per hundredweight to $0.42 per

hundredweight. Cash receipts were expected to annually average over

$100 million less than the baseline, a .01 percent decrease.

[[Page 16042]]

Most fully-regulated fluid processors would have benefitted from

the decrease in Class I differentials. Lower differentials would have

reduced Class I prices in 29 of the current markets from between $0.01

to $1.58 per hundredweight. Two markets would have had increases of

$0.15 and $0.17 per hundredweight in Class I prices. When compared to

the baseline, the Class I price for all Federal orders was projected to

average $0.49 per hundredweight lower over a 6-year period from the

years of 2000-2005. Lower Class I prices would have been expected to

increase U.S. sales of fluid milk by 98.8 million pounds annually. Most

fluid processors would have benefitted from the lower fluid milk prices

and increased fluid milk sales.

Although most fluid processors would have benefitted from the

consolidation of orders with the modified Option 1B price surface, only

about one-third of the fully-regulated plants are small businesses and

these plants may have been negatively impacted. With less of the actual

value of fluid milk represented by the minimum prices established by

Federal orders, more emphasis would have been placed on processors' and

producers' abilities to negotiate and/or sustain over-order prices that

might be necessary to maintain an adequate supply of milk. This would

have resulted in less handler equity which could have placed small

processors at a disadvantage in competing for a supply of milk.

Adoption of this option would have resulted in large fluid

processors benefitting from the regulations at the expense of more than

50 percent of the total producers who would have experienced price

decreases. Additionally, small processors would not have been assured

equity in competing with large businesses for a milk supply. Hence, the

Department determined the impact of consolidating orders with the

modified Option 1B price structure would have had a more burdensome

financial impact on a significant number of small businesses.

Implementing the consolidated orders with the Option 1A price

structure would have minimal overall impact on small businesses. When

compared to the baseline, the all-milk price for all Federal orders was

projected to average $0.03 per hundredweight higher, with individual

order changes ranging from -$0.66 per hundredweight to $0.34 per

hundredweight over a 6-year period from the years of 2000-2005. Cash

receipts were expected to average over $482.1 million more than the

baseline, a .02 percent increase. Nearly 50 percent of the producers

would have benefitted from this modest increase.

Since this option is projected to have minor effects on where milk

is produced, little impact would have been expected on processors or

manufacturers of dairy products. Option 1A would have increased Class I

differentials by an average of $0.04 per hundredweight resulting in the

all-market average Class I price charged to fluid handlers increasing

by $0.08 per hundredweight when compared to the baseline during the

years of 2000-2005. Processors would have experienced a Class I price

increase in 21 of the current orders ranging from $0.01 to $0.50 per

hundredweight, affecting nearly 190 fully-regulated processors of which

about one-third are small businesses. Since the impact of the increased

Class I prices would have resulted in an insignificant decrease in

fluid milk consumption within the Federal order system, a decrease of

17.1 million pounds, and within the U.S., a decrease of 14.9 million

pounds, this option would have little expected effect on processors or

manufacturers of dairy products.

Implementing the consolidated orders with the Option 1A price

structure would likely have minimized the financial impact of Federal

milk orders on small entities. However, this option does not facilitate

the movement towards a more efficient system of supplying fluid milk to

meet market demands within the Federal order regulatory program.

Although this option minimizes the impact of regulations on small

businesses, it does not best meet the desired outcomes and objectives

of the final decision.

The provisions adopted in the final decision best fulfill the

requirements of the AMAA while minimizing the regulatory burdens on

small businesses. The consolidated orders, with the adopted Class I

price structure and other provisions, ensures that the Federal order

program will continue to establish and maintain market stability and

orderly marketing conditions for milk. The adopted provisions will

further provide that milk prices are established at levels high enough

to generate sufficient revenue for producers to maintain adequate

supplies of milk while providing equity to handlers. The provisions

contained in the final decision do not unduly or disproportionately

burden small businesses.

Paperwork Reduction Act of 1995

The information collection requirements contained in this decision

previously were approved by the Office of Management and Budget (OMB)

pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35)

under OMB control number 0581-0032, through September 30, 2001.

The amendments set forth in the final decision do not contain

additional information collections that require clearance by the OMB

under the provisions of 44 U.S.C. Chapter 35. Following is a general

description of the reporting and recordkeeping requirements, reasons

for these requirements and an estimate of the annual burden on the

dairy industry.

Title: Report Forms Under Federal Milk Orders (From Milk Handlers

and Milk Marketing Cooperatives).

OMB Control Number: 0581-0032.

Expiration Date of Approval: September 30, 2001.

Type of Request: Extension and revision of a currently approved

information collection.

Abstract: Federal Milk Marketing Order regulations authorized under

the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C.

601-674), require milk handlers to report in detail the receipt and

utilization of milk and milk products handled at each of their plants

that are regulated by a Federal Order. The data are needed to

administer the classified pricing system and related requirements of

each Federal Order.

Rulemaking amendments to the orders must be approved in referenda

conducted by the Secretary.

The terms of each of the current milk marketing orders are found at

7 CFR parts 1001-1199; the terms of each of the proposed orders in this

document are found at 7 CFR parts 1001-1135. The authority for

requiring reports is found at 8c(5) and (7) and 8d of the Act. The

current authority for requiring records to be kept is found in the

general provisions at 7 CFR part 1000.5. In the final decision, this

authority is found in the general provisions at 7 CFR part 1000.27. The

Act also provides for milk marketing agreements, but there are none in

effect.

A Federal milk marketing order is a regulation issued by the

Secretary of Agriculture that places certain requirements on the

handling of milk in the area it covers. It requires that handlers of

milk for a marketing area pay not less than certain minimum class

prices according to how the milk is used. These prices are established

under an order on the basis of evidence concerning the supply and

demand conditions for milk in the market. A milk order requires that

payments for milk be pooled and paid to individual farmers or

cooperative associations of

[[Page 16043]]

farmers on the basis of a uniform or average price. Thus, all eligible

farmers (producers) share in the market wide use-values of milk by

regulated handlers.

The Report of Receipts and Utilization and the Producer Payroll

Report are completed by regulated milk handlers and milk marketing

cooperatives and are the principal reporting forms needed to administer

Federal milk marketing orders.

The orders also provide for the public dissemination of market

statistics and other information for the benefit of producers,

handlers, and consumers. Each milk order is administered by a market

administrator who is an agent of the Secretary of Agriculture. Part of

the market administrator's duties are to prescribe reports required of

each handler, and to assure that handlers properly account for milk and

milk products, and that such handlers pay producers and associations of

producers according to the provisions of the order. The market

administrator employs a staff that verifies handlers' reports by

examining records to determine that the required payments are made to

producers. Most reports required from handlers are submitted monthly to

the market administrator. Confidentiality of information collection is

assured through section 608(d) of the Act, which imposes substantial

penalties on anyone violating these confidentiality requirements.

The forms used by the market administrators are required by the

respective milk orders that are authorized by the Act. The forms are

authorized either in the general provisions (Part 1000) or in the

sections of the respective orders. The forms are used to establish the

quantity of milk received by handlers, the pooling status of handlers,

the class-use of the milk used by the handler and the butterfat content

and amounts of other components of the milk.

The frequency of performing these recordkeeping and reporting

duties varies according to the form; the frequency ranges from ``on

occasion'' to ``annually'' but ``monthly'' is perhaps most common. In

general, most of the information that handlers report to the market

administrator is readily available from normally maintained business

records. Thus, the burden on handlers to complete these recordkeeping

and reporting requirements is expected to be minimal. In addition,

assistance in completing forms is readily available from market

administrator offices.

Regarding the use of improved information technology to reduce the

reporting and recordkeeping burden, the information requested is the

minimum necessary to carry out the program. Since the type of

information required to be collected and the certification and

reporting of that information is required, no other alternative to the

mode of information collection has been found. However, where possible,

reported information is accepted using computer tapes or diskettes as

alternatives to submitting the requested information on these report

forms. Comments were requested to help assess the number of handlers

using computers, word processors and other electronic equipment to

create and store documents, as well as the extent to which the Internet

is used to exchange information.

We are confident that the information we collect does not duplicate

information already available. Dairy Programs has an ongoing

relationship with many organizations in the dairy industry that also

respond to other governmental agencies. Thus, we are aware of the

reports dairy industry organizations are submitting to other government

agencies.

Information collection requirements have been reduced to the

minimum requirements of the orders, thus minimizing the burden on all

handlers--those considered to be small as well as large entities. Forms

require only a minimal amount of information which can be supplied

without data processing equipment or a trained statistical staff. The

primary source of data used to complete the forms are routinely used in

all business transactions. Thus, the information collection and

reporting burden is relatively small. Requiring the same reporting

requirements for all handlers does not significantly disadvantage any

handler that is smaller than industry average.

If the collection of this information were conducted less

frequently, data needed to keep the Secretary informed concerning

industry operations would not be available. Timing and frequency of the

various reports are such to meet the needs of the industry and yet

minimize the burden of the reporting public.

The collection of the required information is conducted in a manner

consistent with guidelines in 5 CFR 1320.6. The orders require that the

market administrator compute monthly minimum prices to producers based

on monthly information. Without monthly information, the market

administrator, for example, would not have the information to compute

each monthly price, nor to know if handlers were paying producers on

dates prescribed in the order, such as the partial payment for milk

received the first 15 days of the month and the final payment which is

payable after the end of the month. The Act imposes penalties for order

violations, such as the failure to pay producers not later than

prescribed dates. The orders require payments to and from the producer-

settlement fund to be made monthly. Also, class prices are based on the

monthly Basic Formula price series.

Annual Reporting and Recordkeeping Burden

Estimate of Burden: Public reporting burden for this collection of

information is estimated to average 0.87 hours per response.

Respondents: Milk Handlers and Milk Marketing Cooperatives.

Estimated Number of Respondents: 772.

Estimated Number of Responses per Respondent: 35.

Estimated Total Annual Burden on Respondents: 23,858 hours.

Estimated annual cost to respondents for report preparation:

$276,514 (23,858 hours at $11.59 per hour). Although hourly rates vary

among handlers in various localities, the wage paid to clerical workers

engaged in report preparation is estimated to be comparable to about a

grade GS-7, step 1.

It is important to note that the burden being reported is an

estimate of the amount of time that would be required of current

program participants.

It is expected that the final decision should have little impact on

the reporting and recordkeeping burden on handlers regulated under the

Federal milk marketing order program. In fact, as a result of the

consolidation of Federal orders from 31 to 11 as proposed, an overall

reduction in reporting and recordkeeping requirements may occur due to

greater uniformity in forms used and fewer ``special'' forms that

currently apply to one or a few orders. There should also be a

reduction in the burden on handlers that currently file reports for

individual orders that are being consolidated.

Non-substantial changes would be necessary on the required reports

and records to correctly identify the new Federal market order (e.g.

the current--and separate--reports for the Upper Florida, Tampa Bay and

Southeastern Florida marketing areas would be combined into one report

for the Florida marketing area).

[[Page 16044]]

Request for Public Input on Analyses

Comments on the Executive Order 12866 analysis, the initial

regulatory flexibility analysis, and the paperwork reduction analysis

were requested in the proposed rule, which was published in the Federal

Register on January 30, 1998. Specifically, interested parties were

invited to submit comments on the regulatory and informational impacts

of this proposed rule on small businesses. More than 1,000 comments

were received from interested parties that specifically stated or

documented they were small businesses. However, this number may not be

fully representative of the number of small businesses that actually

submitted comments because a majority of commenters did not indicate

their size. A few comments specifically addressed the initial

regulatory flexibility analysis (IRFA), the Executive Order 12866, and

the Paperwork Reduction Analysis. These comments have been considered

and addressed above.

Preliminary Statement

The material issues in this rule relate to:

1. Consolidation of marketing areas.

2. Basic formula price replacement and other class price issues.

3. Class I pricing structure.

4. Classification of milk and related issues.

5. Provisions applicable to all orders.

6. Regional issues:

a. Northeast Region.

b. Southeast Region.

c. Midwest Region.

d. Western Region.

7. Miscellaneous and administrative matters.

a. Consolidation of the marketing service, administrative expense,

and producer-settlement funds.

b. Consolidation of the transportation credit balancing funds.

c. General findings.

II. Discussion of Material Issues and Amendments to the Orders

A discussion and explanation of the material issues and

determinations contained in this rule are as follows:

1. Consolidation of Marketing Areas

Subtitle D, Chapter 1 of the 1996 Farm Bill, entitled

``Consolidation and Reform of Federal Milk Marketing Orders,''

requires, among other things, that the Federal milk marketing orders be

limited to not less than 10 and not more than 14. Nearly 1,300 public

comments received in response to the proposed rule addressed the

subject of order consolidation. Preceding the proposed rule, two

preliminary reports on order consolidation were issued by the

Agricultural Marketing Service's Dairy Division, in December 1996 and

May 1997. The proposed rule, issued in January 1998, included

consideration of public comments received in response to these

preliminary reports.

The 1996 Farm Bill specifically provides for the inclusion of

California as a separate Federal milk order, but the provision is

contingent upon petition and approval by California producers. The

Omnibus Consolidated and Emergency Supplemental Appropriations Bill,

passed in October 1998, extended the time for implementing Federal milk

order reform amendments from April 4, 1999 to October 1, 1999. The

legislation provides that California has from the date of issuance of

this final decision until September 30, 1999, to become a separate

Federal milk order. This additional time is intended to allow

California dairy interests the opportunity review this final decision

to determine whether a Federal milk order for California, consistent

with the provisions adopted for the consolidated orders, would best

meet their milk marketing regulatory needs.

Over 150 comments were received that addressed the issue of a

Federal milk order for California, with approximately 120 of them being

a form letter advocating a California Federal milk order. These

comments, and a number of additional individual comments, came

primarily from commenters outside California who expressed a need for

California and Federal order prices for milk used in manufactured

products to be in closer alignment to eliminate California

manufacturers' perceived competitive advantage in product prices.

Interest in a Federal milk order has been expressed by some

California producers, but for the most part California commenters

expressed a desire to have a chance to study and comment on this final

decision before deciding whether to pursue a proposal for a California

Federal order.

The preliminary reports, the proposed rule, and this final decision

concerning order consolidation were prepared using data gathered about

receipts and distribution of fluid milk products by all known

distributing plants located in the 47 contiguous states, not including

the State of California. Data describing the sources and disposition of

fluid milk products for the month of October 1995 were used to compile

the initial Preliminary Report. In response to comments and questions

about certain marketing area boundaries and changes in marketing

conditions in some of the markets after publication of the initial

Preliminary Report, data concerning those markets was updated to

January 1997, and more detailed information was gathered regarding the

geographic distribution of route sales by individual handlers and their

specific sources of producer milk. The updated and more detailed data

were used in re-examining the appropriate boundaries of the initially-

suggested Northeast, Appalachian, Southeast, Mideast, Central, and

Western marketing areas for the Revised Preliminary Report on Order

Consolidation. The Revised Preliminary Report, in turn, was modified on

the basis of comments received for development of the proposed rule.

Nearly 1,300 comments filed in response to the proposed rule had

some applicability to the topic of order consolidation. Approximately

750 of these comments were received as 6 form letters, one of which

(filed by approximately 120 commenters) advocated a national marketing

area map comprised of 10 order areas covering all of the contiguous 48

states. The other form letters advocated the addition of currently-

unregulated area to the Northeast area. Another 350 comments also

addressed the desirability of adding unregulated areas to the proposed

consolidated marketing areas (primarily the Northeast), with only about

55 of these being opposed to the inclusion of unregulated areas.

The comments specifically applicable to each of the consolidated

marketing areas are described in the sections dealing with the

individual consolidated areas.

In combination with consideration of the comments received, data

similar to that gathered for October 1995 were compiled for October

1997 to determine whether the consolidated marketing areas delineated

in the proposed rule continued to represent the most appropriate

boundaries for the purpose of implementing the requirements of the 1996

Farm Bill.

The October 1997 data allowed a ``snapshot'' of the marketing

patterns of fluid milk processors for that month. The regulatory status

of distributing plants for October 1997 is known, and the regulatory

status of each plant could be projected on the basis of the plant's

receipts and dispositions, and where its milk was distributed. The

information in the sections entitled ``Distributing Plants'' within the

description of each marketing area are based on the October data, as

are the lists of plants and pool plant status following the

consolidation portion of this decision. It should be

[[Page 16045]]

understood that the regulatory status of any plant can change whenever

its operations or areas of distribution change.

The result of the examination and analysis of the more recent data

in combination with the comments on the proposed rule was to modify

significantly from the proposed rule the marketing areas of the

proposed Northeast and Western orders, and to make very minor

modifications to the marketing areas of the proposed Southeast,

Mideast, Upper Midwest and Central orders.

As in the case of data referring to the operations of less than

three handlers or producers in the preliminary reports and proposed

rule, some of the data used to determine the consolidated areas is

restricted from use by the public because it refers to individual fluid

milk distributing plants and the origins of producer milk supply for

those plants. However, the basis for the marketing area boundaries is

described as specifically as possible without divulging such

proprietary information.

The same seven primary criteria as were used in the two preliminary

reports and the proposed rule were used to determine which markets

exhibit a sufficient degree of association in terms of sales,

procurement, and structural relationships to warrant consolidation. The

criteria are as follows:

1. Overlapping route disposition. The movement of packaged milk

between Federal orders indicates that plants from more than one Federal

order are in competition with each other for Class I sales. In

addition, a degree of overlap that results in the regulatory status of

plants shifting between orders creates disorderly conditions in

changing price relationships between competing handlers and neighboring

producers. This criterion is considered to be the most important.

2. Overlapping areas of milk supply. This criterion applies

principally to areas in which major proportions of the milk supply are

shared between more than one order. The competitive factors affecting

the cost of a handler's milk supply are influenced by the location of

the supply. The pooling of milk produced within the same procurement

area under the same order facilitates the uniform pricing of producer

milk. Consideration of the criterion of overlapping procurement areas

does not mean that all areas having overlapping areas of milk

procurement should be consolidated. An area that supplies a minor

proportion of an adjoining area's milk supply with a minor proportion

of its own total milk production while handlers located in the area are

engaged in minimal competition with handlers located in the adjoining

area likely does not have a strong enough association with the

adjoining area to require consolidation.

For a number of the consolidated areas it would be very difficult,

if not impossible, to find a boundary across which significant

quantities of milk are not procured for other marketing areas. In such

cases, analysis was done to determine where the minimal amount of route

disposition overlap between areas occurred, and the criterion of

overlapping route disposition generally was given greater weight than

overlapping areas of milk supply. Some analysis also was done to

determine whether milk pooled on adjacent markets reflects actual

movements of milk between markets, or whether the variations in amounts

pooled under a given order may indicate that some milk is pooled to

take advantage of price differences rather than because it is needed

for Class I use in the other market.

3. Number of handlers within a market. Formation of larger-size

markets is a stabilizing factor. Shifts of milk and/or plants between

markets becomes less of a disruptive factor in larger markets. Also,

the existence of Federal order markets with handlers too few in number

to allow meaningful statistics to be published without disclosing

proprietary information should be avoided.

4. Natural boundaries. Natural boundaries and barriers such as

mountains and deserts often inhibit the movement of milk between areas,

and generally reflect a lack of population (limiting the range of the

consumption area) and lack of milk production. Therefore, they have an

effect on the placement of marketing area boundaries. In addition, for

the purposes of market consolidation, large unregulated areas and

political boundaries also are considered a type of natural barrier.

5. Cooperative association service areas. While not one of the

first criteria used to determine marketing areas, cooperative

membership often may be an indication of market association. Therefore,

data concerning cooperative membership can provide additional support

for combining certain marketing areas.

6. Features or regulatory provisions common to existing orders.

Markets that already have similar regulatory provisions that recognize

similar marketing conditions may have a head start on the consolidation

process. With calculation of the basic formula price replacement on the

basis of components, however, this criterion becomes less important.

The consolidation of markets having different payment plans will be

more dependent on whether the basic formula component pricing plan is

appropriate for a given consolidated market, or whether it would be

more appropriate to adopt a pricing plan using hundredweight pricing

derived from component prices.

7. Milk utilization in common dairy products. Utilization of milk

in similar manufactured products (cheese vs. butter-powder) was also

considered to be an important criterion in determining how to

consolidate the existing orders.

Comments on Consolidation Criteria

Most of the comments relative to order consolidation criteria were

submitted prior to publication of the proposed rule. It was the overall

opinion of the commenters that overlapping route disposition and milk

procurement are the most important criteria to consider in the

consolidation process. In addition, Class I use percentages and

regulation on the basis of handler location were noted as important

criteria to consider. To some extent, the consolidated marketing areas

included in this final decision do combine markets with similar Class I

utilization rates rather than markets that would result in Class I use

percentages being more uniform between markets. This result occurs

because adjoining markets, where most of the sales and procurement

competition takes place between handlers regulated under different

orders, tend to have similar utilization rates rather than because the

criterion is one that should be used to determine appropriate

consolidations. Also, Class I utilization rates are a function of how

much milk is pooled on an order with a given amount of Class I use.

Differences in rates, to the extent they result in differences in blend

prices paid to producers, provide an incentive for milk to move from

markets with lower Class I utilization percentages to markets with

higher Class I use.

Regulation of processors on the basis of their location rather than

their sales areas has largely been incorporated in the consolidated

orders by a provision that would pool a handler under the order for the

area in which the handler is located unless more than 50 percent of the

handler's Class I route dispositions are distributed in another order

area. This provision should help to assure that the order under which a

distributing plant is pooled will not change from month to month, and

that a plant operator is subject to the same provisions, such as

producer pay prices, as are its primary competitors.

[[Page 16046]]

The consolidated orders also include provisions that lock plants

processing primarily ultra-high temperature (UHT) or extended shelf-

life milk into regulation under the order for the area in which the

plant is located. Such plants often have widely dispersed route sales

into a number of order areas, with sporadic deliveries to different

areas. Without some type of lock-in provision, such a plant may be

pooled in several different orders in as many months. At the same time,

the plant's milk supply generally is procured from a given group of

producers located in the same area as the UHT (or extended shelf-life)

plant. Having the plant pooled under a succession of different orders

with widely varying blend prices creates a disorderly condition for the

producers involved.

On the basis of the distributing plant pooling standards included

for all eleven orders in this final decision, there are three non UHT

pool distributing plants that would have more sales in an order area

other than the one in which they are regulated. Two of these plants are

the Superbrand Dairy Products distributing plant in Greenville, South

Carolina, and the Kroger Dairy distributing plant in Winchester,

Kentucky, both located in the Appalachian order, but which likely will

qualify for pooling under the Southeast and Mideast orders. In

addition, the Hiland Dairy plant in Fayetteville, Arkansas, in the

Southeast consolidated area, likely will qualify for pooling under the

Central order. In cases in which these plants compete almost entirely

for a producer milk supply in the area in which they are located, lock-

in provisions are incorporated to assure that the plant is pooled where

located for the purpose of competitive equity.

Some changes in regulatory status are expected to occur because of

the addition of regulated area (in the Northeast), the consolidation of

marketing areas, changes in pooling standards, and changes in the

definitions of types of plants. The expected changes are based on data

collected for October 1997 and may differ in some respects at the time

the consolidated orders go into effect.

The regulatory status of three Vermont handlers is expected to

change from partially regulated to fully regulated because a

significant percentage of their sales is in areas that will be added to

the Northeast consolidated marketing area, and a partially-regulated

New York handler is expected to meet the pooling standards because of

the consolidation of marketing areas. Two other currently partially

regulated handlers, one in New York and one in Vermont, are expected to

become fully regulated because the pooling provisions of the

consolidated order will be more like those of all the other orders than

is currently the case in the New York-New Jersey order. Two plants that

currently are fully regulated on the basis of the ``grandfather''

clause of the New York-New Jersey order will become partially regulated

when this provision ceases to exist.

In the consolidated Appalachian marketing area, two distributing

plants, one currently unregulated and one partially regulated, would

become fully regulated as a result of including the marketing area of

the Tennessee Valley order, terminated in October 1997. These plants

both were fully regulated under the Tennessee Valley order, and lost

their regulatory status as a result of the termination.

A plant currently partially regulated under the Southeast order

would become fully regulated as a result of ``locking in'' to

regulation plants that distribute primarily UHT or extended shelf-life

products. Another Southeast distributing plant, currently fully

regulated, would become partially regulated because of failure to meet

the consolidated order's pooling standards.

Two distributing plants that currently are partially regulated

under the Chicago Regional order would become fully regulated under the

consolidated Upper Midwest order because of a change in the definition

of receipts that are used in the calculation of percentage of total

receipts used in route disposition for the determination of pool

status.

Three plants, one in each of the consolidated Upper Midwest,

Central, and Pacific Northwest marketing areas, would change regulatory

status as depicted in the attached list of distributing plants and

regulatory status. These plants are distributing plants that are listed

as being fully regulated in October 1997 and becoming either partially

regulated or exempt under the consolidated orders. These plants, having

small amounts of route dispositions, actually were pooled on the basis

of their performance as supply plants or as part of supply plant units.

It is unknown whether they will continue to qualify as pool supply

plants, but will not meet the pool distributing plant standards of the

consolidated orders.

In the Pacific Northwest, the Oregon and Washington State prison

systems both operate fluid processing plants that have route

distribution in commercial channels, competing with regulated handlers.

These plants are not currently fully regulated. Under the consolidated

order, one of the plants will be partially regulated only with respect

to its commercial sales, and the other will be exempt on the basis of

size.

Several comments advocated that all of a state's territory should

be included in one Federal order to assure that all producers in a

state are paid on an equitable basis, or to make it easier to maintain

state statistical data. One of the primary reasons for Federal milk

orders is that milk marketing occurs readily across state boundaries,

making state milk marketing regulation more difficult to enforce. It is

important that Federal milk marketing areas continue to recognize the

free interstate movement of milk to and from milk plants. There are

cases where natural boundaries such as mountains or rivers may result

in part of a state having a closer marketing relationship with an

adjoining state than with other areas of the same state.

Although the Revised Preliminary Report suggested that several

currently non-Federally regulated areas be added to some consolidated

marketing areas, the proposed rule omitted areas in which handlers are

subject to minimum Class I pricing under State regulation unless the

affected handlers or States requested inclusion. This final decision

continues to omit such areas, and also omits currently-unregulated

areas that comprise a significant distribution area for currently-

unregulated handlers, some of which were proposed to be included in

consolidated areas.

Considering the requirements of the 1996 Farm Bill, consolidation

of the existing orders does not necessitate expansion of the

consolidated orders into unregulated areas or areas in which handlers

are subject to minimum Class I pricing under State regulation,

especially when the states' Class I prices exceed or equal those that

would be established under Federal milk order regulation. Such

regulation could have the effect of reducing returns to producers

already included under State regulation without significantly affecting

prices paid by handlers who compete with Federally-regulated handlers.

However, there are numerous counties and portions of counties

located within and between Federal order marketing areas that have not

been included in the defined order areas during the course of the more

than 60 years the program has developed. In some cases, these small

areas were left unregulated many years ago to maintain the unregulated

status of a small handler. In others, these areas probably formed a

``buffer'' between separate

[[Page 16047]]

smaller order areas and were not incorporated when the smaller orders

were merged. Some of these areas form ``buffer'' zones today between

current order areas that will be consolidated in the course of this

process. These areas should be included in the defined consolidated

marketing areas if their inclusion would not have the effect of

regulating any unregulated handlers who currently distribute milk in

these areas. The issue of whether to regulate currently-unregulated

areas is discussed in more detail with regard to the individual

consolidated marketing areas in the sections of this decision dealing

with those areas, especially the Northeast area.

The occurrence of partial counties in marketing area definitions

should be minimized for the purpose of simplifying handlers' reporting

burden. The continued existence of these unregulated areas, partially

regulated counties, and counties split between marketing areas serves

only to complicate the reporting of route dispositions outside the

marketing area by regulated distributing plant handlers for the purpose

of determining pool qualifications and increase the costs of

administering the orders.

In order to avoid extending Federal regulation to handlers whose

primary sales areas are outside current Federal order marketing areas

and who currently are not subject to Federal order regulation, it has

been determined that the appropriate in-area Class I disposition

percentage portion of the pool distributing plant definition is 25

percent for all orders. Discussion of this provision is included in the

section of this decision dealing with identical provisions. The 25-

percent level of in-area sales will assure that currently-regulated

handlers retain their pool status. At the same time, increasing from

current levels the percentage of in-area sales required for pool status

under the consolidated orders will allow State-regulated and most other

non-Federally regulated handlers to operate at their current level of

sales within Federal order areas without being subject to full Federal

order regulation.

Cornell University Study

In addition to AMS' analysis of the receipt and distribution data

in the development of this decision, researchers at Cornell University

also provided input on potential consolidated marketing areas early in

the Federal order reform process. This input was part of Cornell's

partnership agreement with AMS to provide alternative analyses on

Federal order reform issues. These researchers used an economic model

(the Cornell U.S. Dairy Sector Simulator, or USDSS), to determine 10-14

optimal marketing areas. Cornell's first options for 10-14 marketing

areas were presented at an October 1996 invitational workshop for dairy

economists and policy analysts held in Atlanta, Georgia. Based on USDSS

model results, these options would result in minimum cost flows of milk

using the known concentrations of milk production and population,

without considering the location of milk plants. The marketing area

maps that were circulated using these first results were those

referenced by interested persons who cited the Cornell results in their

comments on the Preliminary Reports on Order Consolidation and on the

proposed rule.

A second set of options was presented by Cornell researchers in

spring 1997. These options were generated with a further-developed

USDSS model. In updating the model, the researchers enhanced the inputs

to its model as a means of better reflecting the actual structure of

the national market for fluid milk products. These model updates

allowed for determination of the minimum cost flows of: milk,

intermediate and final products from producers to plants; from plants

to plants; and from plants to consumers on the basis of the locations

of milk supplies, dairy product processing plants, and consumers. The

enhanced model is intended to provide for geographic market definition

on the basis of a resulting set of optimal, efficient simulated flows

of milk and dairy products between locations.

Although the USDSS model considers important factors such as milk

supply and demand locations and transportation constraints in

determining the optimal consolidated marketing areas, it aggregates

processing locations, sometimes at locations that are not

representative of where substantial volumes of milk are processed. In

addition, the model does not consider several important factors such as

large areas that are not Federally regulated and certain economic

factors which influence the movement of milk.

AMS is unaware of any other analyses performed to determine or

suggest consolidated marketing areas.

As noted before, AMS' analysis focused initially on distributing

plant receipts and distribution information for October 1995, updated

as needed for further analysis during development of the proposed rule.

Equivalent data was gathered for October 1997 to assure that the

consolidated marketing areas continue to represent actual marketing

relationships between the current order areas, with more current

information used as needed for further analysis. The data gathered by

the Dairy Division from Federal Milk Market Administrators reflects

actual movements of milk, both from production areas to processing

plants, and from processing plants to consumption areas. This final

decision considers this data, the seven criteria described fully above,

and information provided by the USDSS model analysis.

The consolidated marketing area options presented by Cornell are

not adopted because the USDSS model does not adequately reflect issues

or factors that strongly affect which current marketing areas are most

closely related. For this reason, this decision is based on data

reflecting actual distribution and procurement by fluid milk processing

plants.

Marketing Areas

Following are maps of the current marketing areas and the 11

consolidated marketing areas, followed by brief descriptions of the

marketing areas (with those modified from the Proposed Rule, and the

modifications, marked by*) and the major reasons for consolidation. A

more detailed description of each consolidated order follows this

summary.

At the end of the Order Consolidation portion of this decision is

appended a list of distributing plants associated with each

consolidated marketing area, with each plant's expected regulatory

status, determined on the basis of data describing the plants'

operations during October 1997.

BILLING CODE 3410-02-P

[[Page 16048]]

[GRAPHIC] [TIFF OMITTED]

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.