[Federal Register Volume 63, Number 99 (Friday, May 22, 1998)]
[Proposed Rules]
[Pages 28292-28294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13772]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 63, No. 99 / Friday, May 22, 1998 / Proposed 
Rules  

[[Page 28292]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1160

[DA-98-04]


Fluid Milk Promotion Order; Invitation to Submit Comments on 
Proposed Amendments to the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This document invites written comments on a proposal to amend 
the Fluid Milk Promotion Order. The proposed amendments, requested by 
the National Fluid Milk Processor Promotion Board, which administers 
the Order, would modify the membership status and term of office of 
Board members. The proposed rule would also amend order language 
pertaining to committees and intellectual property rights (patents, 
copyrights, inventions, and publications). The Board believes that the 
proposed amendments are necessary to maintain Board membership 
continuity. The changes should allow the Board to operate in a more 
effective and efficient manner.

DATES: Comments are due no later than June 22, 1998.

ADDRESSES: Comments (two copies) should be filed with the USDA/AMS/
Dairy Programs, Promotion and Research Branch, 1400 Independence 
Avenue, SW, Stop 0233, Room 2734 South Building, Washington, DC 20250-
0233. Comments should reference the docket number and the date and page 
number of this issue of the Federal Register and will be made available 
for public inspection in Room 2734 South Building during regular 
business hours.

FOR FURTHER INFORMATION CONTACT: David R. Jamison, Chief, USDA/AMS/
Dairy Programs, Promotion and Research Branch, 1400 Independence 
Avenue, SW, Stop 0233, Room 2734 South Building, Washington, DC 20250-
0233, (202) 720-6909, David__J[email protected].

SUPPLEMENTARY INFORMATION: The Regulatory Flexibility Act (5 U.S.C. 
601-612) requires the Agency to examine the impact of a proposed rule 
on small entities. Small businesses in the fluid milk processing 
industry have been defined by the Small Business Administration as 
those employing less than 500 employees. There are approximately 250 
fluid milk processors subject to the provisions of the Fluid Milk 
Promotion Order. Most of the parties subject to the Order are 
considered small entities.
    Several changes are proposed to the Order provisions of the Fluid 
Milk Promotion Order (7 CFR Part 1160) concerning membership on the 
National Fluid Milk Processor Promotion Board (Board) and the terms of 
office for Board members. The Order is authorized under the Fluid Milk 
Promotion Act of 1990 (7 USC 6401-6417). The Board requested the 
amendments.
    The Order provides for a 20-member board with 15 members 
representing geographic regions and five at-large members, at least 
three of whom are to be fluid milk processors and at least one member 
from the general public. To the extent practicable, members 
representing geographic regions should represent processing operations 
of differing sizes.
    Currently, the Order provides that a fluid milk processor can be 
represented on the Board by not more than one member. The Board in its 
petition for rulemaking noted that it is more difficult to maintain the 
single member representation; that processors are larger in size and 
operate in several geographic areas; and that, to maintain continuity 
and provide a consistent pool of processor representatives, a change in 
the Order provisions is needed to allow more than one representative on 
the Board. The proposed amendments would allow a fluid milk processor 
to have two members on the Board.
    Currently, except in those instances where a Board member changes 
fluid milk processor affiliation and is eligible to serve on the Board 
in another capacity during the same term, a Board member whose 
processor affiliation has changed cannot continue to serve on the 
Board. This proposed rule would allow Board members whose fluid milk 
processor company affiliation has changed to serve on the Board for a 
period of up to 60 days or until a successor is appointed, whichever is 
sooner, provided that the eligibility requirements of the Order are 
still met. This should help in the reduction of Board vacancies and 
foster continuity in Board activities and membership.
    Another change that would contribute to greater continuity on the 
Board would allow Board members who fill vacancies with a term of 18 
months or less to serve two consecutive full 3-year terms. Currently, 
the order provides that except for the initial staggered appointments, 
Board members could only serve two consecutive terms.
    Another change would permit the Board to establish working 
committees of persons other than Board members to assist the Board with 
activities by providing information, knowledge, and expertise that 
otherwise might not be available.
    Finally, the amendments would also modify the intellectual property 
provisions of the Order to specifically provide for and allow joint 
ownership of intellectual property, i.e., patents, copyrights, 
inventions, and publications, that is developed using joint funds.
    These amendments to Order provisions should not add any burden to 
regulated parties because they relate to provisions concerning 
membership on the Board, the establishment of working committees, and 
joint ownership for patents, copyrights, inventions, and publications. 
The proposed changes would not impose additional reporting or 
collecting requirements. No relevant Federal rules have been identified 
that duplicate, overlap, or conflict with the rule.
    Accordingly, pursuant to 5 U.S.C. 605(b), the Agricultural 
Marketing Service has certified that this rule would not have a 
significant economic impact on a substantial number of small entities.

Executive Order 12866 and the Paperwork Reduction Act

    This proposed rule has been reviewed by the Office of Management 
and Budget and has been determined to be not significant for purposes 
of Executive Order 12866.
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have retroactive 
effect. If adopted,

[[Page 28293]]

this proposed rule would not preempt any State or local laws, 
regulations, or policies, unless they present an irreconcilable 
conflict with this rule.
    The Fluid Milk Promotion Act of 1990, as amended, authorizes the 
Fluid Milk Promotion Order. The Act provides that administrative 
proceedings must be exhausted before parties may file suit in court. 
Under section 1999K of the Act, any person subject to a Fluid Milk 
Promotion Order may file with the Secretary a petition stating that the 
Order, any provision of the Order, or any obligation imposed in 
connection with the Order is not in accordance with the law and request 
a modification of the Order or to be exempted from the Order. A person 
subject to an order 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 person is an inhabitant, or has his principal 
place of business, has jurisdiction to review the Secretary's ruling on 
the petition, provided a complaint is filed not later than 20 days 
after the date of the entry of the ruling.
    In accordance with the Paperwork Reduction Act (44 U.S.C. Chapter 
35), the forms and reporting and recordkeeping requirements that are 
included in the Fluid Milk Promotion Order have been approved 
previously by the Office of Management and Budget (OMB) and were 
assigned OMB No. 0581-0093, except for Board members' nominee 
background information sheets that were assigned OMB No. 0505-0001.

Statement of Consideration

    The proposed rule would amend the membership and term-of-office 
provisions of the Fluid Milk Promotion Order. Currently, the Order 
provides that a fluid milk processor can be represented on the Board by 
not more than one member. The Board in its recommendation for 
rulemaking noted that it is more difficult to maintain the single 
member representation; that processors are larger in size and operate 
in several geographic areas; and that, to maintain continuity and 
provide a consistent pool of processor representatives, a change in the 
Order provisions is needed to allow more than one representative on the 
Board. The proposed amendments would allow a fluid milk processor to 
have two members on the Board.
    The proposed amendments also would allow Board members whose fluid 
milk processor company affiliation has changed to serve on the Board 
for a period of up to 60 days or until a successor is appointed, 
whichever is sooner. Currently, except in those instances where a Board 
member changes fluid milk processor affiliation and is eligible to 
serve on the Board in another capacity during the same term, a Board 
member whose processor affiliation has changed cannot continue to serve 
on the Board. This proposed rule would allow Board members whose fluid 
milk processor company affiliation has changed to serve on the Board 
for a period of up to 60 days or until a successor is appointed, 
whichever is sooner, provided that the eligibility requirements of the 
Order are still met. This should help in the reduction of Board 
vacancies and foster continuity in Board activities and membership.
    The proposed amendments would also allow Board members who fill 
vacancies with a term of 18 months or less to serve two additional 3-
year terms. Currently, the Order states that, except for the initial 
staggered Board appointments of 1- or 2-year terms, Board members may 
only serve two consecutive terms. Thus any time served with the initial 
term is considered a complete term. The Board feels that this rule 
change would allow for greater continuity of membership.
    This document also proposes to amend two additional sections of the 
Fluid Milk Promotion Order. The proposed amendments would permit the 
Board to establish working committees of persons other than Board 
members to assist the Board with activities by providing information, 
knowledge, and expertise that otherwise might not be available.
    The proposed amendments also would modify the section on patents, 
copyrights, inventions, and publications by allowing jointly developed 
intellectual property to be jointly owned. Currently, the Order does 
not specifically provide for such joint ownership. This proposed 
amendment would allow the Board greater flexibility concerning 
intellectual property as it relates to ownership rights.
    A thirty-day comment period is provided for interested persons to 
comment on this proposed rule. This period is appropriate so as to 
permit implementation of the changes, if adopted, as soon as possible.

List of Subjects in 7 CFR Part 1160

    Fluid milk products, Milk, Promotion.

    For the reasons set forth in the preamble, it is proposed that 7 
CFR Part 1160 be amended as follows:

PART 1160--FLUID MILK PROMOTION PROGRAM

    1. The authority citation for 7 CFR Part 1160 continues to read as 
follows:

    Authority: 7 U.S.C. 6401-6417.

    2. In Sec. 1160.200, paragraph (a) is revised to read as follows:


Sec. 1160.200  Establishment and membership.

    (a) There is hereby established a National Fluid Milk Processor 
Promotion Board of 20 members, 15 of whom shall represent geographic 
regions and five of whom shall be at-large members of the Board. To the 
extent practicable, members representing geographic regions shall 
represent fluid milk processing operations of differing sizes. No fluid 
milk processor shall be represented on the Board by more than two 
members. The at-large members shall include at least three fluid milk 
processors and at least one member from the general public. Except for 
the member or members from the general public, nominees appointed to 
the Board must be active owners or employees of a fluid milk processor. 
The failure of such a member to own or work for a fluid milk processor 
or its successor fluid milk processor shall disqualify that member for 
membership on the Board except that such member shall continue to serve 
on the Board for a period of up to 60 days following the 
disqualification or until the appointment of a successor Board member 
to such position, whichever is sooner, provided that such person 
continues to meet the criteria for serving on the Board as a processor 
representative.
* * * * *
    3. In Sec. 1160.201, paragraph (b) is revised to read as follows:


Sec. 1160.201  Term of office.

* * * * *
    (b) No member shall serve more than two consecutive terms, except 
that any member who is appointed to serve for an initial term of one or 
two years shall be eligible to be reappointed for two three-year terms. 
Appointment to another position on the Board is considered a 
consecutive term. Should a non-board member be appointed to fill a 
vacancy on the Board with a term of 18 months or less remaining, the 
appointee shall be entitled to serve two consecutive 3-year terms 
following the term of the vacant position to which the person was 
appointed.
    4. In Sec. 1160.208, paragraph (g) is revised to read as follows:

[[Page 28294]]

Sec. 1160.208  Powers of the Board.

* * * * *
    (g) To select committees and subcommittees, to adopt bylaws, and to 
adopt such rules for the conduct of its business as it may deem 
advisable; and the Board may establish working committees of persons 
other than Board members;
* * * * *
    5. In Sec. 1160.505, the text is designated paragraph (a) and a new 
paragraph (b) is added to read as follows:


Sec. 1160.505  Patents, copyrights, inventions and publications.

* * * * *
    (b) Should patents, copyrights, inventions, and publications be 
developed through the use of funds collected by the Board under this 
subpart, and funds contributed by another organization or person, 
ownership and related rights to such patents, copyrights, inventions, 
and publications shall be determined by the agreement between the Board 
and the party contributing funds towards the development of such 
patent, copyright, invention, and publication in a manner consistent 
with paragraph (a) of this section.

    Dated: May 18, 1998.
Enrique E. Figueroa,
Administrator, Agricultural Marketing Service.
[FR Doc. 98-13772 Filed 5-21-98; 8:45 am]
BILLING CODE 3410-02-P