[Federal Register Volume 65, Number 109 (Tuesday, June 6, 2000)]
[Rules and Regulations]
[Pages 35808-35810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14186]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1160

[DA-00-07]


Fluid Milk Promotion Order; Amendments to the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This document amends the Fluid Milk Promotion Order to allow a 
fluid milk processor to be represented by up to 3 members on the 20-
member Board and allow a Board member whose fluid milk processor 
company affiliation has changed to serve for a period of up to 6 months 
or until a successor is appointed, whichever is sooner. The amendments, 
requested by the National Fluid Milk Processor Promotion Board (Board), 
which administers the Order, are necessary to ensure Board continuity 
and full representation and should allow the Board to operate in an 
efficient and effective manner.

EFFECTIVE DATE: June 7, 2000.

FOR FURTHER INFORMATION CONTACT: David R. Jamison, Chief, USDA/AMS/
Dairy Programs, Promotion and Research Branch, 1400 Independence 
Avenue, SW, Stop 0233, Room 2958 South Building, Washington, DC 20250-
0233, (202) 720-6909, [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 processors employing not more than 500 employees. For purposes of 
determining a processor'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. There are approximately 
275 fluid milk processors subject to the provisions of the Fluid Milk 
Promotion Order. Most of these processors are considered small 
entities.

[[Page 35809]]

    The Fluid Milk Promotion Order (7 CFR Part 1160) is authorized 
under the Fluid Milk Promotion Act of 1990 (Act) (7 U.S.C. 6401 et 
seq.). The amendments, proposed by the National Fluid Milk Processor 
Promotion Board, modifies the membership provisions of the Order.
    The amendments will allow up to three representatives of a fluid 
milk processor to serve on the 20-person Board. Currently, the Order 
states that a fluid milk processor shall be represented on the Board by 
no more than two members. This action takes into account changes in the 
industry which have resulted in the formation of larger regional and 
national companies. This amendment should help reduce Board vacancies 
and foster continuity in Board activities and membership.
    The amendments also will allow a Board member whose fluid milk 
processor company affiliation changes to serve on the Board for a 
period of up to six months or until a successor is appointed, whichever 
is sooner, provided that the eligibility requirements of the Order are 
still met. Under current Order provisions, a Board member whose company 
affiliation changes may continue to serve on the Board for a period of 
up to 60 days or until a successor is appointed, whichever is sooner, 
provided that such member continues to meet the Order's eligibility 
standards. The amendment will more accurately reflect the time needed 
to fill a Board vacancy.
    The amendments will allow the Board to operate in an effective and 
efficient manner. The amendments to the Order will not add any burden 
to regulated parties because they relate to provisions concerning Board 
membership. Additionally, the changes will not impose additional 
reporting or collecting requirements. No relevant Federal rules have 
been identified that duplicate, overlap, or conflict with this rule.
    Accordingly, pursuant to 5 U.S.C. 605(b), the Agricultural 
Marketing Service has certified that this rule will not have a 
significant economic impact on a substantial number of small entities.
    Prior document in this proceeding:
    Proposed Rule: Issued March 14, 2000, published March 17, 2000 (65 
FR 14484).

Executive Order 12866 and the Paperwork Reduction Act

    The Department is issuing this rule in conformance with Executive 
Order 12866.
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have a retroactive 
effect. This rule will not preempt any State or local laws, 
regulations, or policies unless they present an irreconcilable conflict 
with this rule.
    The 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 by the 
Office of Management and Budget (OMB) and were assigned OMB No. 0581-
0093, except for Board members' nominee information sheets that were 
assigned OMB No. 0505-0001.

Statement of Consideration

    This final rule amends certain provisions of the Fluid Milk 
Promotion Order. The amendments will modify the membership provisions 
of the Order. One proposal will allow up to three representatives of a 
fluid milk processor to serve on the 20-member Board. Currently, the 
Order states that a fluid milk processor shall be represented by no 
more than two representatives on the Board. This amendment takes into 
account changes in the industry which have resulted in the formation of 
larger regional and national companies. Additionally, the amendment 
would provide the Secretary greater flexibility in those situations 
that warrant additional representation for a fluid milk processor.
    The amendments also will allow a Board member who changes fluid 
milk processor company affiliation to serve on the Board for a period 
of up to six months or until a successor is appointed, whichever is 
sooner, provided that the eligibility requirements of the Order are 
still met. Under current Order provisions, a Board member whose company 
affiliation changes may continue to serve on the Board for a period of 
up to 60 days or until a successor is appointed, whichever is sooner, 
provided that such member continues to meet the Order's eligibility 
standards. The amendment would more accurately reflect the time needed 
to fill a Board vacancy.
    The Board states that the amendments would ensure Board continuity 
and full representation and allow it to operate effectively and 
efficiently.
    A notice of proposed rulemaking was published in the Federal 
Register on March 17, 2000 (65 FR 14484), concerning the proposed 
suspension. Interested persons were afforded an opportunity to file 
written data, views and arguments thereon. One comment supporting and 
one opposing the proposed amendments were received.
    The Board reiterated its support for the amendments. The opposing 
comment stated the proposed changes would provide larger processors 
more power and suggested reducing the number of Board members.
    The Order should be amended to allow a fluid milk processor to be 
represented by up to 3 members on the 20-member Board. The Order 
provisions provide for a 20-member Board with 15 members representing 
geographic regions and five at-large members which include at least 
three fluid milk processors and at least one member from the general 
public. Further, to the extent practicable, members representing 
geographic regions should represent processing operations of differing 
sizes.
    This amendment provides needed flexibility in the appointment 
process. The Secretary appoints Board members on the basis of the 
Order's provisions. Through the appointment process, the Secretary 
maintains control over the Board's composition, including the number of 
multi-member processors. As stated by the proponent of the proposals, 
the fluid milk processing industry has experienced and continues to 
undergo changes in processing operations which result in larger 
regional and national companies operating in various geographical 
regions. Accordingly, this amendment will ensure Board continuity and 
full representation while maintaining the Board at its current 
membership level.
    The Order also should be amended to permit a Board member who 
changes fluid milk processor company affiliation

[[Page 35810]]

to serve on the Board for a period of up to six months or until a 
successor is appointed, whichever is sooner, provided that the 
eligibility requirements of the Order are still met. The amendment will 
more accurately reflect the time needed to fill a Board vacancy.
    The amendments will ensure Board continuity and full representation 
and allow the Board to operate in an effective and efficient manner and 
should be made effective as soon as possible. Therefore, good cause 
exists for making this rule effective less than 30 days from the date 
of publication in the Federal Register. The proposed amendments to the 
order are made final in this action.

List of Subjects in 7 CFR Part 1160

    Fluid milk products, Milk, Promotion.

    For the reasons set forth in the preamble, 7 CFR part 1160 is 
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 
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 three 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 six months following the 
disqualification or until 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.
* * * * *

    Dated: May 31, 2000.
Kathleen A. Merrigan,
Administrator, Agricultural Marketing Service.
[FR Doc. 00-14186 Filed 6-5-00; 8:45 am]
BILLING CODE 3410-02-P