[Federal Register Volume 67, Number 148 (Thursday, August 1, 2002)]
[Rules and Regulations]
[Pages 49857-49858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19469]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1160

[Doc.# DA-02-02]


Fluid Milk Promotion Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the Fluid Milk Promotion Order (Order) 
by revising certain provisions in conformance with the Farm Security 
and Rural Investment Act of 2002. The amendments modify the definition 
of fluid milk product to be consistent with that term as it is defined 
under the Federal milk marketing orders. The definition of fluid milk 
processor is also revised to increase the exemption standard from 
500,000 pounds to 3,000,000 pounds.

EFFECTIVE DATE: August 1, 2002.

FOR FURTHER INFORMATION CONTACT: David R. Jamison, Chief, USDA/AMS/
Dairy Programs, Promotion and Research Branch, Stop 0233, Room 2958 
South Building, 1400 Independence Avenue, SW, Washington, DC 20250-
0233, (202) 720-6909, e-mail address [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. Currently, there are 
approximately 225 fluid milk processors subject to the provisions of 
the Fluid Milk Promotion Order. The implementation of this rule will 
reduce the number of fluid milk processors subject to the Fluid Milk 
Promotion Order by 60. Most of these processors are considered small 
entities.
    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 final rule amends certain order provisions in conformance 
with Section 1506 of the Farm Security and Rural Investment Act of 
2002, Public Law 107-171d (2002 Farm Bill). The amendments modify the 
definition of fluid milk product to be consistent with the term as 
defined under Federal milk marketing orders (i.e., Section 1000.15 of 
Title 7 CFR). The definition of fluid milk processor also is revised to 
increase the exemption standard from 500,000 pounds to 3,000,000 pounds 
of fluid milk products that are processed and marketed commercially in 
consumer-type packages in the 48 contiguous United States and the 
District of Columbia, excluding fluid milk products that are delivered 
directly to the residence of a consumer.
    The amendments to the Order will not add any burden to regulated 
parties because they relate to provisions that define which fluid milk 
processors and fluid milk products will be assessed

[[Page 49858]]

under the Order. 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. 
In fact, this rule will reduce the small entities affected by 60.

Executive Order 12866 and 12988

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866 and, therefore, has not been reviewed 
by OMB.
    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.

Statement of Consideration

    This document amends certain provisions of the Fluid Milk Promotion 
Order to conform with legislative changes of the recently enacted Farm 
Security and Rural Investment Act of 2002. Section 1506 of the Act 
amends sections 1999C, 1999C(4), and 1999O of the Fluid Milk Promotion 
Act of 1990, as amended, thereby necessitating revisions to certain 
provisions of the Fluid Milk Promotion Order. The 2002 Farm Bill also 
removed from the Fluid Milk Promotion Act the order termination date 
provision. The provision provided that the Order be terminated on 
December 31, 2002. This amendment does not require a change to the 
Order. The following order provisions are revised:
    1. In Sec. 1160.107, the term fluid milk product is redefined in 
conformance with the Act to provide the same definition that is 
specified in Federal milk marketing orders (7CRF 1000.15); and
    2. In Sec. 1160.108, the definition of fluid milk processor is 
modified to increase the exemption standard from 500,000 pounds to 
3,000,000 pounds of fluid milk products processed and marketed 
commercially in consumer-type packages in the 48 contiguous States and 
the District of Columbia, excluding fluid milk products delivered to 
the residence of consumers. Accordingly, those fluid milk processors 
who process and market commercially more than 3,000,000 pounds of such 
fluid milk products per month shall pay the mandatory 20-cent per 
hundredweight assessment on all fluid milk products marketed.
    This action is necessary to conform the Order to provisions in the 
Farm Security and Rural Investment Act of 2002. The amendments are made 
final in this action as provided in Section 1601 of the Act, and for 
the same reason, good cause exists for making this rule effective on 
August 1, 2002. To do otherwise would be impracticable, unnecessary, 
and contrary to the public interest.

List of Subjects in 7 CFR Part 1160

    Fluid milk, 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. Section 1160.107 is revised to read as follows:


Sec. 1160.107  Fluid milk product.

    Fluid milk product means any product that meets the definition 
provided in Sec. 1000.15 for milk marketing orders issued pursuant to 
the Agricultural Marketing Agreement Act of 1937, as amended, 7 U.S.C. 
601-674.

    3. In Sec. 1160.108, paragraphs (b) and (c), the number ``500,000'' 
is revised to read ``3,000,000'' and paragraph (a) is revised to read 
as follows:


Sec. 1160.108  Fluid milk processor.

    (a) Fluid milk processor means any person who processes and markets 
commercially fluid milk products in consumer-type packages in the 
United States (excluding fluid milk products delivered directly to the 
place of residence of a consumer), except that the term fluid milk 
processor shall not include in each of the respective fiscal periods 
those persons who process and market not more than 3,000,000 pounds of 
such fluid milk products during the representative month, which shall 
be the first month of the fiscal period.
* * * * *

    Dated: July 29, 2002.
A.J. Yates,
Administrator.
[FR Doc. 02-19469 Filed 7-31-02; 8:45 am]
BILLING CODE 3410-02-P