[Federal Register Volume 70, Number 8 (Wednesday, January 12, 2005)]
[Proposed Rules]
[Pages 2032-2034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-580]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1160

[Docket No. DA-04-04]


National Fluid Milk Processor Promotion Program; Invitation To 
Submit Comments on Proposed Amendments to the Fluid Milk Promotion 
Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This document invites comments on a proposed amendment to the 
Fluid Milk Promotion Order (Order). The proposed amendment, requested 
by the National Fluid Milk Processor Promotion Board (Board), which 
administers the Order, would modify the terms of membership on the 
Board. The proposed amendment would require that any change in a fluid 
milk processor member's employer or change in ownership of the fluid 
milk processor who the member represents would disqualify that member. 
The member would continue to serve on the Board for a period of up to 
six months until a successor was appointed. In addition, a public 
member to the Board who changes employment, gains employment with a new 
employer, or ceases to continue in the same business would be 
disqualified in a manner similar to a fluid milk processor member. The 
Board believes that the proposed amendments are necessary to ensure the 
Board is able to equitably represent fluid milk processing constituents 
and the public interest through the National Fluid Milk Processor 
Promotion Program.

DATES: Comments must be submitted on or before February 11, 2005.

ADDRESSES: Comments should be filed with USDA/AMS/Dairy Programs, 
Promotion and Research Branch, Stop 0233--Room 2958-S, 1400 
Independence Avenue, SW., Washington, DC 20250-0233. Comments may be 
faxed to (202) 720-0285 or e-mailed to [email protected]. You may 
send your comments by using the electronic process available at the 
Federal Rulemaking portal at http://www.regulations.gov. Comments, 
which should reference the title of the action and the docket number, 
will be made available for public inspection at the above address 
during regular business hours. Comments also will be posted at: http://www.ams.usda.gov/dairy/index.htm.

FOR FURTHER INFORMATION CONTACT: David R. Jamison, USDA/AMS/Dairy 
Programs, Promotion and Research Branch, Stop 0233--Room 2958-S, 1400 
Independence Avenue, SW., Washington, DC 20250-0233, (202) 720-6961, 
[email protected].

SUPPLEMENTARY INFORMATION: This proposed rule has been determined to be 
not significant for purposes of Executive Order 12866 and, therefore, 
has not been reviewed by Office of Management and Budget (OMB).
    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform and is not intended to have a retroactive effect. 
If adopted, 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 (Act), as amended, authorizes 
the 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 the 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

[[Page 2033]]

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.

Regulatory Flexibility Act and Paperwork Reduction Act

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), the Agricultural Marketing Service (AMS) has considered the 
economic impact of this action on small entities and has certified that 
this proposed rule will not have a significant economic impact on a 
substantial number of 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. As of 
March 2004, there were approximately 100 fluid milk processors subject 
to the provisions of the Order. Most of these processors are considered 
small entities. The implementation of this rule will not affect the 
number of fluid milk processors subject to the Order.
    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 Order provides for a 20-member Board with 15 members 
representing geographic regions and five at-large members. To the 
extent practicable, members representing geographic regions should 
represent 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.
    The Board has proposed amendments to the membership provisions of 
the Order. The proposed amendment would require that any change in a 
fluid milk processor member's employer or change in ownership of the 
fluid milk processor who the member represents would disqualify that 
member. The member would continue to serve on the Board for a period of 
up to six months until a successor was appointed. In addition, a public 
member to the Board who changes employment or ceases to continue in the 
same business would be disqualified in a manner similar to a fluid milk 
processor member. These changes would address (1) potential movement of 
members from one fluid milk processor to another fluid milk processor 
or any other change in company affiliation; and (2) changes in 
affiliation of at-large public members.
    The Board believes that the proposed amendments are necessary to 
ensure the Board is able to equitably represent fluid milk processing 
constituents and the public interest through the National Fluid Milk 
Processor Promotion Program.
    The proposed amendment to the Order should not add any additional 
burden to regulated parties because it relates only to provisions 
concerning Board membership. Accordingly, the proposed amendments will 
not have a significant economic impact on a substantial number of small 
entities.
    A review of reporting requirements was completed under the 
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). It was 
determined that these proposed amendments would have no impact on 
reporting, recordkeeping, or other compliance requirements because they 
would remain the same to the current requirements. No new forms are 
proposed and no additional reporting requirements would be necessary.
    This notice does not require additional information collection that 
requires clearance by the OMB beyond currently approved information 
collection. The primary sources of data used to complete the forms are 
routinely used in most business transactions. Forms require only a 
minimal amount of information which can be supplied without data 
processing equipment or a trained statistical staff. Thus, the 
information collection and reporting burden is relatively small. 
Requiring the same reports for all handlers does not significantly 
disadvantage any handler that is smaller than the industry average.

Statement of Consideration

    The proposed rule, if adopted, would amend the Order by modifying 
the membership qualification for the Board. Section 1160.200 of the 
Order sets out the criteria for the Secretary to appoint members to the 
Board where 15 members represent geographic regions and 5 are at-large 
members of the Board. The Board is proposing the attached amendment to 
address (1) potential movement of members from one fluid milk processor 
to another fluid milk processor; and (2) changes in affiliation of at-
large public members.
    The Board indicates that the fluid milk industry is a dynamic 
marketplace where mergers and other purchase activities are 
commonplace. As a result, there have already been circumstances where 
members representing a fluid milk processor have been subject to 
employment or ownership changes due to such mergers and other purchase 
activities. The Board believes that any change in a fluid milk 
processor member's employer or change in ownership of the fluid milk 
processor who the member represents should be subject to further 
examination. Accordingly, the Board has recommended that any change in 
employment of ownership would disqualify any member. The member would 
continue to serve on the Board for a period of up to six months until a 
successor was appointed.
    The Board also believes that at-large public members appointed by 
the Secretary should be subject to the same criteria for 
disqualification as processor representatives serving on the Board. 
Pursuant to the Order, the Secretary may appoint up to two members from 
the general public. Since the Board is comprised of only 20 members, 
these at-large public representatives play an important role in guiding 
the Board's operations. Normally, these members have a high level of 
expertise in a certain area and provide an invaluable perspective in 
the Board's deliberations. However, the Board believes that changes in 
a public member's affiliation should be treated similarly to processor 
members. Therefore, the Board recommended that should a public member 
change employment or cease to continue in the business that the public 
member was operating when appointed to the Board, the public member 
would be disqualified in a manner similar to a fluid milk processor 
member. This would provide the Secretary with the ability to appoint a 
new public member should the circumstances warrant a change in 
representation.
    The Board believes that the proposed amendment would ensure the 
Board is able to equitably represent fluid milk processing constituents 
and the public interest through the National Fluid Milk Processor 
Promotion Program.
    Interested parties are invited to comment on this proposed rule. A 
30-day comment period is provided. This period is deemed appropriate so 
as to implement the proposed changes, if adopted, as soon as possible, 
in order to avoid disruption of Board operations and to ensure that the 
Board represents

[[Page 2034]]

its constituents equitably, both geographically and on a volume basis.

List of Subjects in 7 CFR Part 1160

    Fluid milk, 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 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 non-processor 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 such 
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 not to exceed 6 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. Should a member 
representing the general public cease to be employed by the entity 
employing that member when appointed, gain employment with a new 
employer, or cease to own or operate the business which that member 
owned or operated at the date of appointment, such member shall be 
disqualified for membership on the Board, except that such member shall 
continue to serve on the Board for a period not to exceed 6 months, or 
until appointment of a successor Board member, whichever is sooner.
* * * * *

    Dated: January 5, 2005.
Kenneth C. Clayton,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 05-580 Filed 1-11-05; 8:45 am]
BILLING CODE 3410-02-P