00-6675. Fluid Milk Promotion Order; Invitation To Submit Comments on Proposed Amendments to the Order

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

This document invites written comments on proposals to amend the Fluid Milk Promotion Order. The proposed amendments, requested by the National Fluid Milk Processor Promotion Board (Board), which administers the order, would modify the membership status of Board members. The proposed amendments would 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 Board states that the proposed amendments are necessary to ensure Board continuity and full representation and allow it to operate in an efficient and effective manner.

DATES:

Comments are due no later than April 17, 2000.

ADDRESSES:

Comments (two copies) should be filed with the USDA/AMS/Dairy Programs, Promotion and Research Branch, 1400 Independence Avenue, SW, Stop 0233, Room 2958, South Building, Washington, DC 20250-0233. Advance, unofficial copies of such comments may be faxed to [phone]. Comments should reference the title of the action and docket number and will be made available for public inspection in Room 2958 South Building during regular business hours.

FOR FURTHER INFORMATION CONTACT:

David Jamison, Chief, USDA/AMS/Dairy Programs, Promotion and Research Branch, 1400 Independence Avenue, Room 2958, South Building, Washington, DC 20250-0233, [phone], [e-mail].

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 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.

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 which include at least three 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.

The National Fluid Milk Processor Promotion Board has proposed amendments to the membership provisions of the Order. The proposed amendments would 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. The Board indicates that this proposal is due to changes in the industry which have resulted in the formation of larger regional and national companies.

The proposed amendments also would 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 Board states that the proposed amendment would more accurately reflect the time needed to fill a Board vacancy.

The Board believes that the proposed amendments would ensure Board continuity and full representation and allow it to operate in an effective and efficient manner.

The proposed amendments to the Order should not add any burden to regulated parties because they relate to provisions concerning Board membership. Additionally, the proposed changes would 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 would not have a significant economic impact on a substantial number of small entities.

Executive Order 12866 and the Paperwork Reduction Act

The Department is issuing this proposed rule in conformance with Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule 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, 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

The proposed rule would amend certain provisions of the Fluid Milk Promotion Order. The proposed amendments would modify the membership provisions of the Order. One proposal would 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. The Board indicated that this proposal is due to consolidations in the industry which have resulted in the formation of larger regional and national companies. Additionally, the Board asserts that the proposed amendment would provide the Secretary greater flexibility in those situations that warrant additional representation for a fluid milk processor.

The proposed amendments also would 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 Board states that the proposed amendment would more accurately reflect the time needed to fill a Board vacancy.

The Board believes that the proposed amendments would ensure Board continuity and full representation and allow it to operate in an effective and efficient manner.

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 unnecessary vacancies on the Board.

List of Subjects 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 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 1160.200 is amended by revising paragraph (a) to read as follows:

§ 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.

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Dated: March 14, 2000.

Kathleen A. Merrigan,

Administrator, Agricultural Marketing Service.