[Federal Register: March 24, 2005 (Volume 70, Number 56)]
[Rules and Regulations]               
[Page 14974-14976]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr05-2]                         

-----------------------------------------------------------------------

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1160

[Docket No. DA-04-04]

 
Fluid Milk Promotion Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Fluid Milk Promotion Order (Order) 
by modifying the terms of membership of the Fluid Milk Promotion Board 
(Board). The amendment requires 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 amendments ensure 
that the Board is able to equitably represent fluid milk processing 
constituents and the public interest through the National Fluid Milk 
Processor Promotion Program.

EFFECTIVE DATE: May 1, 2005.

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, 
David.Jamison2@usda.gov.

SUPPLEMENTARY INFORMATION: This final rule has been determined to be 
not significant for purposes of Executive Order 12866 and, therefore, 
has not been reviewed by the Office of Management and Budget (OMB).
    This final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform and is not intended to have a retroactive effect. 
This final 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 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 final 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 
February 2005, there were approximately 100 fluid milk processors 
subject to the provisions of the Order. Most of these processors are 
considered

[[Page 14975]]

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 amendment to the membership provisions requires 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 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 amendments ensure that the Board is able to equitably represent 
fluid milk processing constituents and the public interest through the 
National Fluid Milk Processor Promotion Program.
    The amendment to the Order should not add any additional burden to 
regulated parties because it relates only to provisions concerning 
Board membership. Accordingly, the amendment 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 this amendment 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

    This document amends the membership provisions of the Order by 
modifying the terms of membership to 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 proposed these amendments 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 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. Consequently, 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, any change in employment or ownership 
should 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.
    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 and changes in a public member's affiliation should be 
treated similarly to processor members. Thus, a public member who 
changes employment or ceases to continue in the business that the 
public member was operating when appointed to the Board will be 
disqualified in a manner similar to a fluid milk processor member. This 
provides the Secretary with the ability to appoint a new public member 
should the circumstances warrant a change in representation.
    The amendments ensure that the Board is able to equitably represent 
fluid milk processing constituents and the public interest through the 
National Fluid Milk Processor Promotion Program.
    One comment was received in response to the proposed amendment. The 
comment did not address the amendment that was under consideration.

List of Subjects in 7 CFR Part 1160

    Fluid milk, Milk, Promotion.

0
For the reasons set forth in the preamble, 7 CFR part 1160 is amended 
as follows:

PART 1160--FLUID MILK PROMOTION PROGRAM

0
1. The authority citation for 7 CFR Part 1160 continues to read as 
follows:

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

0
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

[[Page 14976]]

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: March 18, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-5814 Filed 3-23-05; 8:45 am]

BILLING CODE 3410-02-P