[Federal Register: January 12, 2005 (Volume 70, Number 8)]
[Proposed Rules]
[Page 2032-2034]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ja05-14]
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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 David.Jamison2@usda.gov. 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,
David.Jamison2@usda.gov.
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