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###### Department of Agriculture

###### Agricultural Marketing Service 

          - 7 CFR Part 1160 
          - [DA-00-07] 

# AGENCY:

Agricultural Marketing Service, USDA. 

# ACTION:

Final rule. 

# SUMMARY:

This document amends the Fluid Milk Promotion Order to 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 amendments, requested by the National Fluid Milk Processor Promotion Board (Board), which administers the Order, are necessary to ensure Board continuity and full representation and should allow the Board to operate in an efficient and effective manner. 

# EFFECTIVE DATE:

June 7, 2000. 

# FOR FURTHER INFORMATION CONTACT:

David R. Jamison, Chief, USDA/AMS/Dairy Programs, Promotion and Research Branch, 1400 Independence Avenue, SW, Stop 0233, Room 2958 South Building, Washington, DC 20250-0233, (202) 720-6909, David.Jamison2@usda.gov. 

# 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. 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.                           ( print page 35809)    

                    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 amendments, proposed by the National Fluid Milk Processor Promotion Board, modifies the membership provisions of the Order.                 

The amendments will 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. This action takes into account changes in the industry which have resulted in the formation of larger regional and national companies. This amendment should help reduce Board vacancies and foster continuity in Board activities and membership. 

The amendments also will 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 amendment will more accurately reflect the time needed to fill a Board vacancy. 

The amendments will allow the Board to operate in an effective and efficient manner. The amendments to the Order will not add any burden to regulated parties because they relate to provisions concerning Board membership. Additionally, 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. 

Prior document in this proceeding:

Proposed Rule: Issued March 14, 2000, published March 17, 2000 (65 FR 14484). 

## Executive Order 12866 and the Paperwork Reduction Act 

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

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. 

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 

This final rule amends certain provisions of the Fluid Milk Promotion Order. The amendments will modify the membership provisions of the Order. One proposal will 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. This amendment takes into account changes in the industry which have resulted in the formation of larger regional and national companies. Additionally, the amendment would provide the Secretary greater flexibility in those situations that warrant additional representation for a fluid milk processor. 

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

The Board states that the amendments would ensure Board continuity and full representation and allow it to operate effectively and efficiently. 

                    A notice of proposed rulemaking was published in the                     **Federal Register**                     on March 17, 2000 (65 FR 14484), concerning the proposed suspension. Interested persons were afforded an opportunity to file written data, views and arguments thereon. One comment supporting and one opposing the proposed amendments were received.                 

The Board reiterated its support for the amendments. The opposing comment stated the proposed changes would provide larger processors more power and suggested reducing the number of Board members. 

The Order should be amended to allow a fluid milk processor to be represented by up to 3 members on the 20-member Board. The Order provisions provide 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. Further, to the extent practicable, members representing geographic regions should represent processing operations of differing sizes. 

This amendment provides needed flexibility in the appointment process. The Secretary appoints Board members on the basis of the Order's provisions. Through the appointment process, the Secretary maintains control over the Board's composition, including the number of multi-member processors. As stated by the proponent of the proposals, the fluid milk processing industry has experienced and continues to undergo changes in processing operations which result in larger regional and national companies operating in various geographical regions. Accordingly, this amendment will ensure Board continuity and full representation while maintaining the Board at its current membership level. 

                    The Order also should be amended to permit a Board member who changes fluid milk processor company affiliation                           ( print page 35810)                        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. The amendment will more accurately reflect the time needed to fill a Board vacancy.                 

                    The amendments will ensure Board continuity and full representation and allow the Board to operate in an effective and efficient manner and should be made effective as soon as possible. Therefore, good cause exists for making this rule effective less than 30 days from the date of publication in the                     **Federal Register**                    . The proposed amendments to the order are made final in this action.                 

# List of Subjects in 7 CFR Part 1160

      - Fluid milk products
      - 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. In § 1160.200, paragraph (a) is revised to read as follows: 

§ 1160.200 

(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. 

* * * * *

Dated: May 31, 2000. 

Kathleen A. Merrigan, 

Administrator, Agricultural Marketing Service. 

[FR Doc. 00-14186 Filed 6-5-00; 8:45 am] 

BILLING CODE 3410-02-P