This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

3981

Vol. 62, No. 18

Tuesday, January 28, 1997

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1160

[DA–96–09]

Fluid Milk Promotion Order;

Amendments to the Order

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This final rule amends certain

provisions of the Fluid Milk Promotion

Order. The amendments, requested by

the National Fluid Milk Processor

Promotion Board, which administers the

Order, modify the term limits and

membership status of Board members.

This rule also amends certain order

language in conformance with the 1996

Federal Agriculture Improvement and

Reform Act. In conformance with the

President’s Regulatory Reform Initiative,

this rule revises or removes order

language that has become obsolete.

EFFECTIVE DATE: January 29, 1997.

FOR FURTHER INFORMATION CONTACT:

Eugene Krueger, Head, Promotion and

Research Staff, USDA/AMS/Dairy

Division, Room 2734, South Building,

P.O. Box 96456, Washington, DC 20090–

6456, (202) 720–6909.

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 employing less

than 500 employees. There are

approximately 250 fluid milk processors

subject to the provisions of the Fluid

Milk Promotion Order. Most of the

parties subject to the Order are

considered small entities.

This rule will modify the term of

office and membership provisions of the

Fluid Milk Promotion Order. The

amendments will allow a National Fluid

Milk Processor Promotion Board

member who changes fluid milk

processor affiliations during his or her

term to be eligible to serve on the Board

in another capacity during that same

term. The amendments will also modify

the term of Board members to allow any

member appointed during the initial

period to serve a term of one or two

years to be eligible for reappointment

for two additional three-year terms. The

amendments also provide that a Board

member’s appointment to another seat

or position on the Board will be

considered a consecutive term. The

amendments should clarify the Order

with respect to membership status and

term limits of Board members.

This rule will also amend order

language in conformance with the 1996

Federal Agriculture Improvement and

Reform Act. The definition of research

will be changed to conform with the

definition in the Act and the Order will

be revised to reflect changes in the 1996

Act concerning the required volume of

milk that must be represented by those

fluid milk processors who may request

a referendum to suspend or terminate

the Order and who favor the referendum

question to suspend or terminate the

Order. The rule will also revise the

Order to specify the duties of the

referendum agent regarding a

referendum to adjust the rate of

assessment. Further, the rule will revise

or remove obsolete or unnecessary order

language in conformance with the

President’s Regulatory Reform Initiative.

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:

Invitation to Submit Comments to

Proposed Amendments to the Order:

Issued August 30, 1996; published

September 6, 1996 (61 FR 47093).

The Department is issuing this rule in

conformance with Executive Order

12866.

This 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 previously

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. Certain amendments will modify

the term limits and the membership

status provisions of the Order. The

amendments allow a National Fluid

Milk Processor Promotion Board

member who changes fluid milk

processor affiliations during his or her

term to be eligible to serve on the Board

in another capacity during that same

term. Under current order provisions, a

Board member who changes fluid milk

processor affiliations during his or her

term is ineligible to serve on the Board

in any capacity.

The amendments will also modify the

term of Board members to allow any

member appointed during the initial

period to serve a term of one or two

years to be eligible for reappointment
3982 Federal Register / Vol. 62, No. 18 / Tuesday, January 28, 1997 / Rules and Regulations

for two additional three-year terms. The

amendments also provide that a Board

member’s appointment to another seat

or position on the Board will be

considered a consecutive term.

Currently, the Order states that Board

members shall serve no more than two

consecutive terms. Therefore, a Board

member appointed to serve an initial

term of one or two years is eligible to

be reappointed to serve only one

additional three-year term. Under these

order provisions, some Board members

will serve an initial term of less than

three years because of the staggering of

terms. The Board contends that the

amendments will clarify the Order with

respect to membership status and term

limits of its members.

This document also amends the Fluid

Milk Promotion Order to conform with

legislated changes made by the recently

enacted 1996 Federal Agriculture

Improvement and Reform Act (P.L. 104–

127). Section 146 of the Act amends

sections 1999C(6), 1999N(b)(2),

1999O(c), and 1999O(a) of the Fluid

Milk Promotion Act of 1990, as

amended, thereby necessitating changes

to the Fluid Milk Promotion Order. The

following sections of the Order are

amended on this basis:

1. In § 1160.112, Research is redefined

in conformance with the Act.

2. In § 1160.501, paragraphs (a) and

(b)(2) are amended in conformance with

the Act in order to specify the volume

of milk that must be represented by

those fluid milk processors who may

request a referendum to suspend or

terminate the Order and to specify the

required volume of milk, necessary for

suspension or termination, that must be

represented by those fluid milk

processors voting in the referendum.

3. In § 1160.604, paragraph (a) is

amended to identify order language

applicable only to the duties of the

referendum agent concerning a

referendum to adjust the rate of

assessment.

4. Section 1160.605 is amended in

conformance with the Act in order to

specify the volume of milk that must be

represented by those fluid milk

processors who may request a

referendum to suspend or terminate the

Order.

The President’s Regulatory Reform

Initiative, among other things, directs

agencies to remove obsolete and

unnecessary language and to find less

burdensome ways to achieve regulatory

goals. Changes are in conformance with

the initiative. These amendments to the

Order and regulations will revise or

remove order language that was needed

to implement the order but is no longer

needed. This language is obsolete and

unnecessary because it relates to the

initial fiscal period and the previously

conducted initial continuation

referendum. Provisions of the following

sections of the Order are amended on

this basis:

1. § 1160.108 Fluid milk processor.

2. § 1160.113 Fiscal period.

3. § 1160.116 Initial referendum.

4. § 1160.209 Duties of the Board.

5. § 1160.211 Assessments.

6. § 1160.501 Continuation referenda.

7. § 1160.605 Date of the referendum.

Notice of proposed rulemaking was

given to interested parties and they were

afforded an opportunity to file written

data, views, or arguments concerning

this proposed rule. One comment

supporting, one opposing, and one of

modified support to the proposed

amendments were received. However,

the notice of proposed rulemaking

contained proposed amendments to

section 605 (i.e., date of the referendum)

of the Order that were not in

conformance with the legislative

changes of the 1996 Federal Agriculture

Improvement and Reform Act.

The notice proposed to amend section

605 to specify the volume of milk that

must be represented by those fluid milk

processors who may request a

referendum to suspend or terminate the

Order, or adjust the assessment rate.

However, the statutory changes concern

suspending or terminating the Order

and do not involve changing language

regarding adjusting the rate of

assessment. Therefore, the proposed

language in section 605 is revised in this

final rule in conformance with the Act

to specify the volume of milk that must

be represented by those fluid milk

processors who may request a

referendum to suspend or terminate the

Order. The current order language in

this section which pertains to adjusting

the rate of assessment is unchanged.

Further, a conforming change is made to

section 604(a) (i.e., duties of the

referendum agent) to identify the order

language applicable only for a

referendum to adjust the rate of

assessment.

The National Fluid Milk Processor

Promotion Board submitted comments

reiterating its support for the

amendments to modify order provisions

regarding term limits and membership

status of Board members. The Board

also expressed support for the other

amendments to amend the Order in

conformance with the Act, and to revise

or remove obsolete language. The Board

urged the immediate implementation of

the amendments because it relies on

several provisions that the amendments

will clarify.

Homestead Dairies, Inc. (Homestead),

filed comments in opposition to

proposed term limits for Board

members. Homestead recommended

that the Order be amended to allow

Board members to hold seats for no

more than three consecutive years, as

opposed to the Board’s proposal which

would allow a Board member to serve

an initial term of one or two years and

two additional three-year terms.

Homestead stated that its

recommendation would provide other

processors an opportunity to serve on

the Board on a more regular basis.

Homestead’s proposed amendment,

which would modify the term limits of

Board members, should not be adopted.

The amended order will provide the

Board more continuity because

members will be eligible to serve at least

two full three-year terms as opposed to

three consecutive one-year terms.

Additionally, the Order will still

provide other processors an opportunity

to be appointed to serve on the Board

on a regular basis.

Peeler Jersey Farms, Inc. (Peeler), a

regional proprietary processor, filed a

comment letter in support of term limits

for Board members but suggested

modifications. Peeler recommended that

Board members should be required to

remain off of the Board for a period of

time before being eligible for re-election.

Peeler also suggested that restrictions

regarding fluid milk processor affiliation

should be placed on Board members to

allow proprietary processors

representation.

The recommendations by Peeler

regarding modifying the term of office

provisions and membership status

provisions should not be adopted. The

Order provides that the National Fluid

Milk Processor Promotion Board shall

consist of 15 members representing

geographic regions and five at-large

members. The Order states that to the

extent possible members representing

geographical regions shall represent

fluid milk processing operations of

differing sizes and that no fluid milk

processors shall be represented by more

than one member.

The Order does not provide that

Board members remain off the Board a

specified time period before being

eligible to be reappointed to serve in the

same capacity. However, the Order

provides that the Secretary shall

announce 180 days prior to the

expiration date of Board member’ terms

that such terms are expiring and solicit

nominations for such positions from

individual fluid milk processors and

other interested parties, including

eligible organizations. Therefore, all

fluid milk processors are provided
Federal Register / Vol. 62, No. 18 / Tuesday, January 28, 1997 / Rules and Regulations 3983

adequate notice of available seats on the

Board and are eligible to be nominated

for such positions. Moreover, as stated

above, the amendments regarding term

limits will provide the Board continuity

between terms to more effectively

administer the Order.

Homestead and Peeler proposed other

changes to the Order. However, the

proposed changes are not relevant to

this proceeding and will be addressed

through another process.

It is appropriate to make this final

rule effective one day after the date of

publication in the Federal Register.

Issuance of this rule is necessary to

clarify order provisions with respect to

term limits and membership status of

Board members, and provide the Board

flexibility to more effectively administer

the order. These proposed amendments

must be effective before nominations

can be submitted to the Secretary of the

United States Department of Agriculture

to fill vacant positions on the Board.

These positions should be filled as soon

as possible. The rule also amends

certain order provisions in conformance

with the 1996 Federal Agriculture

Improvement and Reform Act, and

revises or removes order language that

has become obsolete in conformance

with the President’s Regulatory Reform

Initiative. Thus, the rule will allow the

Board to fill vacant seats in a timely

manner and ensure that the order will

function properly.

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 § 1160.108, paragraph (a) is

revised to read as follows:

§ 1160.108 Fluid milk processor.

(a) Fluid milk processor means any

person who processes and markets

commercially fluid milk products in

consumer-type packages in the United

States, except that the term fluid milk

processor shall not include in each of

the respective fiscal periods those

persons who process and market not

more than 500,000 pounds of such fluid

milk products during the representative

month, which shall be the first month

of the fiscal period; Provided, however,

that for the fiscal period following the

initial fiscal period, the representative

month shall be September 1995.

* * * * *

3. Section 1160.112 is revised to read

as follows:

§ 1160.112 Research.

Research means market research to

support advertising and promotion

efforts, including educational activities,

research directed to product

characteristics, and product

development, including new products

or improved technology in production,

manufacturing or processing of milk and

the products of milk.

4. Section 1160.113 is revised to read

as follows:

§ 1160.113 Fiscal period.

Fiscal period means the initial period

of up to 30 months that this subpart is

effective. Thereafter, the fiscal period

shall be such annual period as the Board

may determine, except that the Board

may provide for a lesser or greater

period as it may find appropriate for the

period immediately after the initial

fiscal period to assure continuity of

fiscal periods until the beginning of the

first annual fiscal period.

§ 1160.116 [Removed and Reserved]

5. Section 1160.116 is removed and

reserved.

§ 1160.200 [Amended]

6. In § 1160.200, the last sentence of

paragraph (a) is amended by adding the

words ‘‘in the position previously held

by such member’’ after the words

‘‘membership on the Board’.

7. In § 1160.201, paragraph (b) is

revised to read as follows:

§ 1160.201 Term of office.

* * * * *

(b) No member shall serve more than

two consecutive terms, except that any

member who is appointed to serve for

an initial term of one or two years shall

be eligible to be reappointed for two

three-year terms. Appointment to

another position on the Board is

considered a consecutive term.

§ 1160.209 Duties of the Board.

8. In § 1160.209, paragraph (b) is

revised to read as follows:

* * * * *

(b) To prepare and submit to the

Secretary for approval a budget for each

fiscal period of the anticipated expenses

and disbursements in the administration

of this subpart, including a description

of and the probable costs of consumer

education, promotion and research

projects;

* * * * *

9. In § 1160.211, paragraphs (a)(1) and

(a)(2) are revised to read as follows:

§ 1160.211 Assessments.

(a) (1) Each fluid milk processor shall

pay to the Board or its designated agent

an assessment of $.20 per

hundredweight of fluid milk products

processed and marketed commercially

in consumer-type packages in the

United States by such fluid milk

processor. Producer-handlers required

to pay assessments under section 113(g)

of the Dairy Production Stabilization

Act of 1983 (7 U.S.C. 4504(g)), and not

exempt under § 1160.108, shall also pay

the assessment under this subpart. No

assessments are required on fluid milk

products exported from the United

States. The Secretary shall have the

authority to receive assessments on

behalf of the Board.

(2) The Secretary shall announce the

establishment of the assessment each

month in the Class I price

announcement in each milk marketing

area by adding it to the Class I price for

the following month. In the event the

assessment is suspended for a given

month, the Secretary shall inform all

fluid milk processors of the suspension

in the Class I price announcement for

that month. The Secretary shall also

inform fluid milk processors marketing

fluid milk in areas not subject to milk

marketing orders administered by the

Secretary of the establishment or

suspension of the assessment.

* * * * *

10. Section 1160.501 is amended by

removing paragraph (a), redesignating

paragraphs (b) through (d) as paragraphs

(a) through (c), removing the cross

reference ‘‘1160.501(c)’’ in newly

designated paragraph (c) and adding in

its place ‘‘1160.501(b)’’, and revising

newly designated paragraphs (a) and

(b)(2) to read as follows:

§ 1160.501 Continuation referenda.

(a) The Secretary at any time may

conduct a referendum among those

persons who the Secretary determines

were fluid milk processors during a

representative period, as determined by

the Secretary, on whether to suspend or

terminate the order. The Secretary shall

hold such a referendum at the request

of the Board or of any group of such

processors that marketed during a

representative period, as determined by

the Secretary, 10 percent or more of the

volume of fluid milk products marketed

in the United States by fluid milk
3984 Federal Register / Vol. 62, No. 18 / Tuesday, January 28, 1997 / Rules and Regulations

processors voting in the preceding

referendum.

(b) * * *

(1) * * *

(2) By fluid milk processors voting in

the referendum that marketed during a

representative period, as determined by

the Secretary, 40 percent or more of the

volume of fluid milk products marketed

in the United States by fluid milk

processors voting in the referendum.

11. In § 1160.604, paragraph (a) is

amended by adding the phrase ‘‘For the

purpose of adjusting the rate of

assessment,’’ at the beginning to the

sentence.

12. Section 1160.605 is revised to read

as follows:

§ 1160.605 Scheduling of referendum.

A referendum shall be held:

(a) Whenever prescribed by the order;

(b) For the purpose of adjusting the

rate of assessment:

(1) At the direction of the Secretary;

or

(2) Upon request of the Board or upon

request of any group of fluid milk

processors that marketed during a

representative period, as determined by

the Secretary, 10 percent or more of the

volume of fluid milk products marketed

by all processors of fluid milk in the

United States during that period; or

(c) For the purpose of suspending or

terminating the order:

(1) At the direction of the Secretary;

or

(2) Upon request of the Board or upon

request of any group of fluid milk

processors that marketed during a

representative period, as determined by

the Secretary, 10 percent or more of the

volume of fluid milk products marketed

by fluid milk processors voting in the

preceding referendum.

Dated: January 21, 1997.

Michael V. Dunn,

Assistant Secretary, Marketing and

Regulatory Programs.

[FR Doc. 97–2042 Filed 1–27–97; 8:45 am]

BILLING CODE 3410–02–P

NUCLEAR REGULATORY

COMMISSION

10 CFR Part 9

RIN 3150–AF60

Duplication Fees

AGENCY: Nuclear Regulatory

Commission.

ACTION: Final rule.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is amending its

regulations by revising the charges for

copying records publicly available at the

NRC Public Document Room in

Washington, DC. The amendment is

necessary to reflect the change in

copying charge resulting from the

Commission’s award of a new contract

for the copying of records.

EFFECTIVE DATE: January 28, 1997.

FOR FURTHER INFORMATION CONTACT:

Thomas E. Smith, Public Document

Room, U.S. Nuclear Regulatory

Commission, Washington, DC 20555,

telephone 202–634–3366.

SUPPLEMENTARY INFORMATION: The NRC

maintains a Public Document Room

(PDR) at 2120 L Street, NW (Lower

Level), Washington, DC. The PDR

contains an extensive collection of

publicly available technical and

administrative records that the NRC

receives or generates. Requests by the

public for the duplication of records at

the PDR have traditionally been

accommodated by a duplicating service

contractor selected by the NRC. The

schedule of duplication charges to the

public was established in the

duplicating service contract. The

revised fee schedule reflects the changes

in copying charges to the public that

have resulted from the awarding of the

new contract for the duplication of

records at the PDR.

Because this is an amendment dealing

with agency practice and procedure, the

notice provisions of the Administrative

Procedure Act do not apply pursuant to

5 U.S.C. 553(b)(A). In addition, the PDR

users were notified on November 14,

1996, that the new contract was being

awarded and that the new prices would

go into effect on November 14, 1996.

The amendment is effective upon

publication in the Federal Register.

Good cause exists to dispense the usual

30-day delay in the effective date

because the amendment is of a minor

and administrative nature dealing with

agency procedures.

Small Business Regulatory Enforcement

Fairness Act

In accordance with the Small

Business Regulatory Enforcement

Fairness Act of 1996, the NRC has

determined that this action is not a

major rule and has verified this

determination with the Office of

Information and Regulatory Affairs of

OMB.

Environmental Impact: Categorical

Exclusion

The NRC has determined that this

final rule is the type of action described

in categorical exclusion 10 CFR

51.22(c)(1). Therefore, neither an

environmental impact statement nor an

environmental assessment has been

prepared for this final rule.

Paperwork Reduction Act Statement

This final rule does not contain a new

or amended information collection

requirement subject to the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501

et seq.). Existing requirements were

approved by the Office of Management

and Budget approval number 3150–

0127.

Public Protection Notification

The NRC may not conduct or sponsor,

and a person is not required to respond

to, a collection of information unless it

displays a currently valid OMB control

number.

Regulatory Analysis

The Nuclear Regulatory Commission

is amending its regulations governing

the rates charged for copying records at

the NRC Public Document Room due to

the signing of a new contract for the

copying of records. This rule has no

significant impact on health, safety or

the environment. There is no substantial

cost to licensees, the NRC or other

Federal agencies.

Backfit Analysis

The NRC has determined that the

Backfit Rule, 10 CFR 50.109, does not

apply to this final rule and that a backfit

analysis is not required for this final

rule, because these amendments of

regulations do not involve any

provisions which would impose backfits

as defined in 10 CFR 50.109 (a)(1).

List of Subjects in 10 CFR Part 9

Criminal penalties, Freedom of

information, Privacy, Reporting and

recordkeeping requirements, Sunshine

Act.

For the reasons set out in the

preamble and under the authority of the

Atomic Energy Act of 1954, as amended,

5 U.S.C. 552 and 553, the NRC is

adopting the following amendment to

10 CFR Part 9.

PART 9—PUBLIC RECORDS

1. The authority citation for part 9

continues to read as follows:

Authority: Sec. 161, 68 Stat, 948, as

amended (42 U.S.C. 2201); sec. 201, 88 Stat.

1242, as amended (42 U.S.C. 5841).

Subpart A also issued under 5 U.S.C.

552; 31 U.S.C. 9701; Pub. L. 99–570.

Subpart B also issued under 5 U.S.C.

552a. Subpart C also issued under 5

U.S.C. 552b.

2. In § 9.35, paragraphs (a)(1), (a)(2),

and (a)(3) are revised to read as follows: