Fluid Milk Promotion Order; Invitation to Submit Comments on Proposed Amendments to the Order

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1160

[DA-98-04]

Fluid Milk Promotion Order; Invitation to Submit Comments on

Proposed Amendments to the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This document invites written comments on a proposal to amend

the Fluid Milk Promotion Order. The proposed amendments, requested by

the National Fluid Milk Processor Promotion Board, which administers

the Order, would modify the membership status and term of office of

Board members. The proposed rule would also amend order language

pertaining to committees and intellectual property rights (patents,

copyrights, inventions, and publications). The Board believes that the

proposed amendments are necessary to maintain Board membership

continuity. The changes should allow the Board to operate in a more

effective and efficient manner.

DATES: Comments are due no later than June 22, 1998.

ADDRESSES: Comments (two copies) should be filed with the USDA/AMS/

Dairy Programs, Promotion and Research Branch, 1400 Independence

Avenue, SW, Stop 0233, Room 2734 South Building, Washington, DC 20250-

0233. Comments should reference the docket number and the date and page

number of this issue of the Federal Register and will be made available

for public inspection in Room 2734 South Building during regular

business hours.

FOR FURTHER INFORMATION CONTACT: David R. Jamison, Chief, USDA/AMS/

Dairy Programs, Promotion and Research Branch, 1400 Independence

Avenue, SW, Stop 0233, Room 2734 South Building, Washington, DC 20250-

0233, (202) 720-6909, David__J[email protected].

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.

Several changes are proposed to the Order provisions of the Fluid

Milk Promotion Order (7 CFR Part 1160) concerning membership on the

National Fluid Milk Processor Promotion Board (Board) and the terms of

office for Board members. The Order is authorized under the Fluid Milk

Promotion Act of 1990 (7 USC 6401-6417). The Board requested the

amendments.

The Order provides for a 20-member board with 15 members

representing geographic regions and five at-large members, at least

three of whom are to be 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.

Currently, the Order provides that a fluid milk processor can be

represented on the Board by not more than one member. The Board in its

petition for rulemaking noted that it is more difficult to maintain the

single member representation; that processors are larger in size and

operate in several geographic areas; and that, to maintain continuity

and provide a consistent pool of processor representatives, a change in

the Order provisions is needed to allow more than one representative on

the Board. The proposed amendments would allow a fluid milk processor

to have two members on the Board.

Currently, except in those instances where a Board member changes

fluid milk processor affiliation and is eligible to serve on the Board

in another capacity during the same term, a Board member whose

processor affiliation has changed cannot continue to serve on the

Board. This proposed rule would allow Board members whose fluid milk

processor company affiliation has changed to serve on the Board for a

period of up to 60 days or until a successor is appointed, whichever is

sooner, provided that the eligibility requirements of the Order are

still met. This should help in the reduction of Board vacancies and

foster continuity in Board activities and membership.

Another change that would contribute to greater continuity on the

Board would allow Board members who fill vacancies with a term of 18

months or less to serve two consecutive full 3-year terms. Currently,

the order provides that except for the initial staggered appointments,

Board members could only serve two consecutive terms.

Another change would permit the Board to establish working

committees of persons other than Board members to assist the Board with

activities by providing information, knowledge, and expertise that

otherwise might not be available.

Finally, the amendments would also modify the intellectual property

provisions of the Order to specifically provide for and allow joint

ownership of intellectual property, i.e., patents, copyrights,

inventions, and publications, that is developed using joint funds.

These amendments to Order provisions should not add any burden to

regulated parties because they relate to provisions concerning

membership on the Board, the establishment of working committees, and

joint ownership for patents, copyrights, inventions, and publications.

The proposed changes would not impose additional reporting or

collecting requirements. No relevant Federal rules have been identified

that duplicate, overlap, or conflict with the 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

This proposed rule has been reviewed by the Office of Management

and Budget and has been determined to be not significant for purposes

of Executive Order 12866.

This proposed rule has been reviewed under Executive Order 12988,

Civil Justice Reform. This rule is not intended to have retroactive

effect. If adopted,

[[Page 28293]]

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

previously by the Office of Management and Budget (OMB) and were

assigned OMB No. 0581-0093, except for Board members' nominee

background information sheets that were assigned OMB No. 0505-0001.

Statement of Consideration

The proposed rule would amend the membership and term-of-office

provisions of the Fluid Milk Promotion Order. Currently, the Order

provides that a fluid milk processor can be represented on the Board by

not more than one member. The Board in its recommendation for

rulemaking noted that it is more difficult to maintain the single

member representation; that processors are larger in size and operate

in several geographic areas; and that, to maintain continuity and

provide a consistent pool of processor representatives, a change in the

Order provisions is needed to allow more than one representative on the

Board. The proposed amendments would allow a fluid milk processor to

have two members on the Board.

The proposed amendments also would allow Board members whose fluid

milk processor company affiliation has changed to serve on the Board

for a period of up to 60 days or until a successor is appointed,

whichever is sooner. Currently, except in those instances where a Board

member changes fluid milk processor affiliation and is eligible to

serve on the Board in another capacity during the same term, a Board

member whose processor affiliation has changed cannot continue to serve

on the Board. This proposed rule would allow Board members whose fluid

milk processor company affiliation has changed to serve on the Board

for a period of up to 60 days or until a successor is appointed,

whichever is sooner, provided that the eligibility requirements of the

Order are still met. This should help in the reduction of Board

vacancies and foster continuity in Board activities and membership.

The proposed amendments would also allow Board members who fill

vacancies with a term of 18 months or less to serve two additional 3-

year terms. Currently, the Order states that, except for the initial

staggered Board appointments of 1- or 2-year terms, Board members may

only serve two consecutive terms. Thus any time served with the initial

term is considered a complete term. The Board feels that this rule

change would allow for greater continuity of membership.

This document also proposes to amend two additional sections of the

Fluid Milk Promotion Order. The proposed amendments would permit the

Board to establish working committees of persons other than Board

members to assist the Board with activities by providing information,

knowledge, and expertise that otherwise might not be available.

The proposed amendments also would modify the section on patents,

copyrights, inventions, and publications by allowing jointly developed

intellectual property to be jointly owned. Currently, the Order does

not specifically provide for such joint ownership. This proposed

amendment would allow the Board greater flexibility concerning

intellectual property as it relates to ownership rights.

A thirty-day comment period is provided for interested persons to

comment on this proposed rule. This period is appropriate so as to

permit implementation of the changes, if adopted, as soon as possible.

List of Subjects in 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 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 two

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 60 days following the

disqualification or until the 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.

* * * * *

3. In Sec. 1160.201, paragraph (b) is revised to read as follows:

Sec. 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. Should a non-board member be appointed to fill a

vacancy on the Board with a term of 18 months or less remaining, the

appointee shall be entitled to serve two consecutive 3-year terms

following the term of the vacant position to which the person was

appointed.

4. In Sec. 1160.208, paragraph (g) is revised to read as follows:

[[Page 28294]]

Sec. 1160.208 Powers of the Board.

* * * * *

(g) To select committees and subcommittees, to adopt bylaws, and to

adopt such rules for the conduct of its business as it may deem

advisable; and the Board may establish working committees of persons

other than Board members;

* * * * *

5. In Sec. 1160.505, the text is designated paragraph (a) and a new

paragraph (b) is added to read as follows:

Sec. 1160.505 Patents, copyrights, inventions and publications.

* * * * *

(b) Should patents, copyrights, inventions, and publications be

developed through the use of funds collected by the Board under this

subpart, and funds contributed by another organization or person,

ownership and related rights to such patents, copyrights, inventions,

and publications shall be determined by the agreement between the Board

and the party contributing funds towards the development of such

patent, copyright, invention, and publication in a manner consistent

with paragraph (a) of this section.

Dated: May 18, 1998.

Enrique E. Figueroa,

Administrator, Agricultural Marketing Service.

[FR Doc. 98-13772 Filed 5-21-98; 8:45 am]

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