[Federal Register Volume 73, Number 147 (Wednesday, July 30, 2008)]
[Proposed Rules]
[Pages 44176-44178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1469]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 73, No. 147 / Wednesday, July 30, 2008 / 
Proposed Rules  

[[Page 44176]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1150

[Docket No. AMS DA-08-0035; DA-08-02]


National Dairy Promotion and Research Program; Invitation To 
Submit Comments on Proposed Amendments to the Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: This document invites comments on a proposed amendment to the 
Dairy Promotion and Research Order (Dairy Order). The proposal would 
modify the composition of the National Dairy Promotion and Research 
Board (Dairy Board) by changing the number of member seats in six of 
the 13 geographic regions. This modification was requested by the Dairy 
Board, which administers the Dairy Order, to better reflect the 
geographic distribution of milk production in the 48 contiguous States. 
The Department will issue a final rule once public comments have been 
received and considered.

DATES: Comments must be submitted on or before August 14, 2008.

ADDRESSES: Comments on this proposed rule should be identified with the 
docket number AMS-DA-08-0035; DA-08-02. Commenters should identify the 
date and page number of the issue of the Proposed Rule. Interested 
persons may comment on this proposed rule using either of the following 
procedures:
     Mail: Comments may be submitted by mail to Whitney A. 
Rick, Chief, Promotion and Research Branch, Dairy Programs, AMS, USDA, 
1400 Independence Ave., SW., Room 2958-S, Stop 0233, Washington, DC 
20250-0233.
     Internet: http://www.regulations.gov.
    All comments to this proposed rule, submitted by the above 
procedures will be available for viewing at: http://www.regulations.gov, or at USDA, AMS, Dairy Programs, Promotion and 
Research Branch, Room 2958-S, 1400 Independence Ave., SW., Washington, 
DC, from 9 a.m. to 4 p.m., Monday through Friday, (except on official 
Federal holidays). Persons wanting to view comments in Room 2958-S are 
requested to make an appointment in advance by calling (202) 720-6909.

FOR FURTHER INFORMATION CONTACT: Whitney A. Rick, Chief, Promotion and 
Research Branch, Dairy Programs, AMS, USDA, 1400 Independence Ave., 
SW., Room 2958-S, Stop 0233, Washington, DC 20250-0233. Phone: (202) 
720-6909. E-mail: [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is issued pursuant to the 
Dairy Production Stabilization Act (Act) of 1983 [7 U.S.C. 4501-4514].

Executive Order 12866

    The Office of Management and Budget has waived the review process 
required by Executive Order 12866 for this action.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is not intended to have a 
retroactive effect. If adopted, this rule would not preempt any State 
or local laws, regulations, or policies unless they present an 
irreconcilable conflict with this rule.
    The Dairy Act provides that administrative proceedings must be 
exhausted before parties may file suit in court. Under Section 4509 of 
the Dairy Act, any person subject to the Dairy Order may file with the 
Secretary a petition stating that the Dairy Order, any provision of the 
Dairy Order, or any obligation imposed in connection with the Dairy 
Order is not in accordance with the law and request a modification of 
the Dairy Order or to be exempted from the Dairy Order. Such person is 
afforded the opportunity for a hearing on the petition. After a 
hearing, the Secretary would rule on the petition. The Dairy 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

    The Agricultural Marketing Service (AMS) has determined that this 
rule will not have a significant economic impact on a substantial 
number of small entities, as defined by the Regulatory Flexibility Act 
(5 U.S.C. 601-612).
    For the purpose of the Regulatory Flexibility Act, small businesses 
in the dairy industry have been defined as those employing less than 
500 employees. For the purpose of the Regulatory Flexibility Act, a 
dairy farm is considered a ``small business'' if it has an annual gross 
revenue of less than $750,000. In the 48 contiguous States, there are 
approximately 70,000 dairy farms subject to the provisions of this 
Dairy Order. Most of the parties subject to the Dairy Order are 
considered small entities.
    The proposed rule would amend the Dairy Order by modifying the 
number of member seats on the Dairy Board in six of the 13 geographic 
regions. The proposed amendment is being made to better reflect the 
geographic distribution of milk produced within each of the 13 regions 
of the contiguous 48 States.
    The Dairy Order is administered by a 36-member Board representing 
13 geographic regions within the contiguous 48 States. The Dairy Order 
provides that the Dairy Board shall review the geographic distribution 
of milk production throughout the United States and, if warranted, 
shall recommend to the Secretary a reapportionment of the regions and/
or modification of the number of members from regions in order to 
better reflect the geographic distribution of milk production volume in 
the 48 contiguous States.
    Based on a review of the 2007 geographic distribution of milk 
production, the Dairy Board has concluded that the number of Dairy 
Board members for six of the 13 geographical regions should be changed. 
The Dairy Board was last modified in 2003 based on 2002 milk 
production.
    The proposed amendment should not have a significant economic 
impact on persons subject to the Dairy Order. The proposed changes 
merely would allow representation of the Dairy Board to better reflect 
geographic milk production in the contiguous 48 States.

[[Page 44177]]

Paperwork Reduction Act

    In accordance with the Office of Management and Budget (OMB) 
regulation [5 CFR part 1320] which implements the Paperwork Reduction 
Act of 1995 [44 U.S.C. chapter 35], the information collection 
requirements and recordkeeping provisions imposed by the Dairy Order 
have been previously approved by OMB and assigned OMB Control No. 0581-
0093. No relevant Federal rules have been identified that duplicate, 
overlap, or conflict with this rule.

Statement of Consideration

    The Dairy Order is administered by a 36-member Dairy Board 
representing 13 geographic regions within the contiguous 48 States. The 
Dairy Order provides in section 1150.131 that the Dairy Board shall 
review the geographic distribution of milk production volume throughout 
the contiguous 48 States and, if warranted, shall recommend to the 
Secretary a reapportionment of the regions and/or modification of the 
number of members from regions in order to best reflect the geographic 
distribution of milk production in the contiguous 48 States. The Dairy 
Board is required to conduct the review at least every five years and 
not more than every three years. The Dairy Board was last modified in 
2003 based on 2002 milk production.
    Based on a review of the 2007 geographic distribution of milk 
production, the Dairy Board has concluded that the number of Dairy 
Board members for six of the 13 geographic regions should be changed.
    The Dairy Order specifies the formula to be used to determine the 
number of Dairy Board seats in each of the 13 geographic regions 
designated in the Dairy Order. Under the formula, the total milk 
production for the contiguous 48 states for the previous calendar year 
is divided by 36 to determine a factor of pounds of milk represented by 
each Dairy Board member. The resulting factor is then divided into the 
pounds of milk produced in each region to determine the number of Dairy 
Board members for each region. Accordingly, the following table 
summarizes by region the volume of milk production distribution for 
2007, the percentage of total milk production, the current number of 
Dairy Board seats per region, and the proposed number of Dairy Board 
seats for each region.

----------------------------------------------------------------------------------------------------------------
                                                              Percentage of
            Region and States              Milk production     total milk      Current number   Proposed  number
                                              (mil lbs)        production      of board seats    of  board seats
----------------------------------------------------------------------------------------------------------------
 1. Oregon, Washington..................             7,764               4.2                 2                 1
 2. California..........................            40,683              21.9                 7                 8
 3. Arizona, Colordao, Idaho, Montana,              21,212              11.4                 3                 4
 Nevada, Utah, Wyoming..................
 4. Arkansas, Kansas, New Mexico,                   18,200               9.8                 3                 4
 Oklahoma, Texas........................
 5. Minnesota, North Dakota, South                  10,741               5.8                 2                 2
 Dakota.................................
 6. Wisconsin...........................            24,080              13.0                 5                 5
 7. Illinois, Iowa, Missouri, Nebraska..             8,948               4.8                 2                 2
 8. Alabama, Kentucky, Louisiana,                    3,119               1.7                 1                 1
 Mississippi, Tennessee.................
 9. Indiana, Michigan, Ohio, West                   16,148               8.7                 3                 3
 Virginia...............................
 10. Florida, Georgia, North Carolina,               6,506               3.5                 1                 1
 South Carolina, Virginia...............
 11. Delaware, Maryland, New Jersey,                12,008               6.5                 3                 2
 Pennsylvania...........................
 12. New York...........................            12,103               6.5                 3                 2
13. Connecticut, Maine, Massachusetts,               4,046               2.2                 1                 1
 New Hampshire, Rhode Island, Vermont...
                                         -----------------------------------------------------------------------
     Total: 48 Contiguous States........           185,558               100                36                36
----------------------------------------------------------------------------------------------------------------
* Based upon preliminary 2007 NASS milk production data, February 2008.

    In 2007, total milk production was 185,558 million pounds and each 
of the Dairy Board members would represent 5,154 million pounds of 
milk. For 2002, total milk production was 169,643 million pounds of 
milk and each of the Board members represented 4,712 million pounds of 
milk.
    Based on the 2007 milk production data, the Dairy Board proposes 
that member representation in Region 2 (California), Region 3 (Arizona, 
Colorado, Idaho, Montana, Nevada, Utah, and Wyoming), and Region 4 
(Arkansas, Kansas, New Mexico, Oklahoma, and Texas) each be increased 
by one member, and member representation in Region 1 (Oregon and 
Washington), Region 11 (Delaware, Maryland, New Jersey, and 
Pennsylvania), and Region 12 (New York) each be decreased by one 
member.
    Milk production in Region 2 increased to 40,683 million pounds in 
2007, up from 34,884 million pounds in 2002, indicating eight Dairy 
Board members (40,683 divided by 5,154 = 8) compared to seven Dairy 
Board members based on 2002 milk production data. Milk production in 
Region 3 increased to 21,212 million pounds in 2007, up from 16,291 
million pounds in 2002, indicating four Dairy Board members (21,212 
divided by 5,154 = 4) compared to three Dairy Board members based on 
2002 milk production data. Milk production in Region 4 increased to 
18,200 million pounds in 2007, up from 15,313 million pounds in 2002, 
indicating four Dairy Board members (18,200 divided by 5,154 = 4) 
compared to three Dairy Board members based on 2002 milk production 
data.
    Milk production in Region 1 increased to 7,764 million pounds in 
2007, up from 7,713 million pounds in 2002. The Dairy Board has 
determined that Region 1 milk production data does not continue to 
support 2 seats. Based on the data, the Dairy Board is recommending 
that one seat from Region 1 be assigned to another region, thereby 
reducing Region 1 Dairy Board members from two members to one member. 
In Region 11, milk production decreased to 12,008 million pounds in 
2007 down from 12,492 million pounds in 2002, indicating two Dairy 
Board members for the region (12,008 divided by 5,154 = 2) compared to 
three members based on 2002 data. Also, in Region 12, milk production 
decreased to 12,103 million pounds in 2007 down from 12,217 million 
pounds in 2002, indicating two Dairy Board members for the region 
(12,103 divided by 5,154 = 2) compared to three members based on 2002 
data.
    Accordingly, it is proposed that member representation in Region 2 
be increased from seven members to eight members, and Region 3 and 
Region 4 representation each be increased from

[[Page 44178]]

three members to four members; Region 1 representation be decreased 
from two members to one member and Region 11 and Region 12 
representation each be decreased from three members to two members.
    A 15-day comment period is provided for interested persons to 
comment on this proposed rule. Twelve terms of existing Dairy Board 
members will expire on October 31, 2008. Thus, a 15-day comment period 
is provided to allow for a timely appointment of new Dairy Board 
members based on the current geographic distribution of milk production 
in the contiguous 48 States.

List of Subjects in 7 CFR Part 1150

    Dairy Products, Milk, Promotion, Research.

    For the reasons set forth in the preamble, it is proposed that 7 
CFR part 1150 be amended as follows:

PART 115--Dairy Promotion Program

    1. The authority citation for 7 CFR part 1150 continues to read as 
follows:

    Authority: 7 U.S.C. 4501-4514 and 7 U.S.C. 7401

    2. In Sec.  1150.131, paragraphs (a)(1), (a)(2), (a)(3), (a)(4), 
(a)(11), and (a)(12) are revised as follows:


Sec.  1150.131  Establishment and membership.

    (a) * * *
    (1) One member from region number one comprised of the following 
States: Washington and Oregon.
    (2) Eight members from region number two comprised of the following 
State: California.
    (3) Four members from region number three comprised of the 
following States: Arizona, Colorado, Idaho, Montana, Nevada, Utah and 
Wyoming.
    (4) Four members from region number four comprised of the following 
States: Arkansas, Kansas, New Mexico, Oklahoma and Texas.
* * * * *
    (11) Two members from region number eleven comprised of the 
following States: Delaware, Maryland, New Jersey and Pennsylvania.
    (12) Two members from region number twelve comprised of the 
following State: New York.
* * * * *

    Dated: July 24, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 08-1469 Filed 7-24-08; 3:37 pm]
BILLING CODE 3410-02-P