[Federal Register Volume 73, Number 189 (Monday, September 29, 2008)]
[Rules and Regulations]
[Pages 56449-56451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22739]



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  Federal Register / Vol. 73, No. 189 / Monday, September 29, 2008 / 
Rules and Regulations  

[[Page 56449]]



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; Final Rule on 
Amendments to the Dairy Promotion and Research Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

SUMMARY: This final rule amends the Dairy Promotion and Research Order 
(Order). The amendment modifies the composition of the National Dairy 
Promotion and Research Board (Dairy Board) by changing the number of 
members in six of the 13 geographic regions. The Dairy Board, which 
administers the Order, requested the amendment in order to better 
reflect the geographic distribution of milk production in the 
contiguous 48 States.

DATES: Effective Date: September 30, 2008.

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 final rule is issued pursuant to the 
Dairy Production Stabilization Act (Act) of 1983, as amended [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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This final 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 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 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. 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 
Order. Most of the parties subject to the Order are considered small 
entities.
    The Order is administered by a 36-member Board representing 13 
geographic regions within the contiguous 48 States. The 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, it has been determined that the number of Dairy Board 
members for six of the 13 geographic regions should be changed. The 
Dairy Board was last modified in 2003 based on 2002 milk production.
    The amendment will not have a significant economic impact on 
persons subject to the Order. The proposed changes merely allow 
representation of the Dairy Board to better reflect geographic milk 
production in the contiguous 48 States. Finally, no relevant Federal 
rules have been identified that duplicate, overlap, or conflict with 
this rule.

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 Order have 
been previously approved by OMB and assigned OMB Control No. 0581-0093.

Prior Documents in This Proceeding

    Proposed Rule: Issued July 24, 2008; published July 30, 2008 (73 FR 
44176).

Statement of Consideration

    The Order is administered by a 36-member Dairy Board. This final 
rule amends the Order by modifying the number of members on the Board 
in six of the 13 geographic regions. The amendment modifies the 
composition of the Board to better reflect current milk production 
within each of the 13 geographic regions of the contiguous 48 States.
    The 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

[[Page 56450]]

Dairy Board was last modified in 2003 based on 2002 milk production.
    In determining the number of Dairy Board seats for each of the 13 
geographic regions designated in the Order, 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 adopted number of Dairy Board seats for each 
region.

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

    Upon the basis of its review of geographic milk production volume, 
the Dairy Board proposed that the number of members in six of the 13 
geographic regions be changed. The current review conducted by the 
Dairy Board is based on 2007 data. In 2007, total milk production was 
185,558 million pounds, which indicates that 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 proposed 
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 determined 
that Region 1 milk production data does not continue to support 2 
seats. Based on the data, the Dairy Board recommended 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.
    Interested parties were provided an opportunity to file comments on 
the proposed rule. No comments were received were received by the 
Department.
    This final rule adopts the Dairy Board's proposal 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 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.
    Pursuant to 5 U.S.C. 553, it is found and determined that good 
cause exists for not postponing the effective date of this rule until 
30 days after publication in the Federal Register because this rule 
should be in effect as soon as possible to appoint Board members for 
the 2008-2011 term.

List of Subjects in 7 CFR Part 1150

    Dairy products, Milk, Promotion, Research.

0
For the reasons set forth in the preamble, 7 CFR part 1150 is amended 
as follows:

PART 1150--DAIRY PROMOTION PROGRAM

0
1. The authority citation for 7 CFR part 1150 continues to read as 
follows:


[[Page 56451]]


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


0
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: September 23, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-22739 Filed 9-26-08; 8:45 am]
BILLING CODE 3410-02-P