[Federal Register Volume 76, Number 137 (Monday, July 18, 2011)]
[Rules and Regulations]
[Pages 42012-42015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17885]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1260

[No. AMS-LS-10-0086]


Beef Promotion and Research; Reapportionment

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule adjusts representation on the Cattlemen's Beef 
Promotion and Research Board (Board), established under the Beef 
Promotion and Research Act of 1985 (Act), to reflect changes in cattle 
inventories and cattle and beef imports that have occurred since the 
most recent Board reapportionment rule became effective in October 
2008. These adjustments are required by the Beef Promotion and Research 
Order (Order) and will result in a decrease in Board membership from 
106 to 103, effective with the U.S. Department of Agriculture's (USDA) 
appointments for terms beginning early in the year 2012.

DATES: Effective July 19, 2011.

FOR FURTHER INFORMATION CONTACT: Craig Shackelford, Marketing Programs 
Branch, on 202/720-1115, fax 202/720-1125, or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: 

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 rule has been reviewed under Executive Order 12988, Civil 
Justice Reform. It is not intended to have retroactive effect.
    Section 11 of the Act provides that nothing in the Act may be 
construed to preempt or supersede any other program relating to beef 
promotion organized and operated under the laws of the United States or 
any State. There are no administrative proceedings that must be 
exhausted prior to any judicial challenge to the provisions of this 
rule.

Regulatory Flexibility Act and Paperwork Reduction Act

    Pursuant to the requirements set forth in the Regulatory 
Flexibility Act (RFA)(5 U.S.C. 601-612), the Administrator of the 
Agricultural Marketing Service (AMS) has considered the economic effect 
of this action on small entities and has determined that this final 
rule will not have a significant economic impact on a substantial 
number of small entities. The purpose of RFA is to fit regulatory 
actions to the scale of businesses subject to such actions in order 
that small businesses will not be unduly burdened.
    In the February 2010 publication of ``Farms, Land in Farms, and 
Livestock Operations,'' USDA's National Agricultural Statistics Service 
(NASS) estimates that in 2009 the number of operations in the United 
States with cattle totaled approximately 950,000. The majority of these 
operations that are subject to the Order may be classified as small 
entities.
    The final rule imposes no new burden on the industry. It only 
adjusts representation on the Board to reflect changes in domestic 
cattle inventory and cattle and beef imports. The adjustments are 
required by the Order and will result in a decrease in Board membership 
from 106 to 103.

Background and Final Action

    The Board was initially appointed August 4, 1986, pursuant to the 
provisions of the Act (7 U.S.C. 2901-2911) and the Order issued 
thereunder. Domestic representation on the Board is based on cattle 
inventory numbers, and importer representation is based on the 
conversion of the volume of imported cattle, beef, or beef products 
into live animal equivalencies.
    Section 1260.141(b) of the Order provides that the Board shall be 
composed of cattle producers and importers appointed by the Secretary 
of Agriculture (Secretary) from

[[Page 42013]]

nominations submitted by certified producer organizations. A producer 
may only be nominated to represent the unit in which that producer is a 
resident.
    Section 1260.141(c) of the Order provides that at least every 3 
years and not more than every 2 years, the Board shall review the 
geographic distribution of cattle inventories throughout the United 
States and the volume of imported cattle, beef, and beef products and, 
if warranted, shall reapportion units and/or modify the number of Board 
members from units in order to reflect the geographic distribution of 
cattle production volume in the United States and the volume of cattle, 
beef, or beef products imported into the United States.
    Section 1260.141(d) of the Order authorizes the Board to recommend 
to USDA modifications to the number of cattle per unit necessary for 
representation on the Board.
    Section 1260.141(e)(1) provides that each geographic unit or State 
that includes a total cattle inventory equal to or greater than 500,000 
head of cattle shall be entitled to one representative on the Board. 
Section 1260.141(e)(2) provides that States that do not have total 
cattle inventories equal to or greater than 500,000 head shall be 
grouped, to the extent practicable, into geographically-contiguous 
units, each of which have a combined total inventory of not less than 
500,000 head. Such grouped units are entitled to at least one 
representative on the Board. Each unit that has an additional 1 million 
head of cattle within a unit qualifies for additional representation on 
the Board as provided in Sec.  1260.141(e)(4). As provided in Sec.  
1260.141(e)(3), importers are represented by a single unit, with the 
number of Board members based on a conversion of the total volume of 
imported cattle, beef, or beef products into live animal equivalencies.
    The initial Board appointed in 1986 was composed of 113 members. 
Reapportionment, based on a 3-year average of cattle inventory numbers 
and import data, reduced the Board to 111 members in 1990 and 107 
members in 1993 before the Board was increased to 111 members in 1996. 
The Board was decreased to 110 members in 1999, 108 members in 2001, 
104 members in 2005, and increased to 106 members in 2009. This final 
rule will decrease the number of Board members from 106 to 103 with 
appointments for terms effective early in 2012.
    The current Board representation by States or units was based on an 
average of the January 1, 2005, 2006, and 2007, inventory of cattle in 
the various States as reported by NASS. Current importer representation 
was based on a combined total average of the 2005, 2006, and 2007 live 
cattle imports as published by USDA's Foreign Agricultural Service and 
the average of the 2004, 2005, and 2006 live animal equivalents for 
imported beef products.
    In considering reapportionment, the Board reviewed cattle 
inventories as well as cattle, beef, and beef product import data for 
the period of January 1, 2008, to January 1, 2010. The Board 
recommended that a 3-year average of cattle inventories and import 
numbers should be continued. The Board determined that an average of 
the January 1, 2008, 2009, and 2010, cattle inventory numbers would 
best reflect the number of cattle in each State or unit since 
publication of the last reapportionment rule published in 2008 (73 FR 
60097).
    The Board recommended the use of a combined total of the average of 
the 2008, 2009, and 2010, cattle import data and the average of the 
2007, 2008, and 2009, live animal equivalents for imported beef 
products. The method used to calculate the total number of live animal 
equivalents was the same as that used in the previous reapportionment 
of the Board. The live animal equivalent weight was changed in 2006 
from 509 pounds to 592 pounds.
    The final rule decreases the number of representatives on the Board 
from 106 to 103. Kansas, Nebraska, Nevada, and the Southeast Region 
will each lose one Board seat. Montana will gain a Board seat. The 
importers will lose two Board seats. The Southeast Region will be 
expanded to include Alabama, permitting the new unit three Board 
members. California and Nevada will be combined to form a Southwest 
unit.
    The States and units affected by the reapportionment plan and the 
current and revised member representation per unit are as follows:

------------------------------------------------------------------------
                                              Current         Revised
               State/unit                 representation  representation
------------------------------------------------------------------------
Alabama.................................               1               0
Kansas..................................               7               6
Nebraska................................               7               6
Nevada..................................               1               0
California..............................               5               0
Southeast...............................               3           \1\ 3
Importers...............................               9               7
Montana.................................               2               3
Southwest Unit..........................             N/A           \2\ 6
------------------------------------------------------------------------
\1\Lost one seat but added a seat with Alabama joining the unit.
\2\ California and Nevada.

    On April 4, 2011, USDA published in the Federal Register (76 FR 
18422) for public comment a proposed rule providing for the adjustment 
in Board membership. Comments were due to USDA by May 4, 2011.
    USDA received five comments concerning the proposed rule for Board 
reapportionment. One commenter raised a number of points regarding the 
Board and the beef industry as a whole that are not pertinent to the 
proposal and therefore are not addressed. The commenter also suggested 
that the membership of the Board be limited to one member per State and 
that importers should not have members on the Board. Section 5 of the 
Act and section 1260.141 of the Order contain provisions that determine 
the structure of the Board based on cattle inventory. Therefore, USDA 
has not adopted this suggestion.
    One commenter suggested that Checkoff collections would be a more 
appropriate value to use for apportioning Board seats and that Board 
seats could be determined by each State's total checkoff collections, 
less the amount returned to other States under the existing State-of-
origin rules. Section 5 of the Act and Section 1260.141 of the Order 
contain provisions that determine the structure of the Board based on 
cattle inventory. Therefore, USDA has not adopted this suggestion.
    One commenter offered support for the proposed rule but also 
suggested that USDA go further and ensure that Board representation 
reflect the diversity of interests of all ranchers, representing all 
sizes and make-ups of operations, and include representation from a 
multitude of organizations at both the State and national level as well 
as non-affiliated ranchers. Section 5 of the Act and Section 1260.141 
of the Order contain provisions that determine the structure of the 
Board based on cattle inventory. Therefore, USDA has not adopted this 
suggestion. However, the Secretary of Agriculture remains committed to 
ensuring that the Board reflects diversity in the size of operations, 
experience of members, methods of production and distribution, 
marketing strategies, and other distinguishing factors that will bring 
different perspectives and ideas to the table. This communication has 
been distributed to all organizations that nominate members to the 
Board.
    Two commenters stated their preference that California and Nevada 
not be combined, but understood that section 1260.141 of the Order 
provides for the action. The commenters further suggested that the 
Southwest Unit be dissolved when Nevada cattle numbers increase to 
appropriate levels. Section 1260.141 of the Order provides that at 
least every 3 years and not more than

[[Page 42014]]

every 2 years, the Board shall review the geographic distribution of 
cattle inventories throughout the United States and the volume of 
imported cattle, beef, and beef products and, if warranted, shall 
reapportion units and/or modify the number of Board members from units 
in order to reflect the geographic distribution of cattle production 
volume in the United States and the volume of cattle, beef, or beef 
products imported into the United States. This comment is consistent 
with the provisions of the Order and will be considered in future 
proposals. The commenters also made a number of suggestions regarding 
the nomination of members within the proposed Southwest Unit. These 
suggestions are beyond the scope of the proposed rule and are not 
considered in the final rule.
    It is found that good cause exists to make this rule effective less 
than 30 days after the date of publication in the Federal Register 
because this rule should be in effect as soon as possible for the Board 
appointments that will be effective early in the year 2012.

List of Subjects in 7 CFR Part 1260

    Administrative practice and procedure, Advertising, Agricultural 
research, Imports, Marketing agreement, Meat and meat products, 
Reporting and recordkeeping requirements.

    For reasons set forth in the preamble, 7 CFR part 1260 is amended 
as follows:

PART 1260--BEEF PROMOTION AND RESEARCH

0
1. The authority citation for 7 CFR part 1260 continues to read as 
follows:

    Authority:  7 U.S.C. 2901-2911 and 7 U.S.C. 7401.

0
2. In Sec.  1260.141, paragraph (a) and the table immediately following 
it, are revised to read as follows:


Sec.  1260.141  Membership of Board.

    (a) Beginning with the 2011 Board nominations and the associated 
appointments effective early in the year 2012, the United States shall 
be divided into 37 geographical units and, 1 unit representing 
importers, for a total of 38 units. The number of Board members from 
each unit shall be as follows:

                          Cattle and Calves \1\
------------------------------------------------------------------------
                  State/unit                     1,000 head   Directors
------------------------------------------------------------------------
1. Arizona....................................          983            1
2. Arkansas...................................        1,837            2
3. Colorado...................................        2,650            3
4. Florida....................................        1,710            2
5. Idaho......................................        2,153            2
6. Illinois...................................        1,200            1
7. Indiana....................................          873            1
8. Iowa.......................................        3,933            4
9. Kansas.....................................        6,317            6
10. Kentucky..................................        2,333            2
11. Louisiana.................................          873            1
12. Michigan..................................        1,080            1
13. Minnesota.................................        2,407            2
14. Mississippi...............................          957            1
15. Missouri..................................        4,217            4
16. Montana...................................        2,583            3
17. Nebraska..................................        6,350            6
18. New Mexico................................        1,540            2
19. New York..................................        1,410            1
20. North Carolina............................          833            1
21. North Dakota..............................        1,763            2
22. Ohio......................................        1,270            1
23. Oklahoma..................................        5,417            5
24. Oregon....................................        1,290            1
25. Pennsylvania..............................        1,607            2
26. South Dakota..............................        3,733            4
27. Tennessee.................................        2,040            2
28. Texas.....................................       13,500           14
29. Utah......................................          820            1
30. Virginia..................................        1,530            2
31. Wisconsin.................................        3,367            3
32. Wyoming...................................        1,327            1
33. Northwest.................................  ...........            1
    Alaska....................................           15  ...........
    Hawaii....................................          151  ...........
    Washington................................        1,070  ...........
                                               -------------------------
        Total.................................        1,236  ...........
                                               =========================
34. Northeast.................................  ...........            1
    Connecticut...............................           50  ...........
    Delaware..................................           21  ...........
    Maine.....................................           88  ...........
    Massachusetts.............................           44  ...........
    New Hampshire.............................           38  ...........
    New Jersey................................           37  ...........
    Rhode Island..............................            5  ...........
    Vermont...................................          267  ...........
                                               -------------------------

[[Page 42015]]

 
        Total.................................          550  ...........
                                               =========================
35. Mid-Atlantic..............................  ...........            1
    Maryland..................................          192  ...........
    West Virginia.............................          400  ...........
                                               -------------------------
        Total.................................          592  ...........
                                               =========================
36. Southeast.................................  ...........            3
    Alabama...................................        1,253  ...........
    Georgia...................................        1,100  ...........
    South Carolina............................          385  ...........
                                               -------------------------
        Total.................................        2,738  ...........
                                               =========================
37. Southwest.................................  ...........            6
    California................................        5,283  ...........
    Nevada....................................          450  ...........
                                               -------------------------
        Total.................................        5,733  ...........
                                               =========================
38. Importer \2\..............................        6,887            7
------------------------------------------------------------------------
\1\ 2008, 2009, and 2010 average of January 1 cattle inventory data.
\2\ 2007, 2008, and 2009 average of annual import data.

* * * * *

    Dated: July 12, 2011.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2011-17885 Filed 7-15-11; 8:45 am]
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