[Federal Register Volume 81, Number 63 (Friday, April 1, 2016)]
[Proposed Rules]
[Pages 18802-18804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07413]


 ========================================================================
 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.
 
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 

  Federal Register / Vol. 81, No. 63 / Friday, April 1, 2016 / Proposed 
Rules  

[[Page 18802]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1150

[Document No. AMS-DA-14-0074]


National Dairy Promotion and Research Program 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 number of National Dairy Promotion and Research Board (Dairy 
Board) importer members. The total number of domestic Dairy Board 
members would remain the same at 36 and the total number of importer 
members would be reduced from 2 to 1. The Dairy Order requires that at 
least once every three years, after the initial appointment of importer 
members on the Dairy Board, the Secretary shall review the average 
volume of domestic production of dairy products compared to the average 
volume of imports of dairy products into the United States during the 
previous three years and, on the basis of that review, if warranted, 
reapportion the importer representation on the Dairy Board to reflect 
the proportional shares of the United States market served by domestic 
production and imported dairy products. This reapportionment review is 
the first conducted since importer members were appointed to the Dairy 
Board on November 2, 2011. The review could not be conducted prior to 
2015 since the required data was not available.

DATES: Comments must be submitted on or before May 2, 2016.

ADDRESSES: Comments on this proposed rule should be identified with the 
docket number AMS-DA-14-0074. 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, Director, Promotion, Research and Planning Division, Dairy 
Program, AMS, USDA, 1400 Independence Ave. SW., Room 2958-S, Stop 0233, 
Washington, DC 20250-0233.
     Fax: Comments may be faxed to (202) 720-0285.
     Email: Comments may be emailed to 
[email protected].
     Internet: www.regulations.gov.
    All comments to this proposed rule, submitted by the above 
procedures will be available for viewing at: www.regulations.gov, or at 
USDA, AMS, Dairy Program, Promotion, Research and Planning Division, 
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, Director, Promotion, 
Research, and Planning Division, Dairy Program, AMS, USDA, 1400 
Independence Ave. SW., Room 2958-S, Stop 0233, Washington, DC 20250-
0233. Phone: (202) 720-6909. Email: [email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is issued pursuant to the 
Dairy Production Stabilization Act (Dairy Act) of 1983, Pub L. 98-180 
as codified in 7 U.S.C. 4501-4514, as amended.

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 118 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 (7 U.S.C. 4509). 
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

    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the Agricultural Marketing Service has considered the economic 
impact of this action on small entities and has certified that this 
proposed rule will not have a significant economic impact on a 
substantial number of small entities. The purpose of the Regulatory 
Flexibility Act is to fit regulatory actions to the scale of businesses 
subject to such actions so that small businesses will not be 
disproportionately burdened.
    The Dairy Act authorizes a national program for dairy product 
promotion, research and nutrition education. Congress found that it is 
in the public interest to authorize the establishment of an orderly 
procedure for financing (through assessments on all milk produced in 
the United States for commercial use and on imported dairy products) 
and carrying out a coordinated program of promotion designed to 
strengthen the dairy industry's position in the marketplace and to 
maintain and expand domestic and foreign markets and uses for fluid 
milk and dairy products.
    According to the U.S. Customs and Border Protection (CBP), in 2014, 
approximately 1,400 importers paid assessments under Section 
1150.152(b). Although data is not available concerning the sizes of 
these firms, it is reasonable to assume that most of them would be 
considered small businesses. Although many types of businesses import 
dairy products, the most common classification for dairy product

[[Page 18803]]

importers is Grocery and Related Product Merchant Wholesalers (North 
American Industry Classification System, category 4244). The Small 
Business Administration [13 CFR 121.201] defines such entities with 
fewer than 500 employees as small businesses.
    The proposed rule would amend the Dairy Order by modifying the 
number of Dairy Board importer members.
    Currently, the Dairy Order is administered by a 38-member Dairy 
Board, 36 members representing 12 geographic regions within the United 
States and 2 members representing importers. The Dairy Order at section 
1150.131(f) provides that at least once every three years, after the 
initial appointment of importer members on the Dairy Board, the 
Secretary shall review the average volume of domestic production of 
dairy products compared to the average volume of imports of dairy 
products into the United States during the previous three years and, on 
the basis of that review, if warranted, reapportion the importer 
representation on the Board to reflect the proportional shares of the 
United States market served by domestic production and imported dairy 
products.
    The proposed amendment should not have a significant economic 
impact on persons subject to the Dairy Order. The proposed changes 
merely would allow representation on the Dairy Board to better reflect 
the volume of dairy product imports into the United States.

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 record keeping 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 38-member Dairy Board, 36 
members representing 12 geographic regions within the United States and 
2 members representing importers. The Dairy Order requires in Section 
1150.131(f) that at least once every three years, after the initial 
appointment of importer representatives on the Dairy Board, the 
Secretary shall review the average volume of domestic production of 
dairy products compared to the average volume of imports of dairy 
products into the United States during the previous three years and, on 
the basis of that review, if warranted, reapportion the importer 
representation on the Dairy Board to reflect the proportional shares of 
the United States market served by domestic production and imported 
dairy products. This reapportionment review is the first conducted 
since importer members were appointed to the Dairy Board in 2011.
    For initial representation of importers, the Dairy Act states ``In 
making initial appointments to the Board of importer representatives, 
the Secretary shall appoint 2 members who represent importers of dairy 
products and are subject to assessment under the order.'' (7 U.S.C. 
4504(b)(6)(A)) For subsequent representation of importers, the Dairy 
Act goes on to state ``At least once every 3 years after the initial 
appointment of importer representatives under subparagraph (A), the 
Secretary shall review the average volume of domestic production of 
dairy products compared to the average volume of imports of dairy 
products into the United States during the previous 3 years and, on the 
basis of that review, shall reapportion importer representation on the 
Board to reflect the proportional share of the United States market by 
domestic production and imported dairy products.'' (7 U.S.C. 
4504(b)(6)(B))
    The Dairy Order at section 1150.131(f) states that the basis for 
the comparison of domestic production of dairy products to imported 
products should be estimated total milk solids. The calculation of 
total milk solids of imported dairy products for reapportionment 
purposes ``shall be the same as the calculation of total milk solids of 
imported dairy products for assessment purposes.'' The reapportionment 
review was not conducted prior to 2015 because three full years' worth 
of data was not available.
    Using National Agricultural Statistics Service (NASS) annual Dairy 
Products Summary data, the average U.S. milk total solids for domestic 
dairy products for 2012 to 2014 was 23,462 billion pounds annually. 
Based on the total milk solids number, each of the 36 domestic Dairy 
Board producer members would represent 652 million pounds of total milk 
solids (23,462 billion pounds divided by 36 producer members equals 652 
million pounds per producer).
    Using information received from CBP, the average total milk solids 
imported during 2012 to 2014 was 589 million pounds. Currently, each of 
the two importers on the Dairy Board would represent approximately 295 
million pounds of total milk solids (589 million pounds divided by 2 
importer members equals 295 million pounds per importer). Table 1 
summarizes the total milk solids represented by the 36 domestic 
producer members and the total milk solids represented by the 2 current 
importer members.

 Table 1--Current Dairy Board Representation Based on U.S. Total Solids
                   and Imported Total Solids by Pounds
------------------------------------------------------------------------
                                         U.S. total      Imported total
                Year                    solids, lbs.      solids, lbs.
------------------------------------------------------------------------
2012................................    23,376,000,000       598,554,055
2013................................    23,203,000,000       570,628,490
2014................................    23,805,666,667       598,707,413
                                     -----------------------------------
    Average.........................    23,461,555,556       589,296,653
------------------------------------------------------------------------
Source: NASS, Dairy Products Annual Survey and CBP.


[[Page 18804]]


Table 2--Current Dairy Board Representation Based on Average U.S. Total Solids and Average Imported Total Solids
----------------------------------------------------------------------------------------------------------------
                                                                                                  Average total
                                                              Average total                        milk solids
                                                               milk solids     Current number    represented per
                                                                 (lbs.)        of board seats     board member
                                                                                                     (lbs.)
----------------------------------------------------------------------------------------------------------------
Domestic Producer.........................................    23,461,555,556                36       651,709,877
Importer..................................................       589,296,653                 2       294,648,327
----------------------------------------------------------------------------------------------------------------

    Based on the calculations, it is proposed that Dairy Board importer 
member representation be reduced from 2 importer members to 1 importer 
member, to accurately represent the volume of imported total milk 
solids compared to the volume of total solids represented by each of 
the 36 domestic producer members. Table 2 reflects the proposed 
changes.

        Table 3--Proposed Dairy Board Representation Based on U.S. Total Solids and Imported Total Solids
----------------------------------------------------------------------------------------------------------------
                                                                                                  Average total
                                                              Average total                        milk solids
                                                               milk solids     Current number    represented per
                                                                 (lbs.)        of board seats     board member
                                                                                                     (lbs.)
----------------------------------------------------------------------------------------------------------------
Domestic Producer.........................................    23,461,555,556                36       651,709,877
Importer..................................................       589,296,653                 1       589,296,653
----------------------------------------------------------------------------------------------------------------

    A 30-day comment period is provided for interested persons to 
comment on this proposed rule. One term of office for an importer 
member will expire on October 31, 2016. Thus, a 30-day comment period 
is provided for a timely announcement of the Dairy Board nomination 
solicitation in 2016.

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 1150--DAIRY PROMOTION PROGRAM

0
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.

0
2. In Sec.  1150.131, paragraph (c) is revised to read as follows:


Sec.  1150.131  Establishment and membership.

* * * * *
    (c) One member of the board shall be an importer who is subject to 
assessments under Sec.  1150.152(b).
* * * * *

    Dated: March 29, 2016.
Erin Morris,
Associate Administrator.
[FR Doc. 2016-07413 Filed 3-31-16; 8:45 am]
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