[Federal Register Volume 85, Number 151 (Wednesday, August 5, 2020)]
[Rules and Regulations]
[Pages 47293-47295]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15134]



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 Rules and Regulations
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  Federal Register / Vol. 85, No. 151 / Wednesday, August 5, 2020 / 
Rules and Regulations  

[[Page 47293]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1150

[Document No. AMS-DA-19-0075]


National Dairy Promotion and Research Program; National Dairy 
Promotion and Research Board Importer Representation

AGENCY: Agricultural Marketing Service, Agriculture (USDA).

ACTION: Direct final action.

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

SUMMARY: This document maintains the number of National Dairy Promotion 
and Research Board (Dairy Board) importer members at one member, as is 
stated in the Dairy Promotion and Research Order (Dairy Order). 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.

DATES: This action is effective on October 5, 2020, unless significant 
adverse comments are received by September 4, 2020. If this direct 
final action is withdrawn as a result of such comments, notification of 
the withdrawal will be published in the Federal Register.

ADDRESSES: Interested persons may comment on this direct final action. 
All comments should reference the document number, date, and page 
number of this issue of the Federal Register. All comments submitted in 
response to this direct final action will be included in the rulemaking 
record and will be made available to the public. Please be advised that 
the identity of the individuals or entities submitting comments will be 
made public on the internet at the address provided.
     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.
     Email: Comments may be emailed to [email protected].
     Internet: www.regulations.gov.
    All comments on this direct final action submitted by the above 
methods 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). 
AMS requests that persons wanting to view comments in Room 2958-S 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 direct final action is issued pursuant 
to the Dairy Production Stabilization Act (Dairy Act) of 1983, Public 
Law 98-180 as codified in 7 U.S.C. 4501-4514, as amended.

Executive Order 12866

    The Office of Management and Budget (OMB) has waived the review 
process required by Executive Order 12866 for this action. This action 
falls within a category of regulatory actions that the OMB exempted 
from Executive Order 12866 review. Additionally, because this direct 
final action does not meet the definition of a significant regulatory 
action it does not trigger the requirements contained in Executive 
Order 13771. See OMB's Memorandum titled ``Interim Guidance 
Implementing Section 2 of the Executive Order of January 30, 2017, 
titled `Reducing Regulation and Controlling Regulatory Costs' '', as 
amended on April 5, 2017.

Executive Order 12988

    This direct final action has been reviewed under Executive Order 
12988, Civil Justice Reform. This action is not intended to have a 
retroactive effect. This action would not preempt any State or local 
laws, regulations, or policies unless they present an irreconcilable 
conflict with this action.
    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 
direct final action 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

[[Page 47294]]

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 2018, 
approximately 1,476 importers paid assessments under Sec.  1150.152(b) 
of the Dairy Order. Although many types of businesses import dairy 
products, data is not available concerning the size of these firms. 
Based on AMS' knowledge of the dairy importers subject to the 
assessment and the available categories in North American Industry 
Classification System (NAICS), it is reasonable to assume the most 
common classification for dairy importers is Dairy Product 
Manufacturing (NAICS 3115), of which most of the businesses have fewer 
than 500 employees. The Small Business Administration (13 CFR 121.201) 
defines such entities with fewer than 500 employees as small 
businesses. AMS has determined this direct final action will not have a 
significant economic impact on small entities. Additionally, program 
provisions are administered without regard for business size.
    The Dairy Order is administered by a 37-member Dairy Board, with 36 
members representing 12 geographic regions within the United States and 
one member representing importers. Section 1150.131(f) of the Dairy 
Order 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.

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 action.

Background

    The Dairy Order requires that at least once every three years 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.
    For initial importer member representation, section 113 of the 
Dairy Act required the Secretary to appoint two dairy importers to the 
Dairy Board. 7 U.S.C. 4504(b)(6)(A). For subsequent representation, the 
Dairy Act requires the Secretary to review the average volume of 
domestic production of dairy products compared to the average volume of 
dairy products imported into the United States at least once every 
three years, and if necessary, reapportion importer representation 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).
    Section 1150.131(f) of the Dairy Order 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 is the same as the calculation of total milk solids of 
imported dairy products for assessment purposes.
    Using Supply and Allocation of Milk Fat and Skim Solids by Product 
annual data published by USDA's Economic Research Service, the average 
annual U.S. milk total solids for domestic dairy products for 2016 to 
2018 was 23,510 billion pounds. Based on the total milk solids number, 
each of the 36 domestic Dairy Board producer members would represent 
653 million pounds of total milk solids (23,510 billion pounds divided 
by 36 producer members equals approximately 653 million pounds per 
producer).
    Using information received from CBP, the annual average of total 
milk solids imported during the years 2016 to 2018 was 720 million 
pounds. Table 1 summarizes the total milk solids represented by the 36 
domestic producer members and the total milk solids represented by the 
1 importer member. Table 2 shows Dairy Board representation based on 
the average U.S. total solids and average imported total solids.

       Table 1--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.
----------------------------------------------------------------------------------------------------------------
2016......................................................................     23,138,000,000        802,240,354
2017......................................................................     23,574,000,000        711,719,985
2018......................................................................     23,819,000,000        647,458,004
                                                                           -------------------------------------
    Average...............................................................     23,510,000,000        720,472,781
----------------------------------------------------------------------------------------------------------------
Source: National Agricultural Statistics Service, Dairy Products Annual Survey and CBP


    Table 2--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......................................     23,510,000,000                 36        653,069,007
Importer...............................................        720,472,781                  1        720,472,781
----------------------------------------------------------------------------------------------------------------


[[Page 47295]]

    Based on the calculations, Dairy Board importer member 
representation will remain the same at one 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.

Bruce Summers,
Administrator, Agricultural Marketing Service.
[FR Doc. 2020-15134 Filed 8-4-20; 8:45 am]
BILLING CODE 3410-02-P