03-16827. 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 (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 four geographic regions. The proposed amendment was requested by the Dairy Board, which administers the Order, to better reflect the geographic distribution of milk production in the contiguous 48 States.

DATES:

Comments must be submitted on or before July 17, 2003.

ADDRESSES:

Comments should be filed with USDA/AMS/Dairy Programs, Promotion and Research Branch, Stop 0233—Room 2958-S, 1400 Independence Avenue, SW., Washington, DC 20250-0233. Comments may be faxed to [phone] or e-mailed to [e-mail]. Comments, which should reference the title of the action and the docket number, will be made available for public inspection at the above address during regular business hours. Comments also will be posted at: http://www.ams.usda.gov/​dairy/​index.htm.

FOR FURTHER INFORMATION CONTACT:

David R. Jamison, USDA, AMS, Dairy Programs, Promotion and Research Branch, Stop 0233—Room 2958-S, 1400 Independence Avenue, SW., Washington, DC 20250-0233, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

This proposed rule is issued pursuant to the Dairy Production Stabilization Act of 1983 (7 U.S.C. 4501, et seq.), Public Law 98-108, enacted November 29, 1983.

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 proposed rule would not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule.

This proposed rule has been determined not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

The Dairy Production Stabilization Act of 1983 (Act) (7 U.S.C. 4501, et seq.) authorizes the National Dairy Promotion and Research Program. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 4509 of the Act, any person subject to the Dairy Promotion and Research 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 requesting a modification of the Order or to be exempted from the Order. A person subject to an Order is afforded the opportunity for a hearing on the petition. After a hearing, the Secretary would rule on the petition. The 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.

Small Business Consideration

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Agricultural Marketing Service (AMS) is required to examine the impact of this proposed rule on 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. 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. 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 proposed rule would amend the Dairy Promotion and Research Order by modifying the number of member seats on the National Dairy Promotion and Research Board in four 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 Order currently is administered by a 36-member Dairy 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 United States.

Based on a review of the 2002 geographic distribution of milk production, the Dairy Board has concluded that the number of Dairy Board members for four of the 13 geographical regions should be changed. The Dairy Board was last modified in 1998 based on 1997 milk production.

Accordingly, the proposed amendment should not have a significant economic impact on persons subject to the Order. The proposed changes merely would allow representation on the Dairy Board to better reflect geographic milk production in the contiguous 48 States.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35), the forms and reporting and recordkeeping requirements that are included in the Order have been approved previously by the Office of Management and Budget (OMB).

This proposed amendment to the Order will not add any burden to persons subject to the Order because they relate to provisions concerning membership of the Dairy Board. The proposed change would not impose additional reporting or collecting requirements. No relevant Federal rules have been identified that duplicate, overlap, or conflict with the proposed rule.

Statement of Consideration

The proposed rule, if adopted, would amend the Dairy Promotion and Research Order by modifying the number of member seats on the National Dairy Promotion and Research Board in four of the 13 geographic regions. The proposed amendment reflects milk produced within each of the 13 geographic regions of the contiguous 48 States.

The Order currently is administered by a 36-member Dairy Board representing 13 geographic regions within the contiguous 48 States. The Order provides in § 1150.131 that the Dairy Board shall review the geographic distribution of milk production volume 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 best reflect the geographic distribution of milk production in the United States. The Dairy Board is required to conduct the review at least every five years and not more than every three years.

The 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 Order. Under the formula, total milk production for the contiguous 48 States for the previous calender 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 Board members for each region. Accordingly, the following table summarizes by region the volume of milk production distribution for 2002, 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.

Region and States	Milk production (mil lbs)*	Percentage of total milk production	Current number of board seats	Proposed number of board seats
1: Oregon, Washington	7,713	4.5	1	2
2: California	34,884	20.6	6	7
3: Arizona, Colorado, Idaho, Montana, Nevada, Utah, Wyoming	16,291	9.6	3	3
4: Arkansas, Kansas, New Mexico, Oklahoma, Texas	15,313	9.0	3	3
5: Minnesota, North Dakota, South Dakota	10,447	6.2	3	2
6: Wisconsin	22,074	13.0	5	5
7: Illinois, Iowa, Missouri, Nebraska	8,971	5.3	2	2
8: Alabama, Kentucky, Louisiana, Mississippi, Tennessee	4,265	2.5	1	1
9: Indiana, Michigan, Ohio, West Virginia	13,264	7.8	3	3
10: Florida, Georgia, North Carolina, South Carolina, Virginia	7,194	4.2	2	1
11: Delaware, Maryland, New Jersey, Pennsylvania	12,492	7.4	3	3
12: New York	12,217	7.2	3	3
13: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont	4,518	2.7	1	1
Total: 48 Contiguous States	169,643	100	36	36
* Based upon preliminary 2002 data that was released in Milk Production, Distrbution & Income, NASS,USDA, April 2003. This data will later be updated, revised, and finalized.

Upon the basis of its review of geographic milk production volume, the Dairy Board has proposed that the number of members in four of the 13 geographic regions be changed. The Dairy Board was last modified in 1998 based on 1997 milk production data. The current review conducted by the Dairy Board is based on 2002 data. In 2002, total milk production was 169,643 million pounds which indicates that each of the Dairy Board members would represent 4,712 million pounds of milk. For 1997, total milk production was 156,464 which indicated that each of the Board members would represent 4,346 milk pounds of milk.

Based on the 2002 milk production data, the Dairy Board proposes that member representation in Region 1 (Oregon and Washington) and Region 2 (California) each be increased by one member, and member representation in Region 5 (Minnesota, North Dakota, and South Dakota) and Region 10 (Florida, Georgia, North Carolina, South Carolina, and Virginia) each be decreased by one member. Milk production in Region 1 increased to 7,713 million pounds in 2002 up from 6,915 million pounds in 1997, indicating two Dairy Board members (7,713 divided by 4,712 = 2) compared to one Dairy Board member based on 1997 milk production data. Milk production in Region 2 increased in 2002 to 34,884 million pounds up from 27,628 million pounds in 1997, indicating seven Dairy Board members for the region (34,884 divided by 4,712 = 7) compared to 6 Dairy Board members based on the 1997. Also, in Region 5, milk production decreased to 10,447 million pounds in 2002 down from 11,307 million pounds in 1997, indicating two Dairy Board members (10,447 divided by 4,712 = 2) compared to three Board members based on 1997 milk production data. Additionally, milk production in Region 10 decreased to 7,194 million pounds in 2002 down from 7,523 million pounds in 1997, indicating one Dairy Board member for the region (7,194 divided by 4,712 = 1) compared to two members based on 1997 data.

Accordingly, it is proposed that member representation in Region 1 be increased from one member to two members, Region 2 representation be increased from six members to seven members, Region 5 representation be decreased from three members to two members, and Region 10 representation be decreased from two members to one member to reflect the geographic distribution of milk production within the contiguous 48 States.

A 14-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, 2003. Thus, a 14-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 1150—DAIRY PROMOTION PROGRAM

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

Authority: 7 U.S.C. 4501-4513.

2. In § 1150.131, paragraphs (a)(1), (a) (2), (a)(5), and (a)(10 ) are revised to read as follows:

§ 1150.131

Establishment and membership.

(a) * * *

(1) Two members from region number one comprised of the following States: Washington and Oregon.

(2) Seven members from region number two comprised of the following State: California.

* * * * *

(5) Two members from region number five comprised of the following States: Minnesota, North Dakota and South Dakota.

* * * * *

(10) One member from region number ten comprised of the following States: Florida, Georgia, North Carolina, South Carolina and Virginia.

* * * * *

Dated: June 27, 2003.

A.J. Yates,

Administrator, Agricultural Marketing Service.