This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

57861 

Vol. 88, No. 163 

Thursday, August 24, 2023 

1USDA Federal Milk Marketing Order Statistics, 

Other Use Volumes, March and April, 2015 through 

2021. 2USDA, National Agricultural Statistics Service, 

Monthly Milk Production data, 2012 through 2020. 

https://usda.library.cornell.edu/concern/ 

publications/h989r321c?locale=en. 3Trends in U.S. Food Security, 2020 and 2021; 

Update for October 18, 2022. https://

www.ers.usda.gov/topics/food-nutrition-assistance/ 

food-security-in-the-us/interactive-charts-andhighlights/#childtrends, accessed August 23, 2021. 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Parts 1146 and 1147 

[Doc. No. AMS–DA–21–0013] 

RIN 0581–AE00 

Dairy Donation Program 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule finalizes 

establishment of the Dairy Donation 

Program as required by the Consolidated 

Appropriations Act of 2021. Under the 

program, eligible dairy organizations 

that account to a Federal milk marketing 

order and incur a qualified expense 

related to certain dairy product 

donations may apply for and receive 

reimbursements for those donations. 

The program facilitates dairy product 

donations and minimizes food waste. 

The program works in tandem with the 

Milk Donation Reimbursement Program, 

and thus this rule also makes 

corresponding changes to those 

regulations. 

DATES: This final rule is effective August 

25, 2023. 

FOR FURTHER INFORMATION CONTACT: Erin 

Taylor, Director, Order Formulation and 

Enforcement, AMS Dairy Program, 

USDA; 1400 Independence Avenue SW, 

Room 2524–S, Washington, DC 20250; 

telephone: (202) 720–7311; email: DDP@

usda.gov; web address: 

www.ams.usda.gov/ddp. 

SUPPLEMENTARY INFORMATION: Section 

762 of the Consolidated Appropriations 

Act of 2021 (CAA) (Pub. L. 116–260) 

authorizes the Secretary of Agriculture 

(Secretary) to establish a program to 

reimburse dairy organizations for 

donated dairy products to non-profit 

organizations for distribution to 

recipient individuals and families. The 

Secretary delegated authority to 

establish and administer this program to 

the Agricultural Marketing Service 

(AMS). The program was implemented 

on September 1, 2021, through an 

interim final rule (86 FR 48887). This 

rule finalizes and makes minor changes 

to the provisions of the Dairy Donation 

Program (DDP) codified at 7 CFR part 

1147. Program provisions are intended 

to encourage the donation of dairy 

products and to prevent and minimize 

food waste. 

The DDP is an additional donation 

program that overlays existing United 

States Department of Agriculture 

(‘‘USDA’’ or ‘‘Department’’) dairy milk 

donation activities, such as the Milk 

Donation Reimbursement Program 

(MDRP). The MDRP was established as 

part of the 2018 Farm Bill to facilitate 

the donation of fluid milk products and 

avoid food waste. The program was 

funded with $9 million in fiscal year 

2019, and $5 million per fiscal year 

thereafter. DDP and MDRP are separate 

from USDA purchase programs. These 

donation programs provide for 

reimbursement of certain costs for 

donations made between two private 

entities. Food purchases under USDA’s 

The Emergency Food Assistance 

Program (TEFAP) and Section 32 

programs are made through a bid 

process where USDA purchases the 

product and arranges for delivery to the 

distribution point. 

DDP and MDRP are separate and 

distinct from USDA’s Dairy Margin 

Coverage (which acts as a safety net 

program), indemnity and disaster 

assistance programs, risk management 

tools through the public-private 

partnership of the Federal Crop 

Insurance Program, or USDA purchases 

of commodities, which may include 

dairy products depending on the market 

conditions and demand from school 

lunch or nutrition programs. 

This rule also makes corresponding 

minor changes to the MDRP provisions 

(codified at 7 CFR part 1146) previously 

amended by the interim final rule. In 

this rule, AMS is making minor changes 

to the DDP information collection forms, 

which also apply to MDRP, to gain 

administrative efficiencies and lessen 

the burden for entities participating in 

the two programs. The form changes 

include adding distribution center as an 

additional entity type and allowing for 

the Dairy Donation and Distribution 

Plan to include multiple partnerships 

per eligible dairy organization. These 

changes will be discussed in more detail 

later in the rule. 

Background 

In 2020, the COVID–19 pandemic 

disrupted dairy supply chains and 

displaced significant volumes of milk 

normally used in food service channels. 

This led to milk being dumped or fed to 

animals across the United States. AMS 

estimates that the volume of milk 

dumped due to pandemic-related 

supply chain issues was almost triple 

what is typically observed during 

normal market conditions.1 At the same 

time, amidst surging unemployment and 

economic hardship nationwide, an 

increasing number of individuals 

needed nutrient-dense foods such as 

dairy products. Throughout 2020 and 

2021, milk and dairy products were 

included in food donations authorized 

under the Coronavirus Aid, Relief, and 

Economic Security Act (CARES) and 

through the Commodity Credit 

Corporation (CCC). In December 2020, 

Congress authorized an additional $400 

million until expended to establish the 

DDP, designed to encourage the timely 

and efficient distribution of dairy 

products to families and individuals 

while reducing food waste. 

While the DDP was intended to assist 

in balancing the supply chain during 

the pandemic recovery, it also provides 

the benefit of creating an incentive to 

donate dairy products during the 

normal spring flush of milk production. 

During normal marketing years (prepandemic), daily milk production in the 

spring averaged 6 to 7 percent more 

than in the lower production months of 

the fall.2 USDA’s Economic Research 

Service (ERS), using 2020 and 2021 food 

security data, estimates that 10.5 and 

10.2 percent, respectively, of U.S. 

households were food insecure.3 The 

United States remains in the midst of 

the recovery, and even while 

employment is returning to normal 

levels, there continues to be food 

insecurity. The persistent need for 


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57862 Federal Register / Vol. 88, No. 163 / Thursday, August 24, 2023 / Rules and Regulations 

4Public Law 118–5. 

5Sec. 762(a)(1) of the Consolidated 

Appropriations Act of 2021. 

6Sec. 1431 of the Agricultural Act of 2014 (7 

U.S.C. 9071(a)). Implementing regulations are 

codified at 7 CFR part 1147. 

nutrient-dense foods such as dairy 

products can be met, in part, through 

donations encouraged by the DDP. 

An interim final rule was published 

in the Federal Register on September 1, 

2021 (86 FR 48887). Copies of the rule 

were made available through the 

internet by the Department and the 

Office of the Federal Register. The rule 

provided a 60-day comment period 

which ended November 1, 2021. Four 

comments were received, which are 

discussed in the applicable sections of 

this final rule. While all comments 

supported the program, some requested 

consideration of changes to specific 

program provisions. 

The program was initially established 

through an interim final rule, with 

regulations set to expire on September 

1, 2023, unless program provisions are 

finalized. Congress rescinded current 

program funding through the Financial 

Responsibility Act of 2023,4 enacted on 

June 3, 2023. However, this final rule 

completes the DDP rulemaking by 

addressing relevant public comments, 

making minor administrative changes to 

reduce burden on the industry, and 

removing the program’s sunset 

provision. 

The following paragraphs give a 

general overview of how the DDP 

operates. Detailed explanations of 

program provisions can be found later 

in the Program Provisions section. 

Who is eligible to participate? 

Program eligibility continues to be 

open to eligible dairy organizations 

(EDOs), defined as dairy farmers (either 

individually or as part of a cooperative) 

or dairy processors that meet the 

following conditions: (1) account to a 

Federal Milk Marketing Order (FMMO) 

marketwide pool; and (2) incur a 

qualified expense. Although the 

definition of EDO includes individual 

dairy farmers, most farmers might not 

meet the other specified provisions to 

qualify as EDOs. For example, most 

farmers would not incur qualified 

expenses since they do not have the 

infrastructure to process raw milk into 

donated eligible dairy products. Those 

individual dairy farmers who do meet 

the required provisions would qualify as 

EDOs under statutes and this rule for 

both the DDP and MDRP. 

The DDP and MDRP refer to the same 

statutory EDO definition; interpretation 

of that definition contained in the 

interim final rule was adopted by both 

programs. This final rule amends that 

interpretation, as explained below, to 

lessen the burden on participants and 

gain administrative efficiencies. 

(1) Account to an FMMO Marketwide 

Pool 

The DDP authorizing statute 5 adopts 

the EDO definition contained in the 

statute establishing the MDRP.6 When 

AMS implemented the MDRP, it 

interpreted the statutory language, 

‘‘account to an FMMO marketwide 

pool,’’ to apply to entities regulated by, 

and therefore filing reports with, an 

FMMO. Participation in the MDRP was 

limited, partly due to the requirement to 

be regulated. 

The COVID–19 pandemic and its 

impacts affected the entire United 

States. Supply chain disruptions 

described earlier were not limited to 

only those regulated by an FMMO. 

Consequently, Congress authorized the 

DDP through a broad relief package. In 

reviewing Congressional intent to 

encourage dairy product donation 

across the country, AMS determined the 

interpretation of ‘‘account to’’ as 

requiring regulation by an FMMO to be 

too narrow. Instead, a broader definition 

allowing for an EDO to ‘‘account to’’ an 

FMMO marketwide pool by filing a 

report with an FMMO office was 

deemed more appropriate. 

Consequently, the interim final rule 

revised the definition of ‘‘eligible dairy 

organization’’ for MDRP by removing 

the requirement that the EDO be 

regulated under an FMMO. It also 

adopted the same definition for the 

DDP. 

In the interim final rule, USDA 

determined that the specific report that 

an EDO must submit to ‘‘account to’’ an 

FMMO marketwide pool was a monthly 

report that lists its fresh fluid products 

and/or bulk dairy commodity products 

purchased and how they were utilized 

to produce donated eligible dairy 

products. A comment from a Puerto 

Rican dairy processor explained that the 

industry, as well as consumers, suffered 

severe economic losses due to the 

pandemic, which were exacerbated in 

Puerto Rico due to its isolation from 

major US markets. The commenter 

suggested that the program provide 

more reporting flexibility in non-FMMO 

regions to make program impacts more 

equitable. 

AMS agrees with this commenter. To 

receive a reimbursement for donations 

under the DDP, an EDO is required to 

submit a Reimbursement Claim Form. 

Requiring entities not regulated by an 

FMMO to submit a monthly report in 

addition to the Reimbursement Claim 

Form is overly burdensome for 

participants because both forms contain 

duplicative information. 

The filing of the initial report serves 

to establish a relationship between the 

EDO and the FMMO office that will be 

auditing its DDP reimbursements. All 

other information needed to administer 

the program is submitted through the 

application and reimbursement process. 

There is no additional need to collect 

duplicative information through a 

monthly report filing with the FMMO 

office. Therefore, this final rule finds 

that accounting to an FMMO 

marketwide pool can be satisfied by an 

entity submitting a report once to any 

FMMO office. EDOs can contact their 

local FMMO office or access the DDP 

website to determine the applicable 

FMMO office where the report should 

be filed. The filing of this report for the 

purpose of participating in the DDP 

does not cause the EDO to become 

regulated by the FMMO. For the reasons 

so stated, USDA is amending the 

definition in this final rule as requested 

by the commenter. 

(2) Incur a Qualified Expense 

The statute further specifies that an 

EDO must incur a qualified expense. 

Since only Class I fluid products are 

donated through the MDRP and most 

Class I processors are regulated by an 

FMMO, incurring a qualified expense in 

the MDRP was originally interpreted as 

paying minimum classified values into 

an FMMO pool because that is the 

requirement for processors regulated by 

an FMMO. The interim final rule found 

that an EDO no longer needed to be 

regulated under an FMMO and added a 

definition of ‘‘qualified expense’’ to 

MDRP regulations to specify that a 

qualified expense is not tied to the 

FMMO regulatory requirement of paying 

minimum classified values. The DDP 

adopted the same definition in the 

interim final rule. This final rule 

continues to find those provisions 

appropriate. 

EDOs incur a qualified expense by 

either purchasing a fluid milk product 

(raw milk, skim milk, cream, or 

concentrated fluid milk products) for 

processing into an eligible dairy product 

or purchasing bulk dairy commodity 

product for further processing into an 

eligible dairy product. 

Dairy processors often buy fluid milk 

products for processing into dairy 

products. Dairy processors also 

purchase bulk dairy commodity 

products for further processing into 

retail packages. For example, a 

processor buys 40-pound cheese blocks 

to further process and package into 8- 

ounce blocks or bags of shredded cheese 


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typically preferred by consumers and 

eligible distributors alike. The DDP is 

intended to facilitate these types of 

product donations. Therefore, in 

addition to processors who buy fluid 

milk products for processing, the DDP 

allows secondary processors who 

purchase and further process bulk 

commodities for donation to qualify as 

an EDO. To be considered an EDO, a 

secondary processor also needs to 

account to an FMMO marketwide pool 

as described earlier. 

Once these two above conditions— 

accounting to an FMMO and incurring 

a qualified expense—are met, EDOs 

participate in the program by forming 

partnerships with eligible distributors 

and then submitting a Dairy Donation 

and Distribution Plan (Plan) to AMS for 

approval. If an EDO or eligible 

distributor is looking for a partner, they 

may contact the DDP Office (ddp@

usda.gov) for assistance. 

What is reimbursed? 

Upon Plan approval, EDOs can submit 

a Reimbursement Claim Form (Claim 

Form) to receive reimbursement for 

donations. The DDP reimburses EDOs 

for some of the following: a. input costs: 

milk equivalent of either a fluid milk 

product or a bulk dairy commodity 

product used in the eligible dairy 

product; b. manufacturing costs; and c. 

transportation costs. 

a. Input Costs—Fresh Fluid Milk or 

Bulk Dairy Commodity Product Milk 

Equivalent 

In the FMMO system, milk is priced 

based on its end use. FMMO 

classifications are generally: Class I— 

traditionally the highest-class price—for 

beverage fluid milk products such as 

whole, skim, nonfat, and flavored milks; 

Class II for soft products such as yogurt, 

ice cream, and packaged fluid cream; 

Class III for spreadable and hard 

cheeses; and Class IV for butter and 

dried milk products. Announced 

monthly, FMMO-minimum classified 

prices reflect surveyed end-product 

wholesale market prices. Under an 

FMMO, regulated processors are 

required to pay at least minimum 

classified values based on how they use 

their milk. 

This final rule continues to find that 

for processors purchasing and 

processing fresh fluid milk products 

(raw milk, skim milk, cream, or 

concentrated fluid products), the DDP 

will reimburse for the FMMO-minimum 

classified value applicable on the date 

of production for fresh fluid milk 

products used to make donated eligible 

dairy products. FMMO prices are a good 

approximation of what the processor 

paid for the fresh fluid milk products 

because they represent observed market 

values paid for product at the time of 

purchase. 

The DDP does not reimburse for 

powders and other dry dairy products 

used as an ingredient in eligible dairy 

products (for example, powder used to 

fortify cheeses or ice cream.) 

Reimbursement is not extended to these 

ingredients because the DDP is designed 

to encourage the use of excess fresh 

fluid milk for donation, rather than 

being dumped. Dry milk powders in 

retail packaging—such as 10-ounce 

containers of nonfat dry milk, which are 

made directly from fresh fluid milk— 

continue to be considered eligible dairy 

products under this program, as surplus 

milk is likely manufactured into dry 

milk powder as opposed to being 

dumped. 

Since FMMO minimum classified 

prices are stated on a hundredweight 

basis, EDOs should continue to report 

donations in the quantity and size of the 

donated product, which is converted to 

hundredweights with a yield factor 

(how much product can be made from 

100 pounds of milk). Applicable 

announced minimum class skim and 

butterfat prices are used in determining 

the input cost of the donated dairy 

product. EDOs have the ability to 

provide an actual product yield factor, 

or the EDO can use a standard yield 

factor. Standard yield factors are posted 

on the DDP website. 

Secondary processors buying bulk 

dairy commodity products for further 

processing and donation, as described 

earlier, will continue to be reimbursed 

at the classified use value applicable for 

the month the eligible dairy product 

was processed into the consumer-type 

package. The reimbursed value 

represents the milk-equivalent market 

price of the bulk dairy product at the 

time of conversion into an eligible dairy 

product. 

b. Manufacturing Costs 

Processors incur expenses beyond 

input costs to make dairy products. To 

encourage dairy product donations, this 

final rule continues to reimburse for 

some of the manufacturing costs 

incurred to convert fluid milk products 

into eligible dairy products. These 

manufacturing costs are reimbursed at 

the manufacturing (make) allowance 

levels contained in the FMMO uniform 

pricing formulas, which are generally 

accepted by the industry as 

representative costs of manufacturing 

dairy products from raw milk. 

The interim final rule found it 

appropriate for the Class IV make 

allowance contained in the Class IV 

price formula to apply to Class I and II 

products. USDA lacked data on Class I 

and II manufacturing costs and asked for 

public comment on this issue in the 

interim final rule. A comment submitted 

from a dairy trade association included 

average ranges for Class I and II 

manufacturing costs for its members 

that produced such products. Submitted 

information concluded Class I costs 

ranged from $4.50–$10 per 

hundredweight (cwt) and Class II costs 

ranged from $5–$6 per cwt. While the 

cost ranges provided a general 

approximation of those experienced by 

its members, the comment lacked 

details on the underlying data needed to 

determine what the average cost ranges 

represented. For example, the 

submission did not include the specific 

products represented, the data 

collection timeframe, types of costs 

incurred, geographic disbursement of 

plants, size of plants, or how much of 

the Class I or II markets were 

represented. No other comments on 

Class I and II manufacturing costs were 

received. 

While the data provided lacked detail, 

it is reasonable to conclude the Class IV 

manufacturing allowance, which 

equates to $2.16 per cwt, is significantly 

lower than the actual cost experienced 

by Class I plants. This final rule 

continues to find that while the DDP 

should not reimburse for all 

manufacturing costs, it should strive to 

reimburse at a level adequate for 

processors to choose to process and 

donate dairy products instead of 

dumping milk. 

During the first year of administering 

the DDP, USDA experienced fluid milk 

processors choosing not to participate 

because the reimbursement rate was too 

low. As the statutory objective of the 

program is to encourage the donation of 

milk and dairy products to individuals 

and families, this final rule finds that 

the manufacturing cost reimbursement 

for Class I products should be increased. 

As the input cost reimbursed through 

the DDP aligns with the product’s 

classification, this final rule finds 

manufacturing costs should be similarly 

aligned. Under FMMOs, the base raw 

skim milk value of Class I products is 

the average of the Class III and Class IV 

skim milk price formulas, plus $0.74. 

Implicitly, this means Class I handlers 

regulated by the FMMO system receive 

a Class I manufacturing allowance that 

is the average of the Class III and Class 

IV manufacturing allowances. 

Therefore, this final rule finds the 

manufacturing cost reimbursement for 

Class I products donated through the 

DDP should likewise be the average of 

the Class III and Class IV manufacturing 


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7USDA, Federal Milk Marketing Order Statistics, 

Final Class and Component Prices by Order. https:// 

www.ams.usda.gov/resources/marketing-orderstatistics/final-class-and-component-prices-order. 

8As indicated in the Economic Analysis 

contained in the interim final rule, USDA expected 

the DDP to expend $68 million annually. In 

determining funds available for this retroactive 

allowances. Currently those 

manufacturing allowances equate to 

$3.17 per cwt and $2.16 per cwt, 

respectively, resulting in an average of 

$2.67 per cwt. 

Recognizing Class II products are 

priced off the Class IV advanced skim 

milk pricing factor, Class II 

manufacturing costs reimbursed through 

the DPP will remain at the Class IV 

level, currently $2.16 per cwt. 

This final rule makes no changes to 

the manufacturing cost reimbursement 

for Class III and IV products, which 

equates to $3.17 and $2.16 per 

hundredweight, respectively, for milk 

containing 3.5 percent butterfat. If the 

FMMO make allowances are updated in 

the future, DDP regulations referencing 

the FMMO regulations will be 

automatically adjusted. 

The public comment submitted by the 

dairy trade association also suggested 

DDP manufacturing cost reimbursement 

be adjusted to more accurately reflect 

actual component tests of raw milk. The 

current FMMO make allowances, and 

therefore the DDP manufacturing 

reimbursement levels, reflect standard 

component levels—3.5% butterfat, 

2.99% protein, and 5.69% other solids. 

According to the commenter, actual 

component tests of raw milk are higher 

(4% butterfat, for example). The 

comment states that incorporating these 

higher component levels would increase 

the manufacturing reimbursement under 

the DDP. This final rule finds the factors 

contained in the manufacturing 

allowances used in both the FMMO 

program and the DDP should be 

consistent. If FMMO make allowances 

are amended, this final rule allows for 

DDP manufacturing cost 

reimbursements to change 

automatically. 

c. Transportation Costs 

Transportation costs from the 

processor to a distribution outlet are 

often cost prohibitive. Absent 

reimbursement, processors may not be 

willing to incur additional 

transportation costs, and feeding 

organizations may lack the funding to 

cover these costs to facilitate the 

donation. The DDP aims to facilitate 

timely donations and reduce food waste. 

Therefore, this final rule continues to 

find the DDP should cover part of the 

transportation costs from the EDO to the 

eligible distributor. This may be 

especially beneficial to rural 

communities whose donation sites are 

often far from plants serving them and 

who may not receive assistance from 

other government feeding programs 

with distribution points closer to urban 

centers. 

As the reimbursement value is paid to 

the EDO, the DDP only reimburses for 

transportation if the EDO incurred the 

expense. If donated eligible dairy 

products are picked up from the plant 

by the eligible distributor, no 

transportation reimbursement will be 

paid. Details of the transportation cost 

reimbursement rate are explained later 

in this rule. 

Total Reimbursement Value 

Section 762(d)(2)(A) of the CAA 

specifies that total reimbursement—the 

sum of input, manufacturing, and 

transportation costs—must be set 

neither too high to ‘‘interfere with the 

commercial marketing of milk or dairy 

products’’ nor too low to ‘‘be sufficient 

to avoid food waste.’’ The statute further 

requires total reimbursement to be 

between the highest and lowest of the 

classified milk values. To ensure costs 

can be sufficiently covered for most 

donations, the interim final rule capped 

the total reimbursement payment, on a 

per cwt basis, at the Class I value for the 

highest FMMO differential zone (Dade 

County, Florida). Capping at the highest 

FMMO zone allowed for Class I 

handlers to obtain some reimbursement 

for manufacturing and transportation 

costs. 

Section 762(d)(2)(B)(iv) of the CAA 

further allows the Secretary to maintain 

traditional price relationships—Class I 

being the highest, followed in sequence 

by II, III and IV—in setting the 

reimbursement rate. In 2020, dairy 

markets experienced pronounced class 

price inversions, where the Class III 

price was significantly higher than the 

Class I price in many areas of the 

country. However, the Class III price has 

been above the Class I price in Dade 

County, Florida, only three times since 

the current pricing system was adopted 

on January 1, 2000.7 No extreme price 

inversions have occurred since the 

interim final rule was published, and 

such extreme inversions are not 

anticipated in the foreseeable future. 

While the DDP does not directly 

determine classified prices and price 

relationships, the interim final rule 

found that program rules should not 

exacerbate price inversions if they 

occur. In times of price inversion, where 

the Class I price is not the highest-class 

price, the interim final rule continued to 

cap total reimbursements at the Class I 

price for Dade County, Florida. This 

final rule continues to find the 

reimbursement cap appropriate. 

When do plans and reimbursement 

claims need to be submitted? 

Entities must submit Plan and Eligible 

Distributor Certification Forms 

(Certification Forms) to AMS for 

approval before they can submit Claim 

Forms for reimbursement. 

Reimbursement Claim Forms, along 

with supporting documentation, can be 

filed any time after the Plan is approved 

and the donation is made. AMS uses the 

supporting documentation to verify 

program requirements were met. Plans 

only need to be submitted once for 

approval. The DDP does not require 

annual Plan renewal. 

How does AMS handle both the DDP 

and MDRP? 

Although program funds for the DDP 

and MDRP are statutorily prohibited 

from being consolidated, the two 

programs operate as one from a 

stakeholder standpoint. EDOs making 

Class I fluid milk product donations 

which are covered by both programs are 

reimbursed through MDRP funds at the 

difference between the Class I and 

lowest classified price and receive a 

supplemental reimbursement of the 

lowest classified price plus the 

manufacturing and transportation cost 

reimbursement through DDP funds. 

Total combined reimbursement is 

capped at the Class I price in Dade 

County, Florida. 

EDOs already enrolled in MDRP were 

automatically enrolled in the DDP when 

the interim final rule became effective. 

Subsequently, they received 

supplementary payments for fluid milk 

products donated under their currently 

approved MDRP Plans. 

Is there a retroactive period for 

reimbursement? 

Section 762(h) of the CAA requires 

supplementary payments be made to 

EDOs participating in the MDRP for 

donations made on or after January 1, 

2020. Since the statute allows for 

retroactive reimbursement to those 

participating in the DDP, a retroactive 

date of January 1, 2020, was adopted in 

the interim final rule to apply to the 

DDP to streamline administration of the 

two programs. To ensure adequate 

availability of funds for donations made 

before enactment of the CAA, total 

program expenditures for eligible dairy 

product donations made from January 1, 

2020, to December 27, 2020, were 

limited to no more than $50 million 

under the interim final rule.8 A deadline 


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period, USDA limited expenditures to 

approximately 80 percent ($50 million), consistent 

with other USDA COVID–19 recovery programs (7 

CFR part 9—Coronavirus Food Assistance Program). 

9https://www.fda.gov/food/guidance-documentsregulatory-information-topic-food-and-dietarysupplements/milk-guidance-documents-regulatoryinformation. 

for requesting retroactive 

reimbursement was posted on the AMS 

web page for the DDP, and roughly 

$712,000 in retroactive claims were 

submitted. 

Program Provisions 

The following details the DDP 

provisions and amendments to the 

MDRP, where applicable. 

Definitions 

The statute includes definitions for 

terms used. Section 1147.1 provides 

definitions for terms as they are used in 

the new program. Key terms are 

‘‘eligible dairy organization,’’ ‘‘eligible 

dairy product,’’ ‘‘eligible distributor,’’ 

‘‘eligible partnership,’’ and ‘‘qualified 

expense.’’ This final rule makes no 

changes to these definitions. 

Eligible dairy organization (EDO). As 

explained in the Background section, 

section 762(a)(1) of the CAA adopts the 

same EDO definition contained in the 

statute establishing the MDRP. See Sec. 

1431(a) and (b) of the Agricultural Act 

of 2014 (7 U.S.C. 9071(a)). The 

regulatory definition matches the 

statutory definition, which specifies that 

a dairy organization eligible to 

participate in the program is a dairy 

farmer, either individually or as part of 

a cooperative, or a dairy processor that: 

(1) accounts to an FMMO marketwide 

pool; and (2) incurs qualified expenses. 

See id. 

Eligible dairy product. Section 

762(a)(2) of the CAA specifies that only 

dairy products primarily made from 

milk, including fluid milk, produced 

and processed in the United States are 

eligible for donation and reimbursement 

under the DDP. Additional standards 

defining further requirements for 

eligible dairy products are described in 

the commodity specification provisions. 

Accordingly, § 1147.1 defines ‘‘eligible 

dairy product’’ as a dairy product 

meeting the commodity specifications 

referenced in § 1147.3. 

Eligible distributor. Section 762(a)(3) 

of the CAA defines ‘‘eligible distributor’’ 

as ‘‘a public or private nonprofit 

organization that distributes donated 

eligible dairy products to recipient 

individuals and families.’’ Section 

1147.1 likewise defines ‘‘eligible 

distributor’’ as a public or private nonprofit feeding organization distributing, 

or coordinating the distribution of, 

donated eligible dairy products to 

recipient individuals and families. 

Eligible distributors such as food banks, 

shelters, kitchens, and other food 

distribution organizations are eligible so 

long as they are nonprofit entities. 

Under this program, participating 

eligible distributors fill out an Eligible 

Distributor Certification Form to verify 

their non-profit status and affirm they 

have appropriate facilities and processes 

for distributing donated dairy products 

to recipient individuals and families. 

Eligible partnership. Section 762(c) of 

the CAA requires an EDO and eligible 

distributor form a partnership to 

participate in the DDP. Requiring parties 

to apply as a partnership ensures all 

program provisions are met and an 

agreed-upon structure is in place when 

eligible dairy products are available for 

donation and distribution. Section 

762(a)(4) of the CAA defines ‘‘eligible 

partnership’’ as ‘‘a partnership between 

an eligible dairy organization and an 

eligible distributor,’’ and this rule 

continues to find the same definition 

appropriate. 

AMS recognizes some EDOs may have 

processing plants in multiple locations 

reporting to different FMMOs. 

Similarly, eligible distributors may have 

multiple distribution sites; for example, 

several food pantries are operated by 

one umbrella organization. Thus, under 

§ 1147.102(a), the eligible partnership 

can submit one Plan to cover multiple 

plants and/or distribution locations as 

long as only one EDO is represented. 

Qualified expense. The statute does 

not define ‘‘qualified expense,’’ but does 

specify one needs to be incurred to be 

eligible for program participation. 

Section 1147.1 defines ‘‘qualified 

expense’’ as the cost incurred to 

purchase fresh fluid milk for processing 

into eligible dairy products or the cost 

incurred to purchase bulk dairy 

commodity products for further 

processing into eligible dairy products. 

A qualified expense is different than the 

reimbursement rate, which is described 

later in this final rule. Because defining 

‘‘qualified expense’’ is fundamental to 

determining program eligibility and the 

MDRP and DDP reference the same 

‘‘eligible dairy organization’’ statutory 

definition, the ‘‘qualified expense’’ 

definition was added to the MDRP 

regulation in the interim final rule and 

remains unchanged by this final rule. 

Additional terms necessary for 

administration of the program are 

defined in § 1147.1. ‘‘Program’’ is 

defined as the Dairy Donation Program, 

and ‘‘Secretary’’ is defined as the 

Secretary of the United States 

Department of Agriculture or a 

representative authorized to act in the 

Secretary’s stead. 

Commodity Specifications 

The final rule amends the DDP’s 

commodity specification provisions to 

expand applicability to eligible 

distributors, as explained below. 

The DDP is intended to reimburse 

eligible dairy organizations for timely 

donations of eligible dairy products and 

minimize food waste. It is therefore 

reasonable to ensure eligible dairy 

products donated under the DDP meet 

minimum food safety and quality 

standards and are in package sizes 

desired by eligible distributors, 

consistent with the intent of the 

program to minimize food waste that 

might otherwise result. The final rule 

makes no changes to § 1147.3, which 

defines the program’s commodity 

specifications. 

The final rule continues to require 

that EDOs comply with all applicable 

Federal, State, and local laws, executive 

orders, and rules and regulations related 

to its performance under this program. 

To qualify under the program, eligible 

dairy products must: 

1. Be made primarily from cow’s 

(bovine) milk produced in the United 

States; 

2. Be packaged in consumer-sized 

packaging; and 

3. Meet the applicable provisions for 

dairy products in the Federal Food, 

Drug, and Cosmetic Act (21 U.S.C. 301 

et. seq.), as amended. Grade ‘A’ dairy 

products must meet the applicable 

provisions of the current edition of the 

Pasteurized Milk Ordinance 9; and 

4. Have a sell-by, best-by, or use-by 

date no sooner than 12 days from the 

date the eligible dairy product is 

delivered to the eligible distributor. 

Currently, bovine cow’s milk is the 

only type of milk in surplus being 

dumped at the farm. Since the program 

is designed to prevent surplus milk from 

being dumped at the farm, it is the 

Secretary’s discretion to limit the DDP 

to cow’s (bovine) milk. 

Program provisions also specify 

donated dairy products must be in 

consumer-sized packaging. This 

provision should be interpreted by the 

eligible partnership as to whatever 

consumer-sized package is agreeable to 

both entities. Examples of consumersized packaging include, but are not 

limited to, gallons of milk, 8-ounce 

blocks of cheese, single serve containers 

of yogurt, 1-pound packages of butter, or 

large bags of milk if the eligible 

distributor has the ability to dispense 

(i.e., a soup kitchen). When submitting 


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Plans for approval, the EDO is required 

to list what types of products it will be 

donating. The submitted information is 

checked against the distribution process 

explained by the eligible distributor to 

ensure it has the ability to distribute the 

types of products to be donated. 

Program Eligibility and Participation 

As explained below, this final rule 

makes no changes to the program 

eligibility and participation provisions, 

except for a modification of the Plan 

submission requirements designed to 

lessen the burden on participants. 

Section 1147.100 requires an eligible 

dairy organization must be a member of 

a partnership whose Plan has been 

approved by AMS to be eligible for 

reimbursements under the DDP. 

Section 1147.102 outlines 

requirements for Plan submission in 

order to be considered for the program. 

The interim final rule required the EDO 

to submit a Plan for each partnership. 

Upon administering the program, AMS 

found requiring an EDO to submit a 

separate Plan for each partnership 

overly burdensome to participants, as 

the EDO was submitting the same 

information about its operations on 

multiple Plans. Allowing Plans to cover 

multiple partnerships with the same 

EDO eliminates reporting redundancies, 

increases efficiencies, and reduces 

participant burden. Plans must continue 

to include a signed affirmation 

regarding the type of product to be 

donated and the EDO’s ability to process 

and transport eligible dairy products 

consistent with the requirements in the 

commodity specifications under 

§ 1147.3. 

Along with the Plan submission, 

eligible distributors are required to 

submit a signed Certification Form, 

which includes a description of the 

eligible distributor’s distribution 

process, contact information, and a tax 

identification number to ensure 

compliance with program provisions. 

AMS has found that details of a 

particular partnership–the EDO and the 

eligible distributor—are sufficiently 

covered in the information provided in 

the Eligible Distributor Certification 

Form. Accordingly, this final rule 

amends the regulations to allow the 

EDO to submit one Plan to cover all its 

partnerships and a separate Certification 

Form for each eligible distributor to 

AMS. 

As specified in § 1147.208, AMS only 

collects information deemed necessary 

to determine whether an eligible 

partnership’s Plan should be approved. 

All proprietary business information 

submitted is used only for the purposes 

of the program and kept confidential by 

AMS. 

Section 1147.104 specifies the process 

AMS will continue to use to review and 

approve program applications. Within 

15 business days of application 

submission, AMS reviews the Plan and 

Certification Form, determines whether 

to approve or disapprove, and notifies 

the eligible partnership of the 

determination. Under § 1147.104(a)(1), 

AMS reviews the information submitted 

by the partnership, including the signed 

affirmation that the partnership can 

meet the requirements related to proper 

processing, transport, storage, and 

distribution of eligible dairy products. 

Under § 1147.104(a)(2), AMS considers 

the extent to which the Plan would 

advance the statutory purposes of the 

DDP, namely, whether the Plan would 

facilitate the timely donation of eligible 

dairy products and prevent and 

minimize food waste. See Sec. 762(b) of 

the CAA. 

Finally, section 762(c)(2)(B)(i) of the 

CAA specifies that priority review is 

given to submitted Plans where an 

emergency or disaster was a substantial 

factor, including a declared or renewed 

public health emergency under section 

319 of the Public Health Service Act (42 

U.S.C. 247(d)) or a disaster designated 

by the Secretary. In reviewing a Plan, 

AMS determines if an emergency or 

disaster was a substantial factor in the 

Plan’s submission. In this case, 

‘‘substantial factor’’ means that a supply 

and/or demand disruption caused by 

the emergency or disaster event is a 

main reason for the partnership 

submitting the Plan. For example, the 

COVID–19 public health emergency— 

which caused a significant decrease in 

school and restaurant dairy demand, 

leading to large volumes of displaced 

milk and many people in need of food 

assistance—could be considered a 

justification for priority review. If an 

emergency or disaster is deemed a 

substantial factor, AMS prioritizes 

review of that Plan to facilitate 

donations and meet an immediate need. 

Section 1147.104(a)(3) incorporates 

those factors for Plan prioritization. 

Once approved, Plans do not need to 

be resubmitted in subsequent fiscal 

years, unless changes are made. Eligible 

partnerships that received 

reimbursement from the MDRP were 

automatically enrolled in the DDP when 

the program was implemented and 

became eligible to receive the 

supplemental reimbursement as defined 

in § 1147.109. 

Reimbursement and Reimbursement 

Price 

This final rule makes minor 

administrative changes to the 

Reimbursement Claim Form and 

subsequently the MDRP and DDP 

regulations, to ensure proper 

reimbursement rates. This rule 

continues to find the reimbursement 

price—the sum of input, transportation, 

and manufacturing costs—an 

appropriate reimbursement rate to meet 

program objectives. 

Section 762(d) of the statute requires 

the Secretary to reimburse EDOs with 

approved Plans. Section 1147.106(a) 

provides the process and describes the 

necessary information and 

documentation AMS requires to verify 

the EDO’s donation and calculate its 

reimbursement. To receive 

reimbursement, the EDO must complete 

and submit a Reimbursement Claim 

Form (Claim Form) that includes: the 

type, volume, and manufactured date of 

the eligible dairy products donated; the 

entity type (processor, co-pack facility, 

distribution center, or eligible 

distributor); the physical address(es) of 

the eligible dairy organization’s 

processing plant(s), co-pack facility(ies), 

and distribution center(s), and the 

eligible distributor’s distribution site(s); 

the universal product code(s) (UPCs) for 

donated product(s); the sell-by, best-by, 

or use-by date(s) for donated product(s); 

and the dates the donated dairy 

products were processed and shipped to 

the eligible distributor. 

In administering the DDP since 

September 1, 2021, AMS learned some 

EDOs transport donated product to 

EDO-owned distribution centers before 

delivering to an eligible distributor as 

part of their normal business operations. 

As the DDP was designed to only 

reimburse for transportation from the 

last point of ownership by the EDO, 

obtaining information on a distribution 

center location, where applicable, is 

necessary to determine the accurate 

transportation reimbursement. 

Accordingly, this final rule adds 

‘‘distribution center’’ as an additional 

entity type to the Claim Form in order 

to improve data accuracy and ensure 

proper reimbursement calculations. 

There is no requirement dictating the 

frequency of Claim Form submissions; 

therefore, any time after its Plan is 

approved, the EDO can submit Claim 

Forms for donations made. The EDO 

also must provide adequate 

documentation, which should be 

available through its normal business 

records, to verify the eligible distributor 

received the donated eligible dairy 

products. Such documentation could 


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10U.S. Energy Information Administration (EIA), 

2022; Gasoline and Diesel Fuel Update for 

December 5, 2022. https://www.eia.gov/petroleum/ 

gasdiesel/, accessed December 9, 2022. 

11United States Department of Transportation, 

2021; Combination Truck Fuel Consumption Data. 

https://www.bts.gov/browse-statistical-productsand-data/freight-facts-and-figures/combinationtruck-fuel-consumption, accessed August 23, 2021. 

include, but is not limited to, processing 

and shipping records, bills of lading, 

storage records, or receiving records 

from the eligible distributor. As 

specified in § 1147.208, AMS only 

collects the information and 

documentation needed to verify the 

EDO’s reimbursement claim. 

Section 762(d)(4) of the CAA allows 

the Secretary to make retroactive 

reimbursements to EDOs that donate 

eligible dairy products before their 

Plans are approved. As provided for in 

statute, eligible dairy products donated 

through the MDRP are eligible for 

supplemental reimbursement through 

DDP for donations made on or after 

January 1, 2020. To gain administrative 

efficiencies and streamline the two 

programs, donations of eligible dairy 

products through DDP beginning on the 

same date were also eligible for 

reimbursement by the interim final rule. 

Accordingly, § 1147.106(a)(3) provides 

for donations of eligible dairy products 

beginning on January 1, 2020, to be 

eligible for reimbursement. As described 

earlier, total reimbursement for 

donations made from January 1, 2020, 

through December 27, 2020, was capped 

at $50 million by the interim final rule. 

This cap was implemented to ensure 

equitable distribution of funds for that 

time period in case a large number of 

claims were submitted. Participating 

entities had 6 months to submit claims 

for this time period; only 20 claims were 

received and approximately $712,000 

was reimbursed. 

As authorized by section 762(d)(3)(B) 

of the CAA, AMS may verify the 

accuracy of supporting documentation 

with spot checks and audits under 

§ 1147.206. 

Under section 762(d)(2)(A) of the 

CAA, the Secretary shall set a 

reimbursement price that reflects the 

cost of the milk required to make the 

donated eligible dairy product, is 

between the FMMO Class I and Class IV 

minimum prices for the month of 

production, is sufficient to avoid food 

waste, and does not interfere with the 

commercial marketing of milk or dairy 

products. Section 1147.108 provides for 

reimbursement of three separate cost 

factors: (1) input cost—fluid milk 

product or bulk dairy commodity 

product milk-equivalent cost; (2) 

manufacturing cost of converting fluid 

milk into a product; and (3) 

transportation cost from the EDO to the 

eligible distributor. Section 1147.108(a) 

provides that reimbursements are the 

sum of the three cost factors. 

For the first of these factors, input 

cost, processors purchasing and 

processing fresh fluid milk products 

(raw milk, skim milk, cream, or 

concentrated fluid products), are 

reimbursed at the applicable FMMO 

minimum classified skim and butterfat 

values. Processors purchasing bulk 

dairy commodity products for further 

processing into eligible dairy products 

are reimbursed at the applicable FMMO 

minimum classified skim and butterfat 

values for the fluid milk equivalent 

contained in the bulk product. This 

value is determined by the milk’s end 

use (Class I for fluid milk products, 

Class II for soft products such as yogurt, 

Class III for cheese products, and Class 

IV for butter and powder products) 

pursuant to 7 CFR 1000.40 and the 

applicable classified price in effect for 

the month of production pursuant to 7 

CFR 1000.50. 

The manufacturing cost for processing 

fluid milk is represented by the 

applicable FMMO make allowances 

contained in 7 CFR 1000.50. The DDP 

uses the FMMO make allowances in the 

Class III and IV price formulas to reflect 

manufacturing costs for Class III and IV 

products, as they are based on surveyed 

cost data of wholesale Class III and IV 

products. The Department lacked data 

on manufacturing costs for Class I and 

II products. As such, the interim final 

rule adopted the lowest make 

allowance, Class IV, as the 

representative manufacturing costs and 

requested public comment on 

manufacturing costs for these classes of 

products. One comment was received. 

As explained in the Background section, 

the comment did not include full 

context on what the cost ranges 

represented. However, AMS finds it 

reasonable to conclude from the data 

submitted that Class I manufacturing 

costs are higher than the Class IV make 

allowance currently used. Upon further 

review, this final rule amends the Class 

I make allowance to be the average of 

the Class III and IV make allowances, as 

the Class I pricing formula is a function 

of the average of Class III and IV prices. 

Also discussed earlier, the Class IV 

make allowance will still apply for Class 

II products, as the Class II price is a 

function of the Class IV price. This final 

rule does not retroactively apply the 

amended make allowance for Class I 

products to reimbursements made prior 

to the implementation of this final rule. 

The new Class I make allowance will 

only apply to reimbursement of Class I 

products submitted after the 

implementation of this final rule. 

As explained in the Background 

section, the program does not reimburse 

additional processing costs for bulk 

products purchased and further 

processed. Processors purchasing bulk 

dairy commodity products for further 

processing receive the same 

manufacturing cost reimbursement as 

described above. Processors buy bulk 

product on a per-pound basis, and it is 

reasonable to conclude the price paid 

represented both the fluid milk value 

(which they are being reimbursed for as 

described earlier) and the cost to 

convert the fluid milk into the bulk 

commodity. Therefore, eligible dairy 

products made from bulk dairy 

commodity products are only eligible to 

receive the manufacturing cost 

reimbursement applicable to fluid milk. 

The transportation cost 

reimbursement is based on the U.S. 

monthly average diesel fuel price 10 for 

the month the donation was made, a 

fuel economy factor of 6.1 miles per 

gallon,11 and the shortest hard-surface 

distance from the last point of EDOownership of the product to the eligible 

distributor’s physical distribution 

location. The final rule clarifies that 

transportation cost reimbursement is 

from the last point of EDO-ownership, 

which does not necessarily mean from 

the plant where the product was 

produced. As a normal course of 

business, some processors transport 

product to an EDO-owned distribution 

center before delivering to the eligible 

distributor. To ensure efficient 

movements of product and proper 

application of transportation 

reimbursement, it is appropriate the 

EDO only receive reimbursement from 

the last point of ownership. 

Transportation reimbursement is only 

be paid if the EDO incurred the 

transportation cost, which is verified on 

audit. 

Section 762(h) of the CAA requires 

the Secretary to make supplemental 

reimbursements to EDOs receiving 

reimbursements under the MDRP from 

January 1, 2020, to the date when DDP 

program funds are no longer available. 

AMS recognizes an EDO under MDRP is 

also eligible under DDP. Further, 

eligible dairy products under MDRP 

also qualify as eligible dairy products 

under DDP (notably, fluid milk 

products). Since DDP reimburses at a 

higher rate than MDRP, a supplemental 

reimbursement is needed to properly 

use funds for and fulfill the purposes of 

both programs. Section 1147.109 

provides the process AMS follows to 

make a supplemental reimbursement to 

EDOs receiving reimbursement under 


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MDRP. EDOs with already approved 

Plans under MDRP were automatically 

enrolled in DDP when the program was 

implemented and received 

supplemental reimbursements equal to 

the difference they received under 

MDRP and the reimbursement they 

would be eligible to receive for the same 

products under DDP, calculated in 

§ 1147.108. New applicants to the DDP 

that donate fluid milk products will be 

automatically enrolled in MDRP. Upon 

approval, AMS makes reimbursements 

under the MDRP provisions and then 

supplemental reimbursements under the 

DDP provisions. 

Administrative Provisions 

This final rule continues the 

administrative provisions without 

change. 

Section 762(g) of the CAA requires 

AMS to publish donation activity for the 

program. Accordingly, § 1147.200 

provides that AMS periodically reports 

on its publicly accessible website the 

aggregated donation activity under this 

program. Such information includes 

types and volume of product donated, 

as well as remaining available funds. 

Since April 2022, AMS has posted 

reports quarterly on its website, along 

with the Plan and Claim Form templates 

to be submitted for program 

participation. 

Section 762(e) of the CAA prohibits 

the sale of eligible dairy products 

donated under the DDP back into 

commercial markets and specifies that 

eligible distributors who violate that 

prohibition will not be eligible for 

future participation in the DDP. Section 

1147.204 implements the statutory 

prohibition and penalty for violation. In 

addition, the program prohibits 

reimbursement for donated eligible 

dairy products made in conjunction 

with marketing or promotional events. 

Section 762(f) of the CAA directs the 

Secretary to conduct appropriate 

reviews or audits to ensure the integrity 

of the DDP. Under section 762(d)(3)(B) 

of the CAA, the Secretary is further 

authorized to verify the accuracy of 

submitted documentation through spot 

checks and audits. Section 1147.206 

provides that AMS verifies the proper 

delivery of and payment for donated 

eligible dairy products. Specifically, 

AMS ensures the donated eligible dairy 

products were delivered to the eligible 

distributor and the accuracy of the 

reimbursed value paid to the EDO. The 

section further provides for the review, 

audit, and spot checks of information 

submitted. 

As mentioned in the above 

discussions, § 1147.208 requires AMS to 

maintain confidentiality regarding 

information collected to administer the 

program and to use the information only 

for program purposes. 

A books and records provision is 

included in § 1147.209 to ensure the 

EDO maintains necessary records to be 

made available to AMS upon request in 

conjunction with an audit. 

Section 1147.210 specifies that dairy 

products sold or donated under any 

other USDA commodity purchase or 

donation program, other than the 

MDRP, are not eligible for 

reimbursement under the DDP. From 

time to time, USDA may purchase dairy 

products for use in nutrition assistance 

programs or other uses, but vendors are 

compensated for those purchases 

through funding under those program 

provisions. One of the main purposes of 

the DDP is to reduce food waste by 

encouraging the donation of additional 

dairy products through eligible 

distributors. Thus, EDOs who received 

compensation for dairy product 

purchases under other USDA programs 

may not receive reimbursements for the 

same dairy products under the DDP. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act (PRA) of 1995 (44 U.S.C. 

Chapter 35), AMS has requested 

approval of updated information 

collection and recordkeeping 

requirements for the DDP. AMS 

received no public comments on the 

Office of Management and Budget 

(OMB)-approved information collection 

portion of the interim final rule. AMS is 

now making three minor changes 

(described below) to lessen the burden 

on participants and increase 

administrative efficiencies. 

Title: Dairy Donation Program Final 

Rule. 

OMB Number: 0581–0327. 

Expiration Date of Approval: Pending. 

Type of Request: Approval of Updated 

Information Collection. 

Abstract: The Consolidated 

Appropriations Act of 2021 (CAA) 

mandated establishment of a Dairy 

Donation Program (DDP) to reimburse 

eligible dairy organizations (EDO) for 

milk used to make eligible dairy 

products donated to non-profit groups 

for distribution to recipient individuals 

and families. Under the program, EDOs 

account to a Federal milk marketing 

order (FMMO) by filing a report with an 

FMMO. Entities not already filing an 

FMMO report will be required to submit 

a Report of Receipts and Utilization. 

The information collection burden is 

being changed to allow the report to be 

submitted once rather than every month 

donated products are manufactured as 

was originally implemented. 

All EDOs must submit a Dairy 

Donation and Distribution Plan (Plan 

outlining their partnership(s) and 

products to be donated and, for each 

eligible distributor partner, an Eligible 

Distributor Certification Form 

(Certification Form) describing the 

process of transporting, storing, and 

distributing eligible product to an 

eligible distributor. Once approved, the 

EDO can file a Reimbursement Claim 

Form (Claim Form) to receive 

reimbursement for the donated eligible 

dairy products. Since the final rule 

allows for EDOs to include multiple 

partnerships on one Plan, whereas the 

interim final rule required EDOs to 

submit one Plan per partnership, the 

number of responses and reporting 

burden for the Plan will decrease. 

Further, due to this same change, the 

number of responses and reporting 

burden for the Claim Form will decrease 

because the EDO will no longer need to 

submit separate Claim Forms for each 

partnership. 

Dairy Donation and Distribution Plan 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 1 hour per 

response. 

Respondents: Eligible dairy 

organizations. 

Estimated Number of Respondents: 

150. 

Estimated Number of Responses: 150. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 150 hours. 

Eligible Distributor Certification Form 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 15 minutes per 

response. 

Respondents: Eligible distributors. 

Estimated Number of Respondents: 

300. 

Estimated Number of Responses: 300. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 75 hours. 

Reimbursement Claim Form 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 2 hours per 

response. 

Respondents: Eligible dairy 

organizations. 

Estimated Number of Respondents: 

150. 

Estimated Number of Responses: 600. 

Estimated Number of Responses per 

Respondent: 4. 

Estimated Total Annual Burden on 

Respondents: 1,200 hours. 


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12Mean hourly wage for a bookkeeping, 

accounting, and auditing clerk in 2021, according 

to the Bureau of Labor Statistics: https://

www.bls.gov/oes/current/oes433031.htm. 

Report of Receipts and Utilization 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 1 hour per 

response. 

Respondents: Eligible dairy 

organizations. 

Estimated Number of Respondents: 

15. 

Estimated Number of Responses: 15. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 15 hours. 

Comments: No comments were 

received on the information collection 

in the interim final rule. 

In the interim final rule, AMS 

estimated 150 respondents would form 

2 partnerships on average for a total of 

300 partnerships. In the first fiscal year 

of program operation, there were 

approximately 120 respondents that 

formed 280 partnerships. 

Each EDO is required to submit a 

Plan, which can cover multiple 

partnerships with that EDO, and a 

Certification Form for each eligible 

distributor partner. These forms only 

need to be submitted once; there will 

not be an annual renewal requirement. 

AMS estimates 1 hour to complete a 

Plan. Accompanying the Plan, the EDO 

will be required to complete a 

Certification Form, which AMS 

anticipates will take 15 minutes. 

AMS estimates 10 percent of the 150 

EDO participants do not already account 

to an FMMO by filing a report. 

Therefore, approximately 15 

respondents will need to account to an 

FMMO by filing a Report of Receipts 

and Utilization Form. All other EDOs 

have accounted to an FMMO through 

their normal report filing based on their 

existing association with an FMMO. 

AMS estimates 1 hour to complete the 

form. Filing of this form will not cause 

an EDO to become regulated by an 

FMMO. 

Claim Forms can be submitted any 

time after Plan approval and will be 

processed on at least a quarterly basis. 

AMS estimated that to capture 

efficiencies respondents will submit 

Claim Forms no more than once per 

quarter and it will take 2 hours to 

complete the form per quarter. 

Assuming the reporting burden will 

be completed by an administrative 

assistant employee, at an hourly salary 

rate of $21.70 12, AMS estimates the 

following annual reporting costs per 

participant, assuming two eligible 

distributor partners per EDO: for the 

first year of participation, the 

annualized cost is $206.15 (one Plan, 

two Certification Forms, and four Claim 

Forms); for the subsequent years of 

participation, the annualized cost is 

$173.60 (four Claim Forms). Entities 

needing to account to an FMMO by 

filing a Report of Receipts and 

Utilization Form will experience an 

additional annual burden of $21.70 in 

the first year only (one response). EDOs 

also are required to maintain books and 

records for 3 years to be made available 

to AMS upon request in conjunction 

with an audit to verify the donations the 

EDO received reimbursement for were 

made. These records are part of normal 

business records and do not require 

additional records to be created. Such 

records include production records to 

verify yield computations and product 

code dates for donated manufactured 

products, or delivery documentation to 

verify the EDO incurred a transportation 

expense. 

E-Government Act 

USDA is committed to complying 

with the E-Government Act (44 U.S.C. 

3601, et seq.) by promoting the use of 

the internet and other information 

technologies to provide increased 

opportunities for citizen access to 

Government information and services, 

and for other purposes. Forms can be 

found at http://www.ams.usda.gov/ddp 

and filed through email at ddp@

usda.gov. 

Statutory and Regulatory Authority 

Section 762 of the Consolidated 

Appropriations Act of 2021 mandates 

that AMS establish and administer a 

Dairy Donation Program (7 CFR part 

1147). The program is intended to 

facilitate the timely donation of eligible 

dairy products and prevent and 

minimize food waste. 

Executive Orders 12866 and 13563 

USDA is issuing this rule in 

conformance with Executive Orders 

12866 and 13563, which direct agencies 

to assess all costs and benefits of 

available regulatory alternatives and, if 

regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health, 

and safety effects; distributive impacts; 

and equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. AMS has 

determined this action, mandated by 

Congress, meets the requirements set 

forth in the Consolidated 

Appropriations Act of 2021 to facilitate 

donation of eligible dairy products and 

prevent and minimize food waste. 

The interim final rule sought public 

comment on the economic impacts of 

this action on the industry, including 

availability of information or data that 

may demonstrate if and how DDP 

reimbursements affect the market. As 

discussed earlier, AMS received four 

comments, of which three were germane 

to this rulemaking. One comment was 

received on manufacturing costs for 

Class I and II products. Another 

comment requested additional 

flexibility concerning reporting 

requirements. One additional comment 

expressed support of the positive 

economic impact the program has on 

the dairy industry and consumers alike. 

Regarding regional economic 

differences, AMS considered alternative 

methods for allocating available funds 

under the program, including whether 

to allocate reimbursements equally 

across all the geographic areas of the 

United States or to target specific 

regions in need of milk donations. 

Ultimately, AMS determined that 

because the program’s primary purpose 

is to reduce waste associated with the 

disposition of surplus milk, the industry 

would be best served by allowing those 

with the capacity to process surplus 

milk and who are in a position to make 

donations to apply for the program 

without consideration of geographic 

location. 

AMS continues to find that this rule 

does not have any quantified cost or 

benefits, rather the rule results in 

transfers consistent with the following 

table, adjusted from the interim final 

rule with actual expenditures during the 

first fiscal year of program operation 

and accordingly, an expanded range for 

the time period covered. As participants 

become more accustomed to the 

program and due to the decreased 

burden for participants in subsequent 

years after their Plans are approved, 

AMS reasonably expects the transfer 

value to increase 25 percent, year-overyear, for the first 7 years, and held 

constant in the out years. 


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13This figure represents Reimbursement Claims 

submitted in the first year of DDP operation 

(October 1, 2021, through Sept 30, 2022), for 

product donated from January 1, 2020, to 

September 30, 2022. 

TABLE 1—ACCOUNTING STATEMENT

Primary 

estimate 

Year 

dollar 

Discount 

rate 

(%) 

Period 

covered 

Benefits— 

Annualized Monetized ($millions/year) ................................................. 0 

0 

2022 

2022 

7 

3 

FY 2022–2038 

Costs— ........................ ........................ ........................ FY 2022–2038 

Annualized Monetized ($millions/year) ................................................. 0 

0 

2022 

2022 

7 

3 

............................

........................ ........................ ........................ ............................

Transfers—From the Federal Government to an eligible partnership 

Annualized Monetized ($millions/year) ................................................. $21.04 

$21.84 

2022 

2022 

7 

3 

FY 2022–2038 

As the program is voluntary, eligible 

partnerships are expected to participate 

if they deem it beneficial depending on 

their individual circumstances. The 

transfers will be reimbursements in the 

form of Federal payments to program 

participants to help offset costs 

associated with eligible dairy product 

donations. 

In the normal course of transporting, 

delivering, and processing milk, a small 

volume of milk is ‘‘lost’’ each month. In 

the FMMO system, ‘‘normal losses’’ are 

estimated to be 0.25 percent of the total 

participating milk annually. Under 

certain conditions, an additional 

volume of milk cannot make it to market 

due to extraordinary circumstances, 

such as extreme weather, plant capacity 

issues, and market disruptions. This 

volume above ‘‘normal losses’’ is 

identified as ‘‘excess losses’’ in this 

analysis. 

According to FMMO statistics, 

‘‘excess losses’’ averaged 0.08 percent of 

the annual volume of milk participating 

in the FMMO program from 2015 

through 2019, excluding the outlying 

pandemic-influenced years of 2020 and 

2021. During these years, the COVID–19 

pandemic resulted in higher levels of 

milk not making it to market, amounting 

to 0.32 and 0.27 percent, respectively, of 

the milk that participated in the FMMO 

program. In the interim final rule, AMS 

included 2020 in the ‘‘excess loss’’ 

average, but 2020 distorted the value, 

leading to an overestimate of the 

amount of milk available to be made 

into donated products for normal years. 

In conducting an economic analysis, 

AMS presumed milk classified as 

‘‘excess losses’’ could be made into 

eligible dairy products and donated 

under the DDP. 

To estimate the volume of excess milk 

potentially donated under the program 

in this final rule, a 5-year average rate 

of 0.08 percent for 2015–2019 period is 

applied to the projected 2023 U.S. milk 

production volume. Under this 

assumption, approximately 183 million 

pounds of milk would be available for 

dairy processors to make into eligible 

dairy products for donation to eligible 

distributors. As in the interim final rule, 

AMS lacks data to estimate the amount 

of bulk commodity product available for 

secondary processors to purchase and 

further process into eligible dairy 

products for donation to eligible 

distributors, so that scenario is not 

considered in the economic analysis. 

AMS estimated the amounts of 

butterfat and skim solids in the 

forecasted product volumes available for 

donation. The product mix includes 

fluid milk, soft products, cheese, butter, 

and nonfat dry milk powder volumes, 

based on the volume of available dairy 

farmer milk. The set of products utilizes 

nearly all the butterfat and skim solids 

present in the milk available for 

donation. In the case of butter and 

nonfat dry milk powder, both products 

can be made from a given amount of 

milk. Butter requires a large amount of 

butterfat, while powder utilizes very 

little butterfat but a large amount of the 

nonfat solids. 

The DDP reimburses EDOs for eligible 

dairy product donations for the input 

cost paid for the fluid milk or bulk dairy 

commodity product, manufacturing 

cost, and transportation cost. In the 

interim final rule, AMS estimated the 

maximum annual reimbursement value 

given the program’s parameters that 

total reimbursement must be between 

the highest FMMO Class I value (Dade 

County, Florida) and the Class IV value 

(assumed the lowest classified value). 

Using the same methodology, AMS 

estimates a maximum reimbursement 

value of $63 million, using forecasted 

2023 FMMO class prices and volume 

available for donation based on the .08 

percent excess loss assumption and 

USDA’s November 2022 World 

Agricultural Supply and Demand 

Estimates (WASDE). 

In practice, AMS expects actual 

reimbursement expenditures to be 

lower. During the first year of operation, 

DDP expended $5,834,353,13

representing 22,562,669 pounds of 

donated dairy products (equivalent to 

27,576,312 milk pounds). Therefore, for 

this final rule, AMS determines it more 

appropriate to estimate annual DDP 

expenditures based on actual spending. 

Accordingly, expenditures are estimated 

to be 125 percent of the previous year 

and held constant after 7 years. This is 

a reasonable assumption given reduced 

participant burden and increased 

awareness and familiarity with the 

program is expected to increase 

participation. 

In addition, normal fluctuation in 

market prices may contribute to 

increased donations in times of low 

milk prices, and subsequently higher 

program expenditures. For example, it is 

normal for excess milk to be made into 

storable products such as butter. 

Relatively high butter prices in 2022 

indicated a tight butter market resulting 

in excess milk made into butter to be 

sold in the marketplace instead of 

donated through the DDP. USDA 

expects butter prices to be lower in 

2023, as compared to 2022, due to 

weaker demand and lower international 

prices, thus increasing DDP 

expenditures as the possibility rises that 

surplus milk used for butter is made 

available for donation. 

As described above, AMS estimates 

that 183 million pounds (0.08 percent of 

projected 2023 production) of excess 

milk could be available to be processed 

and donated through the DDP. 

Consequently, AMS does not anticipate 

this small additional processing volume 

will impact milk prices. AMS 

anticipates dairy processors already 

donating dairy products to non-profit 

feeding organizations will become 

eligible for reimbursement through DDP. 

These donations are not new production 


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volume to be priced as they represent 

dairy products already processed and 

priced somewhere in the dairy supply 

chain. The DDP does not intend to 

reimburse for the full cost of processing 

and delivering donated dairy products 

but rather encourages excess milk to be 

used. 

This program is expected to have a 

negligible impact on retail dairy product 

sales. Typically, populations that 

receive dairy products from non-profit 

feeding organizations do so when they 

cannot buy dairy products at retail 

outlets. Since the DDP reimbursement 

rate does not cover all processing and 

transportation costs it is not a 

financially prudent decision to divert 

milk from retail outlets to donations. 

The following table provides examples 

of costs included and excluded from 

reimbursement under the DDP. This is 

not an all-inclusive listing but is 

intended to demonstrate how dairy 

product donations through this program 

are not expected to be a substitute for 

retail dairy product sales. 

TABLE 2—EXAMPLES OF COSTS INCLUDED AND EXCLUDED

Cost factor Includes Does NOT include 

Input .................................................. • Minimum classified price of milk used in the donated eligible dairy product.• Any contractually obligated monies, over the minimum classified value, due to producers. 

• Assessments for promotion and research programs, if applicable. 

Manufacturing ................................... • Applicable FMMO manufacturing make allowance, representative of the following costs:.• Additional ingredient costs (i.e., fruit for fruit-flavored yogurt). 

• Processing Labor .................................................. • Storage and inventory costs. 

• Utilities ................................................................... • Costs of participating in the mandatory Dairy 

Product Mandatory Reporting Program. 

• Non-Labor .............................................................

• General and Administrative ...................................

• Packaging into a commodity volume ....................

Transportation ................................... • Fuel: Shortest hard surface mileage * monthly 

diesel price * 6.1 miles per gallon.

• Vehicle maintenance. 

• Vehicle depreciation. 

• Licensing and other administrative fees. 

In addition, DDP is a voluntary 

program and reimbursements occur after 

donations are made. Donations made 

through this program are made privately 

without donation volumes being 

announced in advance, reducing the 

impact on dairy markets compared to 

making advanced announcements on 

expected donation volume. 

Regulatory Flexibility Analysis 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act (5 

U.S.C. 601–612), AMS has considered 

the economic impact of the action on 

small entities. Accordingly, AMS 

prepared this Regulatory Flexibility 

Analysis (RFA). 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

businesses subject to such actions so 

small businesses will not be unduly or 

disproportionately burdened. Small 

dairy farms are defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those businesses having 

annual gross receipts of $3.75 million or 

less. The SBA’s definition of small 

agricultural service firms, which 

includes dairy processors, varies based 

on the type of dairy product 

manufactured. Small dairy processors 

are defined as having between 750 and 

1,250 or fewer employees depending on 

the products made. 

According to the 2017 USDA National 

Agricultural Statistics Service (NASS) 

Census Report, the most recent report, 

there were 39,303 farms with milk sales. 

AMS estimates 36,158 farms, or 92 

percent, are considered small 

businesses. Dairy farmers of all sizes 

may benefit from the program as it 

encourages donations of dairy products 

which contain milk purchased from 

them. DDP is designed to reduce food 

waste by providing alternative outlets 

for milk to be utilized in donated 

products instead of being dumped due 

to oversupply. Often milk is dumped 

from smaller dairy farms that are more 

costly to service because their pickups 

may be less than a full tanker load and/ 

or they may be located farther from 

major trucking routes. By providing cost 

reimbursement for donated products, 

the DDP incentivizes processors to pick 

up and process the milk into products 

for donation rather than having it 

dumped. 

AMS estimates approximately 3,000 

plants, owned by approximately 1,500 

entities, manufacture dairy products in 

the United States. According to AMS 

calculations, about 10 percent are 

operated by dairy farmer cooperatives, 

while the remaining are independently 

owned. AMS believes 1,500 to be the 

universe of EDOs that could participate 

in the DDP. Of the potential EDOs, 90 

percent would be considered small 

businesses based on total employee 

numbers. 

Participating in the DDP will not 

unduly or disproportionately burden 

small dairy processing entities. All 

entities, regardless of size, can apply for 

the program if they file a report with an 

FMMO and incur a qualified expense as 

defined by program provisions. Program 

provisions are administered without 

regard to business size. The paperwork 

required to participate asks for 

information that is part of normal 

business records. 

The definition of an eligible 

distributor is a public or private nonprofit feeding organization that 

distributes or coordinates distribution of 

donated eligible dairy products to 

recipient individuals and families. 

Eligible distributors, regardless of size, 

can voluntarily participate in the DDP if 

they form a partnership with an EDO. 

The information collection burden for 

eligible distributors is minimal as they 

must only complete the Certification 

Form with the partnering EDO. The 

voluntary nature of the program allows 

any eligible distributor to stop 

participating if they find the program 

causes an undue or disproportionate 

burden. 

AMS has determined this program 

does not have a significant economic 

impact on small entities. Program 

provisions are applied uniformly to both 

large and small businesses and are not 

expected to burden small entities 

unduly or disproportionately. 

Executive Order 13175 

In the interim final rule, AMS 

assessed the impact of this program on 


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Indian Tribes and determined it would 

not have Tribal implications requiring 

consultation under Executive Order 

13175. Since the final rule does not 

include any changes affecting Tribal 

implications of the DDP, additional 

review is not necessary. Executive Order 

13175 requires Federal agencies to 

consult and coordinate with Tribes on a 

government-to-government basis on: (1) 

policies that have Tribal implication, 

including regulation, legislative 

comments, or proposed legislation; and 

(2) other policy statements or actions 

that have substantial direct effects on 

one or more Indian Tribes, on the 

relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

Tribal governments operating nonprofit organizations feeding recipient 

individuals and families can qualify as 

eligible distributors and thus benefit 

from participation in the DDP. The 

regulatory burden from participating is 

minimal, estimated at 15 minutes for 

completing an Eligible Distributor 

Certification Form. 

AMS hosts a quarterly teleconference 

with Tribal leaders where matters of 

mutual interest regarding the marketing 

of agricultural products are discussed. 

Information about the final rule will be 

shared in an upcoming quarterly call. 

AMS will continue to work with the 

USDA Office of Tribal Relations to 

ensure meaningful consultation is 

provided as needed with regards to the 

DDP. 

Executive Order 12988 

The interim final rule was reviewed 

under Executive Order 12988—Civil 

Justice Reform. Since the final rule does 

not include any changes affecting the 

civil justice implications of the DDP, 

additional review is not necessary. This 

final rule may have a retroactive effect. 

Claims submitted after the effective date 

of this final rule for donations made 

starting January 1, 2020, are eligible for 

reimbursement under this rule’s 

amended provisions if the eligible 

partnership’s Dairy Donation and 

Distribution Plan is approved and if the 

partnership met all other program 

requirements. Dairy donations made 

prior to 2020 are not eligible for 

reimbursement under the program. The 

provisions amended by this final rule 

are not retroactive to Claims already 

submitted and processed prior to this 

rule’s effective date. There are no 

administrative procedures that must be 

exhausted prior to judicial challenges to 

the provisions of this rule. The DDP 

does not preempt any state or local 

laws, regulations, or policies, unless 

they present an irreconcilable conflict 

with this rule. 

Civil Rights Review 

AMS considered the potential civil 

rights implications of this rule on 

minorities, women, and persons with 

disabilities to ensure no person or group 

shall be discriminated against on the 

basis of race, color, national origin, 

gender, religion, age, disability, sexual 

orientation, marital or family status, 

political beliefs, parental status, or 

protected genetic information. This 

review included persons that are 

employees of the entities who are 

subject to these regulations. This final 

rule does not require affected entities to 

relocate or alter their operations in ways 

adversely affecting such persons or 

groups. Further, this rule does not deny 

any persons or groups the benefits of the 

program or subject any persons or 

groups to discrimination. 

AMS found no evidence this 

voluntary program and the associated 

final rule causes adverse or 

disproportionate impacts on minorities, 

women, and persons with disabilities. 

The AMS analysis found no evidence of 

potential impacts affecting dairy farmers 

or processors in any protected groups, 

or that these impacts will be different 

than any participating general 

population of dairy farmers and 

processors. 

Executive Order 13132 

AMS examined the effects of 

provisions in this final rule on the 

relationship between the Federal 

Government and the States, as required 

by Executive Order 13132 on 

‘‘Federalism.’’ The DDP reimburses 

EDOs for eligible dairy products 

donated to eligible distributors. The 

DDP does not preempt any State or local 

laws, regulations, or policies pertaining 

to the sale, manufacturing or 

distribution of milk or dairy products 

within States. 

List of Subjects 

7 CFR Part 1146 

Milk, Donations, Reporting and 

recordkeeping requirements. 

7 CFR Part 1147 

Dairy, Donations, Food waste, 

Emergency, Reporting and 

recordkeeping requirements. 

For the reasons set forth in the 

preamble, 7 CFR chapter X is amended 

as follows: 

PART 1146—MILK DONATION 

REIMBURSEMENT PROGRAM 

■ 1. The authority for part 1146 

continues to read as follows: 

Authority: Sec. 1431, Pub. L. 113–79, 128 

Stat. 695, as amended. 

■ 2. Amend § 1146.102 by revising 

paragraph (a) to read as follows: 

§ 1146.102 Dairy donation and distribution 

plans. 

* * * * * 

(a) The physical address(es) of the 

eligible dairy organization’s processing 

plant(s), co-pack facility(ies), and 

distribution center(s), and the eligible 

distributor’s distribution site(s); 

* * * * * 

■ 3. Amend § 1146.106 by revising 

paragraph (a)(1)(ii) to read as follows: 

§ 1146.106 Reimbursement Claims. 

(a) * * * 

(1) * * * 

(ii) The physical address(es) of the 

plant(s) or co-pack facility(ies) that 

processed and, if applicable, 

distribution center(s) that stored the 

donated dairy products; 

* * * * * 

PART 1147—DAIRY DONATION 

PROGRAM 

■ 4. The authority for part 1147 

continues to read as follows: 

Authority: Sec. 762, Pub. L. 116–260, 134 

Stat. 1182. 

■ 5. Amend § 1147.102 by revising 

paragraph (a) to read as follows: 

§ 1147.102 Dairy donation and distribution 

plans. 

* * * * * 

(a) The physical address(es) of the 

eligible dairy organization’s processing 

plant(s), co-pack facility(ies), and 

distribution center(s), and the eligible 

distributor’s distribution site(s); 

* * * * * 

■ 6. Amend § 1147.106 by revising 

paragraph (a)(1)(ii) to read as follows: 

§ 1147.106 Reimbursement Claims. 

(a) * * * 

(1) * * * 

(ii) The physical address(es) of the 

plant(s) or co-pack facility(ies) that 

processed and, if applicable, 

distribution center(s) that stored the 

donated dairy products; 

* * * * * 

■ 7. Amend § 1147.108 by revising 

paragraphs (a)(2)(i) and (a)(3)(iii) to read 

as follows: 

§ 1147.108 Reimbursement calculation. 

(a) * * * 


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Federal Register / Vol. 88, No. 163 / Thursday, August 24, 2023 / Rules and Regulations 57873 

(2) * * * 

(i) If a Class I product, the simple 

average of the Class III and Class IV 

manufacturing allowances applies; 

* * * * * 

(3) * * * 

(iii) The fuel economy rate of 6.1 

miles per gallon. 

* * * * * 

§ 1147.212 [Removed] 

■ 8. Remove § 1147.212. 

Erin Morris, 

Associate Deputy Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2023–18148 Filed 8–23–23; 8:45 am] 

BILLING CODE P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Parts 1, 2, 26, 32, 40, 50, 51, 

52, 72, and 73 

[NRC–2022–0216] 

RIN 3150–AK92 

Miscellaneous Corrections 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Final rule. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is amending its 

regulations to make miscellaneous 

corrections. These changes include 

updating organizational information, 

revising an address, and correcting 

reference, spelling, and grammatical 

errors. The amendments also make 

updates to replace gendered terms with 

inclusive, gender-neutral language. This 

document is necessary to inform the 

public of these non-substantive 

amendments to the NRC’s regulations. 

DATES: This final rule is effective on 

September 25, 2023. 

ADDRESSES: Please refer to Docket ID 

NRC–2022–0216 when contacting the 

NRC about the availability of 

information for this action. You may 

obtain publicly available information 

related to this action by any of the 

following methods: 

• Federal Rulemaking website: Go to 

https://www.regulations.gov and search 

for Docket ID NRC–2022–0216. Address 

questions about NRC dockets to Dawn 

Forder; telephone: 301–415–3407; 

email: Dawn.Forder@nrc.gov. For 

technical questions, contact the 

individual listed in the FOR FURTHER

INFORMATION CONTACT section of this 

document. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): You may obtain publicly 

available documents online in the 

ADAMS Public Documents collection at 

https://www.nrc.gov/reading-rm/ 

adams.html. To begin the search, select 

‘‘Begin Web-based ADAMS Search.’’ For 

problems with ADAMS, please contact 

the NRC’s Public Document Room (PDR) 

reference staff at 1–800–397–4209, at 

301–415–4737, or by email to 

PDR.Resource@nrc.gov. 

• NRC’s PDR: The PDR, where may 

examine and order copies of publicly 

available documents, is open by 

appointment. To make an appointment 

to visit the PDR, please send an email 

to PDR.Resource@nrc.gov or call 1–800– 

397–4209 or 301–415–4737, between 8 

a.m. and 4 p.m. eastern time, Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Krupskaya Castellon, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001; telephone: 301–287– 

9221, email: Krupskaya.Castellon@

nrc.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. Summary of Changes 

III. Rulemaking Procedure 

IV. Backfitting and Issue Finality 

V. Plain Writing 

VI. National Environmental Policy Act 

VII. Paperwork Reduction Act 

VIII. Congressional Review Act 

IX. Compatibility of Agreement State 

Regulations 

I. Introduction 

The NRC is amending its regulations 

in parts 1, 2, 26, 32, 40, 50, 51, 52, 72, 

and 73 of title 10 of the Code of Federal 

Regulations (10 CFR). The NRC is 

making these amendments to update 

organizational information, revise an 

address, and correct reference, spelling, 

and grammatical errors. This rule also 

makes updates to replace gendered 

terms with inclusive, gender-neutral 

language. 

II. Summary of Changes 

10 CFR Part 1 

Update Organization and Functions. 

In § 1.42 concerning the Office of 

Nuclear Material Safety and Safeguards, 

this final rule revises the introductory 

text for paragraph (b)(26). The rule also 

revises paragraph (b)(30) to list financial 

assurance activities and adds a new 

paragraph (b)(33) to list duties for 

environmental activities. This final rule 

updates the regulations to align more 

closely with Commission direction in 

SRM–SECY–15–0143, ‘‘Project Aim and 

Centers of Expertise,’’ dated February 

22, 2016 (Agencywide Documents 

Access and Management System 

ML16053A500) regarding Centers of 

Expertise. 

Update Organizational Functions. In 

§ 1.43, this final rule moves 

responsibility for review and evaluation 

related to reactor facilities insurance, 

indemnity, and antitrust matters from 

the Office of Nuclear Reactor Regulation 

to the Office of Nuclear Material Safety 

and Safeguards. 

10 CFR Part 2 

Revise Nomenclature. This final rule 

revises 10 CFR part 2 to replace 

gendered terms with inclusive, genderneutral language. 

Correct Reference. In § 2.1202(a)(1), 

this final rule removes the incorrect 

reference to 10 CFR 50.12 and replaces 

it with the correct reference 10 CFR 

50.10. 

10 CFR Parts 26, 50, 52, and 73 

Revise Street Address. This final rule 

amends §§ 26.11, 50.4(a), 52.3(a), and 

73.4(b) to add the mailing zip code for 

the hand delivery method for 

communications. 

10 CFR Part 32 

Correct Reference. In 10 CFR 

32.72(a)(2)(i), this final rule removes the 

incorrect reference to 21 CFR 207.20 

and replaces it with the correct 

reference 21 CFR 207.17(a). 

10 CFR Part 40 

Correct Spelling. This final rule 

amends Appendix A to part 40 to 

remove the text ‘‘meterology’’ and add 

in its place the text ‘‘meteorology.’’ 

10 CFR Part 50 

Correct Typographical Error. This 

final rule removes a duplicative phrase 

in the introductory text of 

§ 50.55a(b)(2)(xliii). 

Correct Reference. This final rule 

reverts an inadvertent change to a 

reference in Appendix H paragraph 

III.B.1 that occurred during a direct final 

rulemaking (85 FR 62199) by removing 

the incorrect reference to ASTM E 185 

and replacing it with ASTM E 185–82. 

10 CFR Part 51 

Correct Reference. In § 51.77(a), this 

final rule removes the incorrect 

reference to appendix M and replaces it 

with the correct reference subpart F. 

10 CFR Part 72 

Correct Spelling. This final rule 

amends § 72.3 to remove the text 

‘‘radioacive’’ and add in its place the 

text ‘‘radioactive.’’ 


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