[Federal Register Volume 73, Number 18 (Monday, January 28, 2008)]
[Proposed Rules]
[Pages 4762-4763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1433]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 73, No. 18 / Monday, January 28, 2008 / 
Proposed Rules  

[[Page 4762]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1160

[Docket No. AMS-DA-07-0156; DA-07-05]


National Fluid Milk Processor Promotion Program: Invitation To 
Submit Comments on Proposed Amendments to the Fluid Milk Promotion 
Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This document invites comments on a proposed amendment to the 
Fluid Milk Promotion Order (Order). The proposed amendment, requested 
by the National Fluid Milk Processor Promotion Board (Board), which 
administers the Order, would reduce the burden of late-payment charges 
applied to processors who underreport the amount of assessments which 
they owe to the Board, provided that the processor has not made more 
than two reporting errors in the prior 12 months. This amendment would 
reduce the burden of late-payment charges on processors who underpay 
assessments due to unintentional errors or miscalculations. The Board 
believes the late-payment charge is a necessary provision of the Order 
to encourage payment by all processors subject to the assessment and 
helps ensure the receipt of assessments owed to the Board. However, the 
Board also believes that there are instances when unintentional errors 
and miscalculations occur, and in such cases, the late-payment charge 
could be viewed as excessive. All other provisions of the Order would 
remain unchanged.

DATES: Comments must be submitted on or before February 27, 2008.

ADDRESSES: Comments on this proposed rule should be identified with the 
docket number AMS-DA-07-0156; DA-05-07. Commenters should identify the 
date and page number of the issue of the Proposed Rule. Interested 
persons may comment on this proposed rule using any of the following 
procedures:
     Mail: Comments may be submitted by mail to Whitney A. 
Rick, Chief, Promotion and Research Branch, Dairy Programs, AMS, USDA, 
1400 Independence Ave., SW., Room 2958-S, Stop 0233, Washington, DC 
20250-0233.
     Internet: www.regulations.gov.
    All comments to this proposed rule, submitted by the above 
procedures will be available for viewing at: www.regulations.gov, or at 
USDA, AMS, Dairy Programs, Promotion and Research Branch, Room 2958-S, 
1400 Independence Ave., SW., Washington, DC, from 9 a.m. to 4 p.m., 
Monday through Friday, (except on official Federal holidays). Persons 
wanting to view comments in Room 2958-S are requested to make an 
appointment in advance by calling (202) 720-6909.

FOR FURTHER INFORMATION CONTACT: Whitney A. Rick, Chief, Promotion and 
Research Branch, Dairy Programs, AMS, USDA, 1400 Independence Ave., 
SW., Room 2958-S, Stop 0233, Washington, DC 20250-0233. Phone: (202) 
720-6909. E-mail: [email protected].

SUPPLEMENTARY INFORMATION: The Fluid Milk Promotion Order is issued 
under the Fluid Milk Promotion Act as amended [7 U.S.C. 6401-6417].

Executive Order 12866

    The Office of Management and Budget has waived the review process 
required by Executive Order 12866 for this action.

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This proposed rule is not intended to have a 
retroactive effect. If adopted, this rule would not preempt any State 
or local laws, regulations, or policies unless they present an 
irreconcilable conflict with this rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under section 1999K of the Act, 
any person subject to the Order may file with the Secretary a petition 
stating that the Order, any provision of the Order, or any obligation 
imposed in connection with the Order is not in accordance with the law 
and request a modification of the Order or to be exempted from the 
Order. Such person is afforded the opportunity for a hearing on the 
petition. After a hearing, the Secretary would rule on the petition. 
The Act provides that the district court of the United States in any 
district in which the person is an inhabitant, or has his principal 
place of business, has jurisdiction to review the Secretary's ruling on 
the petition, provided a complaint is filed not later than 20 days 
after the date of the entry of the ruling.

Regulatory Flexibility Act

    The Agricultural Marketing Service (AMS) has determined that this 
rule will not have a significant economic impact on a substantial 
number of small entities, as defined by the Regulatory Flexibility Act 
(5 U.S.C. 601-612). The proposed rule imposes no new burden on the 
industry but will in fact reduce late-payment charges applied to 
processors who underreport the amount of assessments which they owe to 
the Board provided that the processors have not made more than two 
reporting errors in the prior 12 months.
    Small businesses in the fluid milk processing industry have been 
defined by the Small Business Administration as those processors 
employing not more than 500 employees. For purposes of determining a 
processor's size, if the plant is part of a larger company operating 
multiple plants that collectively exceed the 500-employee limit, the 
plant will be considered a large business even if the local plant has 
fewer than 500 employees. As of June 2007, there were approximately 100 
fluid milk processors subject to the provisions of the Order. Most of 
these processors are considered small entities.

Paperwork Reduction Act

    Information collection requirements and recordkeeping provisions 
contained in 7 CFR part 1250 have been previously approved by the 
Office of Management and Budget and assigned OMB Control No. 0581-0093 
under the Paperwork Reduction Act of 1980.

Background and Proposed Changes

    The Fluid Milk Promotion Order (7 CFR Part 1160) is authorized 
under the Fluid Milk Promotion Act of 1990 (Act) (7 U.S.C. 6401-6417). 
The Order in section 1160.211(a)(1) provides that each fluid milk 
processor shall pay to the Board an assessment of $0.20 per 
hundredweight on fluid milk products

[[Page 4763]]

processed and marketed commercially in consumer-type packages in the 
United States by such fluid milk processors. The Order further provides 
in section 1160.213 that if the Board or the Secretary determines 
through an audit of a processor's reports, records, books or accounts 
or through some other means that additional money is due to the Board, 
the Board is to notify that processor of the amount due or overpaid. If 
the processor owes money to the Board, the processor is to remit the 
underpaid amount by the next due date as provided in section 1160.211 
of the Order. If the processor has overpaid, that amount is credited to 
the processor's account and applied against amounts due in succeeding 
months.
    At the request and on behalf of the Board, Milk Market 
Administrators verify the total pounds of fluid milk products processed 
and commercially marketed in consumer-type packages (excluding 
delivering directly to the residence of a consumer) that were reported 
to the Board by the milk processors. Total fluid milk products are the 
sum of fluid milk product route sales and packaged fluid milk products 
sold to any other plant, less any fluid milk products purchased from 
other plants. The results of the Market Administrators' verification 
are forwarded to the Board, and, in accordance with section 
1160.214(a), any unpaid assessments are increased by 1.5 percent each 
month beginning with the day following the date such assessments were 
due.
    The Board has proposed an amendment to section 1160.213 of the 
Order so that processors who mistakenly underreport their pounds of 
fluid milk processed and marketed commercially (excluding direct 
delivery to the residence of a consumer) will not be required to pay 
late-fee charges on additional assessments owed the Board provided: (1) 
That no more than two erroneous reports have occurred in the preceding 
12-month period and; (2) the processor pays its past due assessments 
not later than the last day of the month following notification by the 
Board that additional assessments are due. If more than two erroneous 
reports have occurred in the preceding 12-month period or the processor 
fails to submit a past due assessment when notified, late-payment 
charges will be assessed in accordance with section 1160.214 of the 
Order. This amendment would reduce the burden of late-payment charges 
in instances of assessment miscalculations.
    The Board believes the late-payment charge is a necessary provision 
of the Order to encourage payment by all processors subject to the 
assessment and helps ensure receipt of assessments owed to the Board. 
However, the Board believes that the late-payment charge could be 
viewed as excessive when applied to processors in instances of 
unintentional errors and miscalculations. The proposed amendment to the 
Order would not add any additional burden to the regulated parties 
because it relates only to provisions concerning adjustment of 
accounts.
    In fact, the proposed rule would amend the Order to reduce the 
burden of late-fee charges applied to processors who underreport due to 
unintentional errors and miscalculations.
    A thirty day comment period is provided for interested persons to 
comment on this proposed action. All comments received by February 27, 
2008 will be considered. A thirty day period for public comment is 
deemed appropriate in order to implement the proposed changes, if 
adopted, as soon as possible.

List of Subjects in 7 CFR Part 1160

    Fluid milk, Milk, Promotion.

    For the reasons set forth in the preamble, it is proposed that 7 
CFR part 1160 be amended as follows:

PART 1160--FLUID MILK PROMOTION PROGRAM

    1. The authority citation for 7 CFR part 1160 continues to read as 
follows:

    Authority: 7 U.S.C. 6401-6417.

    2. Section 1160.213 is revised to read as follows:


Sec.  1160.213  Adjustment of accounts.

    Whenever the Board or the Secretary determines through an audit of 
a processor's reports, records, books or accounts or through some other 
means that additional money is due the Board or to such processor from 
the Board, the Board shall notify that person of the amount due or 
overpaid. If the processor owes money to the Board, it shall remit that 
amount by the next date for remitting assessments as provided in Sec.  
1160.211. For the first two erroneous reports submitted by a processor 
in the preceding twelve-month period, late-payment charges assessed 
pursuant to Section 1160.214 shall not begin to accrue until the day 
following such date. For all additional erroneous reports submitted by 
a processor during the twelve-month period, late-payment charges shall 
accrue from the date the payment was due. If the processor has 
overpaid, that amount shall be credited to its account and applied 
against amounts due in succeeding months.

    Dated: January 18, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-1433 Filed 1-25-08; 8:45 am]
BILLING CODE 3410-02-P