[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Rules and Regulations]
[Pages 29389-29390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11355]


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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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the Fluid Milk Promotion Order (Order) 
by reducing the burden of late-payment charges applied to processors 
who mistakenly underreport the amount of assessments owed to the 
National Fluid Milk Processor Promotion Board (Board), provided that 
the processor has not made more than two reporting errors in the prior 
12 months.

DATES: Effective Date: July 1, 2008.

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: This final rule adopts a proposal submitted 
by the Board to reduce the burden of late payment fees applied to 
processors who underreport the amount of assessments they owe due to 
unintentional errors or miscalculations. Specifically, the amendment 
reduces late-payment charges provided that the processor has not made 
more than two reporting errors in the prior 12 months.
    The Fluid Milk Promotion Order is issued under the Fluid Milk 
Promotion Act as amended (Act) [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 final rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. This rule is not intended to have a retroactive 
effect. This rule will 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 of 
Agriculture (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 
final 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 final 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 (13 CFR 121.201) as those 
processors employing not more than 500 employees. As of April 2008, 
there were approximately 100 fluid milk processors subject to the 
provisions of the Order. While some processors own multiple plants, the 
majority of processors own just one plant with fewer than 500 
employees, and are, therefore, 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

[[Page 29390]]

and Budget and assigned OMB Control No. 0581-0093 under the Paperwork 
Reduction Act of 1980.

Prior Documents in This Proceeding

    Proposed Rule: Issued January 18, 2008; published January 28, 2008 
(73 FR 4762).

Statement of Consideration

    This final rule amends the Fluid Milk Promotion order (Order) by 
reducing the burden of late payment fees on processors who mistakenly 
underreport their pounds of fluid milk processed and marketed 
commercially (excluding direct delivery to the residence of a 
consumer). Processors will not be required to pay late-fee charges on 
additional assessments owed the National Fluid Milk Processor board 
(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 
Sec.  1160.214 of the Order.
    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 Sec.  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 processed and marketed 
commercially in consumer-type packages in the United States by such 
fluid milk processors. The Order further provides in Sec.  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 Sec.  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 Sec.  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.
    Interested parties were provided an opportunity to file comments on 
the proposed rule. One comment, filed on behalf of the Milk Processor 
Education Program (MilkPEP) supported the proposed changes to the 
Order. MilkPEP stated that the proposed changes would encourage and 
ensure the receipt of assessments owed to the Board.

List of Subjects in 7 CFR Part 1160

    Fluid milk, Milk, Promotion.

0
For the reasons set forth in the preamble, 7 CFR part 1160 is amended 
as follows:

PART 1160--FLUID MILK PROMOTION PROGRAM

0
1. The authority citation for 7 CFR Part 1160 continues to read as 
follows:

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


0
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 12-month period, late-payment charges assessed 
pursuant to Sec.  1160.214 shall not begin to accrue until the day 
following such date. For all additional erroneous reports submitted by 
a processor during the 12-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: May 15, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-11355 Filed 5-20-08; 8:45 am]
BILLING CODE 3410-02-P