[Federal Register Volume 74, Number 95 (Tuesday, May 19, 2009)]
[Proposed Rules]
[Pages 23359-23370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11492]
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Proposed Rules
Federal Register
________________________________________________________________________
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. 74, No. 95 / Tuesday, May 19, 2009 / Proposed
Rules
[[Page 23359]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 1150
[Docket No. DA-08-07: AMS-DA-08-0050]
National Dairy Promotion and Research Program; Proposed Rule and
Opportunity To File Comments, Including Written Exceptions, on Proposed
Amendments to the Order
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This document invites written comments on proposed amendments
to the Dairy Promotion and Research Order. This proposed action is
pursuant to the Farm Security and Rural Investment Act of 2002 (2002
Farm Bill) and the Food, Conservation, and Energy Act of 2008 (2008
Farm Bill). The 2002 Farm Bill mandates that the Dairy Promotion and
Research Order be amended to implement an assessment on imported dairy
products to fund promotion and research. The 2008 Farm Bill specifies a
mandatory assessment rate of 7.5 cents per hundredweight of milk, or
equivalent thereof, on dairy products imported into the United States.
This proposed rule, in accordance with the 2008 Farm Bill, amends the
term ``United States'' in the Dairy Production Stabilization Act of
1983 (7 U.S.C. 4501-4514, as amended) to mean all States, the District
of Columbia, and the Commonwealth of Puerto Rico. Producers in these
areas will be assessed 15 cents per hundredweight for all milk produced
and marketed.
DATES: Comments must be submitted on or before June 18, 2009.
ADDRESSES: Comments on this proposed rule should be identified with the
docket number AMS-DA-08-0050; DA-08-07. Commenters should identify the
date and page number of the issue of the proposed rule. Interested
persons may comment 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.
Fax: Comments may be faxed to (202) 720-0285.
E-mail: Comments may be e-mailed to [email protected].
Internet: http://www.regulations.gov.
All comments submitted by the above procedures will be available
for viewing at: http://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 Rick, USDA, AMS, Dairy
Programs, Promotion and Research Branch, Stop 0233-Room 2958-S, 1400
Independence Avenue, SW., Washington, DC 20250-0233, (202) 720-6909,
[email protected].
SUPPLEMENTARY INFORMATION: This proposed rule is pursuant to the Dairy
Production Stabilization Act of 1983 (7 U.S.C. 4501, et seq.), Public
Law 98-180, enacted November 29, 1983, as amended May 13, 2002, by
Public Law No. 107-171, and further amended June 18, 2008, by Public
Law No. 110-246.
Executive Order 12866
This proposed rule has been determined to significant for purposes
of Executive Order 12866 and, therefore, has been reviewed by the
Office of Management and Budget. A cost-benefit analysis for this
proposed rule is available at http://www.ams.usda.gov/dairyimportassessment.
Assessments to dairy producers under the Order are relatively small
compared to producer revenue. If dairy producers in Alaska, Hawaii, the
District of Columbia, and the Commonwealth of Puerto Rico had paid
assessments of $0.15 per hundredweight of milk marketed in 2007, it is
estimated that $1.1 million would have been paid. This is about 0.6
percent of the $192 million total value of milk produced and marketed
in these areas.
The assessments collected from importers under the Dairy Promotion
and Research Program are expected to be relatively small compared to
the value of dairy imports. If importers had been assessed $0.075 per
hundredweight, or equivalent thereof, for imported dairy products in
2007 as specified in this rule, it is estimated that less than $6.1
million would have been paid. This is about 0.3 percent of the $2.4
billion value of the dairy products imported in 2007.
Examination of import volumes for 2007 indicates that tariff rate
quotas (TRQs) seem to constrain dairy imports in varying degrees for
some products, but not for others. TRQs do not seem to be a significant
hindrance to the volume imported for many dairy products. Significant
quantities of dairy products imported are not subject to TRQs.
The Program promotes dairy ingredients through DMI's Innovation and
Ingredients Program and through the Web site http://www.innovatewithdairy.com. Through importer representation on the Dairy
Board and possible establishment of qualified programs by importers,
imported products could be promoted to a greater extent than with
current program.
Civil Rights Analysis
Consideration has been given to the potential civil rights
implications of this proposed rule on affected parties to ensure that
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. Although detailed information
is not available on importers who would be subject to the amendments or
the users of imported dairy products, broad consideration was given to
the employees of such entities and those individuals who wish to use
information collected under this mandatory program concerning the
assessing of dairy product importers. This proposed rule does not
require affected entities to relocate or alter their operations in ways
that could adversely affect such persons or groups. Moreover, the
amendments would not exclude from participation any persons or
[[Page 23360]]
groups, deny any persons or groups the benefits of the program, or
subject any persons or groups to discrimination.
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 proposed rule would not preempt
any State or local laws, regulations, or policies unless they present
an irreconcilable conflict with this rule.
The Dairy Production Stabilization Act of 1983 authorizes the
National Dairy Promotion and Research Program. The Act provides that
administrative proceedings must be exhausted before parties may file
suit in court. Under section 4509 of the Act, any person subject to the
Dairy Promotion and Research Order may file with the Secretary a
petition stating that the Order, any provision of the Order, or any
obligation imposed in connection with the Order is not in accordance
with the law and requesting a modification of the Order or to be
exempted from the Order. A person subject to an Order is afforded the
opportunity for a hearing on the petition. After a hearing, the
Secretary would rule on the petition. The Act provides that the
district court of the United States in any district in which the person
is an inhabitant, or has his principal place of business, has
jurisdiction to review the Secretary's ruling on the petition, provided
a complaint is filed not later than 20 days after the date of the entry
of the ruling.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the Agricultural Marketing Service has considered the economic
impact of this action on small entities and has certified that this
proposed rule will not have a significant economic impact on a
substantial number of small entities. The purpose of the Regulatory
Flexibility Act is to fit regulatory actions to the scale of businesses
subject to such actions so that small businesses will not be
disproportionately burdened.
The Dairy Production Stabilization Act of 1983 authorizes a
national program for dairy product promotion, research and nutrition
education. Congress found that it is in the public interest to
authorize the establishment of an orderly procedure for financing
through assessments on all milk produced in the United States for
commercial use and on imported dairy products, to carry out a
coordinated program of promotion designed to strengthen the dairy
industry's position in the marketplace and to maintain and expand
domestic and foreign markets and uses for fluid milk and dairy
products.
As directed by the 2008 Farm Bill, approximately 360 producers in
Alaska, Hawaii, the District of Columbia, and the Commonwealth of
Puerto Rico will become subject to the provisions of the Dairy
Promotion and Research Order. The Small Business Administration [13 CFR
121.201] defines small dairy producers as those having annual receipts
of $750,000 or less annually. Most of the producers who will become
subject to the proposed provisions of the Order are considered small
entities.
Assessments to dairy producers under the Order are relatively small
compared to producer revenue. If dairy producers in Alaska, Hawaii, the
District of Columbia, and the Commonwealth of Puerto Rico had paid
assessments of $0.15 per hundredweight of milk marketed in 2007, it is
estimated that $1.1 million would have been paid. This is about 0.6
percent of the $192 million total value of milk produced and marketed
in these areas. The assessment for dairy producers in Alaska, Hawaii,
the District of Columbia, and the Commonwealth of Puerto Rico will be
collected by persons who pay the producers for milk produced and
marketed, and the money will be remitted to the National Dairy
Promotion and Research Board (Dairy Board).\1\ These ``responsible
persons,'' usually milk handlers, incur the cost of calculating the
assessment due from each dairy producer, forwarding a form monthly to
the Dairy Board, and sending checks to the Dairy Board and designated
Qualified Programs. Responsible persons maintain any records that are
necessary to account for the collection of the 15-cent assessment.
Books and records for producers and persons collecting assessments
subject to the Order shall be maintained for two years beyond the
fiscal period of their applicability. These books and records would be
made available to employees or agents of the Dairy Board or the
Department during normal business hours for inspection if necessary for
verification purposes. For the purpose of the Regulatory Flexibility
Act, a dairy products manufacturer is a small business if it has fewer
than 500 employees. For purposes of determining a milk handler's size,
if the plant is part of a larger company operating multiple plants that
collectively exceed the 500-employee limit, the plant is considered a
large business even if the local plant has fewer than 500 employees.
While the number of responsible persons collecting assessments under
the Order in Alaska, Hawaii, the District of Columbia, and the
Commonwealth of Puerto Rico are not known, we would expect that most
would be considered small businesses.
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\1\ Any producer that sells milk directly to consumers shall
remit the assessment directly to the Dairy Board.
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According to the U.S. Customs and Border Protection (CBP), there
were 1,751 importers of dairy products listed in Sec. 1150.152 (b) in
2007. Although data is not available concerning the sizes of these
firms, it is reasonable to assume that most of them would be considered
small businesses. Although many types of businesses import dairy
products, the most common classification for dairy product importers is
Grocery and Related Product Merchant Wholesalers (North American
Industry Classification System, category 4244). The Small Business
Administration [13 CFR 121.201] defines such entities with fewer than
100 employees as small businesses. According to 2005 statistical data
from the U.S. Census Bureau, 95.4 percent of these types of businesses
had fewer than 100 employees (http://www.census.gov/csd/susb/susb05.htm).
This proposed rule would impose minimal reporting and recordkeeping
requirements on importers subject to the Order. Books and records for
importers subject to the Order shall be maintained for two years beyond
the calendar year in which the import occurs. These books and records
would be made available to employees or agents of the Dairy Board or
the Department during normal business hours for inspection if necessary
for verification purposes. Importers must maintain books and records
sufficient to verify that products have been properly classified
according to the Harmonized Tariff Schedule (HTS). Importers already
maintain such books and records in order to comply with tariff
regulations. In some cases, importers would be required to keep books
and records concerning specific milk solids content of imported
products. This rule proposes two methods for importers to calculate
assessments due. If the importer has sufficient documentation to
determine the milk solids content of the product to be imported, the
importer would use an assessment rate of $0.01327 per kilogram (kg) of
milk solids to calculate and pay the assessment. In many cases, the
importer would have this documentation on hand as part of normal
business practice. If the importer does not have adequate documentation
concerning the milk solids content of the product to be imported, the
importer would pay a rate per kg of product
[[Page 23361]]
volume as listed in the table displayed in Sec. 1150.152 (b)(1)(ii).
In this case, it would only be necessary for the importer to maintain
books and records to verify compliance with certain HTS code assignment
requirements.
Assessments to importers under the Order are relatively small
compared to the value of dairy imports. If importers had been assessed
$0.075 per hundredweight of milk, or equivalent thereof, on imported
dairy products in 2007 as specified in this rule, it is estimated that
less than $6.1 million would have been paid. This is about 0.3 percent
of the $2.4 billion value of the imported dairy products.
Finally, this proposed rule provides for importer organizations
that conduct qualified national, regional, or state dairy product
promotion, research, or nutrition education programs to receive
assessment funds upon being designated by individual importers and for
nominations for representation of importers to be submitted by
organizations that represent importers of dairy products, as approved
by the Secretary. While the number of such organizations is expected to
be small, the members of such organizations reflect the same size
composition as discussed above.
Interested persons are requested to comment specifically on the
number and size of entities that would be regulated by this proposed
rule.
Paperwork Reduction Act
Information collection requirements and recordkeeping provisions
contained in 7 CFR Part 1150 have been previously approved by the
Office of Management and Budget and assigned OMB Control Number 0581-
0093 under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Section 1601 of the 2002 Farm Bill (Pub. L. 107-171) and section 1601
of the 2008 Farm Bill (Pub. L. 110-246) exempt this proposed rule from
the Paperwork Reduction Act. Although exempted, the requirements of the
Paperwork Reduction Act were considered in developing the provisions of
this proposed rule. The information collection requirements are minimal
but essential to carry out the intent of the Dairy Production
Stabilization Act of 1983. The proposed Order provisions have been
carefully reviewed and every effort has been made to minimize
recordkeeping costs or requirements.
Under the Order, importers would be responsible to pay assessments.
CBP will serve as the collecting agent for assessments on imported
dairy products and will remit the assessments to the Dairy Board. The
Department anticipates that importers would be required to provide
additional reports and records on occasions when additional information
is needed as evidence of compliance, or in cases when the importer
seeks a reimbursement of assessments. Such records must be retained for
at least 2 years beyond the calendar year of their applicability.
Under the Order provisions, each person making payment to a
producer for milk produced in the Untied States and marketed for
commercial use (responsible person) collects an assessment for all such
milk handled. Responsible persons calculate the assessments due from
each dairy producer. Under the proposed order provisions, responsible
persons making payments to dairy producers in Alaska, Hawaii, the
District of Columbia, and the Commonwealth of Puerto Rico would be
required to collect and remit assessments and file reports with the
Dairy Board. The Order would impose certain recordkeeping requirements
on responsible persons; however, information required under the Order
could be compiled from currently maintained records. Any producer
marketing milk of that producer's own production directly to consumers
is a responsible person. Such records must be retained for at least 2
years beyond the calendar year of their applicability.
The forms on which producer information is to be collected require
the minimum information necessary to effectively carry out the
requirements of the Order. There are no training requirements for
individuals filling out reports and remitting assessments to the Dairy
Board. The forms are designed to be simple and easy to understand and
place as small a burden as possible on the persons required to file the
information.
The timing and frequency of collecting information are intended to
meet the needs of the program while minimizing the amount of work
necessary to fill out the required reports. In addition, the
information to be included on these forms is not available from other
sources because such information relates specifically to individual
producers and responsible persons who are subject to the provisions of
the Order. Therefore, there is no practical method for collecting the
required producer information without the use of these forms.
The assessment would place a minimal burden on newly regulated
producers or importers who seek to direct monies to Qualified Programs.
The amount of time required to designate to a qualified program is
estimated to be 15 minutes to prepare a written request. Qualified
Programs are certified by the Secretary and authorized by Federal or
State law for the purpose of promoting dairy products.
The proposed Order provisions would place a minimal burden on newly
regulated producers or importers who seek nomination to serve on the
Dairy Board. Importers and producers would be required to complete a
background information form for submission to the Secretary. The
estimated time for completing the form is 30 minutes, which includes
time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the form. Additionally, there would be minimal burden on importer
organizations that voluntarily request to be approved by the Secretary
to participate in the program by making nominations to the Board. The
estimated time for reporting this is 30 minutes. This is similar to the
information collection burden for certification of producer
organizations.
Currently, a producer who operates under an approved National
Organic Program (NOP) (7 CFR Part 205) certificate and thus only
produces products that are eligible to be labeled as 100 percent
organic under the NOP, and is not a split operation shall be exempt
from the payment of assessments. This proposed rule provides that an
importer who imports only products that are eligible to be labeled as
100 percent organic under the NOP (7 CFR part 205) and who is not a
split operation, would be exempt from the payment of assessments. The
Order places a minimal burden on a producer or importer applying for
such an exemption. The producer or importer must provide a request to
the Dairy Board, on a form provided by the Dairy Board, at any time
initially and annually thereafter. For importers, the documentation is
the same as for a producer.
In addition, there are some requirements for information from
importers that are occasional. For example, if an importer claims a
refund from the Dairy Board for an overpayment, circumstances dictate
the time that it would take for the importer to gather the information
necessary to make the claim. Assembling and transmitting the necessary
documentation to the Dairy Board would place a minimal burden on
importers.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies, and to
[[Page 23362]]
provide increased opportunity for citizen access to Government
information and services and for other purposes.
Background
The Dairy Production Stabilization Act of 1983 authorizes the Order
for dairy product promotion, research, and nutrition education as part
of a comprehensive strategy to increase human consumption of milk and
dairy products and to reduce milk surpluses. The program functions to
strengthen the dairy industry's position in the marketplace by
maintaining and expanding domestic and foreign consumption of fluid
milk and dairy products.
Section 1505 of the 2002 Farm Bill requires that the Order be
amended to implement a mandatory assessment on dairy products imported
into the United States and that the assessment be submitted to CBP at
the time entry documents are filed.
Section 1507 of the 2008 Farm Bill amended the term ``United
States'' in Section 4502(1) of the Dairy Production Stabilization Act
of 1983 to mean all of the States, the District of Columbia, and the
Commonwealth of Puerto Rico. This amendment requires that the States of
Alaska, Hawaii, the District of Columbia, and the Commonwealth of
Puerto Rico be added to the existing regions of the Dairy Board and the
commencement of assessing producers in these areas 15 cents per
hundredweight on all milk produced and marketed commercially.
The Order is administered by a 36-member Dairy Board appointed by
the Secretary representing 13 geographic regions of the United States.
In order to complement the current geographical make up of the existing
regions, it is proposed that the each of the four new jurisdictions be
added to the region of closest geographic proximity. Therefore, Alaska
would be added to Region 1, currently comprised of Oregon and
Washington; Hawaii would be added to Region 2, currently California;
and the District of Columbia and the Commonwealth of Puerto Rico would
be added to Region 10, currently comprised of Florida, Georgia, North
Carolina, South Carolina and Virginia. Each person making payment to a
producer in Alaska, Hawaii, the District of Columbia, and the
Commonwealth of Puerto Rico for milk produced and marketed for
commercial use, would be required to collect an assessment on all milk
handled for the account of the producer at the rate of 15 cents per
hundredweight and would remit the assessment to the Dairy Board. Any
producer marketing milk of that producer's own production in the form
of milk or dairy products to consumers, either directly or through
retail or wholesale outlets, would remit to the Dairy Board an
assessment on such milk at the rate of 15 cents per hundredweight. Each
person responsible for the remittance of the assessment for milk
marketing from producers in Alaska, Hawaii, the District of Columbia,
and the Commonwealth of Puerto Rico would remit to the Dairy Board not
later than the last day of the month following the month in which the
milk was marketed.
Section 10607 of the 2002 Farm Bill provides for an exemption from
payment of assessments by organic milk producers and importers of dairy
products. Section 1150.157 of the Order currently provides the specific
requirements necessary for producers to receive the exemption. (See 70
FR 2744 for a complete discussion of implementation of the provisions
of section 10607 of the 2002 Farm Bill.) Section 1150.157 would be
amended to provide an exemption for importers. A producer who operates
under an approved National Organic Program (NOP) (7 CFR Part 205)
certificate and thus only produces products that are eligible to be
labeled as 100 percent organic under the NOP, and is not a split
operation, would be exempt from the payment of assessments. An importer
who imports only products that are eligible to be labeled as 100
percent organic under the NOP (7 CFR part 205), and who is not a split
operation, would be exempt from the payment of assessments. To receive
the exemption, producers and importers of products labeled as 100
percent organic, and who do not produce any non-organic products, would
provide a request to the Dairy Board, on a form provided by the Dairy
Board, at any time initially and annually thereafter.
The 2002 Farm Bill amendments authorize importers to have
representation on the Dairy Board. Initially, importers are required to
be represented by at least 2 importers appointed by the Secretary.
Thereafter, importer representation on the Dairy Board will be adjusted
at least once every three years, if necessary, to reflect the volume of
imports relative to domestic marketings of milk. The amendments also
specify that the assessments may not be used for foreign market
promotion and that they be implemented in a manner consistent with
United States trade obligations.
The 2002 Farm Bill specifies that the assessment be 15 cents per
hundredweight, or equivalent thereof, on dairy products imported into
the United States. However, this rate was changed with the 2008 Farm
Bill; Section 1507 specifies that the assessment will be 7.5 cents per
hundredweight of milk, or the equivalent thereof. The assessment is
equivalent to one-half the payment domestic dairy farmers are required
to remit.
With the 2002 Farm Bill, the policy statement in the Dairy
Production Stabilization Act of 1983 has been revised to make it clear
that the purpose of the program is to expand the consumption of dairy
products, whether produced domestically or imported. A program that
promotes the substitution of a dairy product from one source with a
dairy product from another source would not be consistent with this
policy. Likewise, the Dairy Board and USDA carefully will consider
whether any brand advertising or promotion would have a detrimental
affect on other brands of dairy products before giving approval. No
program would be approved if it would negatively affect similar
domestic or imported dairy products.
Preliminary Statement
The 2002 and 2008 Farm Bills authorize the Secretary to issue
regulations to implement the mandatory dairy import assessment without
providing a notice and comment period. However, due to the interest of
affected parties, a comment period is provided until June 18, 2009.
Comments may address any proposed provision of the regulation, but
specifically, interested parties are asked to submit comments on the
proposed designation of imported dairy products to be assessed under
the Order and the proposed methods used to calculate assessments on
such products.
This proposed rule amends certain provisions of the Order to
conform to legislative changes of the enacted 2002 and 2008 Farm Bills.
Section 1505 of the 2002 Farm Bill amends sections 110(b), 111, 112,
113(b), 113(e), 113(g), 113(k), and 116(b) of the Act, thereby
necessitating revisions to certain provisions of the Order. Section
1507 of the 2008 Farm bill amends sections 111, 113(e), 113(g) and 130
of the Act also necessitating revisions to certain provisions of the
Order.
Order provisions would be revised as follows:
1. In Sec. 1150.106, the term United States would be redefined to
include all of the States, the District of Columbia, and the
Commonwealth of Puerto Rico.
[[Page 23363]]
2. Section 1150.109 would be revised to recognize national
qualified programs.
3. In Sec. 1150.111, the term Milk would be redefined to remove
the necessity that it be produced in the United States.
4. A new section, Sec. 1150.120, would be added to define the term
Imported Dairy Product.
5. A new section, Sec. 1150.121, would be added to define the term
Importer.
6. A new section, Sec. 1150.122, would be added to define the term
CBP.
7. Section 1150.131 would be modified in total to incorporate the
requirement that the 36-member Dairy Board be increased initially by
two importer members to give representation to importers. Procedures
are established to be applied at least once every three years to
determine the future importer representation on the Dairy Board.
Modifications also are made to the regions to include Alaska, Hawaii,
the District of Columbia, and the Commonwealth of Puerto Rico.
8. Section 1150.132 would be modified to include the terms of
office for importer representatives to the Board.
9. Section 1150.133 would be modified to delete obsolete
references, to clarify certain terms, and to provide a process for
importer nominations.
10. Section 1150.134 would be modified to include importers and to
include national programs in disclosure requirements.
11. Section 1150.135 would be modified to reference the proper
amended sections.
12. Section 1150.139(e) would be modified to include importers and
importer organizations.
13. Section 1150.140(b) would be modified to include importers.
14. Section 1150.140(n) would be modified to remove the necessity
for the Dairy Board to encourage coordination of programs designed to
promote only fluid milk and dairy products produced in the United
States.
15. A new paragraph, Sec. 1150.151(c), would be added to limit the
amount of funds the Dairy Board may expend in foreign market
development for products manufactured in the United States.
16. Section 1150.152 would be modified to establish a procedure for
collecting the assessment on imported dairy products, to establish a
rate of assessment, to allow importers to receive a credit on
assessments paid to a Qualified Program, and to properly reference
amended sections.
17. Section 1150.153 would be modified to include importers, to
recognize that national programs may apply for certification of
qualification, and to indicate that national programs fall under the
same provisions as State or regional plans. Other sections that
reference Qualified Programs would also be modified to include national
programs.
18. Section 1150.156 would be modified to cover charges and
penalties for importers.
19. Section 1150.157 would be modified to remove language
concerning exemption requests from producers received on or before
August 15, 2005, and to provide an assessment exemption for importers
who import only 100 percent organic products.
20. Section 1150.171 would be revised to require reports from
importers if necessary for compliance verification and to properly
reference an amended section.
21. Section 1150.172 would be modified to add importer books and
records requirements.
22. Section 1150.187 would be modified to indicate that information
and record keeping requirements have been approved by OMB and assigned
an OMB control number ``as appropriate.''
The 2002 Farm Bill requires that the Order be amended to provide an
assessment on imported dairy products into the United States and
provides for importer representation on the Dairy Board. The 2008 Farm
Bill requires importers to pay 7.5 cents per hundredweight of milk, or
the equivalent thereof, on imported dairy products, an assessment which
is equivalent to one-half the amount domestic dairy producers are
required to remit.
The assessments on imported dairy products would be collected by
CBP from importers at the time the entry summary documents are filed.
If the importer has adequate documentation concerning the milk solids
content of the imported dairy product, the assessment would be based
upon milk solids content of the imported dairy product. If the importer
does not have adequate documentation concerning the milk solids content
of the imported dairy product, a default assessment rate for each HTS
code would be applied. The assessments collected would be transferred
by CBP to the Dairy Board to fund the national dairy promotion and
research program. The Dairy Board would establish a compliance program
and procedures to verify, as necessary, that correct assessments have
been paid by importers based upon total milk solids content or default
assessment rates for imported dairy products.
Since the mandatory 7.5-cent assessment is per one hundred pounds
of milk, this proposed rule applies a standard rate of assessment per
unit of milk solids. On average during the period January 2006 through
December 2007, a hundredweight of U.S. producer milk contained 12.45
pounds of milk solids (3.68 percent butterfat and 8.77 percent nonfat
milk solids).\2\ Since the assessment rate stated in the 2008 Farm Bill
is 7.5 cents per hundredweight of milk or its equivalent, this rule
establishes the assessment rate per volume of imported milk solids as
$0.00602 per pound ($0.075/12.45 pounds) or $0.01327 per kg (1 kg =
2.204623 pounds). This rate would be applied to the estimated milk
solids content for any imported products listed in the table displayed
in Sec. 1150.152(b)(1).
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\2\ National Agricultural Statistics Service (NASS), Dairy
Products 2007 Annual Summary (April 2008).
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If the importer has sufficient documentation to determine the milk
solids content of the product to be imported, the importer would use
the assessment rate of $0.01327 per kg of milk solids to calculate and
pay the assessment. Milk solids of U.S. origin would not be included in
the calculation. Alternatively, if the importer does not have adequate
documentation concerning the milk solids content of the imported
product, the importer would pay a default rate per kg of product volume
as listed in the table displayed in Sec. 1150.152(b)(1).
For most products, the default assessment rate for each HTS code
would be based upon maximum milk solids content. In some cases, the
maximum milk solids content is stated in the HTS; in other cases,
various sources other than the HTS would be used to estimate the
maximum milk solids content for the particular HTS number. In cases
where maximum milk solids content is not stated in the HTS and cannot
be estimated, a typical milk solids content is used, if available.
Where neither a maximum nor a typical milk solids content is available,
a milk solids content of a similar listed product may be used. In some
cases, no information is available concerning milk solids content for
an HTS number other than a minimum requirement stated in the HTS. In
these cases, this minimum milk solids content stated in the HTS is
used.
The various sources used to help determine default assessment rates
include the HTS; CBP rulings; an April 1991 study by the Commodity
Analysis Division of the Agricultural Stabilization and Conservation
Service entitled Methodology of Calculating the Milk Equivalent, Total
Solids Basis, of
[[Page 23364]]
CCC Purchases of Surplus Dairy Products and of Imports of Dairy
Products; the Nutrient Database for Standard Reference, USDA
Agricultural Research Service; a handbook entitled Dairy-Based
Ingredients by Ramesh Chandan, Egan Press, 1997; a handbook entitled
Cheese Varieties and Descriptions by USDA Agricultural Research
Service, 1969; data from the National Agricultural Statistics Service;
Federal Standards of Identity as designated by the Food and Drug
Administration, U.S. Department of Health and Human Services (Chapter
21, Code of Federal Regulations); a U.S. Government Accounting Office
Study entitled Dairy Products: Imports, Domestic Production, and
Regulation of Ultra-filtered Milk, March 2001; and a paper by the Food
and Agricultural Organization of the United Nations entitled The
Technology of Traditional Milk Products in Developing Countries, FAO
Animal Production and Health Paper 85, 1990. A detailed table
reflecting the sources above, Default Import Assessment Rates for the
National Dairy Promotion and Research Program, is available at http://www.ams.usda.gov/dairyimportassessment.
The following discussion illustrates the procedure used to
determine the default assessment rates and the alternative methods used
to calculate the assessment. Cheddar cheese generally contains no more
than 66.6 percent milk solids.\3\ By multiplying the milk solids
assessment rate of $0.01327 by 66.6 percent, a default unit assessment
rate of $0.009 per kg of product volume (rounded to the nearest tenth
of 1 cent) is determined and appears in the table listed in Sec.
1150.152(b)(1). An importer of Cheddar cheese who does not have
adequate documentation concerning the milk solids content of the cheese
would pay using this assessment rate. If an importer imports Cheddar
cheese with a milk solids content of 62.0 percent milk solids, and that
importer has sufficient documentation as specified in Sec. 1150.172(b)
stating the milk solids content of the imported cheese, the importer
would pay an assessment $0.008 per kg of product volume ($0.01327 times
62.0 percent, rounded to the nearest tenth of one cent).
---------------------------------------------------------------------------
\3\ According to NASS statistics, the lowest weekly average
moisture content of barrel Cheddar cheese rounds to 33.4 percent for
States other than Minnesota and Wisconsin for the week ending March
10, 2007. The remaining 66.6 percent would have been composed of
milk solids.
---------------------------------------------------------------------------
Section 1150.152(b)(4) allows the Dairy Board to make adjustments
for importers who have underpaid or overpaid assessments. Under this
Section, if an importer pays an incorrect assessment, the Dairy Board
would issue a refund to importer. For example, if assessments were paid
on an imported dairy product not produced from cow's milk (such as
products made from goat milk or sheep milk), the importer may request a
refund from the Dairy Board.
The Dairy Production Stabilization Act of 1983 defines dairy
products as ``products manufactured for human consumption which are
derived from the processing of milk, and includes fluid milk
products.'' The 2002 Farm Bill amended the Act to provide an assessment
on imported dairy products. An imported dairy product is defined as any
dairy product imported into the United States, including dairy products
imported into the United States in the form of: (1) Milk, cream, and
fresh and dried dairy products; (2) butter and butterfat mixtures; (3)
cheese; and (4) casein and mixtures. The Act specifies that milk means
any class of cow's milk.
This proposed rule designates a comprehensive list of products
containing milk solids. The list includes:
Dairy products made from cow's milk included in HTS
Chapter 4, headings 0401 through 0406.
Other dairy items whose HTS description specifies that the
product contains cow's milk, butterfat, and/or milk solids.
Certain items known to usually contain dairy ingredients.
The following types of dairy-related items are specifically excluded
from the list:
Items subject to by HTS General Note 15, which includes
products imported by or for the account of any U.S. government agency
and products imported for the personal use of the importer-products
that will not enter the commerce of the United States.
Items that categorically do not contain cow's milk. \4\
---------------------------------------------------------------------------
\4\ There are some HTS codes that clearly distinguish whether or
not the product contains cow's milk and others that do not. For
example, HTS 04064020 is for Roquefort cheese in original loaves.
Roquefort cheese, by definition, is made from sheep's milk. On the
other hand, HTS 04069099 is designated for cheeses that do not fit
the description of any other HTS code and either do not contain
cow's milk solids or are soft ripened cheeses that do contain cow's
milk solids. While HTS 04064020 is excluded from the comprehensive
list considered for the Import Assessment Program, HTS 04069099 is
included in the list.
---------------------------------------------------------------------------
Items categorically used as animal feed.
Items which may or may not contain milk solids and
parameters for milk solids are not stated in the HTS, such as pizza,
quiche, and pudding.
The promotion assessment domestically is paid by dairy farmers on
all milk marketed. Thus, for any product, dairy or otherwise, that is
produced using domestic milk, the assessment has been paid. The Dairy
Board does not promote all dairy products. For instance, the Dairy
Board does not advertise or promote ice cream even though dairy farmers
pay a 15-cent per hundredweight assessment for milk used in the
production of ice cream. Other examples would be food preparations,
infant formula, and milk chocolate, all of which contain dairy
products. Thus, the import assessment would be collected on all
specified imported dairy products and imported products containing
dairy solids, whether or not the Dairy Board chooses to promote such
product.
The 2002 Farm Bill requires that importers be represented by at
least 2 members on the Dairy Board. The Dairy Board, which is comprised
of 36 members who represent 13 geographic regions, will be expanded
initially to include 2 importer representatives. The importers, like
domestic dairy farmers who are appointed to the Dairy Board, shall
serve for terms of 3 years and will be eligible to serve 2 consecutive
3-year terms with the exception that the 2 importer members initially
appointed to the Board shall serve until October 31, 2010, and October
31, 2011. Importers shall be appointed from nominations submitted by
importers under such procedures as the Secretary deems necessary.
The 2002 Farm Bill specifies that the Secretary shall review once
every three years the average volume of domestic production of dairy
products compared to the average volume of imports of dairy products
into the United States during the previous 3 years. On the basis of the
review, the Secretary shall reapportion the importer representation on
the Dairy Board to reflect the proportional share of U.S. market by
domestic production and imported dairy products. In order to provide a
basis for comparison of domestic production of dairy products to
imported products, estimated total milk solids would be used.
Statistics for total milk solids of domestic dairy products are
published annually by USDA National Agricultural Statistics Service.
The calculation of total milk solids for imported products for
reapportionment purposes would be the same as the calculation of total
milk solids for assessment purposes.
Like domestic producers, importers would be required to direct 5
cents per hundredweight of milk, or equivalent thereof, of their
assessment to the Dairy
[[Page 23365]]
Board. Importers would be permitted to direct the remainder, up to 2.5
cents per hundredweight of milk, or equivalent thereof, of their
assessment to a Qualified Dairy Product Promotion, Research, and
Nutrition Education Program authorized under Federal or State law,
similar to domestic dairy producers.
The language in the Order would be modified to make it clear that
dairy products are to be promoted regardless of national origin. The
definition of ``milk'' would be changed to include all cow's milk
instead of only cow's milk produced in the United States. In Sec.
1150.140 (n) concerning duties of the Board to ``* * * maintain and
expand domestic and foreign markets and uses for fluid milk and dairy
products,'' the words ``produced in the United States'' would be been
stricken. A proposed provision is included in the order to address the
requirement that none of the assessments collected on imported dairy
products may be used for foreign market promotion.
The 2002 Farm Bill mandates that the import assessment be
implemented in a manner consistent with United States trade
obligations. USDA has consulted with the United States Trade
Representative who has determined that this proposed rule is consistent
with the international trade obligations of the Federal Government.
Subtitle F of Title 1 of the 2002 Farm Bill at section 1601 and
Subtitle F of Title 1 of the 2008 Farm Bill at section 1601 provide for
the implementation timeframe and the promulgation of these regulations
without regard to the Paperwork Reduction Act (44 U.S.C. Chapter 35),
the Statement of the Policy of the Secretary of Agriculture, effective
July 24, 1971 (36 FR 13804, and the notice and comment provisions of
section 553 of Title 5, United States Code. As indicated previously,
due to the interest of affected parties, a comment period is provided
through June 18, 2009.
List of Subjects in 7 CFR Part 1150
Dairy Products, Milk, Promotion, Research.
For the reasons set forth in the preamble, it is proposed that 7
CFR part 1150 be amended as follows:
PART 1150--DAIRY PROMOTION PROGRAM
1. The authority citation for 7 CFR part 1150 continues to read as
follows:
Authority: 7 U.S.C. 4501-4514 and 7 U.S.C. 7401
2. Section 1150.106 is revised to read as follows:
Sec. 1150.106 United States.
United States means all of the States, the District of Columbia,
and the Commonwealth of Puerto Rico.
3. Section 1150.109 is revised to read as follows:
Sec. 1150.109 Qualified national, regional, or State program.
Qualified national, regional, or State program means any national,
regional, or State dairy product promotion, research or nutrition
education program which is certified as a qualified program pursuant to
Sec. 1150.153.
4. Section 1150.111 is revised to read as follows:
Sec. 1150.111 Milk.
Milk means any class of cow's milk.
5. Sections 1150.120 through 1150.122 are added to read as follows:
Sec. 1150.120 Imported Dairy Product.
Imported Dairy Product means any product that is imported into the
United States under any of the Harmonized Tariff Schedule (HTS)
classification numbers listed in Sec. 1150.152(b)(1).
Sec. 1150.121 Importer.
Importer means a person that imports imported dairy products into
the United States as a principal or as an agent, broker, or consignee
of any person who produces or handles dairy products outside of the
United States for sale in the United States, and who is listed as the
importer of record for such dairy products.
Sec. 1150.122 CBP.
CBP means the United States Customs and Border Protection of the
Department of Homeland Security.
6. Section 1150.131 is revised to read as follows:
Sec. 1150.131 Establishment and membership.
(a) There is hereby established a National Dairy Promotion and
Research Board.
(b) Thirty-six members of the Board shall be United States
producers. For purposes of nominating producers to the Board, the
United States shall be divided into thirteen geographic regions and the
number of Board members from each region shall be as follows:
(1) One member from region number one comprised of the following
States: Alaska, Oregon and Washington.
(2) Eight members from region number two comprised of the following
States: California and Hawaii.
(3) Four members from region number three comprised of the
following States: Arizona, Colorado, Idaho, Montana, Nevada, Utah and
Wyoming.
(4) Four members from region number four comprised of the following
States: Arkansas, Kansas, New Mexico, Oklahoma and Texas.
(5) Two members from region number five comprised of the following
States: Minnesota, North Dakota and South Dakota.
(6) Five members from region number six comprised of the following
State: Wisconsin.
(7) Two members from region number seven comprised of the following
States: Illinois, Iowa, Missouri and Nebraska.
(8) One member from region number eight comprised of the following
States: Alabama, Kentucky, Louisiana, Mississippi and Tennessee.
(9) Three members from region number nine comprised of the
following States: Indiana, Michigan, Ohio and West Virginia.
(10) One member from region number ten comprised of the following
States: Commonwealth of Puerto Rico, District of Columbia, Florida,
Georgia, North Carolina, South Carolina, and Virginia.
(11) Two members from region number eleven comprised of the
following States: Delaware, Maryland, New Jersey and Pennsylvania.
(12) Two members from region number twelve comprised of the
following State: New York.
(13) One member from region number thirteen comprised of the
following States: Connecticut, Maine, Massachusetts, New Hampshire,
Rhode Island and Vermont.
(c) Two members of the Board shall be importers who are subject to
assessments under Sec. 1150.152(b).
(d) The Board shall be composed of milk producers and importers
appointed by the Secretary either from nominations submitted pursuant
to Sec. 1150.133 or in accordance with Sec. 1150.136. A milk producer
may be nominated only to represent the region in which such producer's
milk is produced.
(e) At least every five years, and not more than every three years,
the Board shall review the geographic distribution of milk production
volume throughout the United States and, if warranted, shall recommend
to the Secretary a reapportionment of regions and/or a modification of
the number of producer members from regions in order to best reflect
the geographic distribution of milk production volume in the United
States.
(f) At least once every three years, after the initial appointment
of importer representatives on the Board, the Secretary shall review
the average volume of domestic production of dairy products compared to
the average
[[Page 23366]]
volume of imports of dairy products into the United States during the
previous 3 years and, on the basis of that review, if warranted,
reapportion the importer representation on the Board to reflect the
proportional shares of the United States market served by domestic
production and imported dairy products. The basis for comparison of
domestic production of dairy products to imported products shall be
estimated total milk solids. The calculation of total milk solids of
imported dairy products for reapportionment purposes shall be the same
as the calculation of total milk solids of imported dairy products for
assessment purposes.
(g) In determining the volume of milk produced and total milk
solids of dairy products produced in the United States, the Board and
Secretary shall utilize the information received by the Board pursuant
to Sec. 1150.171(a) and data published by the Department.
7. In Sec. 1150.132, paragraph (a) is revised to read as follows:
Sec. 1150.132 Term of Office.
(a) The members of the Board shall serve for terms of three years,
except that:
(1) the members appointed to the initial Board shall serve
proportionately, for terms of one, two and three years.
(2) the 2 importer members initially appointed to the Board shall
serve until October 31, 2010, and October 31, 2011.
* * * * *
8. In Sec. 1150.133, paragraphs (a), (c), and (d) are revised, and
a new paragraph (e) is added to read as follows:
Sec. 1150.133 Nominations.
* * * * *
(a) The Secretary shall solicit nominations for producer
representation on the Board from all eligible organizations. For
nominations of producers, if the Secretary determines that a
substantial number of producers are not members of, or their interests
are not represented by, such eligible organizations, the Secretary
shall also solicit nominations from such producers through general
farmer organizations or by other means.
* * * * *
(c) An eligible producer organization may submit nominations only
for positions on the Board that represent regions in which such
eligible organization can establish that it represents a substantial
number of producers. If there is more than one Board position for any
such region, the organization may submit nominations for each position.
(d) Where there is more than one eligible organization representing
producers in a specific geographic region, the organizations may caucus
and jointly nominate producers for each position representing that
region on the Board for which a member is to be appointed. If joint
agreement is not reached with respect to any such nominations, or if no
caucus is held, each eligible organization may submit to the Secretary
nominations for each appointment to be made to represent that region.
(e) Nominations for representation of importers may be submitted
by:
(1) Organizations that represent importers of dairy products, as
approved by the Secretary. The primary considerations in determining if
organizations adequately represent importers of dairy products shall be
whether its membership consists primarily of importers of dairy
products and whether a substantial interest of the organization is in
the importation of fluid milk or dairy products and the promotion of
the nutritional attributes of fluid milk or dairy products; and
(2) Individual importers of dairy products. Individual importers
submitting nominations to represent importers on the Board must
establish to the satisfaction of the Secretary that the persons
submitting the nominations are importers of dairy products.
9. In Sec. 1150.134, the introductory text and paragraph (b) are
revised to read as follows:
Sec. 1150.134 Nominee's agreement to serve.
Any producer or importer nominated to serve on the Board shall file
with the Secretary at the time of the nomination a written agreement
to:
* * * * *
(b) Disclose any relationship with any organization that operates a
qualified national, regional, or State program or has a contractual
relationship with the Board; and
* * * * *
10. Section 1150.135 is revised to read as follows:
Sec. 1150.135 Appointments.
From the nominations made pursuant to Sec. 1150.133, the Secretary
shall appoint the members of the Board on the bases of representation
provided for in Sec. Sec. 1150.131(b) and 1150.131(c).
11. In Sec. 1150.139, paragraph (e) is revised to read as follows:
Sec. 1150.139 Powers of the Board.
* * * * *
(e) To disseminate information to producers, producer
organizations, importers, and importer organizations through programs
or by direct contact utilizing the public postage system or other
systems;
* * * * *
12. In Sec. 1150.140, paragraphs (b) and (n) are revised to read
as follows:
Sec. 1150.140 Duties of the Board.
* * * * *
(b) To appoint from its members an executive committee whose
membership shall equally reflect each of the different geographic
regions in the United States in which milk is produced and importer
representation on the Board, and to delegate to the committee authority
to administer the terms and provisions of this subpart under the
direction of the Board and within the policies determined by the Board;
* * * * *
(n) To encourage the coordination of programs of promotion,
research and nutrition education designed to strengthen the dairy
industry's position in the marketplace and to maintain and expand
domestic and foreign markets and uses for fluid milk and dairy
products.
13. In Sec. 1150.151, new paragraph (c) is added to read as
follows:
Sec. 1150.151 Expenses.
* * * * *
(c) The Board is authorized to expend up to the amount of the
assessments collected from United States producers to promote dairy
products produced in the United States in foreign markets.
14. Section 1150.152 is revised to read as follows:
Sec. 1150.152 Assessments.
(a) Domestic Assessments.
(1) Each person making payment to a producer for milk produced in
the United States and marketed for commercial use shall collect an
assessment on all such milk handled for the account of the producer at
the rate of 15 cents per hundredweight of milk for commercial use, or
the equivalent thereof, and shall remit the assessment to the Board.
(2) Any producer marketing milk of that producer's own production
in the form of milk or dairy products to consumers, either directly or
through retail or wholesale outlets, shall remit to the Board an
assessment on such milk at the rate of 15 cents per hundredweight of
milk for commercial use or the equivalent thereof.
(3) In determining the assessment due from each producer pursuant
to Sec. 1150.152(a)(1) and (a)(2), a producer who is participating in
a qualified national, regional, or State program(s)
[[Page 23367]]
shall receive a credit for contributions to such program(s), but not to
exceed 10 cents per hundredweight of milk marketed.
(4) In order for a producer described in Sec. 1150.152(a)(1) to
receive the credit authorized in Sec. 1150.152(a)(3), either the
producer or a cooperative association on behalf of the producer must
establish to the person responsible for remitting the assessment to the
Board that the producer is contributing to a qualified national,
regional, or State program. Producers who contribute to a qualified
program directly (other than through a payroll deduction) must
establish with the person responsible for remitting the assessment to
the Board, with validation by the qualified program, that they are
making such contributions.
(5) In order for a producer described in Sec. 1150.152(a)(2) to
receive the credit authorized in Sec. 1150.152(a)(3), the producer and
the applicable qualified national, regional, or State program must
establish to the Board that the producer is contributing to a qualified
national, regional, or State program.
(6) The collection of assessments pursuant to Sec. 1150.152(a)(1)
and (a)(2) shall begin with respect to milk marketed on and after the
effective date of this section and shall continue until terminated by
the Secretary. If the Board is not constituted by the date the first
assessments are to be collected, the Secretary shall have the authority
to receive the assessments on behalf of the Board. The Secretary shall
remit such assessments to the Board when it is constituted.
(7) Each person responsible for the remittance of the assessment
pursuant to Sec. 1150.152(a)(1) and (a)(2) shall remit the assessment
to the Board not later than the last day of the month following the
month in which the milk was marketed.
(8) Money remitted to the Board shall be in the form of a
negotiable instrument made payable to ``National Dairy Promotion and
Research Board.'' Remittances and reports specified in Sec.
1150.171(a) shall be mailed to the location designated by the Secretary
or the Board.
(b) Importer Assessments.
(1) Each importer of dairy products identified in the following
table, except for as provided for in Sec. 1150.157, is responsible for
paying 7.5 cents per hundredweight of U.S. milk, or equivalent thereof,
as determined in (i) or (ii) below.
(i) If the importer has sufficient documentation, as stated in
Sec. 1150.172(b), to determine the milk solids content of the imported
dairy product, the importer shall use the assessment rate of $0.01327
per kilogram (kg) of milk solids to calculate and pay the assessment.
Milk solids of U.S. origin shall not be included in the calculation.
(ii) If the importer does not have sufficient documentation, as
stated in Sec. 1150.172(b), to determine the milk solids content of
the imported dairy product, the importer shall pay a rate per kg of
product volume as listed in the following table.
Imported Dairy Products Subject to Assessment
------------------------------------------------------------------------
Default rate
per unit of
HTS No. Unit of measure product (in
dollars)
------------------------------------------------------------------------
0401.10.0000....................... liter.............. 0.001
0401.20.2000....................... liter.............. 0.002
0401.20.4000....................... liter.............. 0.002
0401.30.0500....................... liter.............. 0.007
0401.30.2500....................... liter.............. 0.007
0401.30.5000....................... liter.............. 0.009
0401.30.7500....................... liter.............. 0.009
0402.10.1000....................... kg................. 0.013
0402.10.5000....................... kg................. 0.013
0402.21.0500....................... kg................. 0.013
0402.21.2500....................... kg................. 0.013
0402.21.3000....................... kg................. 0.013
0402.21.5000....................... kg................. 0.013
0402.21.7500....................... kg................. 0.013
0402.21.9000....................... kg................. 0.013
0402.29.1000....................... kg................. 0.012
0402.29.5000....................... kg................. 0.012
0402.91.1000....................... kg................. 0.005
0402.91.3000....................... kg................. 0.005
0402.91.7000....................... kg................. 0.005
0402.91.9000....................... kg................. 0.005
0402.99.1000....................... kg................. 0.004
0402.99.3000....................... kg................. 0.004
0402.99.4500....................... kg................. 0.004
0402.99.5500....................... kg................. 0.004
0402.99.7000....................... kg................. 0.009
0402.99.9000....................... kg................. 0.009
0403.10.1000....................... kg................. 0.013
0403.10.5000....................... kg................. 0.013
0403.10.9000....................... kg................. 0.002
0403.90.0400....................... liter.............. 0.004
0403.90.1600....................... liter.............. 0.004
0403.90.2000....................... liter.............. 0.006
0403.90.4110....................... kg................. 0.013
0403.90.4190....................... kg................. 0.013
0403.90.4500....................... kg................. 0.013
0403.90.5100....................... kg................. 0.013
0403.90.5500....................... kg................. 0.013
0403.90.6100....................... kg................. 0.013
0403.90.6500....................... kg................. 0.013
0403.90.7400....................... kg................. 0.013
0403.90.7800....................... kg................. 0.013
0403.90.8500....................... kg................. 0.002
0403.90.9000....................... kg................. 0.009
0403.90.9500....................... kg................. 0.009
0404.10.0500....................... kg................. 0.013
0404.10.1100....................... kg................. 0.013
0404.10.1500....................... kg................. 0.013
0404.10.2000....................... liter.............. 0.008
0404.10.5010....................... kg................. 0.013
0404.10.5090....................... kg................. 0.013
0404.10.9000....................... kg................. 0.013
0404.90.1000....................... kg................. 0.013
0404.90.3000....................... kg................. 0.013
0404.90.5000....................... kg................. 0.013
0404.90.7000....................... kg................. 0.013
0405.10.1000....................... kg................. 0.013
0405.10.2000....................... kg................. 0.013
0405.20.2000....................... kg................. 0.011
0405.20.3000....................... kg................. 0.011
0405.20.4000....................... kg................. 0.007
0405.20.6000....................... kg................. 0.011
0405.20.7000....................... kg................. 0.011
0405.20.8000....................... kg................. 0.011
0405.90.1020....................... kg................. 0.013
0405.90.1040....................... kg................. 0.013
0405.90.2020....................... kg................. 0.013
0405.90.2040....................... kg................. 0.013
0406.10.0400....................... kg................. 0.006
0406.10.0800....................... kg................. 0.006
0406.10.1400....................... kg................. 0.008
0406.10.1800....................... kg................. 0.008
0406.10.2400....................... kg................. 0.009
0406.10.2800....................... kg................. 0.009
0406.10.3400....................... kg................. 0.008
0406.10.3800....................... kg................. 0.008
0406.10.4400....................... kg................. 0.008
0406.10.4800....................... kg................. 0.008
0406.10.5400....................... kg................. 0.010
0406.10.5800....................... kg................. 0.010
0406.10.6400....................... kg................. 0.009
0406.10.6800....................... kg................. 0.009
0406.10.7400....................... kg................. 0.005
0406.10.7800....................... kg................. 0.005
0406.10.8400....................... kg................. 0.011
0406.10.8800....................... kg................. 0.011
0406.20.1500....................... kg................. 0.007
0406.20.2400....................... kg................. 0.012
0406.20.2800....................... kg................. 0.012
0406.20.3110....................... kg................. 0.012
0406.20.3190....................... kg................. 0.012
0406.20.3300....................... kg................. 0.012
0406.20.3600....................... kg................. 0.012
0406.20.3900....................... kg................. 0.012
0406.20.4400....................... kg................. 0.012
0406.20.4800....................... kg................. 0.012
0406.20.5100....................... kg................. 0.012
0406.20.5300....................... kg................. 0.012
0406.20.6100....................... kg................. 0.012
0406.20.6300....................... kg................. 0.012
0406.20.6500....................... kg................. 0.012
0406.20.6700....................... kg................. 0.012
0406.20.6900....................... kg................. 0.012
0406.20.7100....................... kg................. 0.012
0406.20.7300....................... kg................. 0.012
0406.20.7500....................... kg................. 0.012
0406.20.7700....................... kg................. 0.012
0406.20.7900....................... kg................. 0.012
0406.20.8100....................... kg................. 0.012
0406.20.8300....................... kg................. 0.012
0406.20.8500....................... kg................. 0.012
0406.20.8700....................... kg................. 0.012
0406.20.8900....................... kg................. 0.012
0406.20.9100....................... kg................. 0.012
0406.30.0500....................... kg................. 0.008
0406.30.1400....................... kg................. 0.008
0406.30.1800....................... kg................. 0.008
0406.30.2400....................... kg................. 0.009
0406.30.2800....................... kg................. 0.009
0406.30.3400....................... kg................. 0.008
0406.30.3800....................... kg................. 0.008
0406.30.4400....................... kg................. 0.008
[[Page 23368]]
0406.30.4800....................... kg................. 0.008
0406.30.5100....................... kg................. 0.009
0406.30.5300....................... kg................. 0.009
0406.30.6100....................... kg................. 0.008
0406.30.6300....................... kg................. 0.008
0406.30.6500....................... kg................. 0.011
0406.30.6700....................... kg................. 0.011
0406.30.6900....................... kg................. 0.008
0406.30.7100....................... kg................. 0.008
0406.30.7300....................... kg................. 0.011
0406.30.7500....................... kg................. 0.011
0406.30.7700....................... kg................. 0.010
0406.30.7900....................... kg................. 0.010
0406.30.8100....................... kg................. 0.009
0406.30.8300....................... kg................. 0.009
0406.30.8500....................... kg................. 0.005
0406.30.8700....................... kg................. 0.005
0406.30.8900....................... kg................. 0.011
0406.30.9100....................... kg................. 0.011
0406.40.4400....................... kg................. 0.008
0406.40.4800....................... kg................. 0.008
0406.40.5400....................... kg................. 0.008
0406.40.5800....................... kg................. 0.008
0406.40.7000....................... kg................. 0.008
0406.90.0810....................... kg................. 0.009
0406.90.0890....................... kg................. 0.009
0406.90.1200....................... kg................. 0.009
0406.90.1600....................... kg................. 0.008
0406.90.1800....................... kg................. 0.008
0406.90.3100....................... kg................. 0.009
0406.90.3200....................... kg................. 0.009
0406.90.3300....................... kg................. 0.009
0406.90.3600....................... kg................. 0.008
0406.90.3700....................... kg................. 0.008
0406.90.4100....................... kg................. 0.010
0406.90.4200....................... kg................. 0.010
0406.90.4600....................... kg................. 0.009
0406.90.4800....................... kg................. 0.009
0406.90.4900....................... kg................. 0.007
0406.90.5200....................... kg................. 0.008
0406.90.5400....................... kg................. 0.008
0406.90.6600....................... kg................. 0.010
0406.90.6800....................... kg................. 0.010
0406.90.7200....................... kg................. 0.008
0406.90.7400....................... kg................. 0.008
0406.90.7600....................... kg................. 0.009
0406.90.7800....................... kg................. 0.009
0406.90.8200....................... kg................. 0.008
0406.90.8400....................... kg................. 0.008
0406.90.8600....................... kg................. 0.008
0406.90.8800....................... kg................. 0.008
0406.90.9000....................... kg................. 0.009
0406.90.9200....................... kg................. 0.009
0406.90.9300....................... kg................. 0.005
0406.90.9400....................... kg................. 0.005
0406.90.9500....................... kg................. 0.011
0406.90.9700....................... kg................. 0.011
0406.90.9900....................... kg................. 0.007
1517.90.5000....................... kg................. 0.002
1517.90.6000....................... kg................. 0.002
1702.11.0000....................... kg................. 0.013
1702.19.0000....................... kg................. 0.013
1704.90.5400....................... kg................. 0.006
1704.90.5800....................... kg................. 0.006
1806.20.2090....................... kg................. 0.004
1806.20.2400....................... kg................. 0.004
1806.20.2600....................... kg................. 0.003
1806.20.2800....................... kg................. 0.004
1806.20.3400....................... kg................. 0.004
1806.20.3600....................... kg................. 0.003
1806.20.3800....................... kg................. 0.004
1806.20.8100....................... kg................. 0.013
1806.20.8200....................... kg................. 0.003
1806.20.8300....................... kg................. 0.013
1806.20.8500....................... kg................. 0.004
1806.20.8700....................... kg................. 0.003
1806.20.8900....................... kg................. 0.004
1806.32.0400....................... kg................. 0.004
1806.32.0600....................... kg................. 0.003
1806.32.0800....................... kg................. 0.004
1806.32.1400....................... kg................. 0.004
1806.32.1600....................... kg................. 0.003
1806.32.1800....................... kg................. 0.004
1806.32.6000....................... kg................. 0.003
1806.32.7000....................... kg................. 0.003
1806.32.8000....................... kg................. 0.003
1806.90.0500....................... kg................. 0.005
1806.90.0800....................... kg................. 0.003
1806.90.1000....................... kg................. 0.005
1806.90.1500....................... kg................. 0.003
1806.90.1800....................... kg................. 0.003
1806.90.2000....................... kg................. 0.003
1806.90.2500....................... kg................. 0.003
1806.90.2800....................... kg................. 0.003
1806.90.3000....................... kg................. 0.003
1901.10.1500....................... kg................. 0.009
1901.10.3000....................... kg................. 0.009
1901.10.3500....................... kg................. 0.009
1901.10.4000....................... kg................. 0.009
1901.10.4500....................... kg................. 0.001
1901.20.0500....................... kg................. 0.003
1901.20.1500....................... kg................. 0.003
1901.20.2000....................... kg................. 0.003
1901.20.2500....................... kg................. 0.003
1901.20.3000....................... kg................. 0.003
1901.20.3500....................... kg................. 0.003
1901.20.4000....................... kg................. 0.003
1901.20.4500....................... kg................. 0.003
1901.20.5000....................... kg................. 0.003
1901.90.2800....................... kg................. 0.013
1901.90.3400....................... kg................. 0.005
1901.90.3600....................... kg................. 0.005
1901.90.4200....................... kg................. 0.007
1901.90.4300....................... kg................. 0.007
1901.90.7000....................... kg................. 0.003
1901.90.9082....................... kg................. 0.001
2105.00.1000....................... kg................. 0.005
2105.00.2000....................... kg................. 0.005
2105.00.3000....................... kg................. 0.003
2105.00.4000....................... kg................. 0.003
2106.90.0600....................... kg................. 0.002
2106.90.0900....................... kg................. 0.002
2106.90.2400....................... kg................. 0.010
2106.90.2600....................... kg................. 0.010
2106.90.2800....................... kg................. 0.007
2106.90.3400....................... kg................. 0.006
2106.90.3600....................... kg................. 0.006
2106.90.3800....................... kg................. 0.002
2106.90.6400....................... kg................. 0.013
2106.90.6600....................... kg................. 0.013
2106.90.6800....................... kg................. 0.001
2106.90.7200....................... kg................. 0.001
2106.90.7400....................... kg................. 0.001
2106.90.7600....................... kg................. 0.001
2106.90.7800....................... kg................. 0.002
2106.90.8000....................... kg................. 0.002
2106.90.8200....................... kg................. 0.003
2202.90.1000....................... liter.............. 0.001
2202.90.2400....................... liter.............. 0.001
2202.90.2800....................... liter.............. 0.001
3501.10.1000....................... kg................. 0.013
3501.10.5000....................... kg................. 0.012
3501.90.6000....................... kg................. 0.013
3502.20.0000....................... kg................. 0.013
------------------------------------------------------------------------
(2) The assessment on imported dairy products shall be paid by the
importer to CBP at the time of entry summary for any products
identified in Sec. 1150.152(b)(1).
(3) The assessments collected by CBP pursuant to Sec.
1150.152(b)(2) of this section shall be transferred to the Board in
compliance with an agreement between CBP and the Agricultural Marketing
Service.
(4) The Board, at its discretion, shall verify the information
reported by importers to CBP to determine if additional money is due
the Board or an amount is due to an importer based on the quantity
imported and the milk solids content per unit or the default assessment
rate for the imported dairy product. In the case of money due to an
importer from the Board, the Board will issue payment promptly to the
importer. In the case of money due from the importer to the Board, the
Board will send an invoice for payment directly to the importer. The
invoice will be due upon receipt.
(5) At the designation of an importer, the Board shall remit to a
qualified promotion program(s) assessments paid by the importer
pursuant to Sec. 1150.152(b)(2) not to exceed 2.5 cents per
hundredweight of milk, or equivalent thereof, of the 7.5 cents per
hundredweight of milk, or equivalent thereof, paid by the importer.
(6) Assessments collected on imported dairy products shall not be
used for foreign market promotion of United States dairy products.
(c) The collection of assessments pursuant to Sec. 1150.152(a) and
(b) shall begin with respect to milk marketed or dairy products
imported on and after the effective date of this section and shall
continue until terminated by the Secretary.
(d) Each person responsible for the remittance of the assessment
pursuant to Sec. 1150.152(a) shall remit the assessment to the Board
not later than the last day of the month following the month in which
the milk was marketed.
[[Page 23369]]
(e) Money remitted to the Board shall be in the form of an
electronic or negotiable instrument made payable to ``National Dairy
Promotion and Research Board.'' Remittances and reports specified in
Sec. 1150.171(a) shall be mailed or otherwise transferred to the
location designated by the Secretary or the Board.
(f) Any money received by the Board pursuant to Sec.
1150.152(b)(1) before the Secretary appoints the initial importer
representatives to the Board shall not be spent by the Board but shall
be held in escrow until such appointment.
15. In Sec. 1150.153, the section heading and paragraphs (a),
(b)(3), and (b)(5) are revised to read as follows:
Sec. 1150.153 Qualified national, regional, or State dairy product
promotion, research or nutrition education programs.
(a) Any organization which conducts a dairy product promotion,
research or nutrition education program, authorized by Federal or State
law or has been active and ongoing before enactment of the Act, may
apply to the Secretary for certification of qualification so that:
(1) producers may receive credit pursuant to Sec. 1150.152(a)(3)
for contributions to such program; and
(2) the Board may remit payments designated by importers pursuant
to Sec. 1150.152(b)(5).
(b) * * *
(3) Be financed primarily by producers, either individually or
through cooperative associations, and/or by importers;
* * * * *
(5) Certify to the Secretary that any requests from producers or
importers for refunds under the program will be honored by forwarding
to either the Board or a qualified national, regional or State program
designated by the producer or importer that portion of such refunds
equal to the amount of credit that otherwise would be applicable to
that program pursuant to Sec. 1150.152(a)(3) or (b)(5); and
* * * * *
16. In Sec. 1150.153, paragraphs (c) introductory text, (c)(2),
(c)(2)(i), (c)(2)(ii), and (c)(2)(iii), and (c)(2)(iv) replace the
words ``State or regional'' with the words ``national, regional, or
State''.
17. In Sec. 1150.156, paragraph (a) is revised to read as follows:
Sec. 1150.156 Charges and penalties.
(a) Late-payment charge. Any unpaid assessments to the Board
pursuant to Sec. 1150.152 shall be increased 1.5 percent each month
beginning with the day following the date such assessments were due.
Any remaining amount due, which shall include any unpaid charges
previously made pursuant to this section, shall be increased at the
same rate on the corresponding day of each month thereafter until paid.
(1) For the purpose of this section, any assessment pursuant to
Sec. 1150.152(a) that was determined at a date later than prescribed
by this subpart because of a person's failure to submit a report to the
Board when due shall be considered to have been payable by the date it
would have been due if the report had been filed when due. The
timeliness of a payment to the Board shall be based on the applicable
postmark date or the date actually received by the Board, whichever is
earlier.
(2) For the purpose of this section, any assessment paid to CBP
pursuant to Sec. 1150.152(b) subsequent to the time entry summary
documents are filed by the importer is considered to be past due.
* * * * *
18. Section 1150.157 is revised to read as follows:
Sec. 1150.157 Assessment exemption.
(a) A producer described in Sec. 1150.152(a)(1) and (a)(2) who
operates under an approved National Organic Program (NOP) (7 CFR part
205) system plan; produces only products that are eligible to be
labeled as 100 percent organic under the NOP, except as provided for in
paragraph (h) of this section; and is not a split operation shall be
exempt from the payment of assessments.
(b) To apply for exemption under this section, a producer pursuant
to Sec. 1150.152(a)(1) and (a)(2) shall submit a request for exemption
to the Board on a form provided by the Board at any time initially and
annually thereafter on or before July 1 as long as the producer
continues to be eligible for the exemption.
(c) A producer request for exemption shall include the following:
the producer's name and address, a copy of the organic farm or organic
handling operation certificate provided by a USDA-accredited certifying
agent as defined in section 2103 of the Organic Foods Production Act of
1990 (7 U.S.C 6502), a signed certification that the applicant meets
all of the requirements specified in paragraph (a) of this section for
an assessment exemption, and such other information as may be required
by the Board and with the approval of the Secretary.
(d) If a producer described in Sec. 1150.152(a)(1) and (a)(2)
complies with the requirements of this section, the Board will grant an
assessment exemption and issue a Certificate of Exemption to the
producer within 30 days. If the application is disapproved, the Board
will notify the applicant of the reason(s) for disapproval within the
same timeframe.
(e) The producer described in paragraph (c) of this section shall
provide a copy of the Certificate of Exemption to each person
responsible for remitting assessments to the Board on behalf of the
producer pursuant to Sec. 1150.152(a).
(f) The person responsible for remitting assessments to the Board
pursuant to Sec. 1150.152 shall maintain records showing the exempt
producer's name and address and the exemption number assigned by the
Board pursuant to Sec. 1150.172(a).
(g) An importer who imports only products that are eligible to be
labeled as 100 percent organic under the NOP (7 CFR part 205) and who
is not a split operation shall be exempt from the payment of
assessments. That importer may submit documentation to the Board and
request an exemption from assessment on 100 percent organic dairy
products--on a form provided by the Board--at any time initially and
annually thereafter as long as the importer continues to be eligible
for the exemption. This documentation shall include the same
information required of producers in paragraph (c) of this section. If
the importer complies with the requirements of this section, the Board
will grant the exemption and issue a Certificate of Exemption to the
importer. The Board will also issue the importer a 9-digit alphanumeric
Harmonized Tariff Schedule (HTS) classification valid for 1 year from
the date of issue. This HTS classification should be entered by the
importer on the Customs entry documentation. Any line item entry of 100
percent organic dairy products bearing this HTS classification assigned
by the Board will not be subject to assessments.
(h) The exemption will apply not later than the last day of the
month following the Certificate of Exemption issuance date.
(i) Agricultural commodities produced and marketed under an organic
system plan, as described in 7 CFR 205.201, but not sold, labeled, or
represented as organic, shall not disqualify a producer from exemption
under this section, except that producers who produce both organic and
non-organic agricultural commodities as a result of split operations
shall not qualify for exemption. Reasons for conventional sales include
lack of demand for organic products, isolated use of antibiotics for
[[Page 23370]]
humane purposes, chemical or pesticide use as the result of State or
emergency spray programs, and crops from a buffer area as described in
7 CFR part 205, provided all other criteria are met.
19. Section 1150.171 is revised to read as follows:
Sec. 1150.171 Reports.
(a) Each producer marketing milk of that producer's own production
directly to consumers and each person making payment to producers and
responsible for the collection of the assessment under Sec.
1150.152(a) shall be required to report at the time for remitting
assessments to the Board such information as may be required by the
Board or by the Secretary. Such information may include but not be
limited to the following:
(1) The quantity of milk purchased, initially transferred or which,
in any other manner, are subject to the collection of the assessment;
(2) The amount of assessment remitted;
(3) The basis, if necessary, to show why the remittance is less
than the number of hundredweights of milk multiplied by 15 cents; and
(4) The date any assessment was paid.
(b) Importers of dairy products shall submit reports as requested
by the Dairy Board or the Department as necessary to verify that
provisions pursuant to Sec. 1150.152(b) have been carried out
correctly, including verification that correct amounts were paid based
upon milk solids content of the imported dairy products pursuant to
Sec. 1150.152(b)(1)(i) or volume of imported dairy products per HTS
code pursuant to Sec. 1150.152(b)(1)(ii).
20. Section 1150.172 is revised to read as follows:
Sec. 1150.172 Books and records.
(a) Each producer who is subject to this subpart, and other persons
subject to Sec. 1150.171(a), shall maintain and make available for
inspection by employees of the Board and the Secretary such books and
records as are necessary to carry out the provisions of this subpart
and the regulations issued hereunder, including such records as are
necessary to verify any reports required. Such records shall be
retained for at least two years beyond the fiscal period of their
applicability.
(b) Each importer of dairy products shall maintain and make
available for inspection by employees of the Board and the Secretary
such books and records to verify that provisions pursuant to Sec.
1150.152(b) have been carried out correctly, including verification
that correct amounts were paid based upon milk solids content of the
imported dairy products pursuant to Sec. 1150.152(b)(1)(i) or volume
of imported dairy products per HTS code pursuant to Sec.
1150.152(b)(1)(ii). Such records shall be retained for at least two
years beyond the calendar period of their applicability. Such
information may include but not be limited to invoices, packing slips,
bills of lading, and letters from the manufacturer on the
manufacturer's letterhead stating the milk solids content of imported
dairy products.
21. Section 1150.187 is revised to read as follows:
Sec. 1150.187 Paperwork Reduction Act assigned number.
The information collection and recordkeeping requirements contained
in Sec. Sec. 1150.133, 1150.152, 1150.153, 1150.171, 1150.172,
1150.202, 1150.204, 1150.205, 1150.211 and 1150.273 of these
regulations (7 CFR Part 1150) have been approved by the Office of
Management and Budget (OMB) under the provisions of 44 U.S.C. Chapter
35 and have been assigned OMB Control Number 0581-0147 as appropriate.
Dated: May 12, 2009.
Robert C. Keeney,
Acting Associate Administrator, Agricultural Marketing Service.
[FR Doc. E9-11492 Filed 5-18-09; 8:45 am]
BILLING CODE 3410-02-P