This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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REGISTER issue of each week.

Rules and Regulations Federal Register

36341 

Vol. 72, No. 127 

Tuesday, July 3, 2007 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1170 

RIN 0581–AC66 

[Doc. # AMS–07–0047; DA–06–07] 

Dairy Product Mandatory Reporting 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim final rule. 

SUMMARY: This interim final rule 

establishes a Dairy Product Mandatory 

Reporting Program as required by law, 

on an interim final basis. The Dairy 

Market Enhancement Act of 2000, and 

certain provisions of the Farm Security 

and Rural Investment Act of 2002, 

amended the Agricultural Marketing Act 

of 1946 to provide for timely, accurate, 

and reliable market information to 

facilitate more informed marketing 

decisions and promote competition in 

the dairy product manufacturing 

industry. The Department will issue a 

final rule once public comments have 

been received. 

DATES: Effective Date: August 2, 2007. 

The provisions of this rule will expire 

12 months from the date of publication 

unless further regulatory action is taken. 

Comments must be submitted on or 

before September 4, 2007. 

ADDRESSES: Comments (four copies) 

should be submitted to John R. Mengel, 

Chief Economist, USDA/AMS/Dairy 

Programs, Office of the Chief Economist, 

STOP 0229–Room 2753, 1400 

Independence Ave, SW., Washington, 

DC 20250–0229 or faxed to (202) 690– 

0552. Comments may also be submitted 

at the Federal eRulemaking portal: 

http://www.regulations.gov. All 

comments should reference the docket 

number and the date and page number 

of this issue of the Federal Register. 

Comments can be viewed in the Office 

of the Chief Economist during regular 

business hours, or at: http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: John 

R. Mengel, Chief Economist, USDA/ 

AMS/Dairy Programs, Office of the 

Chief Economist, STOP 0229–Room 

2753, 1400 Independence, Ave, SW., 

Washington, DC 20250–0229, (202) 720– 

7091. 

SUPPLEMENTARY INFORMATION: This 

interim final rule is a statutory 

requirement pursuant to the 

Agricultural Marketing Act of 1946 [7 

U.S.C. 1621 et seq.], hereinafter referred 

to as the ‘‘Act’’, as amended November 

22, 2000, by Pub. L. No. 106–532, 114 

Stat. 2541, and further amended May 

13, 2002, by Pub. L. No. 107–171, 116 

Stat. 207. 

Background: The Act provides for and 

accordingly, this interim final rule 

establishes, a Dairy Product Mandatory 

Reporting Program that will: (1) Require 

persons engaged in manufacturing dairy 

products to provide to the Department 

of Agriculture (Department) certain 

information including the price, 

quantity, and moisture content, where 

applicable, of dairy products sold by the 

manufacturer; and (2) Require 

manufacturers and other persons storing 

dairy products to report to the 

Department information on the quantity 

of dairy products stored. Under the 

interim final rule, the National 

Agricultural Statistics Service (NASS) 

will collect such information. Any 

manufacturer that processes and 

markets less than 1 million pounds of 

dairy products per calendar year would 

be exempt from these reporting 

requirements. 

Under this authority, NASS initiated 

a program to collect the information for 

Dairy Product Prices. Dairy Products 

Prices began with the collection of 

cheese data in 1997. Information on 

cheddar cheese, butter, dry whey, and 

nonfat dry milk is now collected and 

published on a weekly basis. Stocks of 

butter and cheese have been collected 

on a voluntary basis since 1916 under 

the Cold Storage Program. Information 

on specific cheeses, butter, anhydrous 

milkfat, butter oil, unsalted butter, 

nonfat dry milk and dry whey is now 

collected and published on a monthly 

basis. 

The Act as amended provides the 

Department with the authority needed 

to make the reporting of dairy product 

information mandatory. No new 

commodities are included under this 

rule. The Act also provides that the 

Secretary shall take such actions as the 

Secretary considers necessary to verify 

the accuracy of the information 

submitted or reported. With more 

complete and accurate information, the 

Department and the dairy industry can 

be confident that reported dairy product 

prices and inventories are more precise 

indicators of supply and demand 

conditions. 

The Agricultural Marketing Service 

(AMS) will implement a plan to verify 

the price information submitted by 

various dairy product manufacturing 

plants to NASS per the mandatory dairy 

product price reporting program using 

the reports received from NASS. During 

the first year of verification, AMS will 

visit all of the entities eligible to file 

reports at least once. In subsequent 

years, AMS will visit large entities that 

account for 80 percent of the yearly 

reported product volume of each 

specified dairy product at least once and 

one-half of the entities that account for 

the remaining 20 percent of the yearly 

reported product volume. Entities in the 

latter category will be visited at least 

once every two years. During each visit, 

AMS will review applicable sales 

transaction records for a sample of 

reporting periods during the year. AMS 

will verify that eligible sales 

transactions agree with information 

reported to NASS and will check for 

eligible sales transactions that were not 

reported to NASS. AMS will report to 

the Secretary any reporting violations. 

AMS requests comments on all aspects 

of this audit program. 

Executive Order 12866: Regulatory 

Planning and Review 

This interim final rule has been 

determined ‘‘significant’’ for purposes of 

Executive Order 12866 and therefore 

has been reviewed by the Office of 

Management and Budget. A cost benefit 

analysis (CBA) was conducted and can 

be viewed on the internet at http:// 

www.ams.usda.gov/dairy. The largest 

possible response to the survey by 

processors will provide more reliable 

dairy product prices for use in 

establishing minimum prices for Class 

III and Class IV milk under the Federal 

milk marketing order program. In 

addition, the use of reliable market 

prices for dairy products will help 


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1North American Industry Classification System 

(NAICS) code 3115. 

assure that milk producers are paid an 

equitable price for their milk and that 

milk processors are paying a 

competitive price for their milk supply. 

Erroneous price information can be 

costly. For example, during the month 

of May 2005, the CBA indicates that a 

1 cent per pound error in the cheese 

price announced by NASS would cause 

a 9.65 cent per hundredweight error in 

the Class III price and 3.76 cents per 

hundredweight error in the price paid to 

producers. Multiplying the price error 

(3.76 cents) times the quantity of milk 

marketed in Federal milk marketing 

order system indicates that either 

producers would have received $4 

million less for their milk in the month 

of May 2005, than they actually did, or 

that manufacturers would have paid $4 

million more for milk in May 2005 than 

they actually did. Also, some or all of 

this error could have affected Class I 

prices in June 2005. 

The CBA estimated the incremental 

cost of the mandatory reporting program 

in the first year would be approximately 

$24,000 for manufacturers who were not 

already reporting to NASS to comply 

with this rule. As stated in the CBA, 

there are a total of 110 cold storage 

facilities and 98 manufacturing plants 

that are required to report under the 

mandatory program. The cost to cold 

storage facilities completing reports is 

$132 per facility for a total annual cost 

of $14,520. The cost to manufacturers 

reporting product prices is estimated at 

$381.26 per plant for a total annual cost 

of $37,363.48. Thus, the total annual 

cost for submitting information under 

the mandatory program is $51,883.48. 

The cost to the Federal Government for 

implementation of the verification 

program will be approximately $102,000 

the first year and approximately $70,000 

in subsequent years. 

Executive Order 12988 Civil Justice 

Reform 

This interim 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. There are no 

administrative procedures which must 

be exhausted prior to any judicial 

challenge to the provisions of this rule. 

Civil Rights Review 

AMS has considered the potential 

civil rights implications of this rule on 

minorities, women, or persons with 

disabilities 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. This 

review included persons that are 

employees of the entities that are subject 

to this regulation. This rule does not 

require affected entities to relocate or 

alter their operations in ways that could 

adversely affect such persons or groups. 

Further, this rule would not deny any 

persons or groups the benefits of the 

program or subject any persons or 

groups to discrimination. 

Regulatory Flexibility Act 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), AMS has considered 

the economic impact of this interim 

final rule on small entities and has 

determined that this rule will not have 

a significant economic impact on a 

substantial number of small entities. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

businesses subject to such actions in 

order that small businesses will not be 

unduly or disproportionately burdened. 

Small businesses in the dairy product 

manufacturing 1 industry have been 

defined by the Small Business 

Administration (SBA) as those 

processors employing not more than 500 

employees. For purposes of determining 

a processor’s size, if the plant is part of 

a larger company operating multiple 

plants that collectively exceed the 500- 

employee limit, the plant will be 

considered a large business even if the 

local plant has fewer than 500 

employees. There are approximately 98 

dairy product manufacturers and 110 

manufacturers and other persons storing 

dairy products that would be subject to 

the provisions of this rule. According to 

U.S. Census Bureau Statistics of U.S. 

Businesses, there were 1,110 dairy 

manufacturing firms in the United 

States in 2004. Of these concerns, 1,017 

firms had fewer than 500 employees and 

93 firms had greater than 500 

employees. 

Therefore, few of the manufacturers 

and persons affected by this interim 

final rule are small businesses under the 

criteria established by the SBA. Those 

manufacturers with less than 1 million 

pounds of annual production are 

exempted by the Act and most of the 

entities that would be subject to 

mandatory reporting already report this 

information to NASS. The annual cost 

to manufacturers reporting product 

prices is estimated at $381.26 per plant. 

As discussed in the Paperwork 

Reduction Act section below, AMS 

believes the records that would be 

required to be maintained under this 

interim final rule are already being 

maintained for at least two years as part 

of the normal course of business. Thus, 

there would be no additional burden or 

cost associated with the maintenance of 

these records. Therefore, the interim 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act (44 U.S.C. Chapter 35), 

the forms and reporting and 

recordkeeping requirements that are 

included that are utilized to collect the 

information required by the Act have 

been previously approved by the Office 

of Management and Budget (OMB) and 

were assigned OMB control number 

0535–0020 for the Dairy Product Prices 

Survey and OMB control number 0535–

0001 for the Monthly Cold Storage 

Report. 

The primary function of NASS is to 

prepare and issue current official state 

and national estimates of crop and 

livestock production. Estimates of milk 

production and manufactured dairy 

products are an integral part of this 

program. Milk and dairy statistics are 

used by the Department to help 

administer the Federal milk marketing 

order program and are used by the dairy 

industry in planning, pricing, and 

projecting supplies of milk and milk 

products. 

The interim final rule does not change 

the current method and frequency of 

data collection utilized by NASS. Data 

collection of Dairy Product Prices is 

conducted weekly to collect sales 

transactions data for the previous week. 

Manufacturers are provided a supply of 

report forms for the products they are to 

report. The dairy product manufacturer 

completes the form with information, 

including the manufacturer’s name, 

address, plant location, quantities sold, 

and dollars received or prices of 

Cheddar cheese, butter, dry whey, and 

nonfat dry milk. Manufacturers report to 

NASS by facsimile or by electronic data 

reporting. 

The Monthly Cold Storage Report is 

mailed each month to manufacturers 

and other entities storing dairy 

products. Manufacturers and other 

entities report to NASS the name, 

address, and stocks on hand at the end 

of the month. Reports are returned to 

NASS. 

This interim final rule implements 

recordkeeping requirements authorized 

by the Act. Under this regulation, each 

person required to report information to 


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the Department shall maintain, and 

make available to the Department, on 

request, original contracts, agreements, 

receipts, and other records associated 

with the sale or storage of any dairy 

products during the two-year period 

beginning on the date of the creation of 

the records. AMS has consulted with 

several of those entities that are required 

to maintain records under this interim 

finale rule and believes the necessary 

records are already being maintained for 

at least two years as part of the normal 

course of business. Therefore, there 

would be no additional burden or cost 

associated with the maintenance of 

these records. AMS invites comment on 

whether all entities subject to this 

regulation already maintain the 

necessary records for at least two years. 

Comments should be sent to the 

USDA in care of John R. Mengel, Chief 

Economist, USDA/AMS/Dairy 

Programs, Office of the Chief Economist, 

STOP 0229—Room 2753, 1400 

Independence Ave., SW., Washington, 

DC 20250–0229 or faxed to (202) 690–

0552. All comments received will be 

available for public inspection during 

regular business hours at the same 

address or at http:// 

www.regulations.gov. 

The reliability of prices announced by 

NASS is dependent on the accuracy of 

the reports submitted by manufacturers. 

To verify that the information submitted 

to NASS is accurate, all manufacturers 

required to submit reports will be 

subject to audits conducted by AMS. 

Failure on the part of manufacturers or 

other entities to comply with the data 

collection and recordkeeping 

requirements could lead to enforcement 

action, including the levying of civil 

penalties provided under section 273 of 

the Act, as amended [7 U.S.C. 1637b], 

against the violating person or entity. 

Except as otherwise directed by the 

Secretary or the Attorney General for 

enforcement purposes, no officer, 

employee, or agent of the United States 

shall make available to the public 

information, statistics, or documents 

obtained from or submitted by any 

person under the Acts other than in a 

manner that ensures that confidentiality 

is preserved regarding the identity of 

persons, including parties to a contract, 

and proprietary business information. 

All report forms include a statement 

that individual reports are kept 

confidential. 

With respect to the application of the 

Privacy Act of 1974 (5 U.S.C. 552a) 

(‘‘Privacy Act’’) to the maintenance of 

records required by the Act, the Dairy 

Products Prices survey population 

consists of Agribusinesses. Data 

collected by this survey relates to 

Agribusinesses’ dealings and not those 

of individuals. Records maintained at 

business sites for verification of 

information reported to NASS include 

contracts, agreements, receipts and 

other material related to sales of specific 

dairy products. No records about 

individuals are maintained by NASS for 

this survey and AMS believes that none 

would be part of these maintained 

business papers. 

AMS is aware that inaccurate 

reporting of nonfat dry milk price 

information to NASS in 2007 resulted in 

a reduction in prices paid to producers. 

AMS is aware of the existence of 

forward pricing sales such as those 

associated with the inaccurate reporting 

of nonfat dry milk price information. 

AMS specifically invites comment on 

the prevalence of the use of forward 

contracts and whether they need to be 

addressed in some way under the 

mandatory program. As discussed 

earlier, even relatively small errors in 

price information can result in 

significant differences in overall 

revenues. An audit-based program of 

dairy price reporting would 

substantially reduce the likelihood of 

such errors in reporting. For this reason, 

and because the required audit-based 

program is virtually identical to the 

program which has been operating for a 

number of years, there is good cause to 

issue this rule as an interim final rule. 

List of Subjects in 7 CFR Part 1170 

Butter, Cheese, Dairy products, Nonfat 

dry milk, Reporting and recordkeeping 

requirements, Whey. 

■ For the reasons set forth in the 

preamble, Title 7, subtitle B, chapter X 

is amended by adding part 1170, to read 

as follows: 

PART 1170—DAIRY PRODUCT 

MANDATORY REPORTING 

Sec. 

1170.1 Secretary. 

1170.2 Act. 

1170.3 Person. 

1170.4 Dairy products. 

1170.5 Manufacturer. 

1170.6 Store. 

Dairy Product Reporting Program 

1170.7 Reporting requirements. 

1170.8 Price reporting specifications. 

1170.9 Storage reporting specifications. 

1170.10 Records. 

1170.11 Confidential information. 

Verification and Enforcement 

1170.12 Verification of reports. 

1170.13 Noncompliance procedures. 

1170.14 Appeals. 

1170.15 Enforcement. 

Exemptions 

1170.16 Exemptions. 

Authority: 7 U.S.C. 1637–1637b, as 

amended by Pub. L. 106–532, 114 Stat. 2541 

and Pub. L. 107–171, 116 Stat. 207. 

PART 1170—DAIRY PRODUCT 

MANDATORY REPORTING 

§ 1170.1 Secretary. 

Secretary means the Secretary of 

Agriculture of the United States or any 

other officer or employee of the 

Department to whom authority has been 

delegated. 

§ 1170.2 Act. 

Act means the Agricultural Marketing 

Act of 1946, 7 U.S.C. 1621 et seq., as 

amended by the Dairy Market 

Enhancement Act of 2000, Pub. L. No. 

106–532, 114 Stat. 2541, and the Farm 

Security and Rural Investment Act of 

2002, Pub. L. No. 107–171, 116 Stat. 

207. 

§ 1170.3 Person. 

Person means an individual, 

partnership, corporation, association, or 

any other business unit. 

§ 1170.4 Dairy products. 

Dairy Products means—

(a) Manufactured dairy products that 

are used by the Secretary to establish 

minimum prices for Class III and Class 

IV milk under a Federal milk marketing 

order issued under section 8c of the 

Agricultural Adjustment Act (7 U.S.C. 

608c), reenacted with amendments by 

the Agricultural Marketing Agreement 

Act of 1937; and 

(b) Substantially identical products 

designated by the Secretary in this Part. 

§ 1170.5 Manufacturer. 

Manufacturer means any person 

engaged in the business of buying milk 

in commerce for the purpose of 

manufacturing dairy products in one or 

more locations. 

§ 1170.6 Store. 

(a) Store means to place cheese or 

butter in a warehouse or facility which 

is artificially cooled to a temperature of 

50 degrees Fahrenheit or lower and hold 

these dairy products for 30 days or 

more; or 

(b) Store means to place nonfat dry 

milk or dry whey in a manufacturing 

plant, packaging plant, distribution 

point, or shipment in transit. 

Dairy Product Reporting Program 

§ 1170.7 Reporting requirements. 

(a) Manufacturers of dairy products 

shall report on a weekly basis all sales 

transactions for the previous week, on 

the appropriate forms supplied by the 

National Agricultural Statistics Service. 

The report shall indicate the name, 


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address, plant location, quantities sold, 

and dollars received or the prices of 

dairy products as defined in § 1170.4. 

(b) Manufacturers or other persons 

storing dairy products shall report on a 

monthly basis stocks of dairy products 

(as defined in § 1170.4) on hand, on the 

appropriate forms supplied by the 

National Agricultural Statistics Service. 

The report shall indicate the name, 

address, and stocks on hand at the end 

of the month for each storage location. 

§ 1170.8 Price reporting specifications. 

The following are the reporting 

specifications for each dairy product. 

(a) Specifications for Cheddar Cheese 

Prices: 

(1) Sale: When a transaction is 

completed (for example: cheese is 

‘‘shipped out’’ and title transfer occurs.) 

(2) Variety: Cheddar Cheese. 

(3) Style: 40-pound blocks or 500- 

pound barrels. 

(4) Moisture Content: 40-pound 

blocks, exclude cheese that will be aged. 

Barrels Report—moisture content of 

cheese sold, not to exceed 37.7 percent. 

(5) Age: Not less than 4 days or more 

than 30 days on date of sale. 

(6) Grade: Barrels—Wisconsin State 

Brand or USDA Extra Grade or better. 

40-pound blocks—Wisconsin State 

Brand or USDA Grade A or better. 

(7) Color: Barrels—White, 40-pound 

blocks—colored between 6–8 on the 

National Cheese Institute color chart. 

(8) Packaging: 40-pound blocks—Price 

should reflect cheese wrapped in a 

sealed, airtight package in corrugated or 

solid fiberboard containers with a 

reinforcing inner liner or sleeve. 

Exclude all other packaging costs from 

the reported price. Barrels—Exclude all 

packaging costs from the reported price. 

(9) Price: Price should be reported as 

price per pound or total dollars 

received. Price is f.o.b. processing plant/ 

storage center. 

(10) Include: CCC purchases under 

the Dairy Price Support and related 

programs, and CME sales by initial 

manufacturer. 

(11) Exclude: Block cheese that will 

be aged, transportation and clearing 

charges from price, intra-company sales, 

resales of purchased cheese and forward 

pricing sales (sales in which the selling 

prices was set (not adjusted) 30 or more 

days before the transaction was 

completed). 

(b) Specifications for Butter Prices: 

(1) Sale: When a transaction is 

completed (for example: Butter is 

‘‘shipped out’’ and title transfer occurs.) 

Report sales of butter that meets USDA 

Grade AA standards, 80 percent 

butterfat, salted—fresh or storage. 

(2) Price: Price is f.o.b. processing 

plant/storage center. Prices and 

quantities are for all 25 kilogram and 68 

pound box sales. 

(3) Include: CCC purchases under the 

Dairy Price Support and related 

programs, and CME sales by initial 

manufacturer. 

(4) Exclude: Unsalted and Grade A 

butter, transportation and clearing 

charges from price, intra-company sales, 

resales of purchased butter and forward 

pricing sales (sales in which the selling 

prices was set (not adjusted) 30 or more 

days before the transaction was 

completed). This exclusion does not 

include sales through the Dairy Export 

Incentive Program (DEIP). 

(c) Specifications for Dry Whey 

Prices: 

(1) Sale: When a transaction is 

completed (for example: dry whey is 

‘‘shipped out’’ and title transfer occurs.) 

Sales are for USDA Extra Grade edible 

nonhygroscopic dry whey. 

(2) Price: Prices is f.o.b. processing 

plant/storage center. Prices and 

quantities are for all 25 kilogram bag, 50 

pound bag, tote and tanker sales. 

(3) Exclude: Sales of Grade A dry 

whey, sales of dry whey more than 180 

days old, transportation charges from 

price, intra-company sales, resales of 

purchased dry whey and forward 

pricing sales (sales in which the selling 

prices was set (not adjusted) 30 or more 

days before the transaction was 

completed.) 

(d) Specifications for the Nonfat Dry 

Milk Prices: 

(1) Sale: When a transaction is 

completed (for example: nonfat dry milk 

is ‘‘shipped out’’ and title transfer 

occurs.) Sales are for USDA Extra Grade 

and USPH Grade A, non-fortified, 

nonfat dry milk. 

(2) Price: Price is f.o.b. processing 

plant/storage center. Prices and 

quantities are for all 25 kilogram bag, 50 

pound bag, tote and tanker sales. 

(3) Include: Nonfat dry milk 

manufactured using low or medium 

heat process, CCC purchases under the 

Dairy Price Support and related 

programs, and CME sales by initial 

manufacturer. 

(4) Exclude: Sales of nonfat dry milk 

more than 180 days old, nonfat dry milk 

manufactured using high heat process, 

sales of instant nonfat dry milk, sales of 

dry buttermilk products, transportation 

and clearing charges, intra-company 

sales, resales of purchased nonfat dry 

milk and forward pricing sales (sales in 

which the selling prices was set (not 

adjusted) 30 or more days before the 

transaction was completed). This 

exclusion does not include sales 

through the Dairy Export Incentive 

Program (DEIP). 

§ 1170.9 Storage reporting specifications. 

(a) Reporting universe: (1) Cold 

Storage Report: All warehouses or 

facilities, except those described in 

§ 1170.16, artificially cooled to a 

temperature of 50 degrees Fahrenheit or 

lower where dairy products generally 

are placed and held for 30 days or more. 

Excluded are stocks in refrigerated 

space maintained by wholesalers, 

jobbers, distributors, and chain stores; 

locker plants containing individual 

lockers; and frozen food processors 

whose inventories are turned over more 

than once a month. 

(2) Dairy Products Report: All 

manufacturing plants, packaging plants, 

distribution points or shipments in 

transit. 

(b) Products required: (1) Natural 

cheese, domestic and foreign made, 

including barrel and cheese to be 

processed; American type cheeses, 

(cheddar, monterey, colby, etc.), 

including government owned stocks; 

Swiss; other natural cheese types (brick, 

mozzarella, muenster, parmesan, etc.). 

Exclude processed cheese; 

(2) Butter, anhydrous milkfat (AMF), 

butter oil, and unsalted butter, 

including government owned stocks; 

(3) Nonfat dry milk; and 

(4) Dry whey. 

§ 1170.10 Records. 

Each person required to report 

information to the Secretary shall 

maintain, and make available to the 

Secretary, on request, original contracts, 

agreements, receipts, and other records 

associated with the sale or storage of 

any dairy products during the two-year 

period beginning on the date of the 

creation of the records. 

§ 1170.11 Confidential information. 

Except as otherwise directed by the 

Secretary or the Attorney General for 

enforcement purposes, no officer, 

employee, or agent of the United States 

shall make available to the public 

information, statistics, or documents 

obtained from or submitted by any 

person in compliance with the Dairy 

Product Mandatory Reporting program 

other than in a manner that ensures that 

confidentiality is preserved regarding 

the identity of person, including parties 

to a contract, and proprietary business 

information. 

Verification and Enforcement 

§ 1170.12 Verification of reports. 

For the purpose of assuring 

compliance and auditing records and 

reports required to be filed by 

manufacturers or other persons, the 

Agricultural Marketing Service, through 

its duly authorized agents, shall have 


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access to any premises where applicable 

records are maintained, where dairy 

products are produced or stored, and at 

any time during reasonable business 

hours shall be permitted to inspect such 

manufacturer or person, and any 

original contracts, agreements, receipts, 

and other records associated with the 

sale or storage of any dairy products. 

§ 1170.13 Noncompliance procedures. 

(a) When the Secretary becomes aware 

that a manufacturer or person may have 

willfully delayed reporting of, or failed 

or refused to provide, accurate 

information pursuant to this part, the 

Secretary may issue a cease and desist 

order. 

(b) Prior to the issuance of a cease and 

desist order, the Secretary shall provide 

notice and an opportunity for an 

informal hearing regarding the matter to 

the manufacturer or person involved. 

(c) The notice shall contain the 

following information: 

(1) That the issuance of a cease and 

desist order is being considered; 

(2) The reasons for the proposed cease 

and desist order in terms sufficient to 

put the person on notice of the conduct 

or lack thereof upon which the notice is 

based; 

(3) That within 30 days after receipt 

of the notice, the manufacturer or 

person may submit, in person, in 

writing, or through a representative, 

information and argument in opposition 

to the proposed cease and desist order; 

and 

(4) That if no response to the notice 

is received within the 30 days after 

receipt of the notice, that a cease and 

desist order may be issued immediately. 

(d) If a manufacturer or person 

submits information or requests a 

hearing, the hearing should be held at 

a location and time that is convenient to 

the parties concerned, if possible. The 

hearing will be held before the Deputy 

Administrator, Dairy Programs, 

Agricultural Marketing Service, or a 

designee. The manufacturer or person 

may be represented. Witnesses may be 

called by either party. 

(e) The Deputy Administrator, Dairy 

Programs, Agricultural Marketing 

Service, or a designee will make a 

decision on the basis of all the 

information in the administrative 

record, including any submission made 

by the manufacturer or person. The 

decision of whether a cease and desist 

order should be issued shall be made 

within 30 days after receipt of any 

information and argument submitted by 

the manufacturer or person. The cease 

and desist order shall be final unless the 

affected manufacturer or person 

requests a reconsideration of the order 

to the Administrator, Agricultural 

Marketing Service, within 30 days after 

the date of the issuance of the order. 

§ 1170.14 Appeals. 

If the cease and desist order is 

confirmed by the Administrator, 

Agricultural Marketing Service, the 

manufacturer or person may appeal the 

order in the appropriate United States 

District Court not later than 30 days 

after the date of the confirmation of the 

order. 

§ 1170.15 Enforcement. 

(a) If a person subject to the Dairy 

Product Mandatory Reporting program 

fails to obey a cease and desist order 

after the order has become final and 

unappealable, or after the appropriate 

United States district court has entered 

a final judgment in favor of the 

Administrator, Agricultural Marketing 

Service, the United States may apply to 

the appropriate United States district 

court for enforcement of the order. 

(b) If the court determines that the 

cease and desist order was lawfully 

made and duly served and that the 

manufacturer or person violated the 

order, the court shall enforce the order. 

(c) If the court finds that the 

manufacturer or person violated the 

cease and desist order, the manufacturer 

or person shall be subject to a civil 

penalty of not more than $10,000 for 

each offense. 

Exemptions 

§ 1170.16 Exemptions. 

Any manufacturer that processes and 

markets less than 1 million pounds of 

dairy products per calendar year is 

exempt from these regulations. 

Dated: June 28, 2007. 

Robert C. Keeney, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 07–3235 Filed 6–28–07; 3:15 pm] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA 2007–28010, Airspace 

Docket No. 07–ANE–91] 

Establishment of Class E Airspace; 

Dean Memorial Airport, NH 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Direct final rule; confirmation 

of effective date. 

SUMMARY: This action confirms the 

effective date of a direct final rule that 

establishes a Class E airspace area at 

Dean Memorial Airport, Haverhill, NH 

(K5B9) to provide for adequate 

controlled airspace for those aircraft 

using the new Area Navigation (RNAV) 

Instrument Approach Procedure to the 

Airport. 

DATES: Effective 0901 UTC, July 5, 2007. 

The Director of the Federal Register 

approves this incorporation by reference 

action under Title 1, Code of Federal 

Regulations, part 51, subject to the 

annual revision of FAA Order 7400.9 

and publication of conforming 

amendments. 

FOR FURTHER INFORMATION CONTACT: 

Mark D. Ward, Manager, System 

Support, AJO2–E2, FAA Eastern Service 

Center, 1701 Columbia Ave., College 

Park, GA 30337; telephone (404) 305–

5570; fax (404) 305–5099. 

SUPPLEMENTARY INFORMATION: 

Confirmation of Effective Date 

The FAA published this direct final 

rule with a request for comments in the 

Federal Register on May 8, 2007 (72 FR 

25964). The FAA uses the direct final 

rulemaking procedure for a noncontroversial rule where the FAA 

believes that there will be no adverse 

public comment. This direct final rule 

advised the public that no adverse 

comments were anticipated, and that 

unless a written adverse comment, or a 

written notice of intent to submit such 

an adverse comment, were received 

within the comment period, the 

regulation would become effective on 

July 5, 2007. No adverse comments were 

received, and thus this notice confirms 

that this direct final rule will become 

effective on that date. 

Issued in College Park, GA on June 7, 2007. 

Mark D. Ward, 

Group Manager, System Support Group, 

AJO2–E2 Eastern Service Center. 

[FR Doc. 07–3202 Filed 07–2–07; 8:45 am] 

BILLING CODE 4910–13–M 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA 2007–27512, Airspace 

Docket No. 07–AEA–01] 

Establishment of Class E Airspace; 

Front Royal-Warren County, VA 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 


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