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.

Proposed Rules Federal Register

23359 

Vol. 74, No. 95 

Tuesday, May 19, 2009 

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. 

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 Whitney.Rick@usda.gov. 

• 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, Whitney.Rick@usda.gov. 

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 


erowe on PROD1PC63 with PROPOSALS-1
23360 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 

1Any producer that sells milk directly to 

consumers shall remit the assessment directly to the 

Dairy Board. 

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. 

According to the U.S. Customs and 

Border Protection (CBP), there were 

1,751 importers of dairy products listed 

in § 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 


erowe on PROD1PC63 with PROPOSALS-1
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 23361 

volume as listed in the table displayed 

in § 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 


erowe on PROD1PC63 with PROPOSALS-1
23362 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 

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 nonorganic 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 § 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. 


erowe on PROD1PC63 with PROPOSALS-1
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 23363 

2National Agricultural Statistics Service (NASS), 

Dairy Products 2007 Annual Summary (April 2008). 

2. Section 1150.109 would be revised 

to recognize national qualified 

programs. 

3. In § 1150.111, the term Milk would 

be redefined to remove the necessity 

that it be produced in the United States. 

4. A new section, § 1150.120, would 

be added to define the term Imported 

Dairy Product. 

5. A new section, § 1150.121, would 

be added to define the term Importer. 

6. A new section, § 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, § 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 

§ 1150.152(b)(1). 

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 § 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 


erowe on PROD1PC63 with PROPOSALS-1
23364 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 

3According 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. 

4There 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. 

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 

§ 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 

§ 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). 

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

• 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 


erowe on PROD1PC63 with PROPOSALS-1
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 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 

§ 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: 

§ 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: 

§ 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 § 1150.153. 

4. Section 1150.111 is revised to read 

as follows: 

§ 1150.111 Milk. 

Milk means any class of cow’s milk. 

5. Sections 1150.120 through 

1150.122 are added to read as follows: 

§ 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 § 1150.152(b)(1). 

§ 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. 

§ 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: 

§ 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 § 1150.152(b). 

(d) The Board shall be composed of 

milk producers and importers appointed 

by the Secretary either from 

nominations submitted pursuant to 

§ 1150.133 or in accordance with 

§ 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 


erowe on PROD1PC63 with PROPOSALS-1
23366 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 

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 § 1150.171(a) and data 

published by the Department. 

7. In § 1150.132, paragraph (a) is 

revised to read as follows: 

§ 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 § 1150.133, paragraphs (a), (c), 

and (d) are revised, and a new 

paragraph (e) is added to read as 

follows: 

§ 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 § 1150.134, the introductory text 

and paragraph (b) are revised to read as 

follows: 

§ 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: 

§ 1150.135 Appointments. 

From the nominations made pursuant 

to § 1150.133, the Secretary shall 

appoint the members of the Board on 

the bases of representation provided for 

in §§ 1150.131(b) and 1150.131(c). 

11. In § 1150.139, paragraph (e) is 

revised to read as follows: 

§ 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 § 1150.140, paragraphs (b) and 

(n) are revised to read as follows: 

§ 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 § 1150.151, new paragraph (c) 

is added to read as follows: 

§ 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: 

§ 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 

§ 1150.152(a)(1) and (a)(2), a producer 

who is participating in a qualified 

national, regional, or State program(s) 


erowe on PROD1PC63 with PROPOSALS-1
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 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 § 1150.152(a)(1) to receive the credit 

authorized in § 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 § 1150.152(a)(2) to receive the credit 

authorized in § 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 § 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 § 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 

§ 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 § 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 

§ 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 

§ 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

HTS No. Unit of 

measure 

Default rate 

per unit of 

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 

IMPORTED DAIRY PRODUCTS SUBJECT

TO ASSESSMENT—Continued 

HTS No. Unit of 

measure 

Default rate 

per unit of 

product 

(in dollars) 

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 


erowe on PROD1PC63 with PROPOSALS-1
23368 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 

IMPORTED DAIRY PRODUCTS SUBJECT

TO ASSESSMENT—Continued 

HTS No. Unit of 

measure 

Default rate 

per unit of 

product 

(in dollars) 

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 

IMPORTED DAIRY PRODUCTS SUBJECT

TO ASSESSMENT—Continued 

HTS No. Unit of 

measure 

Default rate 

per unit of 

product 

(in dollars) 

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 

IMPORTED DAIRY PRODUCTS SUBJECT

TO ASSESSMENT—Continued 

HTS No. Unit of 

measure 

Default rate 

per unit of 

product 

(in dollars) 

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 

§ 1150.152(b)(1). 

(3) The assessments collected by CBP 

pursuant to § 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 

§ 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 § 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 § 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. 


erowe on PROD1PC63 with PROPOSALS-1
Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 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 § 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 § 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 § 1150.153, the section heading 

and paragraphs (a), (b)(3), and (b)(5) are 

revised to read as follows: 

§ 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 § 1150.152(a)(3) for 

contributions to such program; and 

(2) the Board may remit payments 

designated by importers pursuant to 

§ 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 

§ 1150.152(a)(3) or (b)(5); and 

* * * * * 

16. In § 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 § 1150.156, paragraph (a) is 

revised to read as follows: 

§ 1150.156 Charges and penalties. 

(a) Late-payment charge. Any unpaid 

assessments to the Board pursuant to 

§ 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 

§ 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 

§ 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: 

§ 1150.157 Assessment exemption. 

(a) A producer described in 

§ 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 

§ 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 

§ 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 

§ 1150.152(a). 

(f) The person responsible for 

remitting assessments to the Board 

pursuant to § 1150.152 shall maintain 

records showing the exempt producer’s 

name and address and the exemption 

number assigned by the Board pursuant 

to § 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 


erowe on PROD1PC63 with PROPOSALS-1
23370 Federal Register / Vol. 74, No. 95 / Tuesday, May 19, 2009 / Proposed Rules 

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: 

§ 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 § 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 

§ 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 

§ 1150.152(b)(1)(i) or volume of 

imported dairy products per HTS code 

pursuant to § 1150.152(b)(1)(ii). 

20. Section 1150.172 is revised to read 

as follows: 

§ 1150.172 Books and records. 

(a) Each producer who is subject to 

this subpart, and other persons subject 

to § 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 § 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 

§ 1150.152(b)(1)(i) or volume of 

imported dairy products per HTS code 

pursuant to § 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: 

§ 1150.187 Paperwork Reduction Act 

assigned number. 

The information collection and 

recordkeeping requirements contained 

in §§ 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 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2008–1314; Airspace 

Docket No. 08–AGL–21] 

Proposed Amendment of Class E 

Airspace; Monee, IL 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This action proposes to 

amend Class E airspace at Monee, IL. 

Additional controlled airspace is 

necessary to accommodate new 

Standard Instrument Approach 

Procedures (SIAPs) at Bult Field 

Airport, Monee, IL. This action would 

also reflect the name change of the 

airport from Sanger Airport to Bult Field 

Airport and update the geographic 

coordinates. The FAA is taking this 

action to enhance the safety and 

management of Instrument Flight Rules 

(IFR) operations for SIAPs at Bult Field 

Airport. 

DATES: 0901 UTC. Comments must be 

received on or before July 6, 2009. 

ADDRESSES: Send comments on this 

proposal to the U.S. Department of 

Transportation, Docket Operations, 1200 

New Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. You must 

identify the docket number FAA–2008– 

1314/Airspace Docket No. 08–AGL–21, 

at the beginning of your comments. You 

may also submit comments through the 

Internet at http://www.regulations.gov. 

You may review the public docket 

containing the proposal, any comments 

received, and any final disposition in 

person in the Dockets Office between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The 

Docket Office (telephone 1–800–647– 

5527), is on the ground floor of the 

building at the above address. 

FOR FURTHER INFORMATION CONTACT: 

Scott Enander, Central Service Center, 

Operations Support Group, Federal 

Aviation Administration, Southwest 

Region, 2601 Meacham Blvd., Fort 

Worth, TX 76137; telephone: (817) 321– 

7716. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

Interested parties are invited to 

participate in this proposed rulemaking 

by submitting such written data, views, 

or arguments, as they may desire. 

Comments that provide the factual basis 

supporting the views and suggestions 

presented are particularly helpful in 

developing reasoned regulatory 

decisions on the proposal. Comments 

are specifically invited on the overall 

regulatory, aeronautical, economic, 

environmental, and energy-related 

aspects of the proposal. 

Communications should identify both 

docket numbers and be submitted in 

triplicate to the address listed above. 

Commenters wishing the FAA to 

acknowledge receipt of their comments 

on this notice must submit with those 

comments a self-addressed, stamped 

postcard on which the following 

statement is made: ‘‘Comments to 

Docket No. FAA–2008–1314/Airspace 

Docket No. 08–AGL–21.’’ The postcard 

will be date/time stamped and returned 

to the commenter. 

Availability of NPRMs 

An electronic copy of this document 

may be downloaded through the 

Internet at http://www.regulations.gov. 

Recently published rulemaking 

documents can also be accessed through 

the FAA’s web page at http:// 

www.faa.gov/airports_airtraffic/ 


erowe on PROD1PC63 with PROPOSALS-1