Dairy Product Mandatory Reporting, 36341-36345 [07-3235]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 72, Number 127 (Tuesday, July 3, 2007)]
[Rules and Regulations]
[Pages 36341-36345]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3235]



========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

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 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 
Prices of new books are listed in the first FEDERAL REGISTER issue of each 
week.

========================================================================


Federal Register / Vol. 72, No. 127 / Tuesday, July 3, 2007 / Rules 
and Regulations

[[Page 36341]]



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:  https://
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: https://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 https://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

[[Page 36342]]

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.
---------------------------------------------------------------------------

    \1\ North American Industry Classification System (NAICS) code 
3115.
---------------------------------------------------------------------------

    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

[[Page 36343]]

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 https://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.

0
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


Sec.  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.


Sec.  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.


Sec.  1170.3  Person.

    Person means an individual, partnership, corporation, association, 
or any other business unit.


Sec.  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.


Sec.  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.


Sec.  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


Sec.  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,

[[Page 36344]]

address, plant location, quantities sold, and dollars received or the 
prices of dairy products as defined in Sec.  1170.4.
    (b) Manufacturers or other persons storing dairy products shall 
report on a monthly basis stocks of dairy products (as defined in Sec.  
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.


Sec.  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).


Sec.  1170.9  Storage reporting specifications.

    (a) Reporting universe: (1) Cold Storage Report: All warehouses or 
facilities, except those described in Sec.  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.


Sec.  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.


Sec.  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


Sec.  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

[[Page 36345]]

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.


Sec.  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.


Sec.  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.


Sec.  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


Sec.  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