Amendment of General Regulations for Federal Milk Marketing Agreements and Marketing Orders; Addition of Supplemental Rules of Practice for Amendatory Formal Rulemaking Proceedings, 49085-49090 [E8-19134]
Download as PDF
<![CDATA[
49085
Rules and Regulations
Federal Register
Vol. 73, No. 162
Wednesday, August 20, 2008
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.
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 900
[Doc. No. AMS–DA–07–0069; DA–08–04]
Amendment of General Regulations for
Federal Milk Marketing Agreements
and Marketing Orders; Addition of
Supplemental Rules of Practice for
Amendatory Formal Rulemaking
Proceedings
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
sroberts on PROD1PC70 with RULES
AGENCY:
SUMMARY: This final rule amends the
general regulations for Federal milk
marketing agreements and marketing
orders by establishing supplemental
rules of practice for amendatory formal
rulemaking proceedings in accordance
with section 1504 of the Food,
Conservation and Energy Act of 2008
(2008 Farm Bill). This rule provides for
supplemental guidelines, timeframes
and procedures for amending Federal
milk marketing agreements and orders;
authorizes the use of informal
rulemaking (5 U.S.C. 553) to amend
such agreements and orders; and
establishes provisions that permit the
Department of Agriculture (USDA) to
impose assessments on pooled milk
under a Federal milk marketing
agreement or order to fund expedited
amendatory formal rulemaking. Such
assessments would supplement
appropriated funds for the procurement
of services required by USDA to perform
rulemaking functions. Section 1504 of
the 2008 Farm Bill also applies to
amendments to the fruit, vegetable and
nut marketing agreements and orders.
The supplemental rules of practice for
fruit, vegetable and nut marketing
agreements and orders are addressed in
a separate rulemaking document.
DATES: Effective Date: August 20, 2008.
VerDate Aug<31>2005
15:59 Aug 19, 2008
Jkt 214001
FOR FURTHER INFORMATION CONTACT:
William Richmond, Dairy Marketing
Specialist, (303) 691–1949, Order
Formulation and Enforcement Branch,
USDA/AMS/Dairy Programs, STOP
0231—Room 2971–A, 1400
Independence Avenue, SW.,
Washington, DC 20250–0231.
William.Richmond@usda.gov
SUPPLEMENTARY INFORMATION: This final
rule is issued under the general
regulations for Federal marketing
agreements and orders (7 CFR part 900),
effective under the Agricultural
Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601–674), hereinafter
referred to as the ‘‘Act.’’
The Act provides authority for
Federal marketing agreement and order
programs for milk. Federal milk
marketing orders contain certain
provisions that classify milk in
accordance with the purpose for which
it is used, and establish a method for
setting minimum prices for each such
use classification which all handlers
pay; and provisions providing for the
payment of uniform prices to producers
and associations of producers.
Background
Currently, the provisions of 556 and
557 of Title 5 of the United States Code
(formal rulemaking; 5 U.S.C. 556–557)
are followed for promulgating, as well
as amending Federal marketing
agreements and orders. Section 557
requires that the rulemaking proceeding,
including agency decisions, be
conducted on the record.
Following the provisions of 5 U.S.C.
556–557 and part 900 of the general
regulations, which includes the rules of
practice for formal rulemaking, a request
for a hearing on the proposal to
promulgate or amend an agreement or
order is sent to the Administrator of the
Agricultural Marketing Service (AMS).
AMS reviews the request and
supporting documents, as well as any
alternative proposals from interested
parties and, if appropriate, a notice of
public hearing is issued and published
in the Federal Register. In some
instances, when appropriate, a prehearing information session is
conducted prior to issuance of a notice
of hearing.
A USDA Administrative Law Judge
(ALJ) presides at a public hearing and a
record is compiled of the testimony of
proponents, opponents, and other
PO 00000
Frm 00001
Fmt 4700
Sfmt 4700
interested persons. Proposed findings
and conclusions, and written arguments
or briefs may be filed with USDA after
the hearing.
A recommended decision, with
opportunity to file exceptions is issued
and a Secretary’s (final) decision
follows. In accordance with the Act, a
referendum is conducted among
individual producers or a poll of
cooperative associations of producers
and, if so approved, a marketing order
or amendment to the order is made
effective by final rule in the Federal
Register.
Since implementation of the
provisions of 7 U.S.C. 7253 concerning
the consolidation and reform of the
Federal milk marketing orders (65 FR
82840), Dairy Programs, AMS, has
initiated a number of measures to
improve the timelines and effectiveness
of the formal rulemaking process for the
amendment of Federal milk marketing
orders, whether at the national or
individual order level.
For example, as previously
mentioned, pre-hearing information
sessions have been conducted by Dairy
Programs, AMS, in response to
proposals submitted by interested
persons to amend Federal milk
marketing orders. Provision for such
pre-hearing information sessions is
included in the 2008 Farm Bill. Also, in
emergency situations, Dairy Programs,
AMS, has omitted a recommended
decision or engaged in expedited formal
rulemaking, which includes the
issuance of a tentative final decision,
with opportunity to file exceptions,
issuance of an interim final rule, a final
decision, and subsequently a final rule.
Producer referendums or cooperative
pollings are conducted, as appropriate.
Section 608c(17) of the Act provides
that the provisions for promulgating a
marketing agreement or order are also
applicable to amendments to
agreements and orders. As such,
amendments to the current 10 Federal
milk marketing orders are subject to the
provisions of this section of the Act.
The 2008 Farm Bill and Supplemental
Rules of Practice To Amend Marketing
Agreements and Orders
Section 1504 of the 2008 Farm Bill
(H.R. 6124, Pub. L. 110–246) makes
changes to section 8c(17) of the Act,
which, in turn, requires the addition of
supplemental rules of practice to 7 CFR
part 900. For amendments to Federal
E:\FR\FM\20AUR1.SGM
20AUR1
49086
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Rules and Regulations
sroberts on PROD1PC70 with RULES
milk marketing agreements and orders,
the supplemental rules of practice:
Establish guidelines for submitting a
proposal to amend a provision of a
Federal milk marketing agreement or
order; establish procedures following
the receipt of a proposal to amend a
Federal milk marketing agreement or
order, including the opportunity to hold
a pre-hearing information session;
require a person who submits a proposal
to make exhibits and/or written
testimony, if prepared as an exhibit,
available to USDA officials before the
start of hearing on his or her day of
appearance at the hearing; establish
timeframes for requesting the
preparation of USDA data prior to a
hearing; define time periods during
which interested persons may file posthearing briefs and corrections to the
hearing transcript; establish publication
deadlines for recommended decisions
and tentative final decisions; define the
time period during which interested
parties may file exceptions to
recommended decisions; establish
publication deadlines for final
decisions; establish electronic
submission standards for post-hearing
briefs and transcript corrections;
authorize the use of informal
rulemaking procedures to amend
Federal milk marketing agreements and
orders in certain instances; and
authorize USDA to impose an
assessment on pooled milk to improve
or expedite rulemaking proceedings.
Sections 900.1 through 900.18 of the
general regulations of part 900 set forth
the rules of practice and procedure
governing proceedings to formulate
marketing agreements and orders. As
stated previously, the Act provides that
provisions for promulgating marketing
agreements and orders are also
applicable to amendments to
agreements and orders. This final rule
amends part 900 by adding
supplemental rules of practice regarding
amendments to Federal milk marketing
agreements and orders to conform to the
2008 Farm Bill. This rule will add new
sections 900.20 through 900.33.
A new § 900.20 is added to include
standard language to a new subpart
stating that words in the singular form
will be deemed to import the plural, and
vice versa, as the case may demand.
A new § 900.21 is added to set forth
that the definitions in the Act and in
§ 900.2 of this part apply to these
supplemental rules of practice.
submission requirements in the
supplemental rules of practice will
assist the dairy industry in preparation
of its proposals for a public hearing
Therefore, any proposal to amend a
milk marketing agreement or order
received by USDA must include
detailed explanations of the following:
1. Explain the proposal. What is the
disorderly marketing condition that the
proposal is intended to address?
2. What is the purpose of the
proposal?
3. Describe the current Federal order
requirements or industry practices
relative to the proposal.
4. Describe the expected impact on
the industry, including on producers
and handlers, and on consumers.
Explain/Quantify.
5. What are the expected effects on
small businesses as defined by the
Regulatory Flexibility Act (5 U.S.C.
601–612)? Explain/Quantify.
6. How would adoption of the
proposal increase or decrease costs to
producers, handlers, others in the
marketing chain, consumers, the Market
Administrator offices and/or the
Secretary? Explain/Quantify.
7. Would a pre-hearing information
session be helpful to explain the
proposal?
Proposal Submission Requirements
A new § 900.22 is added to specify
submission requirements for proposals
to amend Federal milk marketing
agreements and orders. The proposal
Pre-Hearing Information Sessions
A new § 900.24 is added to provide
that a pre-hearing information session
may be held after a proposal to amend
an agreement or order is submitted to
VerDate Aug<31>2005
15:02 Aug 19, 2008
Jkt 214001
USDA Procedures Following Receipt of
a Proposal
A new § 900.23 is added to specify
timeframes for actions taken after the
receipt of a proposal for an amendment
hearing regarding a milk marketing
agreement or order. Currently, the rules
of practice do not include such
timeframes. This final rule adopts
provisions that require the following:
Within 30 days of the receipt of
proposal to amend a provision of a
Federal milk marketing order, USDA
shall either: (1) Issue a notice providing
an action plan and expected timeframes
for the different steps in the formal
rulemaking process for completion of
the hearing not more than 120 days after
the date of the issuance of the notice; (2)
request additional information from the
person submitting the proposal to be
used in deciding whether a hearing will
be held. If the information requested is
not received within a specified
timeframe, the request shall be denied;
or (3) deny the request. Notice of an
action plan will be made on the Dairy
Programs, AMS Web site and through
program releases to interested persons.
PO 00000
Frm 00002
Fmt 4700
Sfmt 4700
USDA. Currently, the rules of practice
do not provide procedures for such
sessions. A pre-hearing information
session will give interested parties the
opportunity to learn about a proposal
that has been submitted and how the
proposal will accomplish its intent. The
objective of the session is to clarify the
intent and effect of a proposed
amendment. The session will not be
recorded or become part of an official
hearing record, and will not be subject
to ex-parte rules in 7 CFR 900.16,
thereby allowing government officials to
openly discuss proposals.
Participation in the session is
encouraged for persons who have
submitted proposals to ensure that they
are understood by USDA. The session
will enable participants to better
prepare testimony and evidence,
thereby supporting or opposing
proposals that may be included in a
hearing notice.
USDA will determine on a case-bycase basis whether a session will be
beneficial to the process. A person
submitting a proposal may request a
session when submitting a proposal for
formal rulemaking. USDA’s decision to
hold a session does not guarantee a
hearing will occur or that any specific
proposal will be included in a hearing
notice.
The pre-hearing information session
will be conducted by USDA
representatives. Each person submitting
a proposal will have an opportunity to
present and explain his or her proposal,
ask procedural questions regarding the
proposal, and request the preparation of
USDA data for use at a possible hearing.
Only USDA representatives will ask
questions to clarify the information
presented by the person submitting the
proposal. Other parties may submit
questions to be asked of the person who
submitted the proposal for
consideration by USDA before or during
the session.
The session is intended to provide for
the open discussion of proposals. In
most situations, the session should be
completed within one day. All
proposals and comments received in
response to a specific request for
additional proposals will be available to
the public via the Dairy Programs, AMS
Web site prior to the information
session. USDA may provide background
information regarding certain topics.
After the close of an information
session, the person submitting a
proposal will have up to 3 calendar days
to modify or withdraw his or her
proposal prior to the publication of a
notice of hearing.
The Department will consider the
information presented at the session to
E:\FR\FM\20AUR1.SGM
20AUR1
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Rules and Regulations
assist in determining the necessity of a
hearing and consistency of a proposal
with the Act. If a hearing is to be held,
a hearing notice will be published in the
Federal Register. If it is determined that
a proposal does not warrant a hearing,
the person who submitted the proposal
will be so notified.
Advance Submission of Testimony
A new § 900.25 is added to provide
requirements for written testimony
submitted as an exhibit at an
amendatory Federal milk marketing
rulemaking hearing. These requirements
only apply to the person who submits
a proposal being considered at the
amendatory hearing.
Currently, witnesses at hearings
regarding proposed new or amended
marketing agreements or orders are not
required to supply written testimony
prior to testifying. However, any
documentation supplied during the
hearing must be submitted in
quadruplicate when prepared as an
exhibit under current section
900.8(d)(4). Written testimony and
exhibits received prior to or at the time
of the testimony are useful for USDA
participants whose role includes
gathering sufficient information to make
a determination as to the merits of the
proposal.
This rule will require that a person
proposing an amendment to a Federal
milk marketing agreement or order
under § 900.3 of this part, when
participating as a witness, to make his
or her testimony, if prepared as an
exhibit, and any other exhibits,
available to USDA officials before the
start of the hearing on the person’s day
of appearance. Based upon prior formal
rulemaking experience, individual dairy
farmers should not be subject to this
requirement.
This requirement should encourage
the timely preparation of written
statements and hearing exhibits by
hearing participants, and reduce the
length of hearings. Advance submission
of testimony from a person submitting a
proposal will help to ensure more
concise and cogent hearing records.
sroberts on PROD1PC70 with RULES
Requesting USDA Data for Use at a
Hearing
A new § 900.26 is added to provide
requirements for USDA data requests to
be used at an amendatory Federal milk
marketing hearing. The current rules of
practice do not provide timeframes for
such requests. USDA officials seek to
provide in a timely fashion requested
data to hearing participants for use at a
hearing and as such the timeframes
established are considered reasonable.
VerDate Aug<31>2005
15:02 Aug 19, 2008
Jkt 214001
Accordingly, under these
supplemental rules of practice, requests
to USDA, including Market
Administrator personnel, for data to be
used or presented at an amendatory
hearing must be received at least 10
days before the beginning of the hearing.
If an amendatory hearing is announced
with less than 10 days before the start
of the hearing, requests for data need to
be submitted within 2 days following
the publication of the notice of hearing
in the Federal Register.
Deadline for Filing Post-Hearing Briefs
and Corrections to Transcript
A new § 900.27 is added to provide
deadlines for filing briefs and
corrections to the transcript after a
hearing is completed on an amendment
to a Federal milk marketing agreement
or order. The 2008 Farm Bill provided
that a post-hearing brief may be filed not
later than 60 days after the date of an
amendatory hearing. The current rules
of practice at § 900.9(b) provide that the
ALJ presiding at a hearing shall
announce a reasonable period of time
within which interested persons may
file findings and conclusions, and
written arguments or briefs. At § 900.10,
the rules of practice provide that as soon
as possible after the hearing, the ALJ
shall transmit a certified copy of the
transcript with appropriate corrections
to the hearing clerk. The certified copy
of the transcript, in turn, may be used
by interested persons to file proposed
findings and conclusions, and written
arguments or briefs. At the hearing, the
ALJ announces a reasonable period of
time for interested persons to provide
proposed corrections to the transcript.
In view of the above, the supplemental
rules of practice include a deadline for
such corrections.
Accordingly, this final rule requires
submission of corrections to the
transcript by a date determined at the
hearing not to exceed 30 calendar days
after an amendatory hearing transcript is
available. Further, post-hearing briefs
must be filed by a date determined at
the hearing not to exceed 60 days after
the end of the amendatory hearing.
These deadlines provide for
reasonable periods of time that will
assist in improving timeliness of the
rulemaking process.
Deadline for Issuance of Recommended
Decisions and Tentative Final Decisions
A new § 900.28 is added to provide
deadlines for issuing a recommended
decision or, when applicable, a tentative
final decision. The 2008 Farm Bill
provides that a recommended decision
in an amendatory proceeding shall be
issued not later than 90 days after the
PO 00000
Frm 00003
Fmt 4700
Sfmt 4700
49087
deadline for submission of post-hearing
briefs. Accordingly, this final rule
requires that USDA must issue a
recommended decision or tentative final
decision for a proposed amendment to
a Federal milk marketing agreement or
order no later than 90 days after the
deadline for submission of post-hearing
briefs.
Deadline for Filing Exceptions to
Recommended Decisions
Taking into account the deadlines
established in § 900.28 and § 900.30, a
new § 900.29 is added to provide a
deadline for filing exceptions to a
recommended decision. This final rule
requires that all exceptions be filed with
the hearing clerk no later than 60 days
after publication of a recommended
decision in the Federal Register, unless
otherwise specified in the
recommended decision. This standard
will help to provide for more timely
publication of final decisions. Since an
interim final rule is issued when a
tentative final decision is used, rather
than a recommended decision, no
similar deadline is provided for
exceptions to a tentative final decision.
Deadline for Issuance of a Secretary’s
(Final) Decisions
A new § 900.30 is added to provide a
deadline for issuance of a Secretary’s
(final) decision. The 2008 Farm Bill
provides that a final decision for a
proposed amendment to a Federal milk
marketing agreement or order shall be
issued not later than 60 days after the
deadline for submission of comments
and exceptions to the recommended
decision. Since an interim final rule has
been issued prior to issuance of a final
rule when a tentative final decision is
used, no similar deadline is issued for
a final decision in this instance.
Electronic Document Submission
Standards
A new § 900.31 is added to provide
for the submission of electronic
documents in proceedings to amend
marketing agreements and orders. The
current rules of practice in part 900
require that four copies of all documents
related to proposed new and amended
marketing agreements and orders be
filed with the hearing clerk. With new
technologies currently available, most
documents in these proceedings are also
filed electronically with AMS. The 2008
Farm Bill requires that electronic
submission standards be established.
Therefore, § 900.31 sets forth that, when
possible, all documents filed with the
hearing clerk shall also be submitted
electronically as specified by Dairy
Programs, AMS and reference the
E:\FR\FM\20AUR1.SGM
20AUR1
49088
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Rules and Regulations
docket number of the proceeding. This
provision sets forth that instructions for
electronic filing will be provided in the
notice of action plan referred to in
§ 900.23 of this subpart, the amendatory
hearing, and in each Federal Register
publication regarding the amendatory
proceeding.
sroberts on PROD1PC70 with RULES
Informal Rulemaking
A new § 900.32 is added to allow the
use of informal rulemaking procedures
(5 U.S.C. 553) to amend Federal milk
marketing agreements and orders that
do not directly affect milk prices. Prior
to the 2008 Farm Bill, the Act required
that all proposals to promulgate a new
or amend a current marketing agreement
or order were to be conducted through
formal rulemaking under §§ 556 and 557
of Title 5 of the United States Code.
However, the 2008 Farm Bill modified
the authority whereby amendments to
marketing agreements and orders can be
conducted. It provides that authority
under § 553 of the United States Code
covering informal rulemaking
procedures can be an option for
amending a Federal milk marketing
agreement or order if that amendment
does not directly affect milk prices.
Currently, informal rulemaking
procedures are used to establish
implementing regulations authorized by
marketing agreements and orders. The
timeframe for completion of informal
rulemaking actions is usually about 90
days, as opposed to formal rulemaking
that, because of the procedural
requirements including the holding a
public hearing and producer referenda,
generally has a longer timeframe.
In accordance with the 2008 Farm
Bill, § 900.32 will allow the option of
using informal rulemaking to amend
Federal milk marketing agreements and
orders if a proposal does not directly
affect milk prices. In considering
whether informal rulemaking will be
used to amend a Federal milk marketing
agreement or order, USDA will
consider: the nature and complexity of
the proposal, the potential regulatory
and economic impacts on affected
entities, and any other relevant matters.
Industry Assessments
The 2008 Farm Bill provides for
industry assessments. A new § 900.33 is
added to allow USDA to assess handlers
for costs associated with an amendatory
formal rulemaking proceeding to amend
a Federal milk marketing agreement or
order, if it is determined necessary to
improve or expedite the rulemaking
proceeding. Currently, administrative
costs associated with formal rulemaking
are paid for by AMS. These costs
include hiring a court reporter, a
VerDate Aug<31>2005
15:02 Aug 19, 2008
Jkt 214001
hearing examiner, legal counsel, and
associated travel costs. Some of these
costs could increase if it was
determined necessary to improve or
expedite the proceeding. For example,
court reporting costs could increase in
order to receive the transcripts at an
earlier date than normal.
Section 900.33 states that if USDA
determines it is necessary to improve or
expedite an amendment proceeding,
USDA may impose an assessment on
pooled milk to supplement appropriated
funds for the procurement of such
services including but not limited to
court reporters, hearing examiners, legal
counsel, hearing venue and associated
travel for USDA officials. Only the milk
pooled in the particular marketing area
that stands to be affected by proposals
heard at the amendatory hearing may be
assessed. The assessments will be
subject to the provisions of § 1000.85 (7
CFR 1000.85) concerning assessments
for order administration. The additional
industry assessment shall not exceed
$.005 per hundredweight of milk for any
given month.
Final Action
In accordance with the 2008 Farm
Bill, this final rule establishes
supplemental rules of practice regarding
amendments to Federal milk marketing
agreements and orders.
AMS is committed to complying with
the E-Government Act, to promote the
use of the Internet and other
information technologies to provide
increased opportunities for citizen
access to Government information and
services, and for other purposes.
Subtitle F of Title I of the 2008 Farm
Bill provides that the promulgation of
these regulations shall be made without
regard to the Paperwork Reduction Act
(44 U.S.C. Chapter 35), the Statement of
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.
This rule relates to internal agency
management. Therefore, this rule is
exempt from the provisions of Executive
Orders 12866 and 12988, and for this
same reason the notice of proposed
rulemaking and opportunity for
comment are also not required, as this
rule may be effective less than 30 days
after publication in the Federal
Register. In addition, under 5 U.S.C.
804, this rule is not subject to
congressional review under the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121).
Finally, this rule is not a rule as defined
by the Regulatory Flexibility Act (5
U.S.C. 601–612) (RFA). Therefore, this
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
rule is exempt from the requirements of
the RFA.
It is hereby found that this rule, as
hereinafter set forth, will tend to
effectuate the declared policy of the Act.
List of Subjects in 7 CFR Part 900
Administrative practice and
procedures, Federal milk marketing
agreements and orders, Marketing
agreements.
For the reasons set forth in the
preamble, 7 CFR part 900 is amended by
adding a new subpart consisting of
§§ 900.20 through 900.33 to read as
follows:
I
PART 900—GENERAL REGULATIONS
Subpart—Supplemental Rules of
Practice Governing Proceedings To
Amend Federal Milk Marketing
Agreements and Marketing Orders
Sec.
900.20 Words in the singular form.
900.21 Definitions.
900.22 Proposal submission requirements.
900.23 Procedures following receipt of
proposal.
900.24 Pre-hearing information sessions.
900.25 Advance submission of testimony.
900.26 Requesting USDA data for use at a
hearing.
900.27 Deadline for filing post-hearing
briefs and corrections to transcript.
900.28 Deadline for issuance of
recommended decisions or tentative
final decisions.
900.29 Deadline for filing exceptions to
recommended decisions.
900.30 Deadline for issuance of Secretary’s
(final) decisions.
900.31 Electronic document submission
standards.
900.32 Informal rulemaking.
900.33 Industry assessments.
Authority: 7 U.S.C. 608c(17) and 610.
Subpart—Supplemental Rules of
Practice Governing Proceedings To
Amend Federal Milk Marketing
Agreements and Marketing Orders
§ 900.20
Words in the singular form.
Words in this subpart in the singular
form shall be deemed to import the
plural, and vice versa, as the case may
demand.
§ 900.21
Definitions.
As used in this subpart, the terms as
defined in the Act and in § 900.2 of this
part shall apply.
§ 900.22 Proposal submission
requirements.
When a person other than the
Secretary makes a proposal to amend a
Federal milk marketing agreement or
order under § 900.3 of this part, the
E:\FR\FM\20AUR1.SGM
20AUR1
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Rules and Regulations
proposal shall address the following, to
the extent applicable:
(a) Explain the proposal. What is the
disorderly marketing condition that the
proposal is intended to address?
(b) What is the purpose of the
proposal?
(c) Describe the current Federal order
requirements or industry practices
relative to the proposal.
(d) Describe the expected impact on
the industry, including on producers
and handlers, and on consumers.
Explain/Quantify.
(e) What are the expected effects on
small businesses as defined by the
Regulatory Flexibility Act (5 U.S.C.
601–612)? Explain/Quantify.
(f) How would adoption of the
proposal increase or decrease costs to
producers, handlers, others in the
marketing chain, consumers, the Market
Administrator offices and/or the
Secretary? Explain/Quantify.
(g) Would a pre-hearing information
session be helpful to explain the
proposal?
§ 900.23 Procedures following receipt of a
proposal.
Within 30 days of receipt of a
proposal to amend a Federal milk
marketing agreement order under
§ 900.3 of this part, USDA shall either:
Issue a notice providing an action plan
and expected timeframes for the
different steps in the formal rulemaking
process for completion of the hearing
not more than 120 days after the date of
the issuance of the notice; request
additional information from the person
submitting the proposal to be used in
deciding whether a hearing will be held.
If the information requested is not
received within a specified timeframe,
the request shall be denied; or deny the
request. Notice of the action plan will be
made on the Dairy Programs, AMS Web
site and through program releases to
interested persons.
sroberts on PROD1PC70 with RULES
§ 900.24
Pre-hearing information sessions.
A pre-hearing information session
may be held by the Secretary in
response to any proposals received
under § 900.3 of this part. Any person
proposing an amendment to a Federal
milk marketing agreement or order may
request that a pre-hearing information
session be held. A person submitting a
proposal shall have up to 3 calendar
days to modify or withdraw his or her
proposal prior to the publication of a
notice of hearing.
§ 900.25 Advance submission of
testimony.
Any person proposing an amendment
to a Federal milk marketing agreement
VerDate Aug<31>2005
15:02 Aug 19, 2008
Jkt 214001
49089
or order under § 900.3 of this part, when
participating as a witness, shall make
copies of his or her testimony, if
prepared as an exhibit, and any other
exhibits available to USDA officials
before the start of the hearing on the
person’s day of appearance. Individual
dairy farmers shall not be subject to this
requirement.
§ 900.30 Deadline for issuance of
Secretary’s (final) decisions.
§ 900.26 Requesting USDA data for use at
an amendatory hearing.
§ 900.31 Electronic submission of hearing
documents.
Requests for preparation of USDA
data to be used at a Federal milk
marketing agreement or order
amendatory proceeding must be
received by USDA at least 10 days
before the beginning of the hearing. If an
amendatory hearing is announced with
less than 10 days before the start of the
hearing, requests for data must be
submitted within 2 days following
publication of the notice of hearing in
the Federal Register.
To the extent practicable, all
documents filed with the hearing clerk
in a proceeding to amend a Federal milk
marketing agreement or order shall also
be submitted electronically to the Dairy
Programs, Agricultural Marketing
Service, USDA. All documents should
reference the docket number of the
proceeding. Instructions for electronic
filing will be provided in the notice of
action plan referred to in § 900.23 of this
subpart, at the amendatory hearing, and
in each Federal Register publication
regarding the amendatory proceeding.
§ 900.27 Deadline for filing post-hearing
briefs and corrections to transcript.
A Secretary’s (final) decision under
§ 900.13a to a proposed amendment on
marketing agreement or order shall be
issued not later than 60 days after the
deadline for submission of exceptions to
the recommended decision.
(a) Under § 900.10 of this part, the
period of time for interested persons to
file corrections to the transcript of
testimony at a Federal milk marketing
agreement or order amendatory
proceeding shall be no more than 30
days after the hearing record is
available.
(b) Under § 900.9(b) of this part, the
period of time after the completion of a
Federal milk marketing agreement or
order amendatory hearing for interested
persons to file proposed findings and
conclusions, and written arguments or
briefs, shall be no more than 60 days
after completion of the amendatory
hearing.
§ 900.32
§ 900.28 Deadline for issuance of
recommended decisions or tentative final
decisions.
§ 900.33
In a Federal milk marketing
agreement or order amendatory
proceeding, USDA shall issue a
recommended decision under § 900.12
or, when applicable, a tentative final
decision, not later than 90 days after the
deadline for submission of proposed
findings and conclusions, and written
arguments or briefs.
§ 900.29 Deadline for filing exceptions to
recommended decisions.
In a Federal milk marketing
agreement or order amendatory
proceeding, exceptions to a
recommended decision under § 900.12
shall be filed with the hearing clerk not
later than 60 days after publication of
the recommended decision in the
Federal Register, unless otherwise
specified in that decision.
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
Informal rulemaking.
USDA may elect to use informal
rulemaking procedures under 553 of
Title 5, United States Code, to amend
Federal milk marketing agreements and
orders, other than provisions that
directly affect milk prices. In making
this determination, consideration shall
be given to:
(a) The nature and complexity of the
proposal;
(b) The potential regulatory and
economic impacts on affected entities;
and
(c) Any other relevant matters.
Industry assessments.
If the Secretary determines it is
necessary to improve or expedite an
amendatory formal rulemaking
proceeding to amend a Federal milk
marketing agreement or order, USDA
may impose an assessment on pooled
milk to supplement appropriated funds
for the procurement of such services,
including but not limited to, court
reporters, hearing examiners, legal
counsel, hearing venue and associated
travel for USDA officials. Only the milk
pooled in the particular marketing area
that stands to be affected by proposals
heard at the amendatory proceeding
may be assessed. The assessments shall
be subject to the provisions of § 1000.85
(7 CFR 1000.85) concerning assessments
for order administration, including the
provision that assessments shall not
exceed $.005 per hundredweight of milk
for any given month.
E:\FR\FM\20AUR1.SGM
20AUR1
49090
Federal Register / Vol. 73, No. 162 / Wednesday, August 20, 2008 / Rules and Regulations
Dated: August 13, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. E8–19134 Filed 8–19–08; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 71
[Docket No. FAA–2008–0666; Airspace
Docket No. 08–AGL–6]
Removal of Class E Airspace; Chicago,
IL
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
SUMMARY: This action removes the Class
E4 Airspace at Chicago, IL as there is no
longer a Standard Instrument Approach
Procedure (SIAP) for Chicago Aurora
Municipal Airport requiring Class E4
airspace.
Effective Dates: 0901 UTC,
November 20, 2008. The Director of the
Federal Register approves this
incorporation by reference action under
title 1, Code of Federal Regulations, part
51, subject to the annual revision of
FAA Order 7400.9 and publication of
conforming amendments.
FOR FURTHER INFORMATION CONTACT: Gary
A. Mallett, Operations Support Group,
Central Service Center, Federal Aviation
Administration, Southwest Region, 2601
Meacham Blvd., Fort Worth, TX 76193–
0530; telephone (817) 222–4949.
SUPPLEMENTARY INFORMATION:
DATES:
sroberts on PROD1PC70 with RULES
History
The VOR–A Approach Procedure was
cancelled removing the Class E4
airspace requirement at Chicago Aurora
Municipal Airport in Chicago, IL. This
rule will become effective on the date
specified in the DATES section. Since
this action eliminates the impact of
controlled airspace on users of the
National Airspace System in the vicinity
of Chicago Aurora Municipal Airport,
notice and public procedure under 5
U.S.C. 553(b) are unnecessary. Class E
airspace designations for airspace areas
extending upward from the surface of
the Earth are published in Paragraph
6004 of FAA Order 7400.9R, signed
August 15, 2007, and effective
September 15, 2007, which is
incorporated by reference in 14 CFR
71.1. The Class E designation listed in
this document will be removed from
publication subsequently in the Order.
VerDate Aug<31>2005
15:02 Aug 19, 2008
Jkt 214001
The Rule
§ 71.1
This amendment to part 71 of the
Federal Aviation Regulations (14 CFR
part 71) removes Class E4 airspace at
Chicago Aurora Municipal Airport,
Chicago, IL. The FAA has determined
that this regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current, is
noncontroversial and unlikely to result
in adverse or negative comments. It,
therefore, (1) is not a ‘‘significant
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February
26, 1979); and (3) does not warrant
preparation of a Regulatory Evaluation
as the anticipated impact is so minimal.
Since this is a routine matter that will
only affect air traffic procedures and air
navigation, it is certified that this rule,
when promulgated, will not have a
significant economic impact on a
substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority.
This rulemaking is promulgated
under the authority described in subtitle
VII, part A, subpart I, section 40103.
Under that section, the FAA is charged
with prescribing regulations to assign
the use of airspace necessary to ensure
the safety of aircraft and the efficient
use of airspace. This regulation is
within the scope of that authority as it
removes controlled airspace at Chicago
Aurora Municipal Airport, Chicago, IL.
I
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (Air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
I
PART 71—DESIGNATION OF CLASS A,
B, C, D AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
I
Authority: 49 U.S.C. 106(g); 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of Federal Aviation
Administration Order 7400.9R, Airspace
Designations and Reporting Points,
signed August 15, 2007, effective
September 15, 2007, is amended as
follows:
Paragraph 6004 Class E Airspace Areas
Extending Upward From the Surface of the
Earth.
*
*
*
*
*
AGL IL E4 Chicago, Aurora Municipal
Airport [Remove]
*
*
*
*
*
Issued in Fort Worth, TX on: August 6,
2008.
Donald R. Smith,
Manager, Operations Support Group, ATO
Central Service Center.
[FR Doc. E8–19022 Filed 8–19–08; 8:45 am]
BILLING CODE 4910–13–M
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 73
[Docket No. FAA–2008–0628; Airspace
Docket No. 07–ASW–15]
RIN 2120–AA66
Revision of Restricted Area 5107A;
White Sands Missile Range, NM
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
SUMMARY: This action revises Restricted
Area 5107A (R–5107A), White Sands
Missile Range, NM, by subdividing the
area to reduce the size of R–5107A, and
establish R–5107K. Together, R–5107A
and R–5107K will occupy the same
vertical, but slightly smaller lateral area
than the existing R–5107A. The FAA is
taking this action in response to a
request from the United States (U.S.)
Army to divide the existing R–5107A
into two restricted areas, R–5107A and
R–5107K. This action will fulfill
Department of Defense training
requirements while freeing unused
airspace for use by nonparticipating
civil aircraft. Additionally, this action
will allow the U.S. Army to activate
only that portion of the airspace
necessary to contain their operations.
DATES: Effective Date: 0901 UTC,
September 25, 2008.
FOR FURTHER INFORMATION CONTACT:
Kelly Neubecker, Airspace and Rules
Group, Office of System Operations
Airspace and AIM, Federal Aviation
Administration, 800 Independence
E:\FR\FM\20AUR1.SGM
20AUR1
]]>Agencies
[Federal Register Volume 73, Number 162 (Wednesday, August 20, 2008)]
[Rules and Regulations]
[Pages 49085-49090]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-19134]
========================================================================
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. 73, No. 162 / Wednesday, August 20, 2008 /
Rules and Regulations
[[Page 49085]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 900
[Doc. No. AMS-DA-07-0069; DA-08-04]
Amendment of General Regulations for Federal Milk Marketing
Agreements and Marketing Orders; Addition of Supplemental Rules of
Practice for Amendatory Formal Rulemaking Proceedings
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the general regulations for Federal
milk marketing agreements and marketing orders by establishing
supplemental rules of practice for amendatory formal rulemaking
proceedings in accordance with section 1504 of the Food, Conservation
and Energy Act of 2008 (2008 Farm Bill). This rule provides for
supplemental guidelines, timeframes and procedures for amending Federal
milk marketing agreements and orders; authorizes the use of informal
rulemaking (5 U.S.C. 553) to amend such agreements and orders; and
establishes provisions that permit the Department of Agriculture (USDA)
to impose assessments on pooled milk under a Federal milk marketing
agreement or order to fund expedited amendatory formal rulemaking. Such
assessments would supplement appropriated funds for the procurement of
services required by USDA to perform rulemaking functions. Section 1504
of the 2008 Farm Bill also applies to amendments to the fruit,
vegetable and nut marketing agreements and orders. The supplemental
rules of practice for fruit, vegetable and nut marketing agreements and
orders are addressed in a separate rulemaking document.
DATES: Effective Date:
August 20, 2008.
FOR FURTHER INFORMATION CONTACT: William Richmond, Dairy Marketing
Specialist, (303) 691-1949, Order Formulation and Enforcement Branch,
USDA/AMS/Dairy Programs, STOP 0231--Room 2971-A, 1400 Independence
Avenue, SW., Washington, DC 20250-0231. William.Richmond@usda.gov
SUPPLEMENTARY INFORMATION: This final rule is issued under the general
regulations for Federal marketing agreements and orders (7 CFR part
900), effective under the Agricultural Marketing Agreement Act of 1937,
as amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.''
The Act provides authority for Federal marketing agreement and
order programs for milk. Federal milk marketing orders contain certain
provisions that classify milk in accordance with the purpose for which
it is used, and establish a method for setting minimum prices for each
such use classification which all handlers pay; and provisions
providing for the payment of uniform prices to producers and
associations of producers.
Background
Currently, the provisions of 556 and 557 of Title 5 of the United
States Code (formal rulemaking; 5 U.S.C. 556-557) are followed for
promulgating, as well as amending Federal marketing agreements and
orders. Section 557 requires that the rulemaking proceeding, including
agency decisions, be conducted on the record.
Following the provisions of 5 U.S.C. 556-557 and part 900 of the
general regulations, which includes the rules of practice for formal
rulemaking, a request for a hearing on the proposal to promulgate or
amend an agreement or order is sent to the Administrator of the
Agricultural Marketing Service (AMS). AMS reviews the request and
supporting documents, as well as any alternative proposals from
interested parties and, if appropriate, a notice of public hearing is
issued and published in the Federal Register. In some instances, when
appropriate, a pre-hearing information session is conducted prior to
issuance of a notice of hearing.
A USDA Administrative Law Judge (ALJ) presides at a public hearing
and a record is compiled of the testimony of proponents, opponents, and
other interested persons. Proposed findings and conclusions, and
written arguments or briefs may be filed with USDA after the hearing.
A recommended decision, with opportunity to file exceptions is
issued and a Secretary's (final) decision follows. In accordance with
the Act, a referendum is conducted among individual producers or a poll
of cooperative associations of producers and, if so approved, a
marketing order or amendment to the order is made effective by final
rule in the Federal Register.
Since implementation of the provisions of 7 U.S.C. 7253 concerning
the consolidation and reform of the Federal milk marketing orders (65
FR 82840), Dairy Programs, AMS, has initiated a number of measures to
improve the timelines and effectiveness of the formal rulemaking
process for the amendment of Federal milk marketing orders, whether at
the national or individual order level.
For example, as previously mentioned, pre-hearing information
sessions have been conducted by Dairy Programs, AMS, in response to
proposals submitted by interested persons to amend Federal milk
marketing orders. Provision for such pre-hearing information sessions
is included in the 2008 Farm Bill. Also, in emergency situations, Dairy
Programs, AMS, has omitted a recommended decision or engaged in
expedited formal rulemaking, which includes the issuance of a tentative
final decision, with opportunity to file exceptions, issuance of an
interim final rule, a final decision, and subsequently a final rule.
Producer referendums or cooperative pollings are conducted, as
appropriate.
Section 608c(17) of the Act provides that the provisions for
promulgating a marketing agreement or order are also applicable to
amendments to agreements and orders. As such, amendments to the current
10 Federal milk marketing orders are subject to the provisions of this
section of the Act.
The 2008 Farm Bill and Supplemental Rules of Practice To Amend
Marketing Agreements and Orders
Section 1504 of the 2008 Farm Bill (H.R. 6124, Pub. L. 110-246)
makes changes to section 8c(17) of the Act, which, in turn, requires
the addition of supplemental rules of practice to 7 CFR part 900. For
amendments to Federal
[[Page 49086]]
milk marketing agreements and orders, the supplemental rules of
practice: Establish guidelines for submitting a proposal to amend a
provision of a Federal milk marketing agreement or order; establish
procedures following the receipt of a proposal to amend a Federal milk
marketing agreement or order, including the opportunity to hold a pre-
hearing information session; require a person who submits a proposal to
make exhibits and/or written testimony, if prepared as an exhibit,
available to USDA officials before the start of hearing on his or her
day of appearance at the hearing; establish timeframes for requesting
the preparation of USDA data prior to a hearing; define time periods
during which interested persons may file post-hearing briefs and
corrections to the hearing transcript; establish publication deadlines
for recommended decisions and tentative final decisions; define the
time period during which interested parties may file exceptions to
recommended decisions; establish publication deadlines for final
decisions; establish electronic submission standards for post-hearing
briefs and transcript corrections; authorize the use of informal
rulemaking procedures to amend Federal milk marketing agreements and
orders in certain instances; and authorize USDA to impose an assessment
on pooled milk to improve or expedite rulemaking proceedings.
Sections 900.1 through 900.18 of the general regulations of part
900 set forth the rules of practice and procedure governing proceedings
to formulate marketing agreements and orders. As stated previously, the
Act provides that provisions for promulgating marketing agreements and
orders are also applicable to amendments to agreements and orders. This
final rule amends part 900 by adding supplemental rules of practice
regarding amendments to Federal milk marketing agreements and orders to
conform to the 2008 Farm Bill. This rule will add new sections 900.20
through 900.33.
A new Sec. 900.20 is added to include standard language to a new
subpart stating that words in the singular form will be deemed to
import the plural, and vice versa, as the case may demand.
A new Sec. 900.21 is added to set forth that the definitions in
the Act and in Sec. 900.2 of this part apply to these supplemental
rules of practice.
Proposal Submission Requirements
A new Sec. 900.22 is added to specify submission requirements for
proposals to amend Federal milk marketing agreements and orders. The
proposal submission requirements in the supplemental rules of practice
will assist the dairy industry in preparation of its proposals for a
public hearing
Therefore, any proposal to amend a milk marketing agreement or
order received by USDA must include detailed explanations of the
following:
1. Explain the proposal. What is the disorderly marketing condition
that the proposal is intended to address?
2. What is the purpose of the proposal?
3. Describe the current Federal order requirements or industry
practices relative to the proposal.
4. Describe the expected impact on the industry, including on
producers and handlers, and on consumers. Explain/Quantify.
5. What are the expected effects on small businesses as defined by
the Regulatory Flexibility Act (5 U.S.C. 601-612)? Explain/Quantify.
6. How would adoption of the proposal increase or decrease costs to
producers, handlers, others in the marketing chain, consumers, the
Market Administrator offices and/or the Secretary? Explain/Quantify.
7. Would a pre-hearing information session be helpful to explain
the proposal?
USDA Procedures Following Receipt of a Proposal
A new Sec. 900.23 is added to specify timeframes for actions taken
after the receipt of a proposal for an amendment hearing regarding a
milk marketing agreement or order. Currently, the rules of practice do
not include such timeframes. This final rule adopts provisions that
require the following: Within 30 days of the receipt of proposal to
amend a provision of a Federal milk marketing order, USDA shall either:
(1) Issue a notice providing an action plan and expected timeframes for
the different steps in the formal rulemaking process for completion of
the hearing not more than 120 days after the date of the issuance of
the notice; (2) request additional information from the person
submitting the proposal to be used in deciding whether a hearing will
be held. If the information requested is not received within a
specified timeframe, the request shall be denied; or (3) deny the
request. Notice of an action plan will be made on the Dairy Programs,
AMS Web site and through program releases to interested persons.
Pre-Hearing Information Sessions
A new Sec. 900.24 is added to provide that a pre-hearing
information session may be held after a proposal to amend an agreement
or order is submitted to USDA. Currently, the rules of practice do not
provide procedures for such sessions. A pre-hearing information session
will give interested parties the opportunity to learn about a proposal
that has been submitted and how the proposal will accomplish its
intent. The objective of the session is to clarify the intent and
effect of a proposed amendment. The session will not be recorded or
become part of an official hearing record, and will not be subject to
ex-parte rules in 7 CFR 900.16, thereby allowing government officials
to openly discuss proposals.
Participation in the session is encouraged for persons who have
submitted proposals to ensure that they are understood by USDA. The
session will enable participants to better prepare testimony and
evidence, thereby supporting or opposing proposals that may be included
in a hearing notice.
USDA will determine on a case-by-case basis whether a session will
be beneficial to the process. A person submitting a proposal may
request a session when submitting a proposal for formal rulemaking.
USDA's decision to hold a session does not guarantee a hearing will
occur or that any specific proposal will be included in a hearing
notice.
The pre-hearing information session will be conducted by USDA
representatives. Each person submitting a proposal will have an
opportunity to present and explain his or her proposal, ask procedural
questions regarding the proposal, and request the preparation of USDA
data for use at a possible hearing. Only USDA representatives will ask
questions to clarify the information presented by the person submitting
the proposal. Other parties may submit questions to be asked of the
person who submitted the proposal for consideration by USDA before or
during the session.
The session is intended to provide for the open discussion of
proposals. In most situations, the session should be completed within
one day. All proposals and comments received in response to a specific
request for additional proposals will be available to the public via
the Dairy Programs, AMS Web site prior to the information session. USDA
may provide background information regarding certain topics.
After the close of an information session, the person submitting a
proposal will have up to 3 calendar days to modify or withdraw his or
her proposal prior to the publication of a notice of hearing.
The Department will consider the information presented at the
session to
[[Page 49087]]
assist in determining the necessity of a hearing and consistency of a
proposal with the Act. If a hearing is to be held, a hearing notice
will be published in the Federal Register. If it is determined that a
proposal does not warrant a hearing, the person who submitted the
proposal will be so notified.
Advance Submission of Testimony
A new Sec. 900.25 is added to provide requirements for written
testimony submitted as an exhibit at an amendatory Federal milk
marketing rulemaking hearing. These requirements only apply to the
person who submits a proposal being considered at the amendatory
hearing.
Currently, witnesses at hearings regarding proposed new or amended
marketing agreements or orders are not required to supply written
testimony prior to testifying. However, any documentation supplied
during the hearing must be submitted in quadruplicate when prepared as
an exhibit under current section 900.8(d)(4). Written testimony and
exhibits received prior to or at the time of the testimony are useful
for USDA participants whose role includes gathering sufficient
information to make a determination as to the merits of the proposal.
This rule will require that a person proposing an amendment to a
Federal milk marketing agreement or order under Sec. 900.3 of this
part, when participating as a witness, to make his or her testimony, if
prepared as an exhibit, and any other exhibits, available to USDA
officials before the start of the hearing on the person's day of
appearance. Based upon prior formal rulemaking experience, individual
dairy farmers should not be subject to this requirement.
This requirement should encourage the timely preparation of written
statements and hearing exhibits by hearing participants, and reduce the
length of hearings. Advance submission of testimony from a person
submitting a proposal will help to ensure more concise and cogent
hearing records.
Requesting USDA Data for Use at a Hearing
A new Sec. 900.26 is added to provide requirements for USDA data
requests to be used at an amendatory Federal milk marketing hearing.
The current rules of practice do not provide timeframes for such
requests. USDA officials seek to provide in a timely fashion requested
data to hearing participants for use at a hearing and as such the
timeframes established are considered reasonable.
Accordingly, under these supplemental rules of practice, requests
to USDA, including Market Administrator personnel, for data to be used
or presented at an amendatory hearing must be received at least 10 days
before the beginning of the hearing. If an amendatory hearing is
announced with less than 10 days before the start of the hearing,
requests for data need to be submitted within 2 days following the
publication of the notice of hearing in the Federal Register.
Deadline for Filing Post-Hearing Briefs and Corrections to Transcript
A new Sec. 900.27 is added to provide deadlines for filing briefs
and corrections to the transcript after a hearing is completed on an
amendment to a Federal milk marketing agreement or order. The 2008 Farm
Bill provided that a post-hearing brief may be filed not later than 60
days after the date of an amendatory hearing. The current rules of
practice at Sec. 900.9(b) provide that the ALJ presiding at a hearing
shall announce a reasonable period of time within which interested
persons may file findings and conclusions, and written arguments or
briefs. At Sec. 900.10, the rules of practice provide that as soon as
possible after the hearing, the ALJ shall transmit a certified copy of
the transcript with appropriate corrections to the hearing clerk. The
certified copy of the transcript, in turn, may be used by interested
persons to file proposed findings and conclusions, and written
arguments or briefs. At the hearing, the ALJ announces a reasonable
period of time for interested persons to provide proposed corrections
to the transcript. In view of the above, the supplemental rules of
practice include a deadline for such corrections.
Accordingly, this final rule requires submission of corrections to
the transcript by a date determined at the hearing not to exceed 30
calendar days after an amendatory hearing transcript is available.
Further, post-hearing briefs must be filed by a date determined at the
hearing not to exceed 60 days after the end of the amendatory hearing.
These deadlines provide for reasonable periods of time that will
assist in improving timeliness of the rulemaking process.
Deadline for Issuance of Recommended Decisions and Tentative Final
Decisions
A new Sec. 900.28 is added to provide deadlines for issuing a
recommended decision or, when applicable, a tentative final decision.
The 2008 Farm Bill provides that a recommended decision in an
amendatory proceeding shall be issued not later than 90 days after the
deadline for submission of post-hearing briefs. Accordingly, this final
rule requires that USDA must issue a recommended decision or tentative
final decision for a proposed amendment to a Federal milk marketing
agreement or order no later than 90 days after the deadline for
submission of post-hearing briefs.
Deadline for Filing Exceptions to Recommended Decisions
Taking into account the deadlines established in Sec. 900.28 and
Sec. 900.30, a new Sec. 900.29 is added to provide a deadline for
filing exceptions to a recommended decision. This final rule requires
that all exceptions be filed with the hearing clerk no later than 60
days after publication of a recommended decision in the Federal
Register, unless otherwise specified in the recommended decision. This
standard will help to provide for more timely publication of final
decisions. Since an interim final rule is issued when a tentative final
decision is used, rather than a recommended decision, no similar
deadline is provided for exceptions to a tentative final decision.
Deadline for Issuance of a Secretary's (Final) Decisions
A new Sec. 900.30 is added to provide a deadline for issuance of a
Secretary's (final) decision. The 2008 Farm Bill provides that a final
decision for a proposed amendment to a Federal milk marketing agreement
or order shall be issued not later than 60 days after the deadline for
submission of comments and exceptions to the recommended decision.
Since an interim final rule has been issued prior to issuance of a
final rule when a tentative final decision is used, no similar deadline
is issued for a final decision in this instance.
Electronic Document Submission Standards
A new Sec. 900.31 is added to provide for the submission of
electronic documents in proceedings to amend marketing agreements and
orders. The current rules of practice in part 900 require that four
copies of all documents related to proposed new and amended marketing
agreements and orders be filed with the hearing clerk. With new
technologies currently available, most documents in these proceedings
are also filed electronically with AMS. The 2008 Farm Bill requires
that electronic submission standards be established. Therefore, Sec.
900.31 sets forth that, when possible, all documents filed with the
hearing clerk shall also be submitted electronically as specified by
Dairy Programs, AMS and reference the
[[Page 49088]]
docket number of the proceeding. This provision sets forth that
instructions for electronic filing will be provided in the notice of
action plan referred to in Sec. 900.23 of this subpart, the amendatory
hearing, and in each Federal Register publication regarding the
amendatory proceeding.
Informal Rulemaking
A new Sec. 900.32 is added to allow the use of informal rulemaking
procedures (5 U.S.C. 553) to amend Federal milk marketing agreements
and orders that do not directly affect milk prices. Prior to the 2008
Farm Bill, the Act required that all proposals to promulgate a new or
amend a current marketing agreement or order were to be conducted
through formal rulemaking under Sec. Sec. 556 and 557 of Title 5 of
the United States Code. However, the 2008 Farm Bill modified the
authority whereby amendments to marketing agreements and orders can be
conducted. It provides that authority under Sec. 553 of the United
States Code covering informal rulemaking procedures can be an option
for amending a Federal milk marketing agreement or order if that
amendment does not directly affect milk prices.
Currently, informal rulemaking procedures are used to establish
implementing regulations authorized by marketing agreements and orders.
The timeframe for completion of informal rulemaking actions is usually
about 90 days, as opposed to formal rulemaking that, because of the
procedural requirements including the holding a public hearing and
producer referenda, generally has a longer timeframe.
In accordance with the 2008 Farm Bill, Sec. 900.32 will allow the
option of using informal rulemaking to amend Federal milk marketing
agreements and orders if a proposal does not directly affect milk
prices. In considering whether informal rulemaking will be used to
amend a Federal milk marketing agreement or order, USDA will consider:
the nature and complexity of the proposal, the potential regulatory and
economic impacts on affected entities, and any other relevant matters.
Industry Assessments
The 2008 Farm Bill provides for industry assessments. A new Sec.
900.33 is added to allow USDA to assess handlers for costs associated
with an amendatory formal rulemaking proceeding to amend a Federal milk
marketing agreement or order, if it is determined necessary to improve
or expedite the rulemaking proceeding. Currently, administrative costs
associated with formal rulemaking are paid for by AMS. These costs
include hiring a court reporter, a hearing examiner, legal counsel, and
associated travel costs. Some of these costs could increase if it was
determined necessary to improve or expedite the proceeding. For
example, court reporting costs could increase in order to receive the
transcripts at an earlier date than normal.
Section 900.33 states that if USDA determines it is necessary to
improve or expedite an amendment proceeding, USDA may impose an
assessment on pooled milk to supplement appropriated funds for the
procurement of such services including but not limited to court
reporters, hearing examiners, legal counsel, hearing venue and
associated travel for USDA officials. Only the milk pooled in the
particular marketing area that stands to be affected by proposals heard
at the amendatory hearing may be assessed. The assessments will be
subject to the provisions of Sec. 1000.85 (7 CFR 1000.85) concerning
assessments for order administration. The additional industry
assessment shall not exceed $.005 per hundredweight of milk for any
given month.
Final Action
In accordance with the 2008 Farm Bill, this final rule establishes
supplemental rules of practice regarding amendments to Federal milk
marketing agreements and orders.
AMS is committed to complying with the E-Government Act, to promote
the use of the Internet and other information technologies to provide
increased opportunities for citizen access to Government information
and services, and for other purposes.
Subtitle F of Title I of the 2008 Farm Bill provides that the
promulgation of these regulations shall be made without regard to the
Paperwork Reduction Act (44 U.S.C. Chapter 35), the Statement of 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.
This rule relates to internal agency management. Therefore, this
rule is exempt from the provisions of Executive Orders 12866 and 12988,
and for this same reason the notice of proposed rulemaking and
opportunity for comment are also not required, as this rule may be
effective less than 30 days after publication in the Federal Register.
In addition, under 5 U.S.C. 804, this rule is not subject to
congressional review under the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121). Finally, this rule is not a
rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612)
(RFA). Therefore, this rule is exempt from the requirements of the RFA.
It is hereby found that this rule, as hereinafter set forth, will
tend to effectuate the declared policy of the Act.
List of Subjects in 7 CFR Part 900
Administrative practice and procedures, Federal milk marketing
agreements and orders, Marketing agreements.
0
For the reasons set forth in the preamble, 7 CFR part 900 is amended by
adding a new subpart consisting of Sec. Sec. 900.20 through 900.33 to
read as follows:
PART 900--GENERAL REGULATIONS
Subpart--Supplemental Rules of Practice Governing Proceedings To
Amend Federal Milk Marketing Agreements and Marketing Orders
Sec.
900.20 Words in the singular form.
900.21 Definitions.
900.22 Proposal submission requirements.
900.23 Procedures following receipt of proposal.
900.24 Pre-hearing information sessions.
900.25 Advance submission of testimony.
900.26 Requesting USDA data for use at a hearing.
900.27 Deadline for filing post-hearing briefs and corrections to
transcript.
900.28 Deadline for issuance of recommended decisions or tentative
final decisions.
900.29 Deadline for filing exceptions to recommended decisions.
900.30 Deadline for issuance of Secretary's (final) decisions.
900.31 Electronic document submission standards.
900.32 Informal rulemaking.
900.33 Industry assessments.
Authority: 7 U.S.C. 608c(17) and 610.
Subpart--Supplemental Rules of Practice Governing Proceedings To
Amend Federal Milk Marketing Agreements and Marketing Orders
Sec. 900.20 Words in the singular form.
Words in this subpart in the singular form shall be deemed to
import the plural, and vice versa, as the case may demand.
Sec. 900.21 Definitions.
As used in this subpart, the terms as defined in the Act and in
Sec. 900.2 of this part shall apply.
Sec. 900.22 Proposal submission requirements.
When a person other than the Secretary makes a proposal to amend a
Federal milk marketing agreement or order under Sec. 900.3 of this
part, the
[[Page 49089]]
proposal shall address the following, to the extent applicable:
(a) Explain the proposal. What is the disorderly marketing
condition that the proposal is intended to address?
(b) What is the purpose of the proposal?
(c) Describe the current Federal order requirements or industry
practices relative to the proposal.
(d) Describe the expected impact on the industry, including on
producers and handlers, and on consumers. Explain/Quantify.
(e) What are the expected effects on small businesses as defined by
the Regulatory Flexibility Act (5 U.S.C. 601-612)? Explain/Quantify.
(f) How would adoption of the proposal increase or decrease costs
to producers, handlers, others in the marketing chain, consumers, the
Market Administrator offices and/or the Secretary? Explain/Quantify.
(g) Would a pre-hearing information session be helpful to explain
the proposal?
Sec. 900.23 Procedures following receipt of a proposal.
Within 30 days of receipt of a proposal to amend a Federal milk
marketing agreement order under Sec. 900.3 of this part, USDA shall
either: Issue a notice providing an action plan and expected timeframes
for the different steps in the formal rulemaking process for completion
of the hearing not more than 120 days after the date of the issuance of
the notice; request additional information from the person submitting
the proposal to be used in deciding whether a hearing will be held. If
the information requested is not received within a specified timeframe,
the request shall be denied; or deny the request. Notice of the action
plan will be made on the Dairy Programs, AMS Web site and through
program releases to interested persons.
Sec. 900.24 Pre-hearing information sessions.
A pre-hearing information session may be held by the Secretary in
response to any proposals received under Sec. 900.3 of this part. Any
person proposing an amendment to a Federal milk marketing agreement or
order may request that a pre-hearing information session be held. A
person submitting a proposal shall have up to 3 calendar days to modify
or withdraw his or her proposal prior to the publication of a notice of
hearing.
Sec. 900.25 Advance submission of testimony.
Any person proposing an amendment to a Federal milk marketing
agreement or order under Sec. 900.3 of this part, when participating
as a witness, shall make copies of his or her testimony, if prepared as
an exhibit, and any other exhibits available to USDA officials before
the start of the hearing on the person's day of appearance. Individual
dairy farmers shall not be subject to this requirement.
Sec. 900.26 Requesting USDA data for use at an amendatory hearing.
Requests for preparation of USDA data to be used at a Federal milk
marketing agreement or order amendatory proceeding must be received by
USDA at least 10 days before the beginning of the hearing. If an
amendatory hearing is announced with less than 10 days before the start
of the hearing, requests for data must be submitted within 2 days
following publication of the notice of hearing in the Federal Register.
Sec. 900.27 Deadline for filing post-hearing briefs and corrections
to transcript.
(a) Under Sec. 900.10 of this part, the period of time for
interested persons to file corrections to the transcript of testimony
at a Federal milk marketing agreement or order amendatory proceeding
shall be no more than 30 days after the hearing record is available.
(b) Under Sec. 900.9(b) of this part, the period of time after the
completion of a Federal milk marketing agreement or order amendatory
hearing for interested persons to file proposed findings and
conclusions, and written arguments or briefs, shall be no more than 60
days after completion of the amendatory hearing.
Sec. 900.28 Deadline for issuance of recommended decisions or
tentative final decisions.
In a Federal milk marketing agreement or order amendatory
proceeding, USDA shall issue a recommended decision under Sec. 900.12
or, when applicable, a tentative final decision, not later than 90 days
after the deadline for submission of proposed findings and conclusions,
and written arguments or briefs.
Sec. 900.29 Deadline for filing exceptions to recommended decisions.
In a Federal milk marketing agreement or order amendatory
proceeding, exceptions to a recommended decision under Sec. 900.12
shall be filed with the hearing clerk not later than 60 days after
publication of the recommended decision in the Federal Register, unless
otherwise specified in that decision.
Sec. 900.30 Deadline for issuance of Secretary's (final) decisions.
A Secretary's (final) decision under Sec. 900.13a to a proposed
amendment on marketing agreement or order shall be issued not later
than 60 days after the deadline for submission of exceptions to the
recommended decision.
Sec. 900.31 Electronic submission of hearing documents.
To the extent practicable, all documents filed with the hearing
clerk in a proceeding to amend a Federal milk marketing agreement or
order shall also be submitted electronically to the Dairy Programs,
Agricultural Marketing Service, USDA. All documents should reference
the docket number of the proceeding. Instructions for electronic filing
will be provided in the notice of action plan referred to in Sec.
900.23 of this subpart, at the amendatory hearing, and in each Federal
Register publication regarding the amendatory proceeding.
Sec. 900.32 Informal rulemaking.
USDA may elect to use informal rulemaking procedures under 553 of
Title 5, United States Code, to amend Federal milk marketing agreements
and orders, other than provisions that directly affect milk prices. In
making this determination, consideration shall be given to:
(a) The nature and complexity of the proposal;
(b) The potential regulatory and economic impacts on affected
entities; and
(c) Any other relevant matters.
Sec. 900.33 Industry assessments.
If the Secretary determines it is necessary to improve or expedite
an amendatory formal rulemaking proceeding to amend a Federal milk
marketing agreement or order, USDA may impose an assessment on pooled
milk to supplement appropriated funds for the procurement of such
services, including but not limited to, court reporters, hearing
examiners, legal counsel, hearing venue and associated travel for USDA
officials. Only the milk pooled in the particular marketing area that
stands to be affected by proposals heard at the amendatory proceeding
may be assessed. The assessments shall be subject to the provisions of
Sec. 1000.85 (7 CFR 1000.85) concerning assessments for order
administration, including the provision that assessments shall not
exceed $.005 per hundredweight of milk for any given month.
[[Page 49090]]
Dated: August 13, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E8-19134 Filed 8-19-08; 8:45 am]
BILLING CODE 3410-02-P
