Procedural Requirements Governing Proceedings Pertaining to Marketing Agreements and Marketing Orders, 41173-41174 [2020-13364]
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Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 / Rules and Regulations
revoke a previously authorized dues
assignment, an agency must process the
revocation request as soon as
administratively feasible.
Federal Labor Relations Authority.
Noah Peters,
Solicitor, Federal Register Liaison.
Note: The following appendix will not
appear in the Code of Federal Regulations.
Member DuBester, Dissenting
jbell on DSKJLSW7X2PROD with RULES
In my dissenting opinion in Office of
Personnel Management (OPM),1 I explained
how the majority’s decision to reverse nearly
four decades of Authority precedent
governing the revocation of union-dues
allotments was premised upon a U.S.
Supreme Court decision that, ‘‘by its own
terms[,] has nothing to do with federal-sector
labor relations.’’ 2 I also cautioned that the
majority’s decision ‘‘will only create
confusion, uncertainty, and—ultimately—
litigation on a myriad of issues.’’ 3
The majority has now abandoned any
pretense that its decision in OPM, or its
subsequent issuance of this final rule, has
anything to do with the Janus v. AFSCME,
Council 31 decision.4 Nevertheless, like
similar decisions in which the majority has
overturned Authority precedent without a
plausible rationale, the rule it has now
crafted to implement its flawed OPM
decision will generate ‘‘more questions than
answers.’’ 5
For instance, the rule provides that an
employee may initiate the revocation of a
‘‘previously authorized [dues] assignment’’ at
any time the employee chooses ‘‘after the
expiration of the one-year period during
which an assignment may not be revoked
under 5 U.S.C. 7115(a).’’ 6 As noted by the
majority, a number of parties expressed
concern that the rule would require agencies
to unlawfully disregard the terms of
previously authorized assignments, and
would ignore the revocation terms that
appear on the current OPM forms governing
dues assignments and assignment
revocations.
In response to these concerns, the majority
explains that the rule would ‘‘apply only to
dues assignments that are authorized on or
after the rule’s effective date,’’ and that
agencies would therefore not be required ‘‘to
disregard the terms of previously authorized
assignments that the agencies received before
the [rule’s] effective date.’’ 7 But this
explanation appears to contradict the rule’s
plain language, which applies its provisions
to ‘‘previously authorized assignment[s].’’ 8
1 71 FLRA 571 (2020) (Member DuBester
dissenting).
2 Id. at 579 (Dissenting Opinion of Member
DuBester) (citing Janus v. AFSCME, Council 31, 138
S.Ct. 2448 (2018)).
3 Id.
4 Notice at 3 (‘‘the majority decision rested
exclusively on statutory exegesis, rather than
principles of constitutional law’’).
5 AFGE, Local 1929 v. FLRA, _F F.3d _, 2020 WL
3053410, at 7 (D.C. Cir. 2020).
6 Notice at 16.
7 Id. at 7 (emphasis in original).
8 Id. at 16.
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Moreover, if the rule is indeed intended to
apply only to assignments authorized after its
effective date, it is unclear which ‘‘previously
authorized’’ assignments it is referencing.
It is also not apparent how providing a
‘‘one-year period of irrevocability’’ 9 for dues
assignments will not dramatically increase
the administrative burdens placed upon both
agencies and unions to administer these
assignments. If this one-year period is
intended to apply to the execution of any
dues assignment, it would presumably apply
to both an employee’s initial assignment and
to any subsequently executed assignment,
thereby creating a new and different
anniversary date that will now have to be
tracked for each subsequent assignment.
Remarkably, while the majority expresses
great skepticism regarding the unions’
concerns regarding the obvious
administrative burdens arising from its rule,
it accepts without any attendant skepticism
the contrary claims of several agencies.
More significantly, the majority does not
adequately explain how its rule will operate
with respect to existing and future
collectively-bargained provisions governing
dues assignments and revocations. Regarding
existing contract provisions, the majority
indicates that the rule, ‘‘[l]ike all
governmentwide regulations . . . will be
subject to the constraints of section
7116(a)(7) of the Statute.’’ 10 And regarding
bargaining agreements negotiated subsequent
to issuance of the rule, it explains that the
parties will not be permitted ‘‘to negotiate for
delays in the processing of revocation forms
because those delays would defeat the
purpose of the rule.’’ 11 It has also added an
entirely new provision to the final rule which
requires agencies to process an employee’s
request to revoke ‘‘a previously authorized’’
dues assignment ‘‘as soon as administratively
feasible.’’ 12
The new provision governing agencies’
obligations to process revocation requests
was not part of the proposed rule. Because
the parties were not afforded any opportunity
to comment on this provision’s implications,
it is unclear what types of negotiated
procedures would be considered
‘‘administratively feasible’’ under the rule.
And it is even less clear what the majority
means by advising parties that they cannot
‘‘negotiate for delays’’ in this process.
But more importantly, the majority’s
explanation regarding the rule’s impact upon
existing bargaining agreements illustrates the
unprecedented nature of this rule. The
majority indicates that the rule is intended to
be applied as a government-wide regulation
within the meaning of section 7117(a)(1) of
the Statute. And it acknowledges that the
Authority ‘‘has not previously issued an
analogous regulation that would shape the
contours of the duty to bargain in the way
that this rule will.’’ 13
Nonetheless, with little apparent concern
for the potential consequences, the majority
today chooses to determine the scope of the
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9 Id.
10 Id.
11 Id.
at 8.
at 11.
12 Id.
13 Id.
at 10.
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41173
parties’ bargaining obligations through
regulatory fiat rather than a reasoned
decision addressing the facts and
circumstances of an actual dispute. Indeed,
as I warned in my dissenting opinion, the
majority first stepped foot on this slippery
slope when it issued its OPM decision. That
decision reversed decades of well-established
precedent governing dues allotments ‘‘by
means of a policy statement that [was]
neither responsive to the original request nor
warranted under the Authority’s standards
governing the issuance of general statements
of policy.’’ 14
And, contrary to its suggestion, the reckless
course of action embraced by the majority is
not the kind of ‘‘leadership’’ contemplated by
the Statute.15 Regrettably, the confusion,
uncertainty, and litigation that will
inevitably arise from this ill-conceived rule
will undoubtedly demonstrate why the
Authority has not proceeded down this path
before today. Accordingly, I dissent.
[FR Doc. 2020–14717 Filed 7–7–20; 11:15 am]
BILLING CODE 7627–01–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 900
[AMS–DA–20–0044]
Procedural Requirements Governing
Proceedings Pertaining to Marketing
Agreements and Marketing Orders
Agricultural Marketing Service,
USDA.
ACTION: Final rule.
AGENCY:
The U.S. Department of
Agriculture (USDA) is adopting a final
rule to amend the procedural
regulations governing proceedings to
formulate or amend Marketing
Agreements and Marketing Orders. This
final rule adopts a provision to allow
the agency to utilize alternative
procedures for conducting a rulemaking
proceeding as outlined in a notice of
hearing.
SUMMARY:
This final rule is effective on July
9, 2020.
FOR FURTHER INFORMATION CONTACT: Erin
Taylor, Acting Director, Order
Formulation and Enforcement Division,
Dairy Program, 202–720–7311,
erin.taylor@usda.gov.
SUPPLEMENTARY INFORMATION: USDA is
issuing this final rule to amend the
DATES:
14 OPM, 71 FLRA at 576; see also id. at 579
(noting that ‘‘questions regarding whether particular
dues withholding arrangements offend employees’
statutory rights’’ are ‘‘the types of questions that are
particularly appropriate for resolution in the
context of the facts and circumstances presented by
parties in an actual dispute’’).
15 Notice at 10 (quoting 5 U.S.C. 7105(a)(1)).
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Federal Register / Vol. 85, No. 132 / Thursday, July 9, 2020 / Rules and Regulations
procedural regulations governing
proceedings pertaining to Marketing
Agreements and Marketing Orders in 7
CFR 900 Subpart A. Those rules of
practice and procedure are applicable to
proceedings under the Agricultural
Marketing Agreement Act of 1937, as
amended (50 Stat. 246). For purposes of
efficiency and modernization, and to
provide flexibility to adapt procedures
under unique circumstances, a
provision allowing the notice of hearing
to include alternative procedures is
being added.
Executive Orders 12866, 13771, and
12988
This rule is governed by the
provisions of Sections 556 and 557 of
Title 5 of the United States Code and,
therefore, is not subject to the
requirements of Executive Order 12866.
This rule is not an Executive Order
13771 regulatory action because it is
exempt from the definition of
‘‘regulation’’ or ‘‘rule’’ in Executive
Order 12866 and, thus, is not a
regulatory action.
The rule has been reviewed under
Executive Order 12988, Civil Justice
Reform. This rule is not intended to
have retroactive effect. The rule will not
preempt any state or local law,
regulations, or policies, unless they
present an irreconcilable conflict with
this rule.
Executive Order 13132
This rule has been reviewed in
accordance with the requirements of
Executive Order 13132, Federalism. The
review reveals that this rule does not
contain policies with federalism
implications sufficient to warrant
federalism consultation under Executive
Order 13132.
jbell on DSKJLSW7X2PROD with RULES
Executive Order 13175
This rule has been reviewed in
accordance with the requirements of
Executive Order 13175, Consultation
and Coordination with Indian Tribal
Governments. The review reveals that
this regulation would not have
substantial and direct effects on tribal
governments and would not have
significant tribal implications.
5 U.S.C. 553, 601, and 804
This final rule amends agency rules of
practice and procedure. Under the
Administrative Procedure Act, prior
notice and opportunity for comment are
not required for the promulgation of
agency rules of practice and procedure.
5 U.S.C. 553(b)(3)(A). Additionally, only
substantive rules require publication 30
days prior to their effective date. 5
U.S.C. 553(d). Therefore, this final rule
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15:50 Jul 08, 2020
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is effective upon publication in the
Federal Register.
Furthermore, under 5 U.S.C. 804, this
rule is not subject to congressional
review under the Small Business
Regulatory Enforcement Fairness Act of
1996, Public Law 104–121. In addition,
because prior notice and opportunity for
comment are not required to be
provided for this final rule, this rule is
exempt from the requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601
et seq.
Paperwork Reduction Act
This rule contains no information
collections or recordkeeping
requirements under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 7 CFR Part 900
General Regulations.
For the reasons stated in the
preamble, the Agricultural Marketing
Service amends the 7 CFR 900 Subpart
A, as follows:
PART 900—GENERAL REGULATIONS
Subpart A—Procedural Requirements
Governing Proceedings Pertaining to
Marketing Agreements and Marketing
Orders
1. The authority citation for subpart A
continues to read as follows:
■
Authority: 7 U.S.C. 610
2. Revise the heading of Subpart A to
read as set forth above:
■ 3. In § 900.4, revise paragraph (a) and
add paragraph (d) to read as follows:
■
§ 900.4
Institution of proceeding.
(a) Filing and contents of the notice of
hearing. The proceeding shall be
instituted by filing the notice of hearing
with the hearing clerk. The notice of
hearing shall contain a reference to the
authority under which the marketing
agreement or marketing order is
proposed; shall define the scope of the
hearing as specifically as may be
practicable; shall describe any
alternative procedures established
pursuant to paragraph (d) of this
section; shall contain either the terms or
substance of the proposed marketing
agreement or marketing order or a
description of the subjects and issues
involved and shall state the industry,
area, and class of persons to be
regulated, the time and place of such
hearing, and the place where copies of
such proposed marketing agreement or
marketing order may be obtained or
examined. The time of the hearing shall
not be less than 15 days after the date
of publication of the notice in the
PO 00000
Frm 00006
Fmt 4700
Sfmt 9990
Federal Register, as provided in this
subpart, unless the Administrator shall
determine that an emergency exists
which requires a shorter period of
notice, in which case the period of
notice shall be that which the
Administrator may determine to be
reasonable in the circumstances:
Provided, That, in the case of hearings
on amendments to marketing
agreements or marketing orders, the
time of the hearing may be less than 15
days but shall not be less than 3 days
after the date of publication of the
notice in the Federal Register.
*
*
*
*
*
(d) Alternative procedures. The
Administrator may establish alternative
procedures for the proceeding that are
in addition to or in lieu of one or more
procedures in this subpart, provided
that the procedures are consistent with
5 U.S.C. 556 and 557. The alternative
procedures must be described in the
notice of hearing, as required in
paragraph (a) of this section.
*
*
*
*
*
2. Amend § 900.8 by revising
paragraph (b)(1) to read as follows:
■
§ 900.8
Conduct of the hearing.
*
*
*
*
*
(b) * * * (1) Right to appear. At the
hearing, any interested person shall be
given an opportunity to appear, either in
person or through his authorized
counsel or representative, and to be
heard with respect to matters relevant
and material to the proceeding,
provided that such interested person
complies with any alternative
procedures included in the hearing
notice pursuant to§ 900.4. Any
interested person who desires to be
heard in person at any hearing under
these rules shall, before proceeding to
testify, state his name, address, and
occupation. If any such person is
appearing through a counsel or
representative, such person or such
counsel or representative shall, before
proceeding to testify or otherwise to
participate in the hearing, state for the
record the authority to act as such
counsel or representative, and the
names and addresses and occupations of
such person and such counsel or
representative. Any such person or such
counsel or representative shall give such
other information respecting his
appearance as the judge may request.
*
*
*
*
*
Bruce Summers,
Administrator.
[FR Doc. 2020–13364 Filed 7–8–20; 8:45 am]
BILLING CODE P
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[Federal Register Volume 85, Number 132 (Thursday, July 9, 2020)]
[Rules and Regulations]
[Pages 41173-41174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13364]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 900
[AMS-DA-20-0044]
Procedural Requirements Governing Proceedings Pertaining to
Marketing Agreements and Marketing Orders
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Agriculture (USDA) is adopting a final
rule to amend the procedural regulations governing proceedings to
formulate or amend Marketing Agreements and Marketing Orders. This
final rule adopts a provision to allow the agency to utilize
alternative procedures for conducting a rulemaking proceeding as
outlined in a notice of hearing.
DATES: This final rule is effective on July 9, 2020.
FOR FURTHER INFORMATION CONTACT: Erin Taylor, Acting Director, Order
Formulation and Enforcement Division, Dairy Program, 202-720-7311,
[email protected].
SUPPLEMENTARY INFORMATION: USDA is issuing this final rule to amend the
[[Page 41174]]
procedural regulations governing proceedings pertaining to Marketing
Agreements and Marketing Orders in 7 CFR 900 Subpart A. Those rules of
practice and procedure are applicable to proceedings under the
Agricultural Marketing Agreement Act of 1937, as amended (50 Stat.
246). For purposes of efficiency and modernization, and to provide
flexibility to adapt procedures under unique circumstances, a provision
allowing the notice of hearing to include alternative procedures is
being added.
Executive Orders 12866, 13771, and 12988
This rule is governed by the provisions of Sections 556 and 557 of
Title 5 of the United States Code and, therefore, is not subject to the
requirements of Executive Order 12866.
This rule is not an Executive Order 13771 regulatory action because
it is exempt from the definition of ``regulation'' or ``rule'' in
Executive Order 12866 and, thus, is not a regulatory action.
The rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
The rule will not preempt any state or local law, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
Executive Order 13132
This rule has been reviewed in accordance with the requirements of
Executive Order 13132, Federalism. The review reveals that this rule
does not contain policies with federalism implications sufficient to
warrant federalism consultation under Executive Order 13132.
Executive Order 13175
This rule has been reviewed in accordance with the requirements of
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments. The review reveals that this regulation would not have
substantial and direct effects on tribal governments and would not have
significant tribal implications.
5 U.S.C. 553, 601, and 804
This final rule amends agency rules of practice and procedure.
Under the Administrative Procedure Act, prior notice and opportunity
for comment are not required for the promulgation of agency rules of
practice and procedure. 5 U.S.C. 553(b)(3)(A). Additionally, only
substantive rules require publication 30 days prior to their effective
date. 5 U.S.C. 553(d). Therefore, this final rule is effective upon
publication in the Federal Register.
Furthermore, under 5 U.S.C. 804, this rule is not subject to
congressional review under the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121. In addition, because prior
notice and opportunity for comment are not required to be provided for
this final rule, this rule is exempt from the requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
Paperwork Reduction Act
This rule contains no information collections or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 7 CFR Part 900
General Regulations.
For the reasons stated in the preamble, the Agricultural Marketing
Service amends the 7 CFR 900 Subpart A, as follows:
PART 900--GENERAL REGULATIONS
Subpart A--Procedural Requirements Governing Proceedings Pertaining
to Marketing Agreements and Marketing Orders
0
1. The authority citation for subpart A continues to read as follows:
Authority: 7 U.S.C. 610
0
2. Revise the heading of Subpart A to read as set forth above:
0
3. In Sec. 900.4, revise paragraph (a) and add paragraph (d) to read
as follows:
Sec. 900.4 Institution of proceeding.
(a) Filing and contents of the notice of hearing. The proceeding
shall be instituted by filing the notice of hearing with the hearing
clerk. The notice of hearing shall contain a reference to the authority
under which the marketing agreement or marketing order is proposed;
shall define the scope of the hearing as specifically as may be
practicable; shall describe any alternative procedures established
pursuant to paragraph (d) of this section; shall contain either the
terms or substance of the proposed marketing agreement or marketing
order or a description of the subjects and issues involved and shall
state the industry, area, and class of persons to be regulated, the
time and place of such hearing, and the place where copies of such
proposed marketing agreement or marketing order may be obtained or
examined. The time of the hearing shall not be less than 15 days after
the date of publication of the notice in the Federal Register, as
provided in this subpart, unless the Administrator shall determine that
an emergency exists which requires a shorter period of notice, in which
case the period of notice shall be that which the Administrator may
determine to be reasonable in the circumstances: Provided, That, in the
case of hearings on amendments to marketing agreements or marketing
orders, the time of the hearing may be less than 15 days but shall not
be less than 3 days after the date of publication of the notice in the
Federal Register.
* * * * *
(d) Alternative procedures. The Administrator may establish
alternative procedures for the proceeding that are in addition to or in
lieu of one or more procedures in this subpart, provided that the
procedures are consistent with 5 U.S.C. 556 and 557. The alternative
procedures must be described in the notice of hearing, as required in
paragraph (a) of this section.
* * * * *
0
2. Amend Sec. 900.8 by revising paragraph (b)(1) to read as follows:
Sec. 900.8 Conduct of the hearing.
* * * * *
(b) * * * (1) Right to appear. At the hearing, any interested
person shall be given an opportunity to appear, either in person or
through his authorized counsel or representative, and to be heard with
respect to matters relevant and material to the proceeding, provided
that such interested person complies with any alternative procedures
included in the hearing notice pursuant toSec. 900.4. Any interested
person who desires to be heard in person at any hearing under these
rules shall, before proceeding to testify, state his name, address, and
occupation. If any such person is appearing through a counsel or
representative, such person or such counsel or representative shall,
before proceeding to testify or otherwise to participate in the
hearing, state for the record the authority to act as such counsel or
representative, and the names and addresses and occupations of such
person and such counsel or representative. Any such person or such
counsel or representative shall give such other information respecting
his appearance as the judge may request.
* * * * *
Bruce Summers,
Administrator.
[FR Doc. 2020-13364 Filed 7-8-20; 8:45 am]
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