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.

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the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

49307 

Vol. 73, No. 163 

Thursday, August 21, 2008 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 900 

[Docket No. AMS–FV–08–0061; FV08–900– 

1 FR] 

Amendment of General Regulations for 

Fruit, Vegetable and Nut 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 rule amends the general 

regulations for federal fruit, vegetable 

and nut 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). 

The supplemental rules of practice add 

procedures to the rulemaking process 

relating to amendments to fruit, 

vegetable and nut marketing agreements 

and marketing orders; authorize the 

Department of Agriculture (USDA) to 

impose assessments on affected 

industries to supplement funds 

necessary to improve or expedite an 

amendatory hearing process; and 

authorize the use of informal 

rulemaking (5 U.S.C. 553) to amend 

such agreements and orders. Section 

1504 of the 2008 Farm Bill also applies 

to amendments of federal milk 

marketing agreements and orders. The 

supplemental rules of practice for 

federal milk marketing agreements and 

orders are addressed in a separate 

rulemaking document. 

DATES: Effective Date: August 21, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen Finn, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., Stop 0237, 

Washington, DC 20250–0237; 

Telephone: (202) 720–2491, Fax: (202) 

720–8938, or E-mail: 

Kathy.Finn@USDA.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Jay Guerber, 

Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence 

Avenue, SW., STOP 0237, Washington, 

DC 20250–0237; Telephone: (202) 720– 

2491, Fax: (202) 720–8938, or E-mail: 

Jay.Guerber@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 various fruits, vegetables 

and nuts. Marketing agreements and 

orders can contain provisions that: 

Maintain the high quality of produce 

that is on the market; standardize 

packages and containers; regulate the 

flow of product to market; establish 

reserve pools for storable commodities; 

and authorize production research, 

marketing research and development, 

and advertising. 

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 initiating, 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 initiate 

or amend an agreement or order is sent 

to the Administrator of the Agricultural 

Marketing Service (AMS). When an 

amendment is requested, a request 

typically comes from a marketing 

agreement or order committee or board 

and includes a statement regarding the 

degree of industry support for the 

proposal and the conditions the 

program or amendment to the program 

are intended to address. 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. 

A USDA Administrative Law Judge 

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 is issued by 

AMS based on hearing evidence. 

Persons are allowed to file exceptions to 

the recommended decision for a set 

period of time. 

After consideration of all exceptions 

to the recommended decision, USDA 

prepares a Secretary’s (final) decision. If 

the decision is made to issue or amend 

a marketing order, a grower referendum 

to implement a marketing order is held 

on the proposal. While producers are 

voting, copies of a companion marketing 

agreement are sent to handlers for their 

signature, when such an agreement 

exists. Through their signatures on the 

agreement, handlers indicate their 

intention to abide by the terms of the 

program. For a stand-alone marketing 

agreement, a handler sign-up would be 

conducted in lieu of a producer 

referendum for promulgation or 

amendment of a marketing agreement. 

Under a proposed marketing order or 

an amendment to the order, if at least 

two-thirds of the growers voting by 

number or by volume approve the 

proposal, a marketing order or 

amendment is issued, which is binding 

on handlers in the designated 

production area. For marketing 

agreements, only the signatory handlers 

are bound by the terms of the 

agreement. 

This process typically takes 18 to 24 

months to complete, depending on the 

complexity of the proposal and the size 

of the industry, and is applicable to both 

proposed programs and amendments to 

programs. 

Marketing orders are locally 

administered by committees or boards 

made up of growers and/or handlers, 

and often a member of the public. 

Marketing agreements are locally 


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49308 Federal Register / Vol. 73, No. 163 / Thursday, August 21, 2008 / Rules and Regulations 

administered by a committee or board 

made up of signatories to the marketing 

agreement. Committees and boards have 

regularly scheduled meetings to discuss 

industry conditions that the agreement 

or order can address, as well as to 

conduct administrative matters, such as 

committee or board nominations, and 

development of budgets and necessary 

assessments to administer the programs. 

Also, it is during such regularly 

scheduled meetings that amendments to 

a marketing agreement or order are 

considered. As discussed subsequently, 

it is at this time a pre-hearing 

information session typically would be 

conducted. 

Section 608c(17) of the Act provides 

that the provisions for promulgating a 

marketing agreement or order are also 

applicable to amendments to 

agreements or orders. Industries 

regulated under marketing agreements 

and orders may find the need to amend 

the agreements or orders if changes in 

the market or marketing problems 

experienced in the industries warrant 

such revision. In other instances, 

amendments can also be made to clarify 

and update order provisions. 

When needed, the committees and 

boards can recommend marketing 

agreement and order implementing 

regulations, such as seasonal regulations 

to establish grade and size requirements 

or the establishment of assessment rates. 

Regulations must be based on the 

authority in the agreement or order. 

These regulations are implemented 

through informal rulemaking 

procedures, as provided under § 553 of 

Title 5 of the United States Code (5 

U.S.C. 553). This section of Title 5 

provides for notice and comment 

rulemaking. It requires, in part, that 

notices of proposed rulemaking be 

published in the Federal Register, and 

that interested parties be provided an 

opportunity to comment on the 

proposal. After consideration of the 

relevant matter presented, a final rule is 

issued. Typically, informal rulemaking 

is accomplished within 90 days. 

There are currently 32 active fruit, 

vegetable and nut marketing orders, 

many with companion marketing 

agreements. Presently, there are no 

stand-alone marketing agreement 

programs. 

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) made 

changes to section 18c(17) of the Act, 

which, in turn, requires the addition of 

supplemental rules of practice to 7 CFR 

part 900. For amendments to fruit, 

vegetable and nut marketing agreements 

and orders, the supplemental rules of 

practice: add certain rulemaking 

procedures for amending marketing 

agreements and orders; authorize USDA 

to impose assessments on affected 

industries to supplement funds 

necessary to improve or expedite the 

amendatory hearing process; and 

authorize the use of informal 

rulemaking (5 U.S.C 553) to amend such 

agreements and orders, when 

determined appropriate. 

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 initiating 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 fruit, vegetable and nut 

marketing agreements and orders to 

conform to the 2008 Farm Bill. This rule 

will add new sections 900.36 through 

900.43. 

A new § 900.36 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 § 900.37 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. 

Pre-Hearing Information Session 

A new § 900.38 is added to provide 

that a pre-hearing information session 

may be held either before or after a 

submission to amend an agreement or 

order is submitted to USDA. The 2008 

Farm Bill provides for the establishment 

of pre-hearing information session 

specifications. Pre-hearing information 

sessions may be conducted when an 

industry is considering amending a 

marketing agreement or order. Such 

sessions are intended to assist in the 

conduct of the overall amendatory 

formal rulemaking process. The sessions 

may be held by a marketing agreement 

or order committee or board. A prehearing information session may also be 

held by the Secretary. The sessions may 

be held either prior or subsequent to a 

submission of a proposal under § 900.3 

of this part. 

Currently, fruit, vegetable and nut 

marketing order committees and boards, 

with USDA representatives in 

attendance, conduct regularly scheduled 

meetings to discuss changes and 

challenges facing the industry and ways 

amendments to marketing orders can 

address those issues. There are currently 

no stand-alone marketing agreement 

programs under section 608b of the Act. 

The meetings are also conducted to 

discuss administrative matters, such as 

annual budgets and necessary 

assessments. When a committee or 

board considers amendments to a 

marketing order, there is usually a 

subcommittee selected to consider the 

benefit of any amendments. The 

subcommittee meets in a public forum 

to formulate proposed amendments and 

presents such proposed amendments to 

the full committee or board. The full 

committee or board votes on whether to 

pursue amendment of the order, also in 

a forum open to the public. 

Further, any proposals received by 

entities not directly associated with a 

committee or board may be referred by 

the Secretary to the applicable 

committee or board for their 

consideration. 

Proposal Submission Requirements 

A new § 900.39 is added to specify 

submission requirements for proposals 

to amend marketing agreements and 

orders. Currently, Fruit and Vegetable 

Programs, AMS requests that any 

proposal to initiate a new marketing 

agreement or order or to amend a 

marketing agreement or order include 

detailed explanations of: the purpose of 

the proposal; the problem the proposal 

is designed to address; the current 

requirements or industry practices 

relative to the proposal; the expected 

impacts on producers, handlers and 

consumers; how the proposal would 

tend to improve returns to producers; 

the expected effects on small 

businesses; whether the proposal would 

increase or decrease costs to producers, 

handlers, committees and/or USDA; 

how the proposal would be 

implemented; and how compliance 

would be effected with the proposal. 

USDA has determined over time that 

a proposal that includes a discussion of 

the above topics assists in the 

implementation of a new marketing 

agreement or order and amendments to 

marketing agreements or orders. To 

effectuate a new marketing agreement or 

order or an amendment to an 

established agreement or order, USDA is 

required to make a ruling on certain 

findings, conclusions or exceptions 

relating to such proposals. The proposal 

submission requirement in the 

supplemental rules of practice will 

assist industries in preparation of their 

proposals for amendments to a current 

marketing agreement or order. 


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Federal Register / Vol. 73, No. 163 / Thursday, August 21, 2008 / Rules and Regulations 49309 

Written Testimony and Data Request 

Requirements 

A new § 900.40 is added to provide 

requirements for written testimony 

submitted as an exhibit at an 

amendatory fruit, vegetable or nut 

rulemaking hearing and requirements 

for USDA data requests to be used at 

such a 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 a 

proposal. 

However, it is not always practical to 

have written testimony. For example, a 

witness may want to testify on previous 

testimony by one or more witnesses. 

This provision should not impede 

witness testimony in this regard. In 

order to assist USDA participants, the 

new § 900.40 requires that testimony 

prepared as an exhibit and any other 

exhibits be made available to USDA on 

the day of appearance at the hearing, to 

the extent practicable. 

The 2008 Farm Bill provides that the 

supplemental rules of practice establish 

requirements for requests for 

preparation of USDA data prior to a 

hearing. Currently, in most hearings, 

USDA assembles appropriate economic 

data and a USDA economist testifies to 

the sources and relevance of the data. 

Rarely, if ever, has data been requested 

of USDA from the industry prior to an 

amendatory hearing for fruit, vegetable 

and nut marketing agreements and 

orders. However, in the event such 

requests do occur, § 900.40 sets forth 

that any request for preparation of 

USDA data should be made at least 10 

days before the beginning of the hearing. 

This period of time is reasonable 

considering the need to prepare such 

data. 

Electronic Document Submission 

A new § 900.41 is added to allow 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, § 900.41 sets forth that when 

possible, all documents filed with the 

hearing clerk shall also be submitted 

electronically to the Fruit and Vegetable 

Programs, AMS and reference the 

docket number of the proceeding. The 

provision sets forth that instructions for 

electronic filing with AMS will be 

provided in each appropriate Federal 

Register publication regarding the 

proceeding. This will simplify 

electronic filing for all interested 

parties. 

Industry Assessments 

The 2008 Farm Bill provides for 

industry assessments. A new § 900.42 is 

added to allow USDA to assess handlers 

for costs associated with proceedings to 

amend fruit, vegetable and nut 

marketing agreements and orders, 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 900.42 states that if USDA 

determines it is necessary to improve or 

expedite an amendment proceeding, 

USDA may impose an assessment on a 

marketing agreement’s or order’s 

handlers affected by an amendment 

proceeding to supplement funds for 

costs associated with such, including, 

but not limited to, court reporters, 

hearing examiners, legal counsel, 

hearing venue and associated travel for 

USDA officials. The assessments would 

only be incurred by handlers regulated 

by the program being amended. 

Use of Informal Rulemaking 

A new § 900.43 is added to allow the 

use of informal rulemaking procedures 

(5 U.S.C. 553) to amend fruit, vegetable 

and nut marketing agreements and 

orders and to set forth parameters that 

USDA will consider when determining 

whether this process is appropriate. 

Prior to the 2008 Farm Bill, the Act 

required that all proposals to initiate 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 as to 

how 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 fruit, vegetable and nut 

agreement or order. 

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 holding a public 

hearing and grower referenda, generally 

has a timeframe of 18 to 24 months. 

In accordance with the 2008 Farm 

Bill, section 900.43 will allow the 

option of using informal rulemaking to 

amend fruit, vegetable and nut 

marketing agreements and orders. In 

considering whether informal 

rulemaking will be used to amend a 

fruit, vegetable or nut 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. 

Final Action 

In accordance with the 2008 Farm 

Bill, this final rule establishes 

supplemental rules of practice regarding 

amendments to fruit, vegetable and nut 

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. 

Further, a small business guide on 

complying with fruit, vegetable, and nut 

marketing agreements and orders may 

be viewed at: http://www.ams.USDA.

gov/AMSv1.0/ams.fetchTemplate

Data.do?template=TemplateN&page=

MarketingOrdersSmallBusinessGuide. 

Any questions about the compliance 

guide should be sent to Jay Guerber at 

the previously mentioned address in the 

FOR FURTHER INFORMATION CONTACT

section. 

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 


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49310 Federal Register / Vol. 73, No. 163 / Thursday, August 21, 2008 / Rules and Regulations 

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, Freedom of information, 

Fruit, vegetable, and nut marketing 

agreements and orders, Reporting and 

recordkeeping requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR part 900 is amended as 

follows: 

PART 900—GENERAL REGULATIONS 

■ Accordingly, in part 900, a new 

subpart is added to read as follows: 

Subpart—Supplemental Rules of 

Practice Governing Proceedings To 

Amend Fruit, Vegetable and Nut 

Marketing Agreements and Marketing 

Orders 

Sec. 

900.36 Words in the singular form. 

900.37 Definitions. 

900.38 Pre-hearing information sessions. 

900.39 Proposal submission requirements. 

900.40 Written testimony and USDA data 

request requirements. 

900.41 Electronic document submission 

standards. 

900.42 Industry assessments. 

900.43 Use of informal rulemaking. 

Authority: 7 U.S.C. 608c(17) and 610. 

§ 900.36 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. 

§ 900.37 Definitions. 

As used in this subpart, the terms as 

defined in the Act and in § 900.2 of this 

part shall apply. 

§ 900.38 Pre-hearing information sessions. 

A pre-hearing information session 

concerning a proposal to amend a fruit, 

vegetable or nut marketing agreement or 

order may be held either prior or 

subsequent to submission of a proposal 

under § 900.3 of this part. Such sessions 

may be held by a marketing agreement 

or order committee or board or by the 

Secretary. 

§ 900.39 Proposal submission 

requirements. 

When a person other than the 

Secretary makes a proposal to amend a 

fruit, vegetable or nut marketing 

agreement or order under § 900.3 of this 

part, the proposal shall address the 

following, to the extent applicable: 

(a) The purpose of the proposal; 

(b) The problem the proposal is 

designed to address with explanation 

and quantification; 

(c) The current requirements or 

industry practices relative to the 

proposal; 

(d) The expected impact on the 

industry, including producers, handlers, 

and on consumers; 

(e) In the case of marketing orders, an 

explanation, including supporting 

information and data, of how the 

proposal would tend to improve returns 

to producers, and in the case of 

marketing agreements, how the proposal 

impacts the signatories to the 

agreement; 

(f) The expected effects on small 

businesses as defined by the Regulatory 

Flexibility Act (5 U.S.C. 601–612); 

(g) A description and quantification of 

whether the proposal would increase or 

decrease costs to producers, handlers, or 

others in the marketing chain, and to 

consumers, marketing order committees 

and boards and/or the Secretary; 

(h) A description of how the proposal 

would be implemented; and 

(i) A description, including 

quantification, of how compliance with 

the proposal would be effected. 

§ 900.40 Written testimony and USDA data 

request requirements. 

In addition to the provisions of 

§ 900.8(b)(4), witnesses at an 

amendatory fruit, vegetable or nut 

formal rulemaking hearing shall make, 

to the extent practicable, at least 8 

copies of their testimony, if prepared as 

an exhibit, and any other exhibits 

available to USDA before testimony is 

given on the day of appearance at the 

hearing. Industry requests for 

preparation of USDA data for a 

rulemaking hearing should be made at 

least 10 days prior to the beginning of 

the hearing. 

§ 900.41 Electronic document submission 

standards. 

To the extent practicable, all 

documents filed with the hearing clerk 

in a proceeding to amend a fruit, 

vegetable or nut marketing agreement or 

order shall also be submitted 

electronically to the Agricultural 

Marketing Service, Fruit and Vegetable 

Programs, USDA. All documents should 

reference the docket number of the 

proceeding. Instructions for electronic 

filing shall be provided at the 

amendatory formal rulemaking hearing 

and in each Federal Register 

publication regarding the amendatory 

proceeding. 

§ 900.42 Industry assessments. 

If the Secretary determines it is 

necessary to improve or expedite an 

amendatory fruit, vegetable or nut 

formal rulemaking proceeding, costs 

associated with improving or expediting 

the proceeding may be charged to the 

committees or boards. Such costs shall 

be paid with assessments from the 

handlers regulated under the marketing 

order to be amended or on signatories to 

the marketing agreement subject to 

amendment. Such assessments may 

supplement funds for costs associated 

with, but not limited to, court reporters, 

hearing examiners, legal counsel, 

hearing venue and associated travel for 

USDA officials. 

§ 900.43 Use of informal rulemaking. 

(a) Notwithstanding the provisions of 

§§ 900.1 through 900.18, and 900.36 

through 900.42 of this part, the 

Secretary may determine that informal 

rulemaking procedures under § 553 of 

Title 5, United States Code be used to 

amend fruit, vegetable or nut marketing 

agreements and marketing orders. In 

making this determination, 

consideration shall be given to: 

(1) The nature and complexity of the 

proposal; 

(2) The potential regulatory and 

economic impacts on affected entities; 

and 

(3) Any other relevant matters. 

Dated: August 18, 2008. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E8–19399 Filed 8–19–08; 8:45 am] 

BILLING CODE 3410–02–P 


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