[Federal Register Volume 73, Number 162 (Wednesday, August 20, 2008)]
[Rules and Regulations]
[Pages 49085-49090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19134]



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Rules and Regulations
                                                Federal Register
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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.

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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. <a href="/cdn-cgi/l/email-protection#cc9ba5a0a0a5ada1e29ea5afa4a1a3a2a88cb9bfa8ade2aba3ba"><span class="__cf_email__" data-cfemail="a9fec0c5c5c0c8c487fbc0cac1c4c6c7cde9dcdacdc887cec6df">[email protected]</span></a>

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


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