[Federal Register Volume 83, Number 25 (Tuesday, February 6, 2018)]
[Proposed Rules]
[Page 5215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02386]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 83, No. 25 / Tuesday, February 6, 2018 / 
Proposed Rules  

[[Page 5215]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1051

[Docket No. AO-15-0071; AMS-DA-14-0095]


Proposed California Federal Milk Marketing Order

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule; delay of rulemaking.

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SUMMARY: This document announces a delay of the California Federal Milk 
Marketing Order (FMMO) rulemaking proceeding and the Agricultural 
Marketing Service's (AMS) intention to await the U.S. Supreme Court 
decision on a related legal matter prior to proceeding further with 
this rulemaking.

DATES: February 6, 2018.

ADDRESSES: Order Formulation and Enforcement Division, USDA/AMS/Dairy 
Program, STOP 0231, Room 2969-S, 1400 Independence Ave SW, Washington, 
DC 20250-0231. The docket may be viewed at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Erin Taylor, Acting Director, (202) 
720-7311, email address: [email protected].

SUPPLEMENTARY INFORMATION: On February 5, 2015, AMS received a proposal 
from three dairy cooperatives to call a hearing to promulgate a FMMO in 
California. Subsequently, AMS received additional proposals in April 
2015. After publishing a notice of hearing on August 6, 2015 and 
proposing to add 7 CFR part 1051 (80 FR 47210), AMS commenced a hearing 
on September 22, 2015, presided over by Administrative Law Judge (ALJ) 
Jill S. Clifton. At the conclusion of the hearing, AMS reviewed the 
hearing record and briefs filed subsequent to the hearing. AMS 
published the Recommended Decision and Opportunity to File Written 
Exceptions on February 14, 2017 (82 FR 10634).
    On November 29, 2017, the Solicitor General of the United States 
submitted a brief to the U.S. Supreme Court in Lucia v. Securities and 
Exchange Commission (Lucia), 868 F.3d 1021 (D.C. Cir. 2017) (en banc) 
(per curiam), cert. granted, No. 17-130 (U.S. January 12, 2018). The 
Government's position is that ALJs are ``inferior officers'' of the 
United States, subject to the Appointments Clause of Article II of the 
Constitution. The Solicitor General urged the Court to grant a writ of 
certiorari and resolve a circuit split concerning the Constitutional 
requirements for ALJ appointments. On January 12, 2018, the Court did 
so.
    At all times material to the hearing for the prospective 
promulgation of a FMMO for California, ALJ Clifton presided over the 
proceedings on behalf of the United States Department of Agriculture 
(USDA). At the time of the hearing, USDA believed ALJ Clifton to be an 
employee of the Department and her appointment was completed in 
accordance with agency procedures, however, if the Court determines 
that ALJs are inferior officers of the United States rather than 
employees, then ALJ Clifton's original appointment as an ALJ would be 
brought into question. The Court is expected to hear oral arguments in 
Lucia during the current term and to render its decision on or before 
the end of its term on June 30, 2018.
    As of November 29, 2017, the United States Department of Justice 
will no longer argue in the federal courts that ALJs are employees 
rather than inferior officers unless the Supreme Court determines 
otherwise. Consequently, it is prudent and appropriate for AMS to delay 
further proceedings in this FMMO rulemaking until the Court renders its 
decision in Lucia.
    Prior documents in this proceeding:
    Notice of Hearing: Issued July 27, 2015; published August 6, 2015 
(80 FR 47210);
    Notice to Reconvene Hearing: Issued September 25, 2015; published 
September 30, 2015 (80 FR 58636);
    Recommended Decision and Opportunity to File Written Exceptions: 
Issued February 6, 2017; published February 14, 2017 (82 FR 10634);
    Documents for Official Notice: Issued August 8, 2017; published 
August 14, 2017 (82 FR 37827); and
    Information Collection--Producer Ballots: Issued September 27, 
2017; Published October 2, 2017 (82 FR 45795).

    Authority: 7 U.S.C. 601-674.

    Dated: February 1, 2018.
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2018-02386 Filed 2-5-18; 8:45 am]
BILLING CODE 3410-02-P