[Federal Register Volume 83, Number 53 (Monday, March 19, 2018)]
[Proposed Rules]
[Page 11903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05543]


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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. 53 / Monday, March 19, 2018 / 
Proposed Rules  

[[Page 11903]]



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.

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SUMMARY: This document announces the ratification of the evidentiary 
record of the California Federal Milk Marketing Order (FMMO) rulemaking 
proceeding by the United States Department of Agriculture (USDA) 
Judicial Officer (JO).

DATES: March 19, 2018.

FOR FURTHER INFORMATION CONTACT: Erin Taylor, Acting Director, Order 
Formulation and Enforcement Division, USDA/AMS/Dairy Program, STOP 
0231, Room 2969-S, 1400 Independence Ave. SW, Washington, DC 20250-
0231, (202) 720-7311, email address: [email protected].

SUPPLEMENTARY INFORMATION: On February 5, 2015, AMS received a proposal 
from three dairy cooperatives requesting 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 (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. 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.
    AMS published a final rule to amend the definition of ``judge'' in 
the rules of practice and procedure to formulate or amend a marketing 
agreement, marketing order, or certain research and promotion orders 
(82 FR 58097). The new definition adds a presiding official appointed 
by the Secretary as an official who may preside over the rulemaking 
hearing, in addition to an administrative law judge. AMS then published 
a delay of rulemaking on February 6, 2018 (83 FR 5215) indicating the 
agency's intention to await the U.S. Supreme Court decision on the 
Lucia case prior to proceeding further with the California FMMO 
rulemaking proceeding. Subsequently, effective February 14, 2018, the 
Secretary of Agriculture appointed the USDA JO to serve as the judge 
presiding over the formal rulemaking proceedings for the California 
FMMO. The Secretary instructed the JO to conduct an independent de novo 
review of the hearing record and either ratify or modify any decision 
made by the ALJ.
    On March 9, 2018, the USDA JO completed his review and ratified all 
of ALJ Clifton's actions, including instructions regarding corrections 
to exhibits, rulings on objections, rulings on the admission of 
evidence, rulings on the conduct of the hearing, and rulings on 
requests for corrections to the transcript of the hearing. The JO 
ratified ALJ Clifton's Certification of the Transcript, except that he 
revised the list of exhibits that ALJ Clifton identified as not having 
been admitted into evidence by adding ``Exhibit 108-Exhibit D'' to that 
list.
    Consequently, USDA will move forward with the California FMMO 
rulemaking proceeding by issuing and publishing a final decision in the 
Federal Register.
    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);
    Information Collection--Producer Ballots: Issued September 27, 
2017; published October 2, 2017 (82 FR 45795); and
    Delay of Rulemaking: Issued February 1, 2018; published February 6, 
2018 (83 FR 5215).

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

    Dated: March 14, 2018.
Bruce Summers,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2018-05543 Filed 3-16-18; 8:45 am]
 BILLING CODE 3410-02-P