The 2008 farm bill included a section that required the US Department of Agriculture to establish supplemental rules of practice for amending federal milk marketing orders. Basically, these rules were intended to speed up the federal order amendment process.
USDA’s Agricultural Marketing Service published a final rule establishing these supplemental rules of practice back in August of 2008. Almost eight years later, we can conclude that these supplemental rules of practice aren’t working as intended.
Those supplemental rules of practice, among other things, specify timeframes for actions taken after the receipt of a proposal for amending federal orders.
Within 30 days of the receipt of a proposal to amend a provision of a federal order, USDA must: 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 entity submitting the proposal to be used in deciding whether a hearing will be held; or deny the request.
Why are these new rules of practice not working? Back on September 29, 2015, AMS received a proposal from the Organic Trade Association, requesting that USDA call a hearing to consider a proposal that, if adopted, would provide organic milk handlers who make an annual election with an alternative mechanism, based upon the historical “Wichita Option,” for meeting their producer-settlement fund obligations.
AMS responded as it was supposed to under the supplemental rules of practice; 30 days after receiving the OTA’s proposal, it requested additional information from the OTA on several issues.
The OTA responded approximately 30 days later, answering some of AMS’s questions but also noting that “some of your requests
fall into the category of information or ‘evidence’ that,” in OTA attorney Chip English’s more than 30 years of experience with federal orders, “would be provided only during a hearing, if one is noticed.”
AMS again responded to the OTA, on December 30, 2015, stating that the response USDA received from OTA on November 30 “was incomplete, and although OTA noted the reasons for its inability to comply fully with the request, USDA must make a thorough examination and is therefore continuing to review and gather information to properly consider the efficacy of the OTA proposal.”
In addition to receiving correspondence from the OTA, AMS has also received some opposition to the hearing request. National Milk Producers Federation, in an October 22, 2015, letter, told Ag Secretary Tom Vilsack that it “strongly opposes” the OTA’s petition for a hearing.
Less than a month later, the Pennsylvania Association of Milk Dealers and the Northeast Dairy Foods Association urged USDA to deny the OTA hearing request. And in mid-December, NMPF reiterated its opposition to the OTA’s petition.
Since the beginning of this year, several dairy cooperatives have also voiced their opposition to the OTA’s proposal. Specifically, Dairy Farmers of America, Agri- Mark, Land O’Lakes, Prairie Farms Dairy, Michigan Milk Producers Association and Upstate Niagara Cooperative have all asked USDA to deny the OTA’s request for a hearing (for what it’s worth, all six co-ops are NMPF members).
Also since the beginning of the year, USDA has, well, USDA hasn’t really done a thing. As noted earlier, just as 2015 was ending, USDA informed Chip English, the OTA’s attorney on this matter, that the OTA’s response to USDA’s initial request for additional information was “incomplete,” and that the agency was therefore continuing to review it.
Since then, AMS has sent four letters to English, each informing him that USDA is continuing to review the concerns raised and the information provided in the OTA’s proposal, as well as gather additional information to evaluate the OTA’s request. Those letters were dated January 28, February 29, April 1 and April 29.
In each of those letters, USDA has also asked the OTA to submit any additional information it may have, so USDA can include that material in its review. Given the OTA’s initial response to USDA’s request for further information, it seems pretty certain that the OTA isn’t going to be submitting any additional information.
Meanwhile, USDA continues with what appears to be stalling tactics. And it also appears that the agency is not following the intent, and certainly not the spirit, of the supplemental rules of practice it adopted back in 2008 to speed up the federal order amendment process.
Under those rules, USDA has three options after receiving a proposal to amend federal orders: issue a notice providing an action plan and expected timeframes for the different steps in the formal rulemaking process; request additional information; or deny the request.
USDA obviously hasn’t issued a notice providing an action plan and expected timeframes, nor has it denied the OTA’s request. Rather, the agency requested additional information from the OTA, and received that information more than five months ago.
USDA’s federal order amendment process remains a model of inefficiency, even with the supplemental rules of practice adopted back in 2008. It’s now been more than seven months since the agency received the OTA’s petition, and essentially nothing has happened.
It’s time for the agency, in the spirit of its supplemental rules of practice, to do something other than just avoid making a decision.
