Lapas attēli
PDF
ePub

62 Agric. Dec. 393

allowed to use its failure to do so to block judicial review of its orders. But let us set that point to one side and focus narrowly on this case. Remember that the only complaint the plaintiffs are pressing in this appeal is that they didn't receive adequate notice of the relief contemplated by the Department; they didn't know what was at stake for them in the proceeding and therefore they didn't participate fully in it, though some of them, as the defendants stress, did participate to a greater or lesser extent. Although the Department is in a better position than we are to decide whether their objections to the amendment have sufficient merit to warrant reopening the rulemaking proceeding, they are not asking us to rule on those objections. They are asking us to decide the purely procedural question whether the Department gave them adequate notice. Requiring them to tender this issue first to the Department would be a waste of time.

The Department's final argument against allowing producers to sue is that many of them, dairy co-ops for example, are both producers and handlers (that is, these producers have cut out the middleman) and could sue in the latter capacity. But these hybrids have no quarrel as handlers with the order. If the Department nevertheless believes, as it seems to, that they could sue to protect their interests as producers, it is giving away the game; for there is no reason to confine the right to sue to producers adventitiously engaged in handling as well.

We conclude that producers can seek judicial review of milk marketing orders that pinch them, and so we can proceed at last to the merits, which is to say to the issue of notice. The Administrative Procedure Act requires published notice of proposed rulemaking, 5 U.S.C. § 553(b), but does not specify how detailed the notice must be. We have said that "notice is adequate if it apprises interested parties of the issues to be addressed in the rulemaking proceeding with sufficient clarity and specificity to allow them to participate in the rulemaking in a meaningful and informed manner." American Medical Ass'n v. United States, 887 F.2d 760, 767 (7th Cir.1989). But "while an agency must explain and justify its departures from a proposed rule, it is not straitjacketed into the approach initially suggested on pain of triggering a further round of notice-and-comment." Id. at 769. "The law does not require that every alteration in a proposed rule be reissued for notice and comment. If that were the case, an agency could 'learn from the comments on its proposals only at the peril of subjecting itself to rulemaking without end." First American Discount Corp. v. CFTC, 222 F.3d 1008, 1015 (D.C.Cir.2000).

The purpose of a rulemaking proceeding is not merely to vote up or down the specific proposals advanced before the proceeding begins, but to refine, modify, and supplement the proposals in the light of evidence and arguments presented in the course of the proceeding. If every modification is to require a further hearing at which that modification is set forth in the notice, agencies will be loath to modify initial proposals, and the rulemaking process will be degraded.

The notice that the Department issued, Milk in the Mideast Marketing Area; Notice of Hearing on Proposed Amendments to Tentative Marketing Agreement and Order, 66 Fed.Reg. 49571 (Sept. 28, 2001), stated: "A public hearing is being held to consider proposals that would amend certain pooling and related provisions of the Mideast order. Proposals include ... decreasing the amount of producer milk that can be diverted to nonpool plants for varying months of the year; and increasing the minimum amount of milk that a producer needs to deliver to pool plants in order to qualify as a producer and to be eligible to be pooled on the order ... [and] eliminating a provision that currently permits a pool plant to have both a pool and a nonpool portion; [and] establishing a 'net shipment' provision for milk received at pool plants for determining pooling eligibility." Though this is gobbledygook to an outsider, insiders such as the plaintiffs would realize that the focus of the proceeding would be on their eligibility to be pooled with the Mideast producers (that is what being "pooled on the [Mideast] order" means).

What is true is that none of the proposals was identical to the amendment that the Department adopted at the end of the proceeding, namely the prohibition of paper pooling with distant plants. But paper pooling was one of the principal methods by which the plaintiffs got to pool with the Mideast producers, so that they had to assume that it would be one of the issues in the proceeding and a possible target for reform. They knew their aggressive inroads into the Mideast were controversial; they knew that in engaging in paper pooling with Mideast farmers they were exploiting the loophole created by the Department's abolition in 2000 of the price penalties for such pooling; they knew therefore that a curtailment of their access to the Mideast blended price was a likely outcome of a rulemaking proceeding expressly concerned with the criteria for eligibility for pooling with the Mideast producers. They knew enough to know that if they wanted to protect their participation in the Mideast pool they would have to participate in the rulemaking proceeding. Their choice not to do so cannot be attributed to a lack of notice.

62 Agric. Dec. 405

The judgment dismissing the suit is modified to base dismissal on the merits rather than on lack of jurisdiction, and as so modified is affirmed.

PONDEROSA DAIRY v. USDA, ET AL.

No. 99-16981, 99-16982.

D.C. No. CV-97-01185-GEB(JFM), CV-97-01179-GEB(JFM).
Filed August 12, 2003.

(Cite as: 71 Fed. Appx. 757, (9th Cir.(Cal.))).

AMMA - Milk Marketing Order.

United States Court of Appeals,

Ninth Circuit.

Before SNEED and SILVERMAN, Circuit Judges and SEDWICK, District Judge.*

ORDER

This court's decision has been reversed by the United States Supreme Court and remanded for further proceedings. Our decision had affirmed the district court, so we now remand these cases to the United States District Court for the Eastern District of California for further proceedings consistent with the decision by the United States Supreme Court.

'The Honorable John W. Sedwick, United States District Judge for the District of Alaska, sitting by designation.

406

AGRICULTURAL MARKETING AGREEMENT ACT

DEPARTMENTAL DECISION

In re: KREIDER DAIRY FARMS, INC.

98 AMA Docket No. M 4-1.

Decision and Order.

Filed August 5, 2003.

AMAA - Milk marketing - Producer-handler - Application for producer-handler status - Issue preclusion Feasible defined - Law of the case doctrine.

[ocr errors]

The Judicial Officer (JO) affirmed Administrative Law Judge Jill S. Clifton's decision denying Petitioner's amended petition instituted under 7 U.S.C. § 608c(15)(A). In the amended petition, Petitioner challenges the Market Administrator's failure to designate Petitioner a producer-handler for the period December 1995 through December 1999, under former Milk Marketing Order No. 2 (7 C.F.R. pt. 1002 (1999)). The JO stated that Petitioner previously litigated the issue of its status as a producer-handler during the period January 1991 through April 1997, in In re Kreider Dairy Farms, Inc., 94 AMA Docket No. M 1-2 (Kreider I). The JO concluded that issue preclusion bars Petitioner from relitigating its status under former Milk Marketing Order No. 2 for the period December 1995 through April 1997. The JO found Petitioner's January 1991 application for designation as a producer-handler, which was the subject of Kreider I, was not an application for designation as a producer-handler during the period December 1995 through December 1999; therefore, Petitioner was not eligible for designation as a producer-handler under former Milk Marketing Order No. 2 for the period December 1995 through December 1999. Further, the JO concluded that each month during the period May 1997 through December 1999, Petitioner distributed milk to subdealers. Therefore, Petitioner did not have complete and exclusive control over the distribution of its milk, a requirement for designation as a producer-handler under former Milk Marketing Order No. 2. Finally, the JO, treating the United States District Court for the Eastern District of Pennsylvania's remand order in Kreider I as the law of the case with respect to In re Kreider Dairy Farms, Inc., 98 AMA Docket No. M 4-1, found it was feasible for Petitioner's subdealer customers to obtain milk from other handlers during periods of short production; thus, Petitioner was “riding the pool" and was not eligible for designation as a producer-handler under former Milk Marketing Order No. 2.

Sharlene A. Deskins, for Respondent.

Marvin Beshore, for Petitioner.

Initial decision issued by Jill S. Clifton, Administrative Law Judge.
Decision and Order issued by William G. Jenson, Judicial Officer.

PROCEDURAL HISTORY

Kreider I (A Related Proceeding)

On December 28, 1993, Kreider Dairy Farms, Inc. [hereinafter Petitioner], instituted a proceeding, In re Kreider Dairy Farms, Inc., 94 AMA Docket No. M 1-2 [hereinafter Kreider П], under the Agricultural Marketing Agreement Act of 1937, as amended [hereinafter the AMAA]; the former marketing order

62 Agric. Dec. 406

regulating milk in the New York-New Jersey Marketing Area (7 C.F.R. pt. 1002 (1999)) [hereinafter former Milk Marketing Order No. 2];1 and the Rules of Practice Governing Proceedings on Petitions To Modify or To Be Exempted From Marketing Orders (7 C.F.R. §§ 900.50-.71) [hereinafter the Rules of Practice].

In Kreider I, Petitioner: (1) challenged the determination by the Market Administrator for former Milk Marketing Order No. 2 [hereinafter the Market Administrator] that, beginning in November 1991, Petitioner was a handler regulated under former Milk Marketing Order No. 2; (2) asserted it was a producer-handler under former Milk Marketing Order No. 2 exempt from the obligation under former Milk Marketing Order No. 2 to pay into the producer-settlement fund; and (3) sought a refund, with interest, of the money it paid into the producer-settlement fund (Kreider I Pet. ¶¶ 13-14).

The Judicial Officer dismissed the Kreider I Petition concluding the Market Administrator correctly determined Petitioner was a handler and Petitioner was not a producer-handler exempt from the obligation under former Milk Marketing Order No. 2 to pay into the producer-settlement fund. The Judicial Officer held the producer-handler exemption in former Milk Marketing Order No. 2 requires that, in order to be a producer-handler, a person must exercise complete and exclusive control over all facilities and resources used for the production, processing, and distribution of milk. The Judicial Officer found Petitioner relinquished the complete and exclusive control of milk distribution necessary for designation as a producer-handler under former Milk Marketing Order No. 2 when Petitioner delivered milk to two subdealers, Ahava Dairy Products, Inc. [hereinafter Ahava], and The Foundation for the Propagation and Preservation of Torah Laws and Customs [hereinafter FPPTLC], which milk was subsequently distributed by Ahava and FPPTLC to their retail and wholesale customers.2

Petitioner appealed In re Kreider Dairy Farms, Inc., 54 Agric. Dec. 805 (1995). The United States District Court for the Eastern District of Pennsylvania found that neither the plain language of the producer-handler exemption in former Milk Marketing Order No. 2 nor the rulemaking

'Former Milk Marketing Order No. 2, which is the subject of the instant proceeding and was the subject of Kreider 1, ceased to be effective January 1, 2000. 64 Fed. Reg. 70,868 (Dec. 17, 1999). The area to which former Milk Marketing Order No. 2 was applicable is now encompassed by the Northeast Milk Marketing Order (7 C.F.R. pt. 1001).

'In re Kreider Dairy Farms, Inc., 54 Agric. Dec. 805 (1995).

« iepriekšējāTurpināt »