[Federal Register: February 7, 2003 (Volume 68, Number 26)]
[Rules and Regulations]
[Page 6339-6341]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07fe03-1]
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Rules and Regulations
Federal Register
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[[Page 6339]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Part 1
RIN 0503-AA25
Appeal of Oral Decisions Under the Rules of Practice
AGENCY: Office of the Secretary, USDA.
ACTION: Final rule.
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SUMMARY: The Office of the Secretary is amending the rules of practice
governing formal adjudicatory proceedings instituted by the Secretary
under various statutes. This final rule amends the rules of practice
governing formal adjudicatory proceedings instituted by the Secretary
under various statutes to provide that any appeal to the Judicial
Officer from an oral decision of an administrative law judge must be
filed within 30 days after the oral decision is issued. The Office of
the Secretary is also making a number of minor, nonsubstantive changes
to the rules of practice governing formal adjudicatory proceedings
instituted by the Secretary under various statutes.
EFFECTIVE DATE: February 7, 2003.
FOR FURTHER INFORMATION CONTACT: Patrice Harps, Deputy Assistant
General Counsel, Trade Practices Division, Office of the General
Counsel, USDA, Room 2309, South Building, 1400 Independence Avenue,
SW., Washington, DC 20250, (202) 720-5293.
SUPPLEMENTARY INFORMATION:
Background
Appeal to the Judicial Officer
The rules of practice governing formal adjudicatory proceedings
instituted by the Secretary under various statutes (7 CFR 1.130 through
1.151) (referred to as the ``uniform rules'' below) provide that an
administrative law judge may issue an oral or written decision. Current
7 CFR 1.142(c)(2) provides that if an administrative law judge orally
announces a decision, a copy of the decision shall be furnished to the
parties by the Hearing Clerk. Irrespective of the date a copy of the
decision is mailed, the issuance date of the oral decision is the date
the decision is orally announced. Current 7 CFR 1.145(a) provides that
a party who disagrees with an administrative law judge's decision may
appeal to the Judicial Officer within 30 days after receiving service
of the administrative law judge's decision.
The Judicial Officer has held that an appeal from an oral decision
must be filed within 30 days after the date the administrative law
judge orally announces the decision. In re PMD Produce Brokerage Corp.,
59 Agric. Dec. 344 (2000) (order denying late appeal); In re PMD
Produce Brokerage Corp., 59 Agric. Dec. 351 (2000) (order denying
petition for reconsideration). On appeal, the United States Court of
Appeals for the District of Columbia Circuit held that current 7 CFR
1.142(c)(2) and 7 CFR 1.145(a) are ambiguous because the Secretary of
Agriculture did not give fair notice that the uniform rules require an
appeal to be filed within 30 days after the administrative law judge
orally announces a decision. PMD Produce Brokerage Corp. v. U.S.
Department of Agriculture, 234 F.3d 48 (D.C. Cir. 2000).
The Office of the Secretary is amending 7 CFR 1.145(a) to eliminate
the ambiguity found by the United States Court of Appeals for the
District of Columbia Circuit. Specifically, the Office of the Secretary
is amending 7 CFR 1.145(a) to provide that any appeal to the Judicial
Officer from an oral decision issued by an administrative law judge
must be filed within 30 days after the administrative law judge issues
the oral decision.
Miscellaneous Changes
The Office of the Secretary is also making a number of minor,
nonsubstantive changes.
The uniform rules are applicable to adjudicatory proceedings under
the statutory provisions listed in 7 CFR 1.131(a). One of the statutory
provisions listed in current 7 CFR 1.131(a) is the ``Packers and
Stockyards Act, 1921, as supplemented, sections 203, 312, 401, 502(b),
and 505 of the Act, and section 1, 57 Stat. 422, as amended by section
4, 90 Stat. 1249 (7 U.S.C. 193, 204, 213, 218a, 218d, 221).'' Sections
502 and 505 of the Packers and Stockyards Act were repealed by section
10 of the Poultry Producers Financial Protection Act of 1987.
Therefore, in order to reflect the 1987 amendment to the Packers and
Stockyards Act, the Office of the Secretary is amending the reference
in 7 CFR 1.131(a) to the Packers and Stockyards Act to read ``Packers
and Stockyards Act, 1921, as supplemented, sections 203, 312, and 401
of the Act, and section 1, 57 Stat. 422, as amended by section 4, 90
Stat. 1249 (7 U.S.C. 193, 204, 213, 221).''
Current 7 CFR 1.131(a) also lists the ``Perishable Agricultural
Commodities Act, 1930, sections 1(9), 3(c), 4(d), 6(c), 8(a), 8(b),
8(c), 9 and 13(a), (7 U.S.C. 499c(c), 499d(d), 499f(c), 499h(a),
499h(b), 499h(c), 499i, 499m(a)).'' The Perishable Agricultural
Commodities Act was amended by the Perishable Agricultural Commodities
Act Amendments of 1995 on November 15, 1995. Section 11 of the
Perishable Agricultural Commodities Act Amendments of 1995 added
section 8(e) to the Perishable Agricultural Commodities Act which
provides for the assessment of civil penalties for violations of the
Perishable Agricultural Commodities Act after an adjudicatory
proceeding conducted by the Secretary. These proceedings are currently
conducted in accordance with the uniform rules. Therefore, in order to
reflect the 1995 amendment to the Perishable Agricultural Commodities
Act, the Office of the Secretary is amending the reference in 7 CFR
1.131(a) to the Perishable Agricultural Commodities Act by adding a
reference to section 8(e) and to the section in the United States Code
in which section 8(e) is codified, 7 U.S.C. 499h(e). The Office of the
Secretary is also correcting the reference to section ``1(9)'' to read
``1(b)(9)'' and adding a reference to the section in the United States
Code in which section 1(b)(9) of the Perishable Agricultural
Commodities Act is codified, 7 U.S.C. 499a(b)(9).
Current 7 CFR 1.131(a) also lists the ``United States Grain
Standards Act, sections 7(g)(3), 9, (footnote 2) 10, and 17A(d) (7
U.S.C. 79(g)(3), 85, 86).'' Footnote 2 states: ``[t]he rules of
practice in this subpart are applicable to formal proceedings under
section 9 of the United States Grain Standards Act for
[[Page 6340]]
refusal to renew, or for suspension or revocation of a license if the
respondent requests that such proceeding be subject to the
administrative procedure provisions in 5 U.S.C. 554, 556, and 557. If
such a request is not made, the rules of practice in 7 CFR part 26,
subpart C shall apply.'' Title 7 CFR part 26, subpart C, was deleted,
effective April 11, 1980 (45 FR 15873). Therefore, the Office of the
Secretary is removing footnote 2 and the reference to footnote 2 in 7
CFR 1.131(a). The Office of the Secretary is also adding a reference to
the section in the United States Code in which section 17A(d) of the
United States Grain Standards Act is codified, 7 U.S.C. 87f-1(d).
The Office of the Secretary is also: (1) Correcting cross-
references to regulations and statutes in 7 CFR 1.132, 7 CFR
1.133(b)(2), 7 CFR 1.136(c), 7 CFR 1.137(b), 7 CFR 1.141(e)(2), and 7
CFR 1.144(c); (2) making editorial changes in 7 CFR 1.131(b), 7 CFR
1.141(b)(1) (redesignated footnote 2), 7 CFR 1.142(c)(4), 7 CFR
1.143(d), 7 CFR 1.144(c)(13), 7 CFR 1.147(h), and 7 CFR 1.148(a)(3) for
clarity and to correct typographical errors; and (3) eliminating
gender-specific references in 7 CFR 1.141(e)(2).
5 U.S.C. 553, 601, and 804
This rule amends provisions of the rules of practice governing the
conduct of certain adjudicatory proceedings before the Secretary of
Agriculture. Therefore, pursuant to 5 U.S.C. 553, notice of proposed
rulemaking and opportunity for comment are not required for this rule,
and this rule may be made 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 exempt from the requirements of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.).
Executive Order 12866 and 12988
This rule has been determined to be not significant for purposes of
Executive Order 12866 and, therefore, has not been reviewed by OMB.
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule. There are no administrative proceedings which must be exhausted
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
This rule contains no information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 7 CFR Part 1
Administrative practice and procedure, Agriculture, Antitrust,
Blind, Claims, Concessions, Cooperatives, Equal access to justice,
Federal buildings and facilities, Freedom of information, Lawyers,
Privacy.
Accordingly, 7 CFR part 1 is amended as follows:
PART 1--ADMINISTRATIVE REGULATIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 5 U.S.C. 301, unless otherwise noted.
Subpart H--Rules of Practice Governing Formal Adjudicatory
Proceedings Instituted by the Secretary Under Various Statutes
Sec. 1.131 [Amended]
2. Section 1.131 is amended as follows:
a. In paragraph (a), the reference to ``Packers and Stockyards Act,
1921, as supplemented, sections 203, 312, 401, 502(b), and 505 of the
Act, and section 1, 57 Stat. 422, as amended by section 4, 90 Stat.
1249 (7 U.S.C. 193, 204, 213, 218a, 218d, 221)'' is removed and
``Packers and Stockyards Act, 1921, as supplemented, sections 203, 312,
and 401 of the Act, and section 1, 57 Stat. 422, as amended by section
4, 90 Stat. 1249 (7 U.S.C. 193, 204, 213, 221)'' is added in its place.
b. In paragraph (a), the reference to ``Perishable Agricultural
Commodities Act, 1930, sections 1(9), 3(c), 4(d), 6(c), 8(a), 8(b),
8(c), 9 and 13(a), (7 U.S.C. 499c(c), 499d(d), 499f(c), 499h(a),
499h(b), 499h(c), 499i, 499m(a))'' is removed and ``Perishable
Agricultural Commodities Act, 1930, sections 1(b)(9), 3(c), 4(d), 6(c),
8(a), 8(b), 8(c), 8(e), 9, and 13(a) (7 U.S.C. 499a(b)(9), 499c(c),
499d(d), 499f(c), 499h(a), 499h(b), 499h(c), 499h(e), 499i, 499m(a))''
is added in its place.
c. In paragraph (a), footnote 2 and the reference to footnote 2 are
removed.
d. In paragraph (a), the reference to ``(7 U.S.C. 79(g)(3), 85,
86)'' is removed and ``(7 U.S.C. 79(g)(3), 85, 86, 87f-1(d))'' is added
in its place.
e. In paragraph (b)(1), the period is removed immediately after the
word ``service'' and a semicolon is added in its place.
f. In paragraph (b)(2), the period is removed immediately after the
reference to ``(9 CFR parts 160, 161)'' and a semicolon is added in its
place.
Sec. 1.132 [Amended]
3. In Sec. 1.132 the definition of ``Petitioner'' is amended by
removing the reference to ``7 U.S.C. 499a(9)'' and adding ``7 U.S.C.
499a(b)(9)'' in its place.
Sec. 1.133 [Amended]
4. In Sec. 1.133, paragraph (b)(2) is amended by removing the
reference to ``7 CFR 47.47-47.68'' and adding a reference to
``Sec. Sec. 47.47-47.49 of this title'' in its place; and by removing
the reference to ``7 U.S.C. 499a(9)'' and adding a reference to ``7
U.S.C. 499a(b)(9)'' in its place.
Sec. 1.136 [Amended]
5. In Sec. 1.136, paragraph (c), the reference to ``Sec.
1.136(a)'' is removed and the words ``paragraph (a) of this section''
are added in its place.
Sec. 1.137 [Amended]
6. In Sec. 1.137, paragraph (b) is amended by removing the
reference to ``7 U.S.C. 499a(9)'' and adding a reference to ``7 U.S.C.
499a(b)(9)'' in its place.
Sec. 1.141 [Amended]
7. Section 1.141 is amended as follows:
a. In paragraph (b)(1), footnote 3 is redesignated as footnote 2
and is amended by removing the letter ``z'' immediately after the
period at the end of the footnote.
b. In paragraph (e)(2), the reference to ``7 U.S.C. 499a(9)'' is
removed and ``7 U.S.C. 499a(b)(9)'' is added in its place; and the word
``his'' is removed both times it appears and the word ``the'' is added
in its place.
Sec. 1.142 [Amended]
8. In Sec. 1.142, paragraph (c)(4) is amended by adding the words
``final and'' immediately before the word ``effective''.
Sec. 1.143 [Amended]
9. In Sec. 1.143, paragraph (d) is amended by removing the word
``their'' and adding the words ``the Judge's or Judicial Officer's'' in
its place.
Sec. 1.144 [Amended]
10. Section 1.144 is amended as follows:
a. In paragraph (c), the introductory text is amended by removing
the word ``elsewhere''; and by removing the word
[[Page 6341]]
``part'' and adding the word ``subpart'' in its place.
b. Paragraph (c)(13) is amended by adding the word ``and''
immediately after the semicolon.
11. In Sec. 1.145, paragraph (a) is revised to read as follows:
Sec. 1.145 Appeal to Judicial Officer.
(a) Filing of petition. Within 30 days after receiving service of
the Judge's decision, if the decision is a written decision, or within
30 days after issuance of the Judge's decision, if the decision is an
oral decision, a party who disagrees with the decision, any part of the
decision, or any ruling by the Judge or who alleges any deprivation of
rights, may appeal the decision to the Judicial Officer by filing an
appeal petition with the Hearing Clerk. As provided in Sec.
1.141(h)(2), objections regarding evidence or a limitation regarding
examination or cross-examination or other ruling made before the Judge
may be relied upon in an appeal. Each issue set forth in the appeal
petition and the arguments regarding each issue shall be separately
numbered; shall be plainly and concisely stated; and shall contain
detailed citations to the record, statutes, regulations, or authorities
being relied upon in support of each argument. A brief may be filed in
support of the appeal simultaneously with the appeal petition.
* * * * *
Sec. 1.147 [Amended]
12. In Sec. 1.147, paragraph (h), the word ``extened'' is removed
and the word ``extended'' is added in its place.
Sec. 1.148 [Amended]
13. In Sec. 1.148, paragraph (a)(3), the word ``leat'' is removed
and the word ``least'' is added in its place.
14. In Sec. 1.149 footnote 4 is redesignated as footnote 3.
Done in Washington, DC this 31st day of January, 2003.
Ann M. Veneman,
Secretary of Agriculture.
[FR Doc. 03-3059 Filed 2-6-03; 8:45 am]
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