[Federal Register Volume 61, Number 90 (Wednesday, May 8, 1996)]
[Rules and Regulations]
[Pages 20716-20718]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11461]
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[[Page 20717]]
DEPARTMENT OF AGRICULTURE
7 CFR Part 900
[Docket No. FV95-900-1FR]
Amendment of General Regulations for Marketing Orders; Adding
Stipulation Procedures
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule amends the general regulations for federal marketing
orders and marketing agreements covering fruits, vegetables and nuts,
by adding a provision for implementing stipulation procedures to
resolve certain violations of marketing orders, marketing agreements,
Section 8e import regulations, and provisions regulating nonsignatory
peanut handlers. Marketing orders, marketing agreements, and the other
regulatory provisions listed above regulate handlers and/or importers
of various agricultural commodities and are authorized under the
Agricultural Marketing Agreement Act of 1937 (Act). The Act gives the
Department of Agriculture (Department) authority to institute formal
administrative proceedings against handlers and/or importers who
violate marketing orders, marketing agreements, and other regulatory
provisions under the Act. This rule would give the Department another
tool for enforcement by allowing the Department to enter into a written
agreement with a violator who agrees to waive a hearing and pay a civil
penalty without a formal administrative proceeding.
EFFECTIVE DATE: May 9, 1996.
FOR FURTHER INFORMATION CONTACT: Barbara Schulke, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC. 20090-6456, telephone (202)
720-4607, facsimile (202) 720-5698.
SUPPLEMENTARY INFORMATION: The Department is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule (1) preempts all State or local laws and
regulations that are inconsistent with this rule, (2) has no
retroactive effect, and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
The Act provides authority for federal marketing order and
marketing agreement programs for various fruits, vegetables and nuts.
The programs are initiated by interested industries and voted on by
those in the industry. A marketing order allows an industry to solve
marketing problems by establishing grade, size, quality, maturity,
quantity and container requirements that apply to all handlers in the
industry. Section 8e of the Act requires that whenever the Secretary of
Agriculture issues grade, size, quality, or maturity regulations under
domestic marketing orders for certain commodities, the same or
comparable regulations on imports of those commodities must be issued.
Thus, handler and importer compliance is essential for marketing order
and marketing agreement programs and mandatory import requirements to
be effective.
Section 608(c)14(B) of the Act authorizes the Department to
institute a formal administrative proceeding against a handler or
importer who violates a marketing order or other regulatory provision
under the Act. This rule provides an alternative tool for enforcement
by allowing the Department to enter into a written agreement, or
stipulation, with a violator who agrees to waive a hearing and pay a
civil penalty without the Department's initiating a formal
administrative proceeding.
Under these stipulation procedures, the Administrator of the
Agricultural Marketing Service would give the handler or importer
notice of the alleged violation and the opportunity for a hearing. The
handler or importer would have the option to waive the hearing and
agree to pay a specified civil penalty within a prescribed period of
time. In turn, the Administrator would agree to accept the civil
penalty in settlement of the particular matter involved if the penalty
is paid within the specified time frame. If, however, the handler or
importer does not pay the civil penalty within that period of time, the
Department would institute a formal administrative proceeding. A civil
penalty that the Department offers in a stipulation will have no
bearing on the civil penalty that the Department may seek in a formal
administrative proceeding.
Formal disciplinary proceedings can take up to two years and are
costly for both the Department and the violator. The Department is
implementing the use of stipulation agreements, where appropriate, to
improve marketing order, marketing agreement, and Section 8e
compliance. The intended effect of this rule is to resolve certain
cases without the cost of going to a hearing. Accordingly, the general
regulations for marketing orders and marketing agreements covering
fruits, vegetables and nuts are amended by adding a subpart on
stipulation procedures.
Pursuant to 5 U.S.C. 553, it is found and determined upon good
cause that notice and other procedure with respect thereto are
impracticable, unnecessary and contrary to the public interest, and
there is good cause for making this rule effective less than 30 days
after publication in the Federal Register because (1) these procedures
are in effect for other Department programs, (2) this action improves
the administration of marketing order, marketing agreement, and Section
8e programs because it affords more timely resolution of cases brought
by USDA, and (3) no useful purpose would be served by delaying the
effective date of implementing the use of stipulation agreements. This
rule is not a rule as defined by the Regulatory Flexibility Act (5
U.S.C. 601 et seq.).
List of Subjects in 7 CFR Part 900
Administrative practice and procedures, Freedom of information,
Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, 7 CFR part 900 is
amended as follows:
PART 900--GENERAL REGULATIONS
Accordingly, in part 900, immediately following Sec. 900.71, a new
subpart is added to read as follows:
Subpart--Supplemental Rules of Practice for Marketing Orders, Marketing
Agreements, and Requirements Issued Pursuant to 7 U.S.C. 608b(b) and 7
U.S.C. 608e Covering Fruits, Vegetables, and Nuts
Sec.
900.80 Words in the singular form.
900.81 Definitions.
900.82 Stipulation procedures.
Authority: 7 U.S.C. 601-674.
Subpart--Supplemental Rules of Practice for Marketing Orders,
Marketing Agreements, and Requirements Issued Pursuant to 7 U.S.C.
608b(b) and 7 U.S.C. 608e Covering Fruits, Vegetables, and Nuts
Sec. 900.80 Words in the singular form.
Words in this subpart in the singular form shall be deemed to
import the plural, and vice versa, as the case may demand.
Sec. 900.81 Definitions.
As used in this subpart, the terms as defined in the act shall
apply with equal force and effect. In addition, unless the context
otherwise requires:
(a) The term Act means Public Act No. 10, 73 Congress (48 Stat. 31)
as amended and as reenacted and amended by the
[[Page 20718]]
Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), as
amended.
(b) The term Department means the United States Department of
Agriculture.
(c) The term Secretary means the Secretary of Agriculture of the
United States, or any officer or employee of the Department to whom
authority has heretofore been delegated, or to whom authority may
hereafter be delegated, to act in his stead.
(d) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any
officer or employee of the Department to whom authority has been
delegated or may hereafter be delegated to act in his stead.
(e) The term proceeding means a proceeding before the Secretary
arising under sections 8a, 8b(b), 8c(14), 8e, 10(c) and 10(h).
(f) The term hearing means that part of the proceeding which
involves the submission of evidence.
(g) The term marketing agreement means any marketing agreement or
any amendment thereto which may be entered into pursuant to section 8b
of the act.
(h) The term marketing order means any order or any amendment
thereto which may be issued pursuant to section 8c of the act, and
after notice and hearing as required by said section.
(i) The term handler means any person who, by the terms of a
marketing order or marketing agreement, is subject thereto, or to whom
a marketing order or marketing agreement is sought to be made
applicable.
(j) The term importer means any person who, by the terms of section
8e of the act, is subject thereto.
(k) The term person means any individual, corporation, partnership,
association, or any other business unit.
Sec. 900.82 Stipulation procedures.
The Administrator, or the Administrator's representative, may, at
any time before the issuance of a complaint seeking a civil penalty
under the Act, enter into a stipulation with any handler or importer in
accordance with the following procedures:
(a) The Administrator, or the Administrator's representative, shall
give the handler or importer notice of the alleged violation of the
applicable marketing order or marketing agreement, or the requirements
issued pursuant to 7 U.S.C. 608b(b) and 7 U.S.C. 608e, and an
opportunity for a hearing thereon as provided by the Act;
(b) In agreeing to the proposed stipulation, the handler or
importer expressly waives the opportunity for a hearing and agrees to
pay a specified civil penalty within a designated time;
(c) The Administrator, or the Administrator's representative,
agrees to accept the specified civil penalty in settlement of the
particular matter involved if it is paid within the designated time;
(d) In cases where the handler or importer does not pay the
specified civil penalty within the designated time, or the handler or
importer does not agree to the stipulation, the Administrator may issue
an administrative complaint; and
(e) The civil penalty that the Administrator may have proposed in a
stipulation agreement shall have no bearing on the civil penalty amount
that the Department may seek in a formal administrative proceeding
against the same handler or importer for the same alleged violation.
Dated: May 2, 1996.
Lon Hatamiya,
Administrator.
[FR Doc. 96-11461 Filed 5-7-96; 8:45 am]
BILLING CODE 3410-02-P