[Federal Register Volume 68, Number 26 (Friday, February 7, 2003)]
[Rules and Regulations]
[Pages 6339-6341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3059]



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 Rules and Regulations
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  Federal Register / Vol. 68, No. 26 / Friday, February 7, 2003 / Rules 
and Regulations  

[[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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