[Federal Register Volume 60, Number 139 (Thursday, July 20, 1995)]
[Rules and Regulations]
[Pages 37324-37327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17325]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Parts 1150, 1160, 1200, 1205, 1207, 1208, 1209, 1210, 1211,
1212, 1220, 1230, 1240, 1250, 1280, and 1290
[FV-94-702FR]
Rules of Practice Governing Proceedings on Petitions to Modify or
to be Exempted from Research and Promotion Programs
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: This rule will consolidate the petition procedures for all
research and promotion programs that provide for petitions. This
consolidation will eliminate duplication and will reduce costs.
EFFECTIVE DATE: August 21, 1995.
FOR FURTHER INFORMATION CONTACT: Sonia N. Jimenez, Research and
Promotion Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box
96456, Room 2535-S, Washington, DC 20090-6456; telephone (202) 720-
9915.
SUPPLEMENTARY INFORMATION: This action is authorized under the Floral
Research and Consumer Information Act [7 U.S.C. 4301-4319]; the Fresh
Cut Flowers and Fresh Cut Greens Promotion and Consumer Information Act
[7 U.S.C 6801-6814]; the Honey Research, Promotion, and Consumer
Information Act, as amended [7 U.S.C. 4601-4612]; the Lime Research,
Promotion, and Consumer Information Act, as amended [7 U.S.C. 6201-
6212]; the Mushroom Promotion, Research, and Consumer Information Act
of 1990 [7 U.S.C. 6101-6112]; the Pecan Promotion and Research Act of
1990 [7 U.S.C. 6001-6013]; the Potato Research and Promotion Act, as
amended [7 U.S.C. 2611-2627]; the Watermelon Research and Promotion
Act, as amended [7 U.S.C. 4901-4916], the Egg Research and Consumer
Information Act [7 U.S.C. 2701-2718], the Cotton Research and Promotion
Act [7 U.S.C. 2101-2118], the Pork Promotion, Research, and Consumer
Information Act [7 U.S.C. 4801-4819], the Soybean Promotion, Research,
and Consumer Information Act [7 U.S.C. 6301-6311], the Sheep Promotion,
Research, and Information Act of 1994 [7 U.S.C. 7101-7111], the Dairy
Production Stabilization Act of 1983 [7 U.S.C. 4501-4513], the Fluid
Milk Promotion Act of 1990 [7 U.S.C. 6401-6417], and the Wheat and
Wheat Foods Research and Nutrition Education Act [7 U.S.C. 3401-3417].
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. It is not intended to have retroactive effect. This
rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The acts named above provide that administrative proceedings must
be exhausted before parties may file suit in court. A person subject to
a research and promotion order or plan (hereinafter referred to as
order) may file a petition with the Secretary of Agriculture
(Secretary) stating that the order or any provision of the order, or
any obligation imposed in connection with the order, is not in
accordance with law and requesting a modification of the order or an
exemption from the order. The petitioner is afforded the opportunity
for a hearing on the petition. After the hearing, the Secretary will
make a ruling on the petition. The acts provide that the district
courts of the United States in any district in which a person who is a
petitioner resides or carries on business are vested with jurisdiction
to review the Secretary's ruling on the petition, if a complaint for
that purpose is filed within 20 days after the date of the entry of the
ruling.
Regulatory Impact Analysis
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Administrator of the Agricultural Marketing Service
(AMS) has considered the economic impact of this rule on small
entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened.
Since this action is administrative in nature, the Administrator of
AMS determined that this rule will have no economic impact on small
entities.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980 [44 U.S.C.
Chapter 35], the information collection requirements contained in the
orders covered by the acts have been approved by OMB. This action will
not impact any of the information collection requirements under the
orders.
Background
When Congress authorizes a research and promotion program to be
administered by the Department of
[[Page 37325]]
Agriculture (Department), the Department conducts the necessary
rulemaking, and, if appropriate, a public hearing and a referendum
before the program is implemented. One portion of the rulemaking
relates to the provisions of the act which requires that a person
covered by the program exhaust administrative remedies before filing
suit in court. Under these administrative remedies, a person may file a
petition with the Secretary to modify or be exempted from the relevant
act.
In the past, separate rulemaking has been conducted for each order.
As a result, each order has a subpart relating to petition procedures,
and the subparts are nearly identical.
In order to promote administrative efficiency, the Department is
deleting the individual subparts and creating a new subpart under Part
1200 to cover petition procedures for all of the research and promotion
programs that provide for petitions which are administered by AMS. The
new subpart will state that it covers all of the existing statutes for
research, promotion, and consumer information acts which provide for
petitions that are established as public law by Congress. It will be
applicable for the Pecan Promotion and Research Act of 1990, the Wheat
and Wheat Foods Research and Nutrition Education Act, and the Floral
Research and Consumer Information Act if a program is implemented for
those programs in the future. In addition, it will be applicable for
the Sheep Promotion, Research, and Information Act of 1994 if an order
is adopted. Also, it will be applicable for the Fresh Cut Flowers and
Fresh Cut Greens Promotion and Consumer Information Act.
The creation of the new subpart will eliminate the need for one
rulemaking action (a proposed rule and a final rule) for each new
program and thus reduce costs for the Department as well as for the
research and promotion boards and councils which pay user fees to cover
the Department's costs.
This rule removes Part 1290 in its entirety because there is no
active program under the Floral Research and Consumer Information Act
of 1981.
The provisions of the Administrative Procedure Act concerning
notice and opportunity for comment on agency rulemaking [5 U.S.C. 553]
do not apply to the promulgation of agency rules of practice.
Accordingly, this action is made effective upon publication in the
Federal Register. Furthermore, this final rule makes technical
revisions to the existing rules of practice, which are uniform for all
applicable research and promotion programs; the rules are already
applicable to those programs that are newly specified in the rules
because of the existing definition of the term ``Act''; no substantive
rule or rule change is involved; and these procedures are patterned
directly after existing procedures that are presently in use.
List of Subjects
7 CFR Part 1150
Dairy products, Reporting and recordkeeping requirements, Research.
7 CFR Part 1160
Milk, Fluid milk products, Promotion.
7 CFR Part 1200
Administrative practice and procedure, Cotton, Cut Flowers, Cut
Greens, Dairy, Eggs, Floral products, Fluid milk, Honey, Limes,
Marketing agreements, Mushrooms, Pecans, Pork, Potatoes, Sheep,
Soybeans, Watermelons, Wheat, Wheat foods.
7 CFR Part 1205
Advertising, Agricultural research, Cotton, Reporting and
recordkeeping requirements.
7 CFR Part 1207
Advertising, Agricultural research, Potatoes, Reporting and
recordkeeping requirements.
7 CFR Part 1208
Administrative practice and procedure, Advertising, Consumer
information, Marketing agreements, Cut flowers, Cut greens, Promotion,
Reporting and recordkeeping requirements.
7 CFR Part 1209
Administrative practice and procedure, Advertising, Agricultural
research, Marketing agreements, Mushrooms, Reporting and recordkeeping
requirements.
7 CFR Part 1210
Administrative practice and procedure, Advertising, Agricultural
research, Reporting and recordkeeping requirements, Watermelons.
7 CFR Part 1211
Administrative practice and procedure, Advertising, Agricultural
research, Imports, Marketing agreements, Pecans, Promotion, Reporting
and recordkeeping requirements.
7 CFR Part 1212
Administrative practice and procedure, Advertising, Limes,
Marketing agreements, Reporting and recordkeeping requirements.
7 CFR Part 1220
Agricultural research, Reporting and recordkeeping requirements,
Soybeans.
7 CFR Part 1230
Administrative practice and procedure, Advertising, Agricultural
research, Meat and meat products, Reporting and recordkeeping
requirements.
7 CFR Part 1240
Advertising, Agricultural research, Honey, Imports, Reporting and
recordkeeping requirements.
7 CFR Part 1250
Administrative practice and procedures, Advertising, Agricultural
research, Eggs and egg products, Reporting and recordkeeping
requirements.
7 CFR Part 1280
Administrative practice and procedures, Advertising, Agricultural
research, Marketing agreements, Sheep and sheep products, Reporting and
recordkeeping requirements.
7 CFR Part 1290
Administrative practice and procedure, Advertising, Agricultural
research, Plants.
For the reasons set forth in the preamble, 7 CFR Parts 1150, 1160,
1200, 1205, 1207, 1208, 1209, 1210, 1211, 1212, 1220, 1230, 1240, 1250,
1280, and 1290 are amended to read as follows:
PART 1150--DAIRY PROMOTION PROGRAM
1. The authority citation for Part 1150 continues to read as
follows:
Authority: 7 U.S.C. 4501-4513.
2. In Part 1150, Subpart--Rules of Practice Governing Proceedings
on Petitions to Modify or to be Exempted from an Order is removed.
PART 1160--FLUID MILK PROMOTION PROGRAM
3. The authority citation for Part 1160 continues to read as
follows:
Authority: 7 U.S.C. 6401-6417.
4. In Part 1160, Subpart--Rules of Practice Governing Proceedings
on Petitions to Modify or to be Exempted from an Order is removed.
PART 1200--RULES OF PRACTICE AND PROCEDURE GOVERNING PROCEEDINGS
UNDER RESEARCH, PROMOTION, AND EDUCATION PROGRAMS
5. The authority citation for 7 CFR Part 1200 is revised to read as
follows:
[[Page 37326]]
Authority: 7 U.S.C. 2111; 2620; 2713; 3409; 4313; 4509; 4609;
4814; 4909; 6008; 6106; 6206; 6306; 6410; 6807; and 7106.
6. Part 1200 is amended by adding a new subpart to read as follows:
Subpart--Rules of Practice Governing Proceedings on Petitions To
Modify or To Be Exempted From Research, Promotion, and Education
Programs
Sec.
1200.50 Words in the singular form.
1200.51 Definitions.
1200.52 Institution of proceeding.
Authority: 7 U.S.C. 2111; 2620; 2713; 3409; 4313; 4509; 4609;
4814; 4909; 6008; 6106; 6206; 6306; 6410; 6807; and 7106.
Subpart--Rules of Practice Governing Proceedings on Petitions To
Modify or To Be Exempted From Research, Promotion and Education
Programs
Sec. 1200.50 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. 1200.51 Definitions.
As used in this subpart, the terms as defined in the acts shall
apply with equal force and effect. In addition, unless the context
otherwise requires:
(a) The term Act means Floral Research and Consumer Information Act
[7 U.S.C. 4301-4319]; the Fresh Cut Flowers and Fresh Cut Greens
Promotion and Consumer Information Act [7 U.S.C. 6801-6814]; the Honey
Research, Promotion, and Consumer Information Act, as amended [7 U.S.C.
4601-4612]; the Lime Research, Promotion, and Consumer Information Act,
as amended [7 U.S.C. 6201-6212]; the Mushroom Promotion, Research, and
Consumer Information Act of 1990 [7 U.S.C. 6101-6112]; the Pecan
Promotion and Research Act of 1990 [7 U.S.C. 6001-6013]; the Potato
Research and Promotion Act, as amended [7 U.S.C. 2611-2627]; the
Watermelon Research and Promotion Act, as amended [7 U.S.C. 4901-4916],
the Egg Research and Consumer Information Act [7 U.S.C. 2701-2718], the
Cotton Research and Promotion Act [7 U.S.C. 2101-2118], the Pork
Promotion, Research, and Consumer Information Act [7 U.S.C. 4801-4819],
the Soybean Promotion, Research, and Consumer Information Act [7 U.S.C.
6301-6311], the Sheep Promotion, Research, and Information Act of 1994
[7 U.S.C. 7101-7111], the Dairy Production Stabilization Act of 1983 [7
U.S.C. 4501-4513], the Fluid Milk Promotion Act of 1990 [7 U.S.C. 6401-
6417], and the Wheat and Wheat Foods Research and Nutrition Education
Act [7 U.S.C. 3401-3417].
(b) Department means the U.S. Department of Agriculture.
(c) 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 the Secretary's stead.
(d) Judge means any administrative law judge, appointed pursuant to
5 U.S.C. 3105, and assigned to the proceeding involved.
(e) 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 the Administrator's stead.
(f) Order means any order or any amendment thereto which may be
issued pursuant to the Act. The term order shall include plans issued
under the Acts listed in paragraph (a) of this section.
(g) Person means any individual, group of individuals, partnership,
corporation, association, cooperative, or any other legal entity
subject to an order or to whom an order is sought to be made
applicable, or on whom an obligation has been imposed or is sought to
be imposed under an order.
(h) Proceeding means a proceeding before the Secretary arising
under section 1957 of the Act.
(i) Hearing means that part of the proceedings which involves the
submission of evidence.
(j) Party includes the U.S. Department of Agriculture.
(k) Hearing clerk means the Hearing Clerk, U.S. Department of
Agriculture, Washington, D.C.
(l) Decision means the judge's initial decision and includes the
judge's:
(1) Findings of fact and conclusions with respect to all material
issues of fact, law or discretion, as well as the reasons or basis
thereof;
(2) Order; and
(3) Rulings on findings, conclusions and orders submitted by the
parties; and
(m) Petition includes an amended petition.
Sec. 1200.52 Institution of proceeding.
(a) Filing and service of petitions. Any person subject to an order
desiring to complain that such order or any provision of such order or
any obligation imposed in connection with an order is not in accordance
with law, shall file with the hearing clerk, in quintuplicate, a
petition in writing addressed to the Secretary. Promptly upon receipt
of the petition in writing the hearing clerk shall transmit a true copy
thereof to the Administrator and the General Counsel, respectively.
(b) Contents of petitions. A petition shall contain:
(1) The correct name, address, and principal place of business of
the petitioner. If the petitioner is a corporation, such fact shall be
stated, together with the name of the State of incorporation, the date
of incorporation, and the names, addresses, and respective positions
held by its officers and directors; if an unincorporated association,
the names and addresses of its officers, and the respective positions
held by them; if a partnership, the name and address of each partner;
(2) Reference to the specific terms or provisions of the order, or
the interpretation or application of such terms or provisions, which
are complained of;
(3) A full statement of the facts, avoiding a mere repetition of
detailed evidence, upon which the petition is based, and which it is
desired that the Secretary consider, setting forth clearly and
concisely the nature of the petitioner's business and the manner in
which petitioner claims to be affected by the terms or provisions of
the order or the interpretation or application thereof, which are
complained of;
(4) A statement of the grounds on which the terms or provisions of
the order, or the interpretation or application thereof, which are
complained of, are challenged as not in accordance with law;
(5) Requests for the specific relief which the petitioner desires
the Secretary to grant; and
(6) An affidavit by the petitioner, or, if the petitioner is not an
individual, by an officer of the petitioner having knowledge of the
facts stated in the petition, verifying the petition and stating that
it is filed in good faith and not for purposes of delay.
(c) A motion to dismiss a petition: filing, contents, and responses
to a petition. If the Administrator is of the opinion that the
petition, or any portion thereof, does not substantially comply, in
form or content, with the Act or with requirements of paragraph (b) of
this section, the Administrator may, within 30 days after the filing of
the petition, file with the hearing clerk a motion to dismiss the
petition, or any portion of the petition, on one or more of the grounds
stated in this paragraph. Such motion shall specify the grounds for
objection to the petition and if based, in whole or in part, on
allegations of fact not appearing on the face of the petition,
[[Page 37327]]
shall be accompanied by appropriate affidavits or documentary evidence
substantiating such allegations of fact. The motion may be accompanied
by a memorandum of law. Upon receipt of such motion, the hearing clerk
shall cause a copy thereof to be served upon the petitioner, together
with a notice stating that all papers to be submitted in opposition to
such motion, including any memorandum of law, must be filed by the
petitioner with the hearing clerk not later than 20 days after the
service of such notice upon the petitioner. Upon the expiration of the
time specified in such notice, or upon receipt of such papers from the
petitioner, the hearing clerk shall transmit all papers which have been
filed in connection with the motion to the judge for the judge's
consideration.
(d) Further proceedings. Further proceedings on petitions to modify
or to be exempted from the Order shall be governed by
Secs. 900.52(c)(2) through 900.71 of the Rules of Practice Governing
Proceedings on Petitions To Modify or To Be Exempted From Marketing
Orders. However, each reference to marketing order in the title shall
mean order.
PART 1205--COTTON RESEARCH AND PROMOTION
7. The authority citation for Part 1205 continues to read as
follows:
Authority: 7 U.S.C. 2101-2118.
8. In Part 1205, Subpart--Rules of Practice Governing Proceedings
on Petitions To Modify or To Be Exempted From Orders is removed.
PART 1207--POTATO RESEARCH AND PROMOTION PLAN
9. The authority citation for Part 1207 continues to read as
follows:
Authority: 7 U.S.C. 2611-2627.
10. In Part 1207, Subpart--Rules of Practice Governing Proceedings
on Petitions to Modify or To Be Exempted From Plans is removed.
PART 1209--MUSHROOM PROMOTION, RESEARCH, AND CONSUMER INFORMATION
ORDER
11. The authority citation for Part 1209 continues to read as
follows:
Authority: 7 U.S.C. 6101-6112.
12. In Part 1209, Subpart D--Rules of Practice Governing
Proceedings on Petitions To Modify or To Be Exempted From the Mushroom
Promotion, Research, and Consumer Information Order is removed.
PART 1210--WATERMELON RESEARCH AND PROMOTION PLAN
13. The authority citation for Part 1210 continues to read as
follows:
Authority: 7 U.S.C. 4901-4916.
14. In Part 1210, Subpart--Rules of Practice Governing Proceedings
on Petitions To Modify or To Be Exempted From the Watermelon Research
and Promotion Plan is removed.
PART 1211--PECAN PROMOTION AND RESEARCH PLAN
15. The authority citation for Part 1211 continues to read as
follows:
Authority: 7 U.S.C. 6001-6013.
16. In Part 1211, Subpart C--Rules of Practice Governing
Proceedings on Petitions To Modify or To Be Exempted From the Plan is
removed and reserved.
PART 1212--LIME RESEARCH, PROMOTION, AND CONSUMER INFORMATION ORDER
17. The authority citation for Part 1212 continues to read as
follows:
Authority: 7 U.S.C. 6201-6212.
18. In Part 1212, Subpart C--Rules of Practice Governing
Proceedings on Petitions To Modify or To Be Exempted From an Order is
removed.
PART 1220--SOYBEAN PROMOTION, RESEARCH, AND CONSUMER INFORMATION
19. The authority citation for Part 1220 continues to read as
follows:
Authority: 7 U.S.C. 6301-6311.
20. In Part 1220, Subpart C--Rules of Practice Governing
Proceedings on Petitions To Modify or To Be Exempted From the Soybean
Promotion and Research Order is removed.
PART 1230--PORK PROMOTION, RESEARCH, AND CONSUMER INFORMATION
21. The authority citation for Part 1230 continues to read as
follows:
Authority: 7 U.S.C. 4801-4819.
22. In Part 1230, Subpart C--Rules of Practice Governing
Proceedings on Petitions To Modify or To Be Exempted From the Pork
Promotion, Research, and Consumer Information Order is removed.
PART 1240--HONEY RESEARCH, PROMOTION, AND CONSUMER INFORMATION
ORDER
23. The authority citation for Part 1240 continues to read as
follows:
Authority: 7 U.S.C. 4601-4612.
24. In Part 1240, Subpart--Rules of Practice Governing Proceedings
on Petitions To Modify or To Be Exempted From the Honey Research,
Promotion, and Consumer Information Order is removed.
PART 1250--EGG RESEARCH AND PROMOTION
25. The authority citation for Part 1250 continues to read as
follows:
Authority: 7 U.S.C. 2701-2718.
26. In Part 1250, Subpart--Rules of Practice Governing Proceedings
on Petitions To Modify or To Be Exempted From Orders is removed.
SUBPART 1290--[REMOVED]
27. Part 1290 is removed.
Dated: July 10, 1995.
Lon Hatamiya,
Administrator, Agricultural Marketing Service.
[FR Doc. 95-17325 Filed 7-19-95; 8:45 am]
BILLING CODE 3410-02-P
