```
[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]

-----------------------------------------------------------------------

[[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.

-----------------------------------------------------------------------

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
```