the criteria of the AMAA and the APA. Petitioners' argument that USDA must engage in "required rulemaking" to exempt a county in Oregon, because another handler has an exemption, is without merit. Petitioners' allegedly superior equipment located in a non-exempt county does not mandate an exemption for that county. Rulemaking is not a remedy available in a 7 U.S.C. § 608c(15)(A) proceeding. The Judicial Officer cannot order the Secretary to engage in rulemaking. The Order anticipates that the Secretary may act upon the recommendation of the SWPC, or upon the Secretary's own volition. The AMAA authorizes the Secretary to amend the Order, but does not mandate amendment. The Judicial Officer considers flagrant violation of an Order a "weighty factor" in determining civil penalties, a factor to increase but not decrease civil penalties. In re Onofrio Calabrese, 51 Agric. Dec. 131, 156 (1992). The ALJ erroneously reduced civil penalties for Respondents' good faith, when Respondents had not in good faith sought exemption or modification. The ALJ erroneously reduced civil penalties because Complainant did not satisfy mandatory Calabrese criteria, but these criteria are permissive, not mandatory. Nevertheless, Complainant met all five Calabrese criteria: nature and number of violations; damage to the Order; profit from the violations; prior warnings; and any other circumstance shedding light on culpability. Rules of Practice permit a party to await the other party's appeal before filing a cross-appeal raising any relevant issue, without first filing a protective notice of appeal (7 C.F.R. §§ 1.145(b), 900.65(c)). A litigant may not raise an issue for the first time on appeal, and attempting to resurrect a non-appealed trial level issue in a reply to the response to a litigant's appeal is tantamount to a first time raising of the issue on appeal. Respondents' argument that a cease and desist order may not emanate from a 7 U.S.C. § 608c(14)(B) proceeding is irrelevant because Complainant neither requested a cease and desist order in either of the 7 U.S.C. § 608c(14)(B) Complaints nor proposed it in the proposed order; rather, Complainant sought compliance under the Order, 7 C.F.R. § 946.71. The AMAA is remedial legislation which should be liberally construed to achieve the purposes of the Act. Contemporaneous administrative construction of the AMAA is entitled to great weight. The AMAA has no explicit standards for setting civil penalties. Respondents may only be relieved of civil penalties for violation of the Order under 7 U.S.C. § 608c(14)(B) during the pendency of a proceeding filed in good faith and not for delay pursuant to 7 U.S.C. § 608c(15)(A). Civil penalties authorized under the AMAA are designed by Congress to complement the criminal penalties which the United States Attorneys are authorized to seek.

Sharlene A. Deskins, for Complainant.

Brian C. Leighton, Clovis, CA, for Respondents.

Initial decision issued by James W. Hunt, Administrative Law Judge.

Decision and Order issued by William G. Jenson, Judicial Officer.

These proceedings were consolidated through agreement of the parties.

'On May 6, 1996, the Administrator of the Agricultural Marketing Service, United States Department of Agriculture [hereinafter Complainant], moved to consolidate AMAA Docket No. 950002 and AMAA Docket No. 96-0003, disciplinary proceedings against Daniel Strebin and William Strebin, d/b/a Strebin Farms, and 96 AMA Docket No. F&V 946-1, a proceeding instituted by Strebin Farms, a sole proprietorship of William B. Strebin, under section 8c(15)(A) of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. § 608c(15)(A)) [hereinafter AMAA] (Complainant's Motion to Consolidate, May 6, 1996). On May 22, 1996, Administrative Law Judge James W. Hunt (hereinafter ALJ] held a telephone conference in which counsel for the parties agreed,

56 Agric. Dec. 1095

Complainant instituted the proceeding captioned AMAA Docket No. 95-0002 pursuant to section 8c(14)(B) of the AMAA, 7 U.S.C. § 608c(14)(B), and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice], by filing a Complaint on February 22, 1995. The Complaint alleges that Daniel Strebin and William Strebin, doing business as Strebin Farms, willfully violated the marketing order regulating the handling of Irish Potatoes Grown in Washington (7 C.F.R. §§ 946.1-.78) [hereinafter Order] issued under the AMAA (7 U.S.C. §§ 601674), the Rules and Regulations (7 C.F.R. §§ 946.100-.142), and the Handling Regulation (7 C.F.R. § 946.336 (1993)), on or about March 1, 1993, until at least May 31, 1993, by transporting at least 153 shipments of uninspected potatoes outside of the production area.

Complainant also instituted the proceeding captioned AMAA Docket No. 960003 pursuant to section 8c(14)(B) of the AMAA (7 U.S.C. § 608c(14)(B)) and the Rules of Practice (7 C.F.R. §§ 1.130-.151) by filing a Complaint on March 27, 1996, alleging that Daniel Strebin and William Strebin, doing business as Strebin Farms, willfully violated the Order issued under the AMAA (7 U.S.C. §§ 601-674), the Rules and Regulations (7 C.F.R. §§ 946.100-.142), and the Handling Regulation (7 C.F.R. § 946.336 (1995)), on or about January 16, 1995, until at least May 15, 1995, by transporting at least 123,496.1 hundredweight of uninspected potatoes outside of the production area.

Strebin Farms, a sole proprietorship of William B. Strebin, instituted the proceeding captioned 96 AMA Docket No. F&V 946-1 under section 8c(15)(A) of the AMAA (7 U.S.C. § 608c(15)(A)) and the Rules of Practice Governing Proceedings To Modify or To Be Exempted From Marketing Orders (7 C.F.R. §§ 900.50-.71) (hereinafter the Rules of Practice] by filing a "Petition To Modify The Washington Irish Potato Marketing Order Provisions/Regulations And/Or Petition To Amend Specific Washington Irish Potato Marketing Order Provisions/Regulations, And/Or Petition To Exempt Petitioner From Various

inter alia, to consolidate all three proceedings for hearing, but that one decision would be issued in the disciplinary proceedings, AMAA Docket Nos. 95-0002 and 96-0003, and a separate decision would be issued in the 7 U.S.C. § 608c(15)(A) proceeding, 96 AMA Docket No. F&V 946-1 (Summary of Telephone Conference, May 23, 1996). This agreement was formalized in the Order Consolidating Cases, May 23, 1996. However, at the hearing, the parties and the ALJ agreed to one Decision and Order for all three proceedings (Tr. 5-6). The Administrator of the Agricultural Marketing Service, United States Department of Agriculture, is Respondent in 96 AMA Docket No. F&V 946-1, but to lessen confusion, the Administrator of the Agricultural Marketing Service, United States Department of Agriculture, is designated "Complainant" for all three proceedings.

Provisions Of The Washington Irish Potato Marketing Order And One Or More Obligations Imposed In Connection Therewith That Are Not In Accordance With Law" [hereinafter Petition] on January 30, 1996.

The ALJ presided over a hearing conducted on September 18, 1996, and September 19, 1996, in Portland, Oregon. Sharlene A. Deskins, Esq., Office of the General Counsel, United States Department of Agriculture, represented Complainant. Brian C. Leighton, Esq., Law Offices of Brian C. Leighton, Clovis, California, represented Daniel Strebin, William Strebin, and Strebin Farms [hereinafter Respondents or Strebin Farms].

On March 6, 1997, the ALJ filed a Decision and Order [hereinafter Initial Decision and Order] dismissing the Petition instituted pursuant to 7 U.S.C. § 608c(15)(A); concluding that Respondents had violated the Order; ordering Respondents to comply with the AMAA, the Order, and the Regulations issued pursuant to the AMAA and the Order, particularly that Respondents cease and desist from shipping uninspected potatoes outside the area covered by the Order; and ordering Respondents jointly and severally to pay an inspection fee of $12,425. On March 26, 1997, Respondents appealed to the Judicial Officer to whom the Secretary of Agriculture has delegated authority to act as final deciding officer in the Department's adjudicatory proceedings subject to 5 U.S.C. §§ 556 and 557 (7 C.F.R. § 2.35)." On May 16, 1997, Complainant filed "Complainant's Opposition to the Respondent's [sic] Appeal Petition; Complainant's Appeal and Brief in Support thereof" [hereinafter Complainant's Appeal]. On June 13, 1997, Respondents filed "Respondents'/Petitioners': (1) Objections to Complainant's Appeal; (2) Response to Complainant's Appeal; and (3) Reply to Complainant's Response to Strebins' Appeal" [hereinafter Respondents' Reply]. The proceeding was referred to the Judicial Officer for decision on June 17, 1997.

Based upon careful consideration of the record in this proceeding, I find that the ALJ was correct in dismissing the Petition and in concluding that Respondents had violated the Order. Therefore, pursuant to the Rules of Practice, 7 C.F.R. §§ 1.145(i) and 900.66, I am adopting the ALJ's Initial Decision and Order as the final Decision and Order in this proceeding, with changes included within brackets and omissions designated by dots. After the ALJ's conclusions, there are additional conclusions by the Judicial Officer, in which I set forth the reasons I am increasing

**The position of Judicial Officer was established pursuant to the Act of April 4, 1940 (7 U.S.C. §§ 450c-450g); section 4(a) of Reorganization Plan No. 2 of 1953, 18 Fed. Reg. 3219, 3221 (1953), reprinted in 5 U.S.C. app. § 4(a) at 1491 (1994); and section 212(a)(1) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. § 6912(a)(1)).

56 Agric. Dec. 1095

the civil penalty to $35,500, as requested by Complainant.

PERTINENT STATUTES AND REGULATIONS

The pertinent provisions of the AMAA provide as follows:

7 U.S.C.:

TITLE 7-AGRICULTURE

CHAPTER 26—AGRICULTURAL ADJUSTMENT

SUBCHAPTER III-COMMODITY BENEFITS

§ 608a. Enforcement of chapter

(6) Jurisdiction of district courts

The several district courts of the United States are vested with jurisdiction specifically to enforce, and to prevent and restrain any person from violating any order, regulation, or agreement, heretofore or hereafter made or issued pursuant to this chapter, in any proceeding now pending or hereafter brought in said courts.

(8) Cumulative remedies

The remedies provided for in this section shall be in addition to, and not exclusive of, any of the remedies or penalties provided for elsewhere in

this chapter or now or hereafter existing at law or in equity.

§ 608c. Orders regulating handling of commodity

(11) Regional application

(B) Except in the case of milk and its products, orders issued under this section shall be limited in their application to the smallest regional production areas or regional marketing areas, or both, as the case may be, which the Secretary finds practicable, consistently with carrying out such declared policy.

(14) Violation of order; penalty

(B) Any handler subject to an order issued under this section, or any officer, director, agent, or employee of such handler, who violates any provision of such order may be assessed a civil penalty by the Secretary not exceeding $1,000 for each such violation. Each day during which such violation continues shall be deemed a separate violation, except that if the Secretary finds that a petition pursuant to paragraph (15) was filed and prosecuted by the handler in good faith and not for delay, no civil penalty may be assessed under this paragraph for such violations as occurred between the date on which the handler's petition was filed with the Secretary, and the date on which notice of the Secretary's ruling thereon was given to the handler in accordance with regulations prescribed pursuant to paragraph (15). . . .

(15) Petition by handler for modification of order or exemption; court review of ruling of Secretary