well settled that new arguments cannot be raised for the first time on appeal to the Judicial Officer." Petitioner's failure, prior to its filing the Petition for Reconsideration, to argue that the Rules of Practice (7 C.F.R. §§ 900.50-.71) do not apply to the Department's proceeding on remand, comes too late to be considered.

Further, even if I were to find that Petitioner timely raised the issue of the applicability of the Rules of Practice (7 C.F.R. §§ 900.50-.71) to the proceeding on remand from the United States District Court for the Eastern District of Pennsylvania, I would find that the Rules of Practice (7 C.F.R. §§ 900.50-.71) are applicable to the Department's proceeding on remand.

Petitioner's petition for an exemption from Milk Marketing Order No. 2 is a petition filed pursuant to 7 U.S.C. § 608c(15)(A) which provides petitioners with an opportunity for a hearing in accordance with "regulations made by the Secretary of Agriculture...." The Rules of Practice Governing Proceedings on

(...continued)

took the position that the Rules of Practice (7 C.F.R. §§ 900.50-.71) were applicable to the proceeding on remand. (See Petitioner's Appeal Petition wherein Petitioner states "[o]ral argument upon this appeal is respectfully requested pursuant to the Rules of Practice, 7 C.F.R. § 900.65(b)(1)." (Petitioner's Appeal Petition at 5.))

'In re Michael Norinsberg, 57 Agric. Dec.

for Recons.); In re Allred's Produce, 56 Agric. Dec.

slip op. at 6-7 (Jan. 26, 1998) (Order Denying Pet.

slip op. at 34-35 (Dec. 5, 1997); In re David M. Zimmerman, 56 Agric. Dec. 433, 473-74 (1997), appeal docketed, No. 97-3414 (3d Cir. Aug. 4, 1997); In re Barry Glick, 55 Agric. Dec. 275, 282 (1996); In re Jeremy Byrd, 55 Agric. Dec. 443, 448 (1996); In re Bama Tomato Co., 54 Agric. Dec. 1334, 1342 (1995), aff'd, 112 F.3d 1542 (11th Cir. 1997); In re Stimson Lumber Co., 54 Agric. Dec. 155, 166 n.5 (1995); In re Johnny E. Lewis, 53 Agric. Dec. 1327, 1354-55 (1994), aff'd in part, rev'd & remanded in part, 73 F.3d 312 (11th Cir. 1996), decision on remand, 55 Agric. Dec. 246 (1996), aff'd per curiam sub nom. Morrison v. Secretary of Agric., No. 96-6589 (11th Cir. Mar. 27, 1997) (unpublished); In re Craig Lesser, 52 Agric. Dec. 155, 167 (1993), aff'd, 34 F.3d 1301 (7th Cir. 1994); In re Rudolph J. Luscher, 51 Agric. Dec. 1026, 1026 (1992); In re Lloyd Myers Co., 51 Agric. Dec. 782, 783 (1992) (Order Denying Pet. for Recons.), aff'd, 15 F.3d 1086 (9th Cir. 1994), 1994 WL 20019 (9th Cir. 1994) (not to be cited as precedent under 9th Circuit Rule 36-3), printed in 53 Agric. Dec. 686 (1994); In re Van Buren County Fruit Exchange, Inc., 51 Agric. Dec. 733, 740 (1992); In re Conesus Milk Producers, 48 Agric. Dec. 871, 880 (1989); In re James W. Hickey, 47 Agric. Dec. 840, 851 (1988), aff'd, 878 F.2d 385 (9th Cir. 1989), 1989 WL 71462 (9th Cir. 1989) (not to be cited as precedent under 9th Circuit Rule 36–3), printed in 48 Agric. Dec. 107 (1989); In re Dean Daul, 45 Agric. Dec. 556, 565 (1986); In re E. Digby Palmer, 44 Agric. Dec. 248, 253 (1985); In re Evans Potato Co., 42 Agric. Dec. 408, 409-10 (1983); In re Richard "Dick" Robinson, 42 Agric. Dec. 7 (1983), aff'd, 718 F.2d 336 (10th Cir. 1983); In re Daniel M. Winger, 38 Agric. Dec. 182, 187 (1979), appeal dismissed, No. 79-C-126 (W.D. Wis. June 1979); In re Lamers Dairy, Inc., 36 Agric. Dec. 265, 289 (1977), aff'd sub nom. Lamers Dairy, Inc. v. Bergland, No. 77-C-173 (E.D. Wis. Sept. 28, 1977), printed in 36 Agric. Dec. 1642, aff'd, 607 F.2d 1007 (7th Cir. 1979), cert. denied, 444 U.S. 1077 (1980).

57 Agric. Dec. 425

Petitions To Modify or To Be Exempted From Marketing Orders (7 C.F.R. §§ 900.50-.71) are the "regulations made by the Secretary of Agriculture" which are applicable to proceedings instituted in accordance with 7 U.S.C. § 608c(15)(A). Although the United States District Court for the Eastern District of Pennsylvania reviewed In re Kreider Dairy Farms, Inc., 54 Agric. Dec. 805 (1995), and remanded the case back to the Secretary pursuant to the court's jurisdiction under 7 U.S.C. § 608c(15)(B), the Department proceeding on remand was conducted in accordance with 7 U.S.C. § 608c(15)(A). I find no merit in Petitioner's contention that the Department proceeding on remand was conducted in accordance with 7 U.S.C. § 608c(15)(B). Title 7, United States Code, § 608c(15)(B), vests United States district courts with jurisdiction to review rulings made by the Secretary of Agriculture pursuant to 7 U.S.C. § 608c(15)(A); it does not, as Petitioner appears to contend, vest the Department with jurisdiction to conduct proceedings on remand.

Moreover, there is no indication in Chief Judge Cahn's Order remanding the proceeding back to the Department that the Chief Judge found that the Department proceeding on remand was to be conducted under 7 U.S.C. § 608c(15)(B) or that the Rules of Practice (7 C.F.R. §§ 900.50-.71) were inapplicable to the Department proceeding on remand.

For the foregoing reasons and the reasons set forth in the Order Denying Late Appeal, filed January 12, 1998, In re Kreider Dairy Farms, Inc., supra, the following Order should be issued.

Order

Petitioner's Petition for Reconsideration is denied.

In re: DON E. SPEEGLE and CHARLOTTE L. SPEEGLE.

AWA Docket No. 96-0074.

Order Dismissing Complaint as to Don E. Speegle filed February 5, 1998.

Susan C. Golabek, for Complainant.

Respondent, Pro se.

Order issued by James W. Hunt, Administrative Law Judge.

As Complainant's motion is not opposed, its motion to dismiss the Complaint as to Respondent Don E. Speegle is granted.

It is ordered that the Complaint as to Don E. Speegle, filed herein on September 16, 1996, be dismissed.

In re: STEVEN M. SAMEK and TRINA JOANN SAMEK.

AWA Docket No. 97-0015.

Dismissal of Complaint Against Trina Joann Samek, filed March 31, 1998.

Colleen A. Carroll, for Complainant.

Respondent, Pro se.

Order issued by Victor W. Palmer, Chief Administrative Law Judge.

Complainant has filed a motion to dismiss its complaint against Trina Joann Samek because it has been unable to locate her and keeping the case open while it searches for her would be a waste of government resources.

FOR GOOD CAUSE SHOWN, the complaint against Trina Joann Samek is hereby dismissed without prejudice.

In re: JERRY GOETZ, d/b/a JERRY GOETZ AND SONS.
BPRA Docket No. 94-0001.

Order Denying Respondent's Petition for Reconsideration and Denying in
Part and Granting in Part Complainant's Petition for Reconsideration filed
April 3, 1998.

Beef order - Collecting person - Assessments - Equal protection - Statute of limitations - Maintenance of records Brand inspector.

The Judicial Officer denied Respondent's Petition for Reconsideration and denied in part and granted in part Complainant's Petition for Reconsideration. The Collection - Compliance Reference Guide, prepared by the Cattlemen's Beef Promotion and Research Board to assist qualified State beef councils to understand the Beef Promotion and Research Order and Beef Promotion Regulations, which provides that collecting persons must maintain records for at least 3 years, does not establish a 3-year statute of limitations on claims to collect assessments and late payment charges or on proceedings instituted under section 9(a) of the Beef

57 Agric. Dec. 426

Promotion and Research Act of 1985 (7 U.S.C. § 2908(a)). Further, the Collection - Compliance Reference Guide is not a regulation binding on any collecting person or producer and is not evidence of what qualified State beef councils, the Cattlemen's Beef Promotion and Research Board, and the Secretary require of collecting persons. Respondent is not required to maintain records for a longer period than other similarly situated persons subject to the Beef Promotion and Research Act of 1985, nor is Respondent's burden with respect to the defense in the proceeding any greater than it would be for others charged with the same violations of Beef Promotion Order and the Beef Promotion Regulations. There is no evidence that Respondent failed to maintain records in violation of the Beef Promotion and Research Act of 1985. Respondent is responsible for collecting and remitting assessments for 174 cattle which Respondent sold not later than 10 days from the date on which Respondent acquired ownership. In accordance with 7 C.F.R. § 1260.311(c), the brand inspector, not Respondent, was the collecting person and responsible for collecting the assessment from the producer of 228 cattle, which Respondent purchased on February 22, 1992, in Imperial, Nebraska.

Sharlene A. Deskins, for Complainant.

David R. Klaassen, Marquette, Kansas, for Respondent.

Initial decision issued by James W. Hunt, Administrative Law Judge.
Order issued by William G. Jenson, Judicial Officer.

The Acting Administrator of the Agricultural Marketing Service, United States Department of Agriculture [hereinafter Complainant], instituted this proceeding under the Beef Promotion and Research Act of 1985 (7 U.S.C §§ 2901-2911) [hereinafter the Beef Promotion Act]; the Beef Promotion and Research Order (7 C.F.R. §§ 1260.101-.217) [hereinafter the Beef Promotion Order]; the Rules and Regulations (7 C.F.R. §§ 1260.301-.316) [hereinafter the Beef Promotion Regulations]; 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 October 29, 1993.

The Complaint alleges that Jerry Goetz, d/b/a Jerry Goetz and Sons [hereinafter Respondent]: (1) willfully violated section 1260.201 of the Beef Promotion Order (7 C.F.R. § 1260.201) and section 1260.312 of the Beef Promotion Regulations (7 C.F.R. § 1260.312) by failing to submit required reports (Compl. ¶ II(A)); (2) willfully violated section 1260.201 of the Beef Promotion Order (7 C.F.R. § 1260.201) and section 1260.312 of the Beef Promotion Regulations (7 C.F.R. § 1260.312) by failing to submit necessary information in

required reports (Compl. ¶ II(B)); and (3) willfully violated section 1260.172 of the Beef Promotion Order (7 C.F.R. § 1260.172) and sections 1260.311 and 1260.312 of the Beef Promotion Regulations (7 C.F.R. §§ 1260.311, .312) by failing to remit the assessments due for the purchase and sale of cattle (Compl. ¶ III(A)-(L)). Complainant requests the issuance of an order or orders as authorized under the Beef Promotion Act, including an order requiring Respondent to cease and desist from violating the Beef Promotion Order and Beef Promotion Regulations and assessing civil penalties against Respondent in accordance with section 9 of the Beef Promotion Act (7 U.S.C. § 2908) (Compl. at 4-5).

On December 10, 1993, Respondent filed an Answer denying the material allegations of the Complaint and contending that the Beef Promotion Act, the Beef Promotion Order, and the Beef Promotion Regulations are unconstitutional, unauthorized, unreasonable, arbitrary, void, and unenforceable (Answer ¶¶ 2-4). Respondent requests: (1) denial of the relief requested in the Complaint; (2) a determination and declaration that the Beef Promotion Act is unconstitutional, void, and unenforceable; and (3) a determination and declaration that the Beef Promotion Order and the Beef Promotion Regulations are unconstitutional, unauthorized, unreasonable, arbitrary, void, and unenforceable (Answer at 1-2).

On August 2, 1994, Respondent filed an action in the United States District Court for the District of Kansas seeking a temporary restraining order to prevent a hearing from being held in this proceeding. The court issued an order requiring an audit by the accounting firm of Wendling, Noe, Nelson & Johnson of Topeka, Kansas, of Respondent's books and records pertaining to his raising, buying, selling, and trading of cattle and Respondent's collection of monies, if any, under the Beef Promotion Act and enjoined the instant proceeding pending the completion of the audit of Respondent's books and records (Complainant's Findings of Fact Conclusions of Law and Brief in Support Thereof [hereinafter Complainant's Findings of Fact], Ex. A). On August 4, 1994, Respondent filed a Complaint in the United States District Court for the District of Kansas challenging the constitutionality of the Beef Promotion Act. The court stayed the instant proceeding pending a decision regarding Respondent's constitutional challenges to the Beef Promotion Act. The audit was completed on November 23, 1994 (CX 18 at 5), and the court issued a decision on February 28, 1996, in which the court rejected each of Respondent's constitutional challenges to the Beef Promotion Act and set aside prior orders which enjoined and stayed this proceeding. Goetz v. Glickman, 920 F. Supp. 1173 (D. Kan. 1996), appeal docketed, No. 96-3120 (10th Cir. Mar. 27, 1996).

On September 25 and 26, 1996, Administrative Law Judge James W. Hunt [hereinafter ALJ] presided over a hearing in Wichita, Kansas. Sharlene A.