62 Agric. Dec. 406 December 1995 through December 1999. Petitioner alleges Ahava paid for fluid milk products in each month during the period December 1995 through April 1997. (Amended Pet. ¶ 14-15.) On September 29, 2000, Respondent filed "Respondent's Motion to Dismiss Amended Petition II; Motion for Reconsideration; Motion to Certify Question for the Judicial Officer; and Answer to Petition II and Amended Petition II" [hereinafter Motion to Dismiss Amended Petition]. On October 23, 2000, the Hearing Clerk received "Petitioner's Opposition to Motion to Dismiss Amended Petition II; Opposition to Respondent's Motion for Reconsideration; and Opposition to Motion to Certify Question for Judicial Officer." On October 24, 2000, Administrative Law Judge Dorothea A. Baker certified the following question to the Judicial Officer:" I am hereby certifying to the Judicial Officer the question of whether or not the Amended Petition filed September 7, 2000, should be dismissed for the reasons stated by Respondent, including collateral estoppel and res judicata. Certification to Judicial Officer. On December 21, 2000, I issued a ruling stating Petitioner is not barred by collateral estoppel or res judicata from litigating in Kreider II its status under former Milk Marketing Order No. 2 during the period after Petitioner ceased distributing fluid milk products to Ahava, viz., during the period from May 1997 through December 1999.7 On June 15, 2001, Administrative Law Judge Jill S. Clifton [hereinafter the ALJ] presided over a hearing in Washington, DC. Marvin Beshore, Milspaw & Beshore Law Offices, Harrisburg, Pennsylvania, represented Petitioner. Sharlene A. Deskins, Office of the General Counsel, United States Department of Agriculture, represented Respondent. On August 17, 2001, Petitioner filed "Post Hearing Brief of Petitioner, Kreider Dairy Farms, Inc." [hereinafter Petitioner's Brief]. On September 26, 2001, Respondent filed "The Respondent's Proposed Findings of Fact, 'Section 900.59(b) of the Rules of Practice (7 C.F.R. § 900.59(b)) authorizes administrative law judges to certify questions to the Judicial Officer. 'In re Kreider Dairy Farms, Inc., 59 Agric. Dec. 779, 786-87 (2000) (Ruling on Certified Question). Conclusions of Law and Brief in Support Thereof' [hereinafter Respondent's Brief]. On October 9, 2001, Petitioner filed "Reply Brief of Petitioner, Kreider Dairy Farms, Inc." [hereinafter Petitioner's Response Brief]. On May 31, 2002, the ALJ issued a "Decision" [hereinafter Initial Decision and Order] in which she: (1) concluded Petitioner's January 1991 application to the Market Administrator for designation as a producer-handler did not constitute an application for designation as a producer-handler for the period May 1997 through December 1999; (2) concluded the Market Administrator's interpretation of complete and exclusive control over fluid milk distribution was not contrary to law; and (3) denied Petitioner's Amended Petition (Initial Decision and Order at 27-28). On August 6, 2002, Petitioner appealed to the Judicial Officer. On September 18, 2002, Respondent filed "The Respondent's Opposition to the Petitioner's Appeal Petition." On September 23, 2002, the Hearing Clerk transmitted the record to the Judicial Officer for consideration and decision. Based upon a careful consideration of the record, I agree with the ALJ's denying Petitioner's Amended Petition. However, I do not agree with the ALJ's finding that Petitioner was not "riding the pool" with respect to its distribution of fluid milk products to FPPTLC. Therefore, while I retain most of the ALJ's Initial Decision and Order, I do not adopt the ALJ's Initial Decision and Order as the final Decision and Order. Petitioner's nine exhibits admitted into evidence at the hearing are referred to as "PX 1" through "PX 9." Respondent's one exhibit admitted into evidence at the hearing is referred to as "RX 1." Transcript references are designated by "Tr." Attached to Petitioner's Brief are Exhibits A through F, which the ALJ admitted into evidence pursuant to her instructions to the parties to identify evidence from Kreider I that should be considered in the instant proceeding (Tr. 206). These exhibits are referred to as "PX A" through "PX F." APPLICABLE STATUTES AND REGULATIONS 7 U.S.C.: 'The ALJ states "[t]he Petition is denied." (Initial Decision and Order at 28.) Petitioner filed a Petition on February 17, 1998, and an Amended Petition on September 7, 2000. Section 900.52b of the Rules of Practice (7 C.F.R. § 900.52b) authorizes parties to amend their pleadings. Therefore, I find the operative pleading in the instant proceeding is Petitioner's Amended Petition, not Petitioner's Petition. Based on the record before me, I infer the ALJ denied Petitioner's Amended Petition. 62 Agric. Dec. 406 TITLE 7-AGRICULTURE CHAPTER 26-AGRICULTURAL ADJUSTMENT SUBCHAPTER III-COMMODITY BENEFITS § 608c. Orders regulating handling of commodity. (15) Petition by handler for modification of order or exemption; court review of ruling of Secretary (A) Any handler subject to an order may file a written petition with the Secretary of Agriculture, stating that any such order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law and praying for a modification thereof or to be exempted therefrom. He shall thereupon be given an opportunity for a hearing upon such petition, in accordance with regulations made by the Secretary of Agriculture, with the approval of the President. After such hearing, the Secretary shall make a ruling upon the prayer of such petition which shall be final, if in accordance with law. (B) The District Courts of the United States in any district in which such handler is an inhabitant, or has his principal place of business, are vested with jurisdiction in equity to review such ruling, provided a bill in equity for that purpose is filed within twenty days from the date of the entry of such ruling. Service of process in such proceedings may be had upon the Secretary by delivering to him a copy of the bill of complaint. If the court determines that such ruling is not in accordance with law, it shall remand such proceedings to the Secretary with directions either (1) to make such ruling as the court shall determine to be in accordance with law, or (2) to take such further proceedings as, in its opinion, the law requires. The pendency of proceedings instituted pursuant to this subsection (15) shall not impede, hinder, or delay the United States or the Secretary of Agriculture from obtaining relief pursuant to section 608a(6) of this title. Any proceedings brought pursuant to section 608a(6) of this title (except where brought by way of counterclaim in proceedings instituted pursuant to this subsection (15)) shall abate whenever a final decree has been rendered in proceedings between the same parties, and covering the same subject matter, instituted pursuant to this subsection (15). 7 U.S.C. § 608c(15). 7 C.F.R.: TITLE 7-AGRICULTURE SUBTITLE B-REGULATIONS OF THE CHAPTER X-AGRICULTURAL MARKETING SERVICE (MARKETING AGREEMENTS AND ORDERS; MILK), DEPARTMENT OF AGRICULTURE PART 1002-MILK IN NEW YORK-NEW JERSEY Subpart-Order Regulating Handling GENERAL PROVISIONS AND DEFINITIONS § 1002.12 Producer-handler. Producer-handler means a handler who, following the filing of an application pursuant to paragraph (a) of this section, has been so designated by the market administrator upon determination that the requirements of paragraph (b) of this section have been met. Such designation shall be effective on the first of the month after receipt by the market administrator of an application containing complete information on the basis of which the market administrator determines that the requirements of paragraph (b) of this section are being met. 62 Agric. Dec. 406 The effective date of designation shall be governed by the date of filing new applications in instances where applications previously filed have been denied. All designations shall remain in effect until cancelled pursuant to paragraph (c) of this section. (a) Application. Any handler claiming to meet the requirements of paragraph (b) of this section may file with the market administrator, on forms prescribed by the market administrator, an application for designation as a producer-handler. The application shall contain the following information: (1) A listing and description of all resources and facilities used for the production of milk which are owned or directly or indirectly operated or controlled by the applicant. (2) A listing and description of all resources and facilities used for the processing or distribution of milk or milk products which are owned, or directly or indirectly operated or controlled by the applicant. (3) A description of any other resources and facilities used in the production, handling, or processing of milk or milk products in which the applicant in any way has an interest, including any contractual arrangement, and the names of any other persons having or exercising any degree of ownership, management, or control in, or with whom there exists any contractual arrangement with respect to, the applicant's operation either in his capacity as a handler or in his capacity as a dairy farmer. (4) A listing and description of the resources and facilities used in the production, processing, and distribution of milk or milk products which the applicant desires to be determined as his milk production, processing, and distribution unit in connection with his designation as a producer-handler: Provided, That all milk production resources and facilities owned, operated, or controlled by the applicant either directly or indirectly shall be considered as constituting a part of the applicant's milk production unit in the absence of proof satisfactory to the market administrator that some portion of such facilities or resources do not constitute an actual or potential source of milk supply for the applicant's operation as a producer-handler. (5) Such other information as may be required by the market administrator. (b) Requirements. (1) The handler has and exercises (in his capacity as a handler) complete and exclusive control over the operation and management of a plant at which he handles milk |