57 Agric. Dec. 1165 7 C.F.R. § 1.426(a). The Chief ALJ did not provide the parties with the time for filing an appeal, as set forth in section 1.426(a) of the Rules of Practice. Instead, the Chief ALJ provides in the Initial Decision and Order that: In order to comply with the statutory deadline, an appeal must be filed no later than May 29, 1998; it may be filed by telefax directed to the Hearing Clerk at (202)720-9776. Initial Decision and Order at 6. If the Chief ALJ had given Blue Mountains Biodiversity Project 10 calendar days after its receipt of service of the Initial Decision and Order in which to file its appeal petition, a final agency decision could not have been issued by June 6, 1998, the date that Kinzua's application for a sourcing area must be approved or disapproved, as required by section 490(c)(3)(A) of the FRCSRA (16 U.S.C.A. § 620b(c)(3)(A) (West Supp. 1998)) and section 1.426(d) of the Rules of Practice (7 C.F.R. § 1.426(d)). The Chief ALJ's Initial Decision and Order provides the parties with actual notice that the Chief ALJ had modified the Rules of Practice in this proceeding by ordering that any appeal must be filed no later than May 29, 1998,3 rather than within 10 calendar days after receiving service of the Initial Decision and Order. Generally, administrative law judges and the judicial officer are bound by rules of practice, but they may modify rules of practice to comply with 4 'I further note that on May 29, 1998, Mr. Asante Riverwind, co-director, Blue Mountains Biodiversity Project, orally requested that the Judicial Officer grant Blue Mountains Biodiversity Project a 21-day extension of time within which to file its appeal petition. I denied the request for a 21-day extension of time, but extended Blue Mountains Biodiversity Project's time for filing an appeal petition to 4:00 p.m., eastern time, June 1, 1998. (Informal Order as to Blue Mountains Biodiversity Project's Request for Extension of Time, filed June 1, 1998.) *See In re Far West Meats, 55 Agric. Dec. 1033, 1036 n.4 (1996) (Ruling on Certified Question) (stating that the judicial officer and the administrative law judge are bound by the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes); In re Hermiston Livestock Co., 48 Agric. Dec. 434 (1989) (stating that the judicial officer and the administrative law judge are bound by the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes); In re Sequoia Orange Co., 41 Agric. Dec. 1062, 1064 (1982) (stating that the judicial officer has no authority to depart from Rules of Practice Governing Proceedings on Petitions To Modify or To Be Exempted from Marketing Orders). SHORTAGE RELIEF ACT statutory requirements, such as the deadline for agency approval or disapproval of sourcing area applications set forth in section 490(c)(3)(A) of the FRCSRA (16 U.S.C.A. § 620b(c)(3)(A) (West Supp. 1998)).' The Chief ALJ did not err when he modified the Rules of Practice to meet a statutory deadline. Second, Blue Mountains Biodiversity Project contends that the United States Department of Agriculture failed to respond to serious concerns raised by the commenters (Biodiversity Appeal Petition at 3-4). The Chief ALJ responds, in the Initial Decision and Order, to the comments that are relevant to the issue of whether the area that is the subject of Kinzua's Amended Application is geographically and economically separate from the geographic area from which Kinzua harvests for export unprocessed timber originating from private lands. Additionally, there are a number of comments that identify serious concerns of the commenters, which the Chief ALJ states are not relevant to the issue in this proceeding. However, I do not find that the Chief ALJ erred by failing to address irrelevant comments, even though those comments raise serious societal, economic, and ecological issues. The issue in this proceeding is narrow, viz., whether Kinzua's Amended Application should be approved or disapproved under the criteria in the FRCSRA. The Initial Decision and Order reflects the Chief ALJ's careful consideration of all of the comments submitted in this proceeding that are relevant to the criteria that must be met for approval of Kinzua's Amended Application. Third, Blue Mountains Biodiversity Project contends that the Chief ALJ failed to respond to a request for a hearing made before the end of the period in which a hearing request must be made and failed to provide notice of the period within which a request for a hearing must be made (Biodiversity Appeal Petition at 3). I disagree with both of Blue Mountains Biodiversity Project's contentions. The Chief ALJ specifically responds to the request for a hearing, as follows: [A]lthough one commenter indicated a desire for a hearing in its comment, no formal request for a hearing was received during the appropriate period. As such, no hearing was held and this [Initial] Decision and Order is based entirely on the written record. Initial Decision and Order at 2. American Wildlands and Wyoming Outdoor Council requested a hearing in "In re Stimson Lumber Co., 56 Agric. Dec. 480, 489 (1997). 57 Agric. Dec. 1165 their joint comment which was filed March 31, 1998, during the comment period which ended April 17, 1998. However, the Rules of Practice do not provide that a party may request a hearing during the comment period, but instead provide that a hearing may only be requested during the review period, as follows: § 1.417 Review period. (c) Request for a hearing. The sourcing area applicant, the sourcing area holder whose sourcing area is the subject of a formal review and persons who submitted written comments, or the attorney of record for a party in the proceeding, may review the comments and request a hearing within 10 working days after the comment period, pursuant to 36 CFR 233.190(h)(2) [sic]. The request must be postmarked no later than the 10th working day of the review period. . . . The request for a hearing shall be filed with the Judge. The hearing is for the purpose of supplementing the written record submitted prior to the hearing. The written record submitted prior to the hearing consists of papers and documents submitted during the 30 calendar day comment period, the 10 working day review period, and any motions submitted before the hearing. 7 C.F.R. § 1.417(c). Therefore, the Chief ALJ did not err by finding that no request for a hearing was made during the appropriate period (the review period) and concluding that no hearing should be held in this proceeding. Moreover, I do not find that there was a failure to notify the parties of the time during which requests for a hearing may be filed with the administrative law judge, as Blue Mountains Biodiversity Project asserts. The Rules of Practice are published in the Federal Register, thereby constructively notifying the parties of the requirement that all requests for a hearing must be filed during the 10-day 6 "See 59 Fed. Reg. 8823, 8824-30 (1994). SHORTAGE RELIEF ACT review period.' For the foregoing reasons, the following Order should be issued. Order The Amended Application of Kinzua Resources, LLC, for a sourcing area for its Heppner, Oregon, and Pilot Rock, Oregon, timber manufacturing facilities is approved, and the sourcing area is established pursuant to the FRCSRA and the Regulations. 'See FCIC v. Merrill, 332 U.S. 380, 384-85 (1947) (stating that just as everyone is charged with knowledge of the United States Statutes at Large, Congress has provided that the appearance of rules and regulations in the Federal Register gives legal notice); Jordan v. Director, Office of Workers' Compensation Programs, 892 F.2d 482, 487 (6th Cir. 1989) (stating that publication in the Federal Register constitutes constructive notice of the contents of federal regulations); Kentucky ex rel. Cabinet for Human Resources v. Brock, 845 F. 117, 122 n.4 (6th Cir. 1988) (stating that it has long been established that publication of regulations in the Federal Register has the legal effect of constructive notice of their contents to all who are affected thereby); Bennett v. Director, Office of Workers' Compensation Programs, 717 F.2d 1167, 1169 (7th Cir. 1983) (stating that it has long been established that publication in the Federal Register has the legal effect of constructive notice of their contents to all who are affected thereby); North Alabama Express, Inc. v. United States, 585 F.2d 783, 787 n.2 (5th Cir. 1978) (stating that it is well settled that publications in the Federal Register are deemed legally sufficient notice to all interested persons); Cervase v. Office of the Federal Register, 580 F.2d 1166, 1168-69 (3d Cir. 1978) (stating that publication in the Federal Register gives constructive notice of the existence of the published regulations); Diamond Ring Ranch, Inc. v. Morton, 531 F.2d 1397, 1405 (10th Cir. 1976) (stating that publication of regulations in the Federal Register is constructive notice of their contents); Ferry v. Udall, 336 F.2d 706, 710 (9th Cir. 1964) (stating that appellants are bound by regulations since their publication in the Federal Register provides constructive notice), cert. denied, 381 U.S. 904 (1981); In re Jerry Goetz, 57 Agric. Dec. 1470, 1524-25 (1997) (stating that respondent had constructive notice of the Beef Promotion and Research Order and the Rules and Regulations (7 C.F.R. §§ 1260.101-.316) because they are published in the Federal Register), appeal docketed, No. 98-1155-JTM (D. Kan. 1998); In re Samuel Zimmerman, 56 Agric. Dec. 1419, 1453 (1997) (stating that respondent had constructive notice of the animal welfare regulations and standards (9 C.F.R. §§ 1.1-3.142) because they are published in the Federal Register), appeal docketed, No. 983100 (3d Cir. Feb. 19, 1998); In re Fred Hodgins, 56 Agric. Dec. 1242, 1353 (1997) (stating that respondents had constructive notice of the animal welfare regulations and standards (9 C.F.R. §§ 1.13.142) because they are published in the Federal Register), appeal docketed, No. 97-3899 (6th Cir. Aug. 12, 1997); In re Volpe Vito, Inc., 56 Agric. Dec. 166, 256 (1997) (stating that respondent had constructive notice of 9 C.F.R. § 2.126 because the regulation is published in the Federal Register), appeal docketed, No. 97-3603 (6th Cir. June 13, 1997). 57 Agric. Dec. 1183 FRESH CUT FLOWERS AND FRESH CUT GREENS DEPARTMENTAL DECISIONS In re: EVERFLORA, INC., A NEW JERSEY CORPORATION. Decision and Order filed May 22, 1998. Judgment on Admission of Essential Facts - Order Assessing Advertising Assessments and Civil Penalty-First Amendment Does Not Exempt Handler of Fresh Cut Flowers and Fresh Cut Greens From Advertising Assessments - Due Process Not Violated by Voting Scheme Used to Implement Promotional Advertising Order - Administratively Assessed Civil Penalties are Not the Equivalent of Criminal Fines and Not Entitled to Same Due Process Protections. Judgment was entered based upon the admission of essential facts. Respondent had argued that it was exempt from the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993, because the Act violated its rights under the First Amendment and the Due Process Clause. The decision held that respondent's First Amendment arguments were fully answered and rejected by decisions of binding precedent. So too, Respondent's arguments that Procedural Due Process had been violated by the voting scheme used to implement the Promotional Order were rejected under cases of binding precedent. Lastly, respondent's argument that the advertising assessments imposed on it constituted an excessive fine and criminal/quasi-criminal penalties, was also rejected under a long line of controlling cases. In addition to requiring the Respondent to pay advertising assessments plus late charges, a civil penalty was imposed. These amounts, however, were subject to any refunds or offsets Respondent may be owed under the Promotional Order. Colleen A. Carroll, for Complainant. James A. Moody, Washington, D.C., for Respondent. Decision and Order issued by Victor W. Palmer, Chief Administrative Law Judge. The complainant has moved for a judgment based upon sections 1.139 and 1.143 of the governing Rules of Practice (7 C.F.R. §§ 1.139, .143), and on the pleadings and papers that have been filed by the parties. Although a "motion to dismiss on the pleading" may not be entertained, any other motion will be. 7 C.F.R. § 1.143(b)(1). Inasmuch as complainant's motion is not a motion to dismiss, but rather a motion for the entry of a judgment based upon the admission of essential facts, it may therefore be entertained. Upon consideration of the motion, respondent's opposition to it and the arguments of the parties, the motion is being granted, and orders are being entered in this case and in other cases against handlers who refused to pay assessments under the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993. |