7 U.S.C. § 194 — Conclusiveness of order; appeal and review

Page 334 TITLE 7—AGRICULTURE § 194 tractor to be heard, may amend or set aside the report or order, in whole or in part. (d) Service of process Complaints, orders, and other processes of the Secretary under this section may be served in the same manner as provided in section 45 of title 15. (Aug. 15, 1921, ch. 64, title II, § 203, 42 Stat. 161; June 25, 1948, ch. 646, § 32(a), 62 Stat. 991; May 24, 1949, ch. 139, § 127, 63 Stat. 107; Pub. L. 85–791, § 6(a), Aug. 28, 1958, 72 Stat. 944; Pub. L. 94–410, § 3(b), Sept. 13, 1976, 90 Stat. 1249; Pub. L. 107–171, title X, § 10502(b)(1), May 13, 2002, 116 Stat. 509.) Editorial Notes AMENDMENTS 2002—Subsecs. (a) to (c). Pub. L. 107–171 substituted ‘‘packer or swine contractor’’ for ‘‘packer’’ wherever appearing. 1976—Subsec. (b). Pub. L. 94–410 inserted provisions dealing with authority of Secretary to assess a civil penalty for violations and, upon failure to pay, proce- dure for recovery of such penalty. 1958—Subsec. (c). Pub. L. 85–791 struck out ‘‘a tran- script of’’ after ‘‘until’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME Act June 25, 1948, as amended by act May 24, 1949, substituted ‘‘court of appeals’’ for ‘‘circuit court of ap- peals’’. Executive Documents TRANSFER OF FUNCTIONS Functions of all officers, agencies, and employees of Department of Agriculture transferred, with certain ex- ceptions, to Secretary of Agriculture by 1953 Reorg. Plan No. 2, § 1, eff. June 4, 1953, 18 F.R. 3219, 67 Stat. 633, set out as a note under section 2201 of this title. § 194. Conclusiveness of order; appeal and review (a) Filing of petition; bond An order made under section 193 of this title shall be final and conclusive unless within thir- ty days after service the packer or swine con- tractor appeals to the court of appeals for the circuit in which he has his principal place of business, by filing with the clerk of such court a written petition praying that the Secretary’s order be set aside or modified in the manner stated in the petition, together with a bond in such sum as the court may determine, condi- tioned that such packer or swine contractor will pay the costs of the proceedings if the court so directs. (b) Filing of record by Secretary The clerk of the court shall immediately cause a copy of the petition to be delivered to the Sec- retary, and the Secretary shall thereupon file in the court the record in such proceedings, as pro- vided in section 2112 of title 28. If before such record is filed the Secretary amends or sets aside his report or order, in whole or in part, the petitioner may amend the petition within such time as the court may determine, on notice to the Secretary. (c) Temporary injunction At any time after such petition is filed, the court, on application of the Secretary, may issue a temporary injunction, restraining, to the extent it deems proper, the packer or swine con- tractor and his officers, directors, agents, and employees, from violating any of the provisions of the order pending the final determination of the appeal. (d) Evidence The evidence so taken or admitted, and filed as aforesaid as a part of the record, shall be con- sidered by the court as the evidence in the case. (e) Action by court The court may affirm, modify, or set aside the order of the Secretary. (f) Additional evidence If the court determines that the just and prop- er disposition of the case requires the taking of additional evidence, the court shall order the hearing to be reopened for the taking of such evidence, in such manner and upon such terms and conditions as the court may deem proper. The Secretary may modify his findings as to the facts, or make new findings, by reason of the ad- ditional evidence so taken, and he shall file such modified or new findings and his recommenda- tions, if any, for the modifications or setting aside of his order, with the return of such addi- tional evidence. (g) Injunction If the court of appeals affirms or modifies the order of the Secretary, its decree shall operate as an injunction to restrain the packer or swine contractor, and his officers, directors, agents, and employees from violating the provisions of such order or such order as modified. (h) Finality The court of appeals shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to review, and to affirm, set aside, or modify, such orders of the Secretary, and the decree of such court shall be final except that it shall be subject to review by the Supreme Court of the United States upon certiorari, as provided in section 1254 of title 28, if such writ is duly ap- plied for within sixty days after entry of the de- cree. The issue of such writ shall not operate as a stay of the decree of the court of appeals, inso- far as such decree operates as an injunction un- less so ordered by the Supreme Court. (Aug. 15, 1921, ch. 64, title II, § 204, 42 Stat. 162; June 7, 1934, ch. 426, 48 Stat. 926; June 25, 1948, ch. 646, § 32(a), 62 Stat. 991; May 24, 1949, ch. 139, § 127, 63 Stat. 107; Pub. L. 85–791, § 6(b), (c), Aug. 28, 1958, 72 Stat. 944; Pub. L. 98–620, title IV, § 402(5), Nov. 8, 1984, 98 Stat. 3357; Pub. L. 107–171, title X, § 10502(b)(1), May 13, 2002, 116 Stat. 509.) Editorial Notes CODIFICATION Former subsec. (i), which extended the former term ‘‘circuit court of appeals’’, in case the principal place of business of the packer is in the District of Columbia, to the United States Court of Appeals for the District of Columbia, for the purposes of sections 191 to 195 of this title, was omitted from the Code as obsolete. The Dis- trict of Columbia is a judicial circuit under sections 41 and 43 of Title 28, Judiciary and Judicial Procedure. See, also, Change of Name note below. Page 335 TITLE 7—AGRICULTURE § 197 AMENDMENTS 2002—Subsecs. (a), (c), (g). Pub. L. 107–171 substituted ‘‘packer or swine contractor’’ for ‘‘packer’’ wherever appearing. 1984—Subsec. (d). Pub. L. 98–620 struck out provisions requiring proceedings in such cases in the court of ap- peals to be made a preferred cause and expedited in every way. 1958—Subsec. (b). Pub. L. 85–791 § 6(b), substituted ‘‘thereupon file in the court’’ for ‘‘forthwith prepare, certify, and file in the court a full and accurate tran- script of’’, and ‘‘as provided in section 2112 of Title 28’’ for ‘‘including the complaint, the evidence, and the re- port and order’’ in first sentence, and ‘‘record’’ for ‘‘transcript’’ in second sentence. Subsec. (c). Pub. L. 85–791, § 6(b), substituted ‘‘peti- tion’’ for ‘‘transcript’’. Subsec. (d). Pub. L. 85–791, § 6(b), struck out ‘‘duly certified’’ after ‘‘admitted’’. Subsec. (h). Pub. L. 85–791, § 6(c), substituted ‘‘juris- diction, which upon the finding of the record with it shall be exclusive,’’ for ‘‘exclusive jurisdiction,’’ and section ‘‘1254’’ for ‘‘347’’. Statutory Notes and Related Subsidiaries CHANGE OF NAME Act June 25, 1948, eff. Sept. 1, 1948, as amended May 24, 1949, substituted ‘‘court of appeals’’ for ‘‘circuit court of appeals’’, wherever appearing. Act of June 7, 1934, provided that Court of Appeals in District of Columbia, should hereafter be known as the United States Court of Appeals for the District of Co- lumbia. EFFECTIVE DATE OF 1984 AMENDMENT Amendment by Pub. L. 98–620 not applicable to cases pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620, set out as an Effective Date note under section 1657 of Title 28, Judiciary and Judicial Procedure. § 195. Punishment for violation of order Any packer or swine contractor, or any offi- cer, director, agent, or employee of a packer or swine contractor, who fails to obey any order of the Secretary issued under the provisions of sec- tion 193 of this title, or such order as modified— (1) After the expiration of the time allowed for filing a petition in the court of appeals to set aside or modify such order, if no such peti- tion has been filed within such time; or (2) After the expiration of the time allowed for applying for a writ of certiorari, if such order, or such order as modified, has been sus- tained by the court of appeals and no such writ has been applied for within such time; or (3) After such order, or such order as modi- fied, has been sustained by the courts as pro- vided in section 194 of this title; shall on con- viction be fined not less than $500 nor more than $10,000, or imprisoned for not less than six months nor more than five years, or both. Each day during which such failure continues shall be deemed a separate offense. (Aug. 15, 1921, ch. 64, title II, § 205, 42 Stat. 163; June 25, 1948, ch. 646, § 32(a), 62 Stat. 991; May 24, 1949, ch. 139, § 127, 63 Stat. 107; Pub. L. 107–171, title X, § 10502(b)(1), May 13, 2002, 116 Stat. 509.) Editorial Notes AMENDMENTS 2002—Pub. L. 107–171 substituted ‘‘packer or swine contractor’’ for ‘‘packer’’ in two places in introductory provisions. Statutory Notes and Related Subsidiaries CHANGE OF NAME Act June 25, 1948, as amended by act May 24, 1949, substituted ‘‘court of appeals’’ for ‘‘circuit court of ap- peals’’, wherever appearing in this section. § 196. Statutory trust established; livestock (a) Protection of public interest from inadequate financing arrangements It is hereby found that a burden on and ob- struction to commerce in livestock is caused by financing arrangements under which packers en- cumber, give lenders security interest in, or place liens on, livestock purchased by packers in cash sales, or on inventories of or receivables or proceeds from meat, meat food products, or live- stock products therefrom, when payment is not made for the livestock and that such arrange- ments are contrary to the public interest. This section is intended to remedy such burden on and obstruction to commerce in livestock and protect the public interest. (b) Livestock, inventories, receivables and pro- ceeds held by packer in trust for benefit of unpaid cash sellers; time limitations; exempt packers; effect of dishonored instruments; preservation of trust benefits by seller All livestock purchased by a packer in cash sales, and all inventories of, or receivables or proceeds from meat, meat food products, or live- stock products derived therefrom, shall be held by such packer in trust for the benefit of all un- paid cash sellers of such livestock until full pay- ment has been received by such unpaid sellers: Provided, That any packer whose average annual purchases do not exceed $500,000 will be exempt from the provisions of this section. Payment shall not be considered to have been made if the seller receives a payment instrument which is dishonored: Provided, That the unpaid seller shall lose the benefit of such trust if, in the event that a payment instrument has not been received, within thirty days of the final date for making a payment under section 228b of this title, or within fifteen business days after the seller has received notice that the payment in- strument promptly presented for payment has been dishonored, the seller has not preserved his trust under this subsection. The trust shall be preserved by giving written notice to the packer and by filing such notice with the Secretary. (c) Definition of cash sale For the purpose of this section, a cash sale means a sale in which the seller does not ex- pressly extend credit to the buyer. (Aug. 15, 1921, ch. 64, title II, § 206, as added Pub. L. 94–410, § 8, Sept. 13, 1976, 90 Stat. 1251.) § 197. Statutory trust established; poultry (a) Protection of public interest from inadequate financing arrangements It is hereby found that a burden on and ob- struction to commerce in poultry is caused by financing arrangements under which live poul- try dealers encumber, give lenders security in- terest in, or place liens on, poultry obtained by such persons by purchase in cash sales or by