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8 900.14 Execution of marketing agree- $ 900.15 Filing; extensions of time;

ment and issuance of marketing effective date of filing; and compuorder.

tation of time. (a) Execution of marketing agreement. (a) Filing, number of copies. Except as If the Secretary has approved a marketing is provided otherwise in this subpart, all agreement, as provided in $ 900.13a, the documents or papers required or authorized Administrator shall cause copies thereof to by the foregoing provisions of this subpart to be distributed for execution by the handlers be filed with the hearing clerk shall be filed eligible to become parties thereto. If and in quadruplicate. Any document or paper, when such number of the handlers as the so required or authorized to be filed with Secretary shall deem to be sufficient shall the hearing clerk, shall, during the course have executed the marketing agreement, the of an oral hearing, be filed with the presiding Secretary shall execute the same, and notice officer. The provisions of this subpart conof its effective date shall be mailed by the cerning filing with the hearing clerk of hearhearing clerk to each person signatory

ing notices, recommended and final decithereto. A marketing agreement shall be

sions, marketing agreements and orders, and effective and binding upon any party thereto

all documents described in $ 900.17 shall be even though such party may not have re

met by filing a true copy thereof with the

hearing clerk. ceived the notice provided for in this para- (b) Extensions of time. The time for the graph, or the hearing clerk may have failed filing of any document or paper required or to mail such notice.

authorized by the foregoing provisions of (b) Issuance of marketing order with this subpart to be filed may be extended by marketing agreement. Whenever, as provided the presiding officer (before the record is in paragraph (a) of this section, the Secre- certified by the presiding officer) or by the tary executes a marketing agreement, and

Administrator (after the record is so certihandlers also have executed the same

fied by the presiding officer but before it is provided in section 8c (8) of the act, he shall,

transmitted to the Secretary), or by the if he finds that it will tend to effectuate the

Secretary (after the record is transmitted to

the Secretary) upon request filed, and if, purposes of the act, issue and make effective

in the judgment of the presiding officer, the marketing order, if any, which was filed Administrator, or the Secretary, as the case

a part of his decision pursuant to may be, there is good reason for the exten$ 900 a: Provided, That the issuance of sion. All rulings made pursuant to this such order shall have been approved or paragraph shall be filed with the hearing favored by producers as required by section

clerk. 8c (8) of the act.

(c) Effective date of filing. Any docu(c) Issuance of marketing order without

ment or paper required or authorized by the marketing agreement. If, despite the failure

foregoing provisions of this subpart to be

filed shall be deemed to be filed when it is or refusal of handlers to sign the marketing

postmarked or when it is received by the agreement, as provided in section 8c (8) of

hearing clerk, the act, the Secretary makes the determina

(d) Computation of time. Sundays and tions required under section 8C (9) of the Federal holidays shall be included in comact, the Secretary shall issue and make effec- puting the time allowed for the filing of any tive the marketing order, if any, which was document or paper: Provided, That, when filed as a part of his decision pursuant to

such time expires on a Sunday or legal $ 900.13a.

holiday, such period shall be extended to (d) Effective date of marketing order. No

include the next following business day. marketing order shall become effective less [25 F.R. 5907, June 28, 1960, as amended at than 30 days after its publication in the

30 F.R. 254, Jan. 9, 1965) FEDERAL REGISTER, unless the Secretary, upon 8 900.16 Discussion of issues, etc., of good cause found and published with the

proceeding prohibited. order, fixes an earlier effective date therefor:

Except as may be provided otherwise in Provided, That no marketing order shall

this subpart, no officer or employee of the become effective as to any person sought to

Department shall, following the close of the be charged thereunder before either (1) it

hearing in a marketing agreement or markethas been filed with the Office of the Federal

ing order proceeding and prior to the execuRegister, or (2) such person has received tion of a marketing agreement or the isactual notice of the issuance and terms of suance of a marketing order therein, discuss the marketing order.

the issues, merits, or evidence involved in (e) Notice of issuance. After issuance of the proceeding with any person interested a marketing order, such order shall be filed in the result of the proceeding or with any with the hearing clerk, and notice thereof, representative of such person: Provided, together with notice of the effective date, however, That the provisions of this section shall be given by publication in the FEDERAL shall not preclude an officer or employee who REGISTER. (7 U.S.C. 610(c).)

has been duly assigned to, or who has super

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vision over, a proceeding from discussing with interested persons or their representatives matters of procedure in connection with such proceeding. Insofar as the provisions of this section are inconsistent with the provisions of Regulation 1544 of the publication entitled “Regulations of the U.S. Department of Agriculture,” the provisions of this section shall prevail. $ 900.17 Additional documents to be

filed with hearing clerk. In addition to the documents or papers required or authorized by the foregoing provisions of this subpart to be filed with the hearing clerk, the hearing clerk shall receive for filing and shall have custody of all papers, reports, records, orders, and other documents which relate to the administration of any marketing agreement or marketing order and which the Secretary is required to issue or to approve. $ 900.18 Hearing before Secretary.

The Secretary may act in the place and stead of a presiding officer in any proceeding under this subpart. When he so acts the hearing clerk shall transmit the record to the Secretary at the expiration of the period provided for the filing of proposed findings of fact, conclusions and orders, and the Secretary shall thereupon, after due consideration of the record, issue his final decision in the proceeding: Provided, That he may issue a tentative decision in which event the parties shall be afforded an opportunity to file exceptions before the issuance of the final decision.

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(d) The term "examiner” means any examiner in the Office of Hearing Examiners, United States Department of Agriculture;

(e) The term “Administrator" means the Administrator of the Consumer and Marketing Service, with power to redelegate, or any officer or employee of the Department to whom authority has been delegated or may hereafter be delegated to act in his stead.

(f) [Reserved]

(g) The term "FEDERAL REGISTER" means the publication provided for by the act of July 26, 1935 (49 Stat. 500), and acts supplementary thereto and amendatory thereof;

(h) The term “marketing order” means any order or any amendment thereto which may be issued pursuant to section 8c of the act;

(i) The term "handler" means any person who, by the terms of a marketing order, is subject thereto, or to whom a marketing order is sought to be made applicable;

(j) The term "proceeding" means a proceeding before the Secretary arising under subsection (15) (A) of section 8c of the act;

(k). The term “hearing" means that part of the proceeding which involves the submission of evidence;

(1) The term "party" includes the Department;

(m) The term "hearing clerk" means the hearing clerk, United States Department of Agriculture, Washington, D.C.;

(n) The term “presiding officer" means the examiner conducting a proceeding under the act;

(0) The term “presiding officer's report” means the presiding officer's report to the Secretary and includes the presiding officer's proposed (1) findings of fact and conclusions with respect to all material issues of fact, law or discretion, as well as the reasons or basis therefor, (2) order and (3) rulings on findings, conclusions and orders submitted by the parties;

(p) The term “petition" includes an amended petition. [25 F.R. 5907, June 28, 1960, as amended at 26 F.R. 7796, Aug. 22, 1961, 28 F.R. 579, Jan. 23, 1963] $ 900.52 Institution of proceeding.

(a) Filing and service of petition. Any handler desiring to complain that any marketing order or any provision of any such order or any obligation imposed in connection therewith is not in accordance with law, shall file with the hearing clerk, in quadruplicate, a petition in writing addressed to the Secretary. Promptly upon receipt of the petition, the hearing clerk shall transmit a true copy thereof to the Administrator and the General Counsel, respectively.

(b) Contents of petition. A petition shall contain:

(1) The correct name, address, and principal place of business of the petitioner. If petitioner is a corporation, such fact shall

C

Subpart-Rules of Practice Governing Proceedings

on Petitions To Modify or To Be Exempted From Marketing Orders

AUTHORITY: $ $ 900.50 to 900.71 issued under sec. 5, 49 Stat. 753, as amended; 7 U.S.C. 608c.

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$ 900.50 Words in the singular form.

Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand. $ 900.51 Definitions.

As used in this subpart, the terms as defined in the act shall apply with equal force and effect. In addition, unless the context otherwise requires:

(a) The term "act” means Public Act No. 10, 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. and Sup. 601);

(b) The term “Department” means the United States Department of Agriculture;

(c) The term “Secretary” means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead;

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be stated, together with the name of the State of incorporation, the date of incorporation, and the names, addresses, and respective positions held by its officers and directors; if an unincorporated association, the names and addresses of its officers, and the respective positions held by them; if a partnership, the name and address of each partner;

(2) Reference to the specific terms or provisions of the order, or the interpretation or application thereof, which are complained of;

(3) A full statement of the facts (avoiding a mere repetition of detailed evidence) upon which the petition is based, and which it is desired that the Secretary consider, setting forth clearly and concisely the nature of the petitioner's business and the manner in which petitioner claims to be affected by the terms or provisions of the order or the interpretation or application thereof, which are complained of;

(4) A statement of the grounds on which the terms or provisions of the order, or the interpretation or application thereof, which are complained of, are challenged as not in accordance with law;

(5) Prayers for the specific relief which the petitioner desires the Secretary to grant;

(6) An affidavit by the petitioner, or if the petitioner is not an individual, by an officer of the petitioner having knowledge of the facts stated in the petition, verifying the petition and stating that it is filed in good faith and not for purposes of delay.

(c) Application to dismiss petition-(1) Filing, contents, and responses thereto. If the Administrator is of the opinion that the petition, or any portion thereof, does not substantially comply, in form or content, with the act or with the requirements of paragraph (b) of this section, or is not filed in good faith, or is filed for purposes of delay, he may, within 30 days after the filing of the petition, file with the hearing clerk an application to dismiss the petition, or any portion thereof, on one more of the grounds stated in this paragraph. Such application shall specify the grounds of objection to the petition and if' based, in whole or in part, on allegations of fact not appearing on the face of the petition, shall be accompanied by appropriate aífidavits or documentary evidence substantiating such allegations of fact. The application may be accompanied by a memorandum of law. Upon receipt of such application, the hearing clerk shall cause a copy thereof to be served upon the petitioner, together with a notice stating that all papers to be submitted in opposition to such application, including any memorandum of law, must be filed by the petitioner with the hearing clerk not later than 20 days after the service of such notice upon the petitioner. Upon the expiration of the time specified in such notice, or upon receipt of such papers from the petitioner, the hearing clerk shall transmit all papers

which have been filed in connection with the application to the Secretary for his consideration.

(2) Decision by Secretary. The Secretary, after due consideration, shall render a decision upon the application, stating the reasons for his action. Such decision shall be in the form of an order and shall be filed with the hearing clerk who shall cause a copy thereof to be served upon the petitioner and a copy thereof to be transmitted to the Administrator. Any such order of the Secretary shall be a final order: Provided, That within 20 days following the service upon the petitioner of a copy of an order of the Secretary dismissing the petition, or any portion thereof, on the ground that it does not substantially comply in form and content with the act or with paragraph (b) of this section, the petitioner shall be permitted to file an amended petition.

(3) Referral to presiding officer. The Secretary may, in his discretion, refer any application made under this section to the presiding officer for preliminary consideration and report, and, in a proper case, for the taking of evidence: Provided, That the provisions of $ $ 900.60 to 900.65, inclusive, shall be applicable to the reception of such evidence, if any; the form, content, and filing of such report; the allowance of exceptions thereto; and transmittal of the record to the Secretary,

(4) Oral argument. Unless a written application for oral argument is filed by a party with the hearing clerk not later than the time fixed for filing papers in opposition to the application, it shall be considered that the party does not desire oral argument. The granting of a request to make oral argument shall rest in the discretion of the Secretary or the presiding officer, as the case may be. $ 900.52a Answer to petition.

(a) Time of filing. Within 30 days after the filing of the petition, the Administrator shall file an answer thereto: Provided, That if an application to dismiss the petition, in whole or in part, is made pursuant to § 900.52(c), the answer shall be filed within 15 days after the filing of an order of the Secretary denying the application or granting the application with respect to only a portion of the petition. The answer shall be filed with the hearing clerk who shall cause a copy thereof to be served promptly upon the petitioner.

(b) Contents. The answer shall specify which of the material allegations of fact or of law in the petition are controverted and which are not controverted. The answer also may contain affirmative allegations of fact constituting separate defenses and statements of objections to the sufficiency of the whole or any part of the petition. 8 900.52b Amended pleadings.

At any time before the close of the hearing the petition or answer may be amended,

but the hearing shall, at the request of the

or

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adverse party, be adjourned or recessed for (10) Do all acts and take all measures
such reasonable time as the presiding offi- necessary for the maintenance of order at
cer may determine to be necessary to protect the hearing and the eficient conduct of the
the interests of the parties. Amendments proceeding.
subsequent to the first amendment or sub- (d) Who may act in absence of presiding
sequent to the filing of an answer may be officer. In case of the absence of the presid-
made only with leave of the presiding officer ing officer or his inability to act, the powers
or with the written consent of the adverse and duties to be performed by him under
party.

these rules of practice in connection with a $ 900.53 Withdrawal of petition.

proceeding may, without abatement of the

proceeding unless otherwise ordered by the If, at any time after the petition is filed, Secretary, be assigned to any other presiding the petitioner desires to withdraw the same, officer. he shall file with the hearing clerk (or, if (e) Disqualification of presiding officer. filed during the course of a hearing, with the The presiding officer may at any time withpresiding officer) a written request for per- draw as presiding officer in a proceeding if mission to withdraw. The Secretary may, in he deems himself to be disqualified. Upon his discretion, thereupon dismiss the peti- the filing by an interested person in good tion without further procedure: Provided, faith of a timely and sufficient affidavit of That, if the request to withdraw is filed after personal bias or disqualification of a presida hearing has been opened, permission to ing officer, the Secretary shall determine the withdraw shall be granted only in excep- matter as a part of the record and decision tional circumstances.

in the proceeding, after making such investi$ 900.54 Docket number.

gation or holding such hearings, or both, as

he may deem appropriate in the circumEach proceeding, immediately following its stances. institution, shall be assigned a docket number by the hearing clerk and thereafter the

$ 900.56 Consolidated hearings. proceeding may be referred to by such At the discretion of the presiding officer, number.

hearings upon two or more petitions pertain

ing to the same order may be consolidated, $ 900.55 Presiding officers.

and the evidence taken at such consolidated (a) Assignment. No presiding officer who hearing may be embodied in a single record. has any pecuniary interest in the outcome of the proceeding, or who has participated in

$ 900.57 Intervention. any investigation preceding the institution Intervention in proceedings subject to this of the proceeding, shall serve as presiding subpart shall not be allowed, except that, in officer in such proceeding.

the discretion of the Secretary or the presid(b) Conduct. The presiding officer shall ing officer, any person (other than the peticonduct the proceeding in a fair and impar- tioner) showing a substantial interest in the tial manner and shall not discuss ex parte outcome of a proceeding shall be permitted the merits of the proceeding with any per- to participate in the oral argument and to son who is or who has been connected in Ale a brief. any manner with the proceeding in an advocative or investigative capacity.

$ 900.58 Prehearing conferences. (c) Powers of presiding officers. Subject In any proceeding in which it appears that to review by the Secretary, as provided else- such procedure will expedite the proceedwhere in this subpart, the presiding officer ing, the presiding officer, at any time prior shall have power to:

to the commencement of or during the course (1) Rule upon motions and requests; of the hearing, may request the parties or

(2) Adjourn the hearing from time to their counsel to appear at a conference betime, and change the time and place of

fore him to consider (a) the simplification hearing;

of issues; (b) the possibility of obtaining (3) Administer oaths and affirmations and

stipulations of fact and of documents which take affidavits;

will avoid unnecessary proof; (c) the limita(4) Issue subpenas, under the facsimile

tion of the number of expert or other witsignature of the Secretary, requiring the at

nesses; and (d) such other matters as may tendance and testimony of witnesses and

expedite and aid in the disposition of the the production of books, records, contracts,

proceeding. No transcript of such conference papers, and other documentary evidence;

shall be made, but the presiding officer shall (5) Examine witnesses and receive evi

prepare and file for the record a written

summary of the action taken at the condence;

ference, which shall incorporate any written (6) Take or order, under the facsimile

stipulations or agreements made by the parsignature of the Secretary, the taking of ties at the conference or as a result of the depositions;

conference. If the circumstances are such (7) Admit or exclude evidence;

that a conference is impracticable, the pre(8) Hear oral argument on facts or law; siding officer may request the parties to

(9) Consolidate hearings upon two correspond with him for the purpose of acmore petitions pertaining to the same order; complishing any of the objects set forth in

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this section. The presiding officer shall for- In case the presiding officer has issued an ward copies of letters and documents to the order precluding a person from further actparties as the circumstances require, Cor- ing as counsel or representative in the prorespondence in such negotiations shall not ceeding, the presiding officer, within a reabe a part of the record, but the presiding sonable time thereafter, shall submit to the officer shall submit a written summary for Secretary a report of the facts and circumthe record if any action is taken.

stances surrounding the issuance of the

order and shall recommend what action the 8 900.59 Motions and requests.

Secretary should take respecting the ap(a) General. All motions and requests

pearance of such person as counsel or represhall be filed with the hearing clerk, except

sentative in other proceedings before the that those made during the course of an

Secretary. Thereafter, the Secretary may, oral hearing may be filed with the presiding

after notice and an opportunity for hearing, officer or may be stated orally and made a

issue such order respecting the appearance part of the transcript.

of such person as counsel or representative The presiding officer is authorized to rule in proceedings before the Secretary as the

Secretary finds to be appropriate. upon all motions and requests filed or made

(3) Failure to appear. If the petitioner, prior to the transmittal by the hearing clerk

after being duly notified, fails to appear at to the Secretary of the record as provided in this subpart. The Secretary shall rule upon

the hearing, he shall be deemed to have

authorized the Secretary, without further all motions and requests filed after that time.

procedure, to dismiss the proceeding with or (b) Certification of motions. The submis

without prejudice, as the Secretary may desion or certification of any motion, request,

termine. In the event that the petitioner objection, or other question to the Secretary

appears at the hearing and no representative prior to the transmittal of the record to

of the Department appears, the presiding the Secretary, as provided in this subpart,

officer shall proceed ex parte to hear the evishall be in the discretion of the presiding

dence of the petitioner: Provided, That failofficer.

ure on the part of such representative of $ 900.60 Oral hearings before presiding

the Department to appear at a hearing shall officer,

not be deemed to be a waiver of the Depart

ment's right to file suggested findings of (a) Time and place. The presiding officer fact, conclusions, and order; to be served shall set a time and place for hearing and with a copy of the presiding officer's report; shall file with the hearing clerk a notice

and to file exceptions with and to submit stating the time and place of hearing. If argument before the Secretary with respect any change in the time or place of hearing thereto. becomes necessary, it shall be made by the

(c) Order of proceeding. Except as may be presiding officer, who, in such event, shall

determined otherwise by the presiding ofifile with the hearing clerk a notice of the

cer, the petitioner shall proceed first at the change. Such notice shall be served upon the

hearing. parties, unless it is made during the course

(d) Evidence-(1) In general. The hearing of an oral hearing and made a part of the

shall be publicly conducted, and the testitranscript.

mony given at the hearing shall be reported (b) Appearances—(1) Representation. In

verbatim. any proceeding under the act, the parties

The testimony of witnesses at a hearing may appear in person or by counsel or other

shall be upon oath or affirmation and subject representative. The Department, if repre

to cross-examination. sented by counsel, shall be represented by an

Any witness may, in the discretion of the attorney assigned by the General Counsel

presiding officer, be examined separately and of the Department, and such attorney shall

apart from all other witnesses except those present or supervise the presentation of the

who may be parties to the proceeding. position of the Department. (2) Debarment of counsel or representa

The presiding officer shall exclude, insofar tive. Whenever, while a proceeding is pending

as practicable, evidence which is immaterial, before him, the presiding officer finds that a irrelevant, or unduly repetitious, or which person acting as counsel or representative for

is not of the sort upon which responsible any party to the proceeding is guilty of un- persons are accustomed to rely. ethical or unprofessional conduct, the pre- (2) Objections. If a party objects to the siding officer may order that such person be

admission or rejection of any evidence or to precluded from further acting as counsel the limitation of the scope of any examinaor representative in such proceeding. An ap- tion or cross-examination, he shall state peal to the Secretary may be taken from any briefly the grounds of such objection, wheresuch order, but the proceeding shall not be upon an automatic exception will follow if delayed or suspended pending disposition of the objection is overruled by the presiding the appeal: Provided, That the presiding ofi- officer. The transcript shall not include argucer may suspend the proceeding for a reason

ment or debate thereon, except as ordered by able time for the purpose of enabling the the presiding officer. The ruling of the preclient to obtain other counsel or representa- siding officer on any objection shall be a tive.

part of the transcript.

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