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Only objections made before the presiding officer may subsequently be relied upon in the proceeding.
(3) Depositions. The deposition of any witness shall be admitted, in the manner hereinafter provided in and subject to the provisions of $ 900.61.
(4) Affidavits. Except as is otherwise provided in this subpart, affidavits may be admitted only if the evidence is otherwise admissible and the parties agree (which may be determined by their failure to make timely objections) that affidavits may be used.
(5) Proof and authentication of official records or documents. An official record or document, when admissible for any purpose, shall be admissible in evidence without the production of the person who made or prepared the same. Such record or document shall, in the discretion of the presiding officer, be evidenced by an official publication thereof or by a copy attested by the person having legal custody thereof and accompanied by a certificate that such person has the custody.
(6) Exhibits. All written statements, charts, tabulations, or similar data offered in evidence at the hearing shall, after identification by the proponent and upon a satisfactory showing of the admissibility of the contents thereof, be numbered as exhibits and received in evidence and made a part of the record. Except where the presiding officer finds that the furnishing of copies is impracticable, a copy of each exhibit, in addition to the original, shall be filed with the presiding officer for the use of each other party to the proceeding. The presiding officer shall advise the parties as to the exact number of copies which will be required to be filed and shall make and have noted on the record the proper distribution of the copies.
If the testimony of a witness refers to a statute, or to a report, document, or transcript, the presiding officer, after inquiry relating to the identification of such statute, report, document, or transcript, shall determine whether the same shall be produced at the hearing and physically be made a part of the evidence as an exhibit, or whether it shall be incorporated into the evidence by reference. If relevant and material matter offered in evidence is embraced in a report, document, or transcript containing immaterial or irrelevant matter, such immaterial or irrelevant matter shall be excluded and shall be segregated insofar as practicable, subject to the direction of the presiding officer.
(7) Official notice. Official notice will be taken of such matters as are judicially noticed by the courts of the United States and of any other matter of technical, scientific, or commercial fact of established character: Provided, That the parties shall be given adequate notice, at the hearing or by reference in the presiding officer's report or the tentative order or otherwise, of matters so noticed, and (except where official notice is taken, for the first time in the proceeding, in the final order) shall be given adequate
opportunity to show that such facts are erroneously noticed.
(8) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof shall consist of a brief statement describing the evidence to be offered. If the evidence consists of a brief oral statement or of an exhibit, it shall be inserted into the transcript in toto. In such event, it shall be considered a part of the transcript if the Secretary decides that the presiding officer's ruling in excluding the evidence was erroneous. The presiding officer shall not allow the insertion of such evidence in toto if the taking of such evidence will consume a considerable length of time at the hearing. In the latter event, if the Secretary decides that the presiding officer erred in excluding the evidence, and that such error was substantial, the hearing shall be reopened to permit the taking of such evidence.
(e) Oral argument before presiding officer. Oral argument before the presiding officer shall be allowed unless the presiding officer finds that the denial of such argument will not deprive the parties of an adequate opportunity for oral argument subsequently in the proceeding. Such argument may be limited by the presiding officer to any extent that he finds necessary for the expeditious disposition of the proceeding and shall be reduced to writing and made part of the transcript.
(f) Transcript. (1) During the period in which the proceeding has an active status in the Department, a copy of the transcript and exhibits shall be kept on file in the office of the hearing clerk, where it shall be available for examination during official hours of business. Thereafter said transcript and exhibits shall be made available by the hearing clerk for examination during official hours of business after prior request and reasonable notice to the hearing clerk.
(2) If a personal copy of the transcript is desired, such copy may be obtained upon written application filed with the reporter, and upon payment of fees at the rate (if any) provided in the contract between the reporter and the Secretary. $ 900.61 Depositions.
(a) Procedure in lieu of deposition. Before any party may have testimony taken by deposition, said party shall, if practicable, submit to the other party an affidavit which shall set forth the facts to which the witness would testify, if the deposition should be taken. If, after examination of such affidavit, the other party agrees, or (within 10 days after submission of the affidavit) fails to object, that the affidavit may be used in lieu of the deposition, the presiding officer shall admit the affidavit in evidence and shall not order the deposition to be taken.
(b) Application for taking deposition. Upon the application of a party to the pro
ceeding, the presiding officer may, at any time (f) Certification by officer. The officer shall after the filing of the moving paper, order, certify on the deposition that the deponent under the facsimile signature of the Secre- was duly sworn by him and that the depositary, the taking of testimony by deposition. tion is a true record of the deponent's testiThe application shall be in writing and shall mony. He shall then securely seal the deposibe filed with the hearing clerk and shall set tion, together with two copies thereof, in an forth: (1) the name and address of the pro- envelope and mail the same by registered posed deponent; (2) the name and address mail to the hearing clerk. of the person (referred to hereinafter in this (g) Use of depositions. A deposition orsection as the “officer”), qualified under the dered and taken in accord with the provisions rules in this part to take depositions, before of this section may be used in a proceeding whom the proposed examination is to be under the act if the presiding officer finds made; (3) the proposed time and place of that the evidence is otherwise admissible and the examination, which shall be at least 15 (1) that the witness is dead; or (2) that the days after the date of the mailing of the witness is at a distance greater than 100 application; and (4) the reasons why such miles from the place of hearing, unless it deposition should be taken.
appears that the absence of the witness was (C) Presiding officer's order for taking procured by the party offering the deposition; deposition. If, after the examination of the or (3) that the witness is unable to attend application, the presiding officer is of the or testify because of age, sickness, infirmity opinion that the deposition should be taken, or imprisonment; or (4) that the party offerhe shall order its taking. The order shall be ing the deposition has endeavored to profiled with the hearing clerk and shall be cure the attendance of the witness by subserved upon the parties and shall state: (1) pena but has been unable to do so; or (5) the time and place of the examination that such exceptional circumstances exist (which shall not be less than 10 days after as to make it desirable, in the interests of the filing of the order); (2) the name of justice, to allow the deposition to be used. the officer before whom the examination is If a deposition has been taken, and the party to be made; (3) the name of the deponent. upon whose application it was taken refuses The officer and the time and place need not to offer it in evidence, the other party may be the same as those suggested in the offer the deposition, or any part thereof, in application.
evidence. (d) Qualifications of officer. The deposition shall be taken before the presiding offi
$ 900.62 Subpenas. cer, or before an officer authorized by the (a) Issuance of subpenas. The attendance law of the United States or by the law of the of witnesses and the production of docuplace of the examination to administer oaths, mentary evidence from any place in the or before an officer authorized by the Secre- United States on behalf of any party to the tary to administer oaths.
proceeding may, by subpena, be required at (e) Procedure on examination. The de- any designated place of hearing. Subpenas ponent shall be examined under oath or may be issued by the Secretary or by the affirmation and shall be subject to cross- presiding officer, under the facsimile signaexamination. The testimony of the deponent ture of the Secretary, upon a reasonable shall be recorded by the officer or by some showing by the applicant of the grounds, person under his direction and in his pres- necessity, and reasonable scope thereof. ence. In lieu of oral examination, parties (b) Application for subpena duces tecum. may transmit written interrogatories to the Subpenas for the production of documenofficer prior to the examination and the officer tary evidence, unless issued by the presiding shall propound such interrogatories to the officer upon his own motion, shall be issued deponent.
only upon a verified written application. The applicant must arrange for the exami- Such application shall specify, as exactly as nation of the witness either by oral examina- possible, the documents desired and shall tion or by written interrogatories. If it is show their competency, relevancy, and mafound by the presiding officer, upon the pro- teriality and the necessity for their protest of a party to the proceeding, that such duction. party has his residence and his place of busi- (c) Service of subpenas. Subpenas may be ness more than 100 miles from the place of served (1) by a United States Marshal or his the examination and that it would constitute deputy, or (2) by any other person who is an undue hardship upon such party to be not less than 18 years of age, or (3) by represented at the examination, the appli- registering and mailing a copy of the subpena cant will be required to conduct the exami- addressed to the person to be served at his nation by means of interrogatories. When the or its last known residence or principal place examination is conducted by means of inter- of business or residence, Proof of service rogatories, copies of the interrogatories shall may be made by the return of service on the be served upon the other parties to the pro- subpena, by the United States Marshall or ceeding at least five days prior to the date his deputy; or, if served by an individual set for the examination, and the other parties other than a United States Marshal or his shall be afforded an opportunity to file with deputy, by an affidavit of such person stating the officer cross-interrogatories at any time that he personally served a copy of the subprior to the time of the examination.
pena, upon the person named therein; or, if
service was by registered mail, by an affidavit siding officer shall have announced at the
sions, and orders, and briefs in support § 900.63 Fees and mileage.
thereof, shall prepare, upon the basis of the Witnesses who are subpenaed and who ap- record, and shall file with the hearing clerk, pear in such proceeding, including witnesses his report, a copy of which (together with whose depositions are taken, shall be paid
notification of the date fixed by the presidthe same fees and mileage that are paid ing officer for the filing of exceptions therewitnesses in the courts of the United States, to) shall be served by the hearing clerk and persons taking depositions shall be en- upon each of the parties. titled to the same fees as are paid for like (d) Exceptions. Within a period of time services in the courts of the United States, (to be fixed by the presiding officer but not to be paid by the party at whose request the to exceed 20 days) after the filing of the deposition is taken. Witness fees and mileage presiding officer's report, the parties may file shall be paid by the party at whose instance exceptions to the report. Any party who dethe witnesses appear, and claims therefor, as sires to take exoeption to any matter set out to witnesses subpenaed on behalf of the De- in the report shall transmit his exceptions partment, shall be proved before the person in writing to the hearing clerk, referring, issuing the subpena, and, as to witnesses sub- where practicable, to the relevant pages of penaed on behalf of any other party, shall the transcript, and suggesting a corrected be presented to such party.
finding of fact, conclusion, or order. Within
the same period of time, each party shall $ 900.64 The presiding officer's report.
transmit to the hearing clerk a brief state (a) Filing the transcript of evidence. (1) ment in writing concerning each of the obAs soon as practicable after the close of the jections taken to the action of the presiding hearing, the presiding officer shall transmit officer, as set out in $ 900.60, upon which to the hearing clerk an original and three the party wishes to rely, referring, where copies of the transcript of the testimony and practicable, to the pertinent pages of the the original and all copies of the exhibits transcript. A party, if he files exceptions or not already on file in the office of the hearing a statement of objections, shall state in writclerk. The presiding officer shall attach to ing whether he desires to make an oral arguthe original transcript of testimony his certfi- ment thereon before the Secretary; othercate stating that to the best of his knowledge wise, it shall be considered that he does not and belief, the transcript is a true, correct,
desire to make such oral argument. and complete transcript of the testimony (e) Revision of presiding officer's report. given in the hearing except in such par- If exceptions are filed to the presiding offiticulars as he shall specify, and that the ex- cer's report, as provided in paragraph (d) hibits transmitted are all the exhibits re- of this section, the presiding officer, after ceived in evidence at the hearing with such consideration of such exceptions, shall make exceptions as he shall specify. A copy of and file with the hearing clerk a draft of such certification shall be attached to each the findings of fact, conclusions, and final copy of the transcript of testimony. In ac- order of the Secretary, which shall include cordance with such certificate the presiding such revision of his report as he deems to officer shall note on the original transcript be appropriate in view of such exceptions. and the hearing clerk shall cause to be noted on other copies of the transcript, each cor
$ 900.65 Transmittal of record. rection detailed in such certificate by adding The hearing clerk, immediately following or crossing out (but without obscuring the the filing of the revision of the presiding text as originally transcribed) at the appro
officer's report, or upon notification by the priate places any words necessary to make the
presiding officer that no revision will be text conform to the correct meaning, as certi
made, shall transmit to the Secretary the fied by the presiding officer.
record of the proceeding. Such record shall
include: the petition; motions and requests (2) Immediately following the filing of
filed with the hearing clerk, and rulings the transcript, the hearing clerk shall advise
thereon; the transcript of the testimony each party to the proceeding as to the date
taken at the hearing, together with the exof such filing.
hibits filed therein; any documents or papers (b) Proposed findings of fact, conclusions, filed in connection with prehearing conferand orders. Within 10 days (unless the pre- ences; such proposed findings of fact, con
clusions, and orders, and briefs in support than the Secretary is to issue the order, then thereof, as may have been filed in connec- of such other official) during the pendency tion with the hearing; the presiding officer's of the proceeding, such memorandum or report; such exceptions, statements of ob- communication shall be regarded as argujections, and briefs in support thereof, as ment made in the proceeding and shall be may have been filed in the proceeding; and filed with the hearing clerk, who shall serve the presiding officer's draft of the findings a copy thereof upon the opposite party to of fact, conclusions, and final order of the the proceeding, and opportunity shall be Secretary.
given the opposite party to file a reply
thereto. $ 900.66 Argument before Secretary.
(b) Issuance of order. The order shall be (a) Oral argument. Unless a party has in- issued and served upon the parties as the cluded in his exceptions a request for oral final order in the proceeding without furargument or has filed a separate request ther procedure: Provided, That, if the terms for oral argument prior to the expiration of the order differ substantially from those of the last date for filing such exceptions, proposed in the report of the presiding offiit shall be considered that he does not desire cer, the Secretary shall, if he deems it adto make such oral argument. The granting visable to do so, direct that a copy of the of a request to make oral argument shall order be served upon the parties as a tentarest in the discretion of the Secretary. tive order; and, in such event, opportunity
(b) Briefs. The parties may, in the dis- shall be given the parties to file exceptions cretion of the Secretary, file written briefs thereto and written arguments or briefs in either in addition to oral argument or in lieu support of such exceptions. In such case, thereof.
if exceptions are filed within a period of (c) Scope of argument. Except where the time (to be fixed by the Secretary but not Secretary determines that argument on ad- to exceed 20 days) following the service of ditional issues would be helpful, argument, the tentative order, the Secretary shall give whether oral or in a written brief, shall be consideration to and shall make such limited to the issues raised by the exceptions changes in the tentative order as he deems and statement of objections, or to such is- to be appropriate; otherwise, the tentative sues as the Secretary may indicate. If the order shall become final, as of the day folSecretary determines that additional issues lowing the date of expiration of the period should be argued, counsel for the parties fixed for the filing of exceptions. shall be given reasonable notice of such determination, so as to permit the preparation
$ 900.68 Applications for reopening of adequate argument on all the issues to be
hearings; for rehearings or rearguargued.
ments of proceedings; or for recon
sideration of orders. $ 900.67 Consideration and issuance of order.
(a) Petition requisite--(1) Filing; service.
An application for reopening the hearing (a) Consideration of order. As soon as to take further evidence, or for rehearing practicable after the receipt of the record or reargument of the proceeding, or for refrom the hearing clerk, or in case argument consideration of the order shall be made was had, as soon as practicable thereafter, by petition addressed to the Secretary and the Secretary, upon the basis of the record, filed with the hearing clerk, who immediately shall begin his consideration of the final or- shall notify and serve a copy thereof upon der to be issued in the proceeding. If an the other party to the proceeding. Every such oral argument was held, the order shall be petition shall state specifically the grounds considered by and shall be issued over the
relied upon. signature of the official who heard such oral (2) Petitions to reopen hearings. A petiargument, unless the parties shall consent tion to reopen the hearing for the purpose to a different arrangement. At no stage of
of taking additional evidence may be filed the proceeding between its institution and
at any time prior to the issuance of the the issuance of the order shall the Secre
final order. Every such petition shall state tary discuss ex parte the merits of the proceeding with any person who is connected
briefly the nature and purpose of the eviwith the proceeding in an advocative or an
dence to be adduced, shall show that such investigative capacity, or with any repre
evidence is not merely cumulative, and shall sentative of such person: Provided, however, set forth a good reason why such evidence That the Secretary may discuss the merits was not adduced at the hearing. of the proceeding with such a person if all (3) Petitions to rehear or reargue proceedparties to the proceeding, or their repre- ings, or to reconsider orders. A petition to sentatives, have been given an opportunity rehear or reargue the proceeding or to reto be present. If, notwithstanding the fore
consider the final order shall be filed within going provisions of this section, a memorandum or other communication from any
15 days after the date of the service of such party, or from any person acting on behalf
order. Every such petition shall state speciof any party, which relates to the merits of fically the matters claimed to have been erthe proceeding, receives the personal atten- roneously decided, and alleged errors must be tion of the Secretary (or, if an official other briefly stated.
(b) Procedure for disposition of petitions. Within 10 days following the service of any petition provided for in this section, the other party to the proceeding shall file with the hearing clerk an answer thereto. As soon as practicable thereafter, the Secretary shall announce the decision granting or denying the petition. Unless the Secretary shall determine otherwise, the issuance or operation of the order shall not be stayed pending the decision of the Secretary upon the petition. In the event that any such petition is granted by the Secretary, the applicable rules of practice, as set out elsewhere in this subpart, shall be followed. $ 900.69 Filing; service; extensions of
time; effective date of filing; and
computation of time. (a) Filing; number of copies. Except as provided otherwise herein, all documents or papers required or authorized in this subpart to be filed with the hearing clerk shall be filed in quadruplicate: Provided, That, if there are more than two parties to the proceeding, a sufficient number of additional copies shall be filed so as to provide for service upon all the parties to the proceeding. Any document or paper, required or authorized in this subpart to be filed with the hearing clerk, shall, during the course of an oral hearing, be filed with the presiding officer.
(b) Service; proof of service. Copies of all such papers shall be served upon the parties by the hearing clerk, by the presiding officer, or by some other employee of the Department or by a United States Marshal or his deputy. Service shall be made either (1) by delivering a copy of the document or paper to the individual to be served or to a member of the partnership to be served or to the president, secretary, or other executive officer or any director of the corporation, organization, or association to be served, or to the attorney or agent of record of such individual, partnership, corporation, organization, or association; or (2) by leaving a copy of the document or paper at the principal office or place of business of such individual, partnership, corporation, organization, or association, or of his or its attorney or agent of record; or (3) by registering and mailing a copy of the document or paper, addressed to such individual, partnership, corporation, organization, or association, or to his or its attorney or agent of record, at his or its last known principal office, place of business, or residence. Proof of service hereunder shall be made by the affidavit of the person who actually made the service. The affidavit contemplated herein shall be filed with the hearing clerk, and the fact of filing thereof shall be noted on the docket of the proceeding.
(c) Extensions of time. The time for the filing of any documents or papers required or authorized in this subpart to be filed may be extended upon (1) a written stipulation between the parties, or (2) upon the request
of a party, by the presiding officer before the transmittal of the record to the Secretary, or by the Secretary at any other time if, in the judgment of the Secretary or the presiding officer, as the case may be, there is good reason for the extension.
(d) Effective date of filing. Any document or paper, except a petition filed pursuant to $ 900.52, required or authorized under these rules to be filed shall be deemd to have been filed when it is postmarked, or when it is received by the hearing clerk. Any petition filed under $ 900.52 shall be deemed to be filed when it is received by the hearing clerk.
(e) Computation of time. Sundays and Federal holidays shall be included in computing the time allowed for the filing of any document or paper: Provided, That, when such time expires on a Sunday or legal holiday, such time shall be extended to include the next following business day. § 900.70 Applications for interim relief.
(a) Filing the application. A person who has filed a petition pursuant to $ 900.52 may by separate application filed with the hearing clerk apply to the Secretary for an order postponing the effective date of, or suspending the application of, the marketing order or any provision thereof, or any obligation imposed in connection therewith, pending final determination of the proceeding.
(b) Contents of the application. The application shall contain a statement of the facts upon which the relief is requested, including any facts showing irreparable injury. The application must be signed and sworn to by the petitioner and any facts alleged therein which are not within his personal knowledge shall be supported by affidavits of a person or persons having personal knowledge of such facts or by proper documentary evidence thereof.
(c) Answer to application. Immediately upon receipt of the application, the hearing clerk shall transmit a copy thereof, together with all supporting papers, to the Administrator, who shall, within 20 days, or such other time fixed by the Secretary, after the filing of the application file an answer thereto with the hearing clerk.
(d) Contents of answer. The answer shall contain a statement of the objections, if any, of the Administrator to the application for interim relief, and may be supported by affidavits and documentary evidence.
(e) Transmittal to Secretary. Upon receiving the answer of the Administrator or upon the expiration of the time for filing the answer, the hearing clerk shall transmit to the Secretary for his decision all papers filed in connection with the application.
(f) Hearing and oral argument. The Secretary may, in his discretion, permit oral argument or the taking of testimony in connection with such application. However, unless written request therefor is filed with the hearing clerk prior to the transmittal of the papers to the Secretary, the parties shall be