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Subpart Procedure for the Conduct of Referenda

in Connection with Marketing Orders for Fruits, Vegetables, and Nuts Pursuant to the Agricultural Marketing Agreement Act of 1937,

as Amended Sec. 900.400 General. 900.401 Derinitions. 900.402 Voting. 900.403 Instructions. 900.404 Subagents. 900.405 Ballots. 900.406 Referendum report. 900.407 Confidential information.

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Subpart - Public Information AVAILABILITY OF PROGRAM INFORMATION, STAFF

MANUALS AND INSTRUCTIONS, AND RELATED

MATERIAL 900.500 Sources of program information. 900.501 Availability of program information. 900.502 Staff manuals and instructions. 900.503 Index. 900.504 Facilities for inspection; copies.

DISCLOSURE OF IDENTIFIABLE RECORDS 900.510 Requests. 900.511 Delegation of authority. 900.512 Available records. 900.513 Exempt records. 900.514 Determinations. 900.515 Appeals. 900.516 Inspection and copies.

SOURCE: The provisions of this part 900 appear at 25 F.R. 5907, June 28, 1960, unless otherwise noted.

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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 "hearing” means that part of the proceeding which involves the submission of evidence.

(i) The term "marketing agreement" means any marketing agreement or any amendment thereto which may be entered into pursuant to section 8b of the act.

(j) The term "marketing order” means any order or any amendment thereto which may be issued pursuant to section 8c of the act, and after notice and hearing as required by said section.

(k) The term “proceeding" means a proceeding upon the basis of which a marketing agreement may be entered into or a marketing order may be issued.

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

(m) The term “presiding officer” means the examiner conducting a proceeding under the act. [25 F.R. 5907, June 28, 1960, as amended at 26 F.R. 7796, Aug. 22, 1961, 28 F.R. 579, Jan. 23, 1963) $ 900.3 Proposals.

(a) A marketing agreement or a marketing order may be proposed by the Secretary or by any other person. If any person other than the Secretary proposes a marketing agreement or marketing order, he shall file with the Administrator a written application, together with at least four copies of the proposal, requesting the Secretary to hold a hearing upon the proposal. Upon receipt of such proposal, the Administrator shall cause such investigation to be made and such consideration thereof to be given as, in his opinion, are warranted. If the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement or marketing order will not tend to effectuate the declared policy of the act, or that for other proper reasons a hearing should not be held on the proposal, he shall deny the application, and promptly notify the applicant of such denial, which notice shall be accompanied by a brief statement of the grounds for the denial.

(b) If the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement or marketing order will tend to effectuate the declared

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Subpart-Rules of Practice and Procedure Gov

erning Proceedings To Formulate Marketing Agreements and Marketing Orders

AUTHORITY: $ $ 900.1 to 900.18 issued under sec. 10, 48 Stat. 37, as amended; 7 U.S.C. 610. § 900.1 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. $ 900.2

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 (48 Stat. 31), as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), as amended.

(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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policy of the act, or if the Secretary desires in the manner provided in subparagraph (1) to propose a marketing agreement or market- (ii), (iii), and (iv) of this paragraph shall ing order, he shall sign and cause to be served not affect the legality of the notice. a notice of hearing, as provided in this (c) Record of notice and supplemental subpart.

publicity. There shall be filed with the hear

ing clerk or submitted to the presiding off$ 900.4 Institution of proceeding.

cer at the hearing an affidavit or certificate (a) Filing and contents of the notice of of the person giving the notice provided in hearing. The proceeding shall be instituted (b) (1) (iii) and (iv) of this section. In by filing the notice of hearing with the hear- regard to the provisions relating to mailing ing clerk. The notice of hearing shall con- in (b) (1) (ii) of this section, a determinatain a reference to the authority under which

tion by the Administrator that such provithe marketing agreement or marketing order

sions have been complied with shall be filed is proposed; shall define the scope of the

with the hearing clerk or submitted to the hearing as specifically as may be practicable;

presiding officer at the hearing. In the altershall contain either the terms or substance of

native, if notice is not given in the manner the proposed marketing agreement or mar

provided in (b) (1) (ii), (iii), and (iv) of keting order or a description of the subjects

this section there shall be filed with the and issues involved and shall state the in

hearing clerk or submitted to the presiding dustry, area, and class of persons to be regu

officer at the hearing a determination by the lated, the time and place of such hearing,

Administrator that such notice is impracand the place where copies of such proposed

ticable, unnecessary, or contrary to the pubmarketing agreement or marketing order

lic interest with a brief statement of the may be obtained or examined. The time of

reasons for such determination. Determinathe hearing shall not be less than 15 days

tions by the Administrator as herein proafter the date of publication of the notice

vided shall be final. in the FEDERAL REGISTER, as provided in this

$ 900.5 Docket number. subpart, unless the Administrator shall determine that an emergency exists which re

Each proceeding, immediately following quires a shorter period of notice, in which its institution, shall be assigned a docket case the period of notice shall be that which number by the hearing clerk and thereafter the Administrator may determine to be rea

the proceeding may be referred to by such sonable in the circumstances: Provided,

number. That, in the case of hearings on amendments to marketing agreements or marketing or

$ 900.6 Presiding officers. ders, the time of the hearing may be less (a) Assignment. No presiding officer who than 15 days but shall not be less than 3 has any pecuniary interest in the outcome days after the date of publication of the of a proceeding shall serve as presiding offinotice in the FEDERAL REGISTER.

cer in such proceeding. (b) Giving notice of hearing and supple

(b) Powers of presiding officers. Subject to mental publicity. (1) The Administrator

review by the Secretary, as provided elseshall give or cause to be given notice of

where in this subpart, the presiding officer, hearing in the following manner:

in any proceeding, shall have power to: (1) By publication of the notice of hear- (1) Rule upon motions and requests; ing in the FEDERAL REGISTER;

(2) Change the time and place of hearing, (ii) By mailing a true copy of the notice

and adjourn the hearing from time to time of hearing to each of the persons known to

or from place to place; the Administrator, to be interested therein;

(3) Administer oaths and affirmations and

take affidavits; (iii) By issuing a press release containing the complete text or a summary of the con

(4) Examine and cross-examine witnesses

and receive evidence; tents of the notice of hearing and making the same available to such newspapers in

(5) Admit or exclude evidence;

(6) Hear oral argument on facts or law; the area proposed to be subjected to regula

(7) Do all acts and take all measures tion as reasonably will tend to bring the notice to the attention of the persons inter

necessary for the maintenance of order at ested therein;

the hearing and the efficient conduct of the

proceeding. (iv) By forwarding copies of the notice

(c) Who may act in absence of presiding of hearing addressed to the governors of such

officer. In case of the absence of the presidof the several States of the United States and

ing officer or his inability to act, the powers to executive heads of such of the Territories and duties to be performed by him under and possessions of the United States as the this part in connection with a proceeding Administrator, having due regard for the may, without abatement of the proceeding subject matter of the proposal and the pub

unless otherwise ordered by the Secretary, lic interest, shall determine, should be be assigned to any other presiding officer. notified.

(d) Disqualification of presiding officer. (2) Legal notice of the hearing shall be The presiding officer may at any time withdeemed to be given if notice is given in the draw as presiding officer in a proceeding if manner provided by subparagraph (1) (i) of

he deems himself to be disqualified. Upon this paragraph; and failure to give notice the filing by an interested person in good

faith of a timely and sufficient affidavit of personal bias or disqualification of a presiding officer, the Secretary shall determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as he may deem appropriate in the circumstances. $ 900.7

Motions and requests. (a) General. All motions and requests shall be filed with the hearing clerk, except that those made during the course of the hearing may be filed with the presiding officer or may be stated orally and made a part of the transcript.

Except as provided in $ 900.15(b) such motions and requests shall be addressed to, and ruled on by, the presiding officer if made prior to his certification of the transcript pursuant to $ 900.10 or by the Secretary if made thereafter.

(b) Certification to Secretary. The presiding officer may in his discretion submit or certify to the Secretary for decision any motion, request, objection, or other question addressed to the presiding officer. $ 900.8 Conduct of the hearing.

(a) Time and place. The hearing shall be held at the time and place fixed in the notice of hearing, unless the presiding officer shall have changed the time or place, in which event the presiding officer shall file with the hearing clerk a notice of such change, which notice shall be given in the same manner as provided in $ 900.4 (relating to the giving of notice of the hearing): Provided, That, if the change in time or place of hearing is made less than 5 days prior to the date previously fixed for the hearing, the presiding officer, either in addition to or in lieu of causing the notice of the change to be given, shall announce, or cause to be announced, the change at the time and place previously fixed for the hearing.

(b) Appearances-(1) Right to appear. At the hearing, any interested person shall be given an opportunity to appear, either in person or through his authorized counsel or representative, and to be heard with respect to matters relevant and material to the proceeding. Any interested person who desires to be heard in person at any hearing under these rules shall, before proceeding to testify, state his name, address, and occupation. If any such person is appearing through a counsel or representative, such person or such counsel or representative shall, before proceeding to testify or otherwise to participate in the hearing, state for the record the authority to act as such counsel or representative, and the names and addresses and occupations of such person and such counsel or representative. Any such person or such counsel or representative shall give such other information respecting his appearance as the presiding officer may request.

(2) Debarment of counsel or representative. Wherever, while a proceeding is pending before him, the presiding officer finds that a person, acting as counsel or representative for any person participating in the proceeding, is guilty of unethical or unprofessional conduct, the presiding officer may order that such person be precluded from further acting as counsel or representative in such proceeding. An appeal to the Secretary may be taken from any such order, but the proceeding shall not be delayed or suspended pending disposition of the appeal: Provided, That the presiding officer may suspend the proceeding for a reasonable time for the purpose of enabling the client to obtain other counsel or other representative.

In case the presiding officer has ordered that a person be precluded from further acting as counsel or representative in the proceeding, the presiding officer, within a reasonable time thereafter shall submit to the Secretary a report of the facts and circumstances surrounding such order and shall recommend what action the Secretary should take respecting the appearance of such person as counsel or representative in other proceedings before the Secretary. Thereafter the Secretary may, after notice and an opportunity for hearing, issue such order, respecting the appearance of such person as counsel or representative in proceedings before the Secretary, as the Secretary finds to be appropriate.

(3) Failure to appear. If any interested person fails to appear at the hearing, he shall be deemed to have waived the right to be heard in the proceeding.

(c) Order of procedure, (1) The presiding officer shall, at the opening of the hearing prior to the taking of testimony, have noted as part of the record his designation as presiding officer, the notice of hearing as filed with the Division of the Federal Register, and the affidavit or certificate of the giving of notice or the determination provided for in $ 900.4(c).

(2) Evidence shall then be received with respect to the matters specified in the notice of the hearing in such order as the presiding officer shall announce.

(a) Evidence-(1) In general. The hearing shall be publicly conducted, and the testimony given at the hearing shall be reported verbatim.

Every witness shall, before proceeding to testify, be sworn or make affirmation. Crossexamination shall be permitted to the extent required for a full and true disclosure of the facts.

When necessary, in order to prevent undue prolongation of the hearing, the presiding officer may limit the number of times any witness may testify to the same matter or the amount of corroborative or cumulative evidence.

The presiding officer shall, insofar as practicable, exclude evidence which is immaterial, irrelevant, or unduly repetitious, or

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which is not of the sort upon which respon- acter: Provided, That interested persons shall sible persons are accustomed to rely.

be given adequate notice, at the hearing or (2) Objections. If a party objects to the subsequent thereto, of matters so noticed admission or rejection of any evidence or to and shall be given adequate opportunity to any other ruling of the presiding officer dur

show that such facts are inaccurate or are ing the hearing, he shall state briefly the erroneously noticed, grounds of such objection, whereupon an (6) Offer of proof. Whenever evidence is. automatic exception will follow if the objec

excluded from the record, the party offering tion is overruled by the presiding officer. The

such evidence may make an offer of proof, transcript shall not include argument or

which shall be included in the transcript. debate thereon except as ordered by the pre

The offer of proof shall consist of a brief siding officer. The ruling of the presiding statement describing the evidence to be officer on any objection shall be a part of

offered. If the evidence consists of a brief the transcript.

oral statement or of an exhibit, it shall be Only objections made before the presiding

inserted into the transcript in toto. In such officer may subsequently be relied upon in

event, it shall be considered a part of the the proceeding.

transcript if the Secretary decides that the (3) Proof and authentication of official

presiding officer's ruling in excluding the records or documents. An official record or

evidence was erroneous. The presiding officer document, when admissible for any purpose,

shall not allow the insertion of such evidence shall be admissible as evidence without the

in toto if the taking of such evidence will production of the person who made or pre

consume a considerable length of time at pared the same. Such record or document

the hearing. In the latter event, if the Secreshall, in the discretion of the presiding offi

tary decides that the presiding officer erred cer, be evidenced by an official publication

in excluding the evidence, and that such thereof or by a copy attested by the person

error was substantial, the hearing shall be having legal custody thereof and accom

reopened to permit the taking of such evipanied by a certificate that such person has

dence. the custody.

$ 900.9 Oral and written arguments. (4) Exhibits.

All

written statements, charts, tabulations, or similar data offered in

(a) Oral argument before presiding officer. evidence at the hearing shall, after identifi

Oral argument before the presiding officer

shall be in the discretion of the presiding cation by the proponent and upon satisfac

officer. Such argument, when permitted, may tory showing of the authenticity, relevancy,

be limited by the presiding officer to any and materiality of the contents thereof,

extent that he finds necessary for the exbe numbered as exhibits and received in evidence and made a part of the record.

peditious disposition of the proceeding and Such exhibits shall be submitted in quad

shall be reduced to writing and made part

of the transcript. ruplicate and in documentary form. In case

(b) Briefs, proposed findings and conthe required number of copies is not made

clusions. The presiding officer shall announce available, the presiding officer shall exercise his discretion as to whether said exhibits

at the hearing a reasonable period of time

within which interested persons may file shall, when practicable, be read in evidence

with the hearing clerk proposed findings and or whether additional copies shall be re

conclusions, and written arguments or briefs, quired to be submitted within a time to be

based upon the evidence received at the specified by the presiding officer. If the testi

hearing, citing, where practicable, the page mony of a witness refers to a statute, or to

or pages of the transcript of the testimony a report or document (including the record

where such evidence appears. Factual maof any previous hearing) the presiding offi

terial other than that adduced at the hearcer, after inquiry relating to the identifica

ing or subject to official notice shall not be tion of such statute, report, or document,

alluded to therein, and, in any case, shall shall determine whether the same shall be

not be considered in the formulation of the produced at the hearing and physically be

marketing agreement or marketing order. made a part of the evidence as an exhibit, or whether it shall be incorporated into the

If the person filing a brief desires the Secre

tary to consider any objection made by such evidence by reference. If relevant and material matter offered in evidence is embraced

person to a ruling of the presiding officer,

as provided in § 900.8(d), he shall include in in a report or document (including the rec

the brief a concise statement concerning each ord of any previous hearing) containing im

such objection, referring where practicable, material or irrelevant matter, such imma

to the pertinent pages of the transcript. terial or irrelevant matter shall be excluded and shall be segregated insofar as practicable, $ 900.10 Certification of the transcript. subject to the direction of the presiding

The presiding officer shall notify the hearofficer.

ing clerk of the close of a hearing as soon as (5) Official notice. Omcial notice may be

possible thereafter and of the time for filing taken of such matters are judicially written arguments, briefs, proposed findings noticed by the courts of the United States and proposed conclusions, and shall furnish and of any other matter of technical, scien- the hearing clerk with such other informatific or commercial fact of established char- tion as may be necessary. As soon as possible

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after the hearing, the presiding officer shall (c) Exceptions to recommended decision. transmit to the hearing clerk an original Immediately following the filing of his recand three copies of the transcript of the ommended decision, the Administrator shall testimony and the original and all copies of give notice thereof, and opportunity to file the exhibits not already on file in the office exceptions thereto by publication in the of the hearing clerk. He shall attach to the FEDERAL REGISTER. Within a period of time original transcript of testimony his certificate specified in such notice any interested perstating that to the best of his knowledge son may file with the hearing clerk excepand belief, the transcript is a true transcript tions to the Administrator's proposed marof the testimony given at the hearing except keting agreement or marketing order, or in such particulars as he shall specify; and both, as the case may be, and a brief in supthat the exhibits transmitted are all the ex- port of such exceptions. Such exceptions shall hibits as introduced at the hearing with such be in writing, shall refer, where practicable, exceptions as he shall specify. A copy of such to the related pages of the transcript and certificate shall be attached to each of the may suggest appropriate changes in the procopies of the transcript of testimony. In posed marketing agreement or marketing accordance with such certificate the hearing order. clerk shall note upon the official record copy, (d) Omission of recommended decision. and cause to be noted on other copies, of the The procedure provided in this section may transcript each correction detailed therein be omitted only if the Secretary finds on the by adding or crossing out (but without ob- basis of the record that due and timely exscuring the text as originally transcribed) at ecution of his functions imperatively and the appropriate place any words necessary to unavoidably requires such omission. make the same conform to the correct meaning, as certified by the presiding officer. The

$ 900.13 Submission to Secretary. hearing clerk shall obtain and file certifica- Upon the expiration of the period allowed tions to the effect that such corrections have for filing exceptions or upon request of the been effected in copies other than the official Secretary, the hearing clerk shall transmit record copy.

to the Secretary the record of the proceeding.

Such record shall include: all motions and § 900.11 Copies of the transcript.

requests filed with the hearing clerk and (a) During the period in which the pro- rulings thereon; the certified transcripts; ceeding has an active status in the Depart- any proposed findings or conclusions or writment, a copy of the transcript and exhibits ten arguments or briefs that may have been shall be kept on file in the office of the hear- filed; the Administrator's recommended deing clerk, where it shall be available for ex- cision, if any, and such exceptions as may amination during official hours of business. have been filed. Thereafter said transcript and exhibits shall be made available by the hearing clerk for $ 900.13a Decision by Secretary. examination during official hours of business

After due consideration of the record, the after prior request and reasonable notice to

Secretary shall render a decision. Such decithe hearing clerk. (b) If a personal copy of the transcript

sion shall become a part of the record and is desired, such copy may be obtained upon

shall include (a) a statement of his findings written application filed with the reporter

and conclusions, as well as the reasons or and upon payment of fees at the rate (if

basis therefor, upon all the material issues any) provided in the contract between the of fact, law or discretion presented on the reporter and the Secretary.

record, (b) a ruling upon each proposed 8 900.12 Administrator's recommended

finding and proposed conclusion not predecision.

viously ruled upon in the record, (c) a rul

ing upon each exception filed by interested (a) Preparation, As soon as practicable fol

persons and (d) either (1) a denial of the lowing the termination of the period allowed

proposal to issue a marketing agreement or for the filing of written arguments or briefs

marketing order or (2) a marketing agreeand proposed findings and conclusions the Administrator shall file with the hearing

ment and, if the findings upon the record clerk a recommended decision.

so warrant, a marketing order, the provisions (b) Contents. The Administrator's recom

of which shall be set forth directly or by refmended decision shall include: (1) A pre- erence, regulating the handling of the comliminary statement containing a description modity or product in the same manner and of the history of the proceedings, a brief to the same extent as such marketing agreeexplanation of the material issues of fact, ment, which order shall be complete except law, or discretion presented on the record,

for its effective date and any determinations and proposed findings and conclusions with

to be made under $ 900.14(b) or $ 900.14 respect to such issues as well as the reasons

(c): Provided, That such marketing order or basis therefor: (2) A ruling upon each

shall not be executed, issued, or made effecproposed finding or conclusion submitted by

tive until and unless the Secretary deterinterested persons, and (3) An appropriate

mines that the requirements of $ 900.14(b) proposed marketing agreement or marketing order effectuating his recommendations. or $ 900.14(c) have been met.

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