Page images

a marketing agreement, as provided in filed with the hearing clerk, and notice $ 900.13a, the Administrator shall cause thereof, together with notice of the copies thereof to be distributed for ex- effective date, shall be given by publicaecution by the handlers eligible to be- tion in the FEDERAL REGISTER. (7 U.S.C. come parties thereto. If and when such 610(c).) number of the handlers as the Secretary

$ 900.15 Filing; extensions of time; shall deem to be sufficient shall have

effective date of filing; and computaexecuted the marketing agreement, the

tion of time. Secretary shall execute the same, and notice of its effective date shall be mailed

(a) Filing, number of copies. Exby the hearing clerk to each person sig

cept as is provided otherwise in this natory thereto. A marketing agreement

subpart, all documents or papers required shall be effective and binding upon any

or authorized by the foregoing provisions party thereto even though such party

of this subpart to be filed with the hear

ing clerk shall be filed in quadruplicate. may not have received the notice provided for in this paragraph, or the hear

Any document or paper, so required or ing clerk may have failed to mail such

authorized to be filed with the hearing notice.

clerk, shall, during the course of an oral (b) Issuance of marketing order with

hearing, be filed with the presiding marketing agreement. Whenever, as officer. The provisions of this subpart provided in paragraph (a) of this sec

concerning filing with the hearing clerk tion, the Secretary executes a marketing

of hearing notices, recommended and agreement, and handlers also have exe

final decisions, marketing agreements cuted the same as provided in section

and orders, and all documents described 8C (8) of the act, he shall, if he finds that

in $ 900.17 shall be met by filing a true it will tend to effectuate the purposes of

copy thereof with the hearing clerk. the act, issue and make effective the (b) Extensions of time. The time for marketing order, if any, which was filed the filing of any document or paper reas a part of his decision pursuant to quired or authorized by the foregoing $ 900.13a: Provided, That the issuance of provisions of this subpart to be filed may such order shall have been approved or

be extended by the presiding oficer (befavored by producers as required by

fore the record is certified by the presection 8c (8) of the act.

siding officer) or by the Administrator (c) Issuance of marketing order with- (after the record is so certified by the out marketing agreement. If, despite presiding officer but before it is transthe failure or refusal of handlers to sign mitted to the Secretary), or by the Secrethe marketing agreement, as provided in tary (after the record is transmitted to section 8c (8) of the act, the Secretary the Secretary) upon request filed, and if, makes the determinations required un- in the judgment of the presiding officer, der section 8C (9) of the act, the Secre- Administrator, or the Secretary, as the tary shall issue and make effective the case may be, there is good reason for the marketing order, if any, which was filed extension. All rulings made pursuant to as a part of his decision pursuant to this paragraph shall be filed with the $ 900.13a.

hearing clerk. (d) Effective date of marketing order. (c) Effective date of filing. Any docuNo marketing order shall become effec- ment or paper required or authorized by tive less than 30 days after its publica- the foregoing provisions of this subpart tion in the FEDERAL REGISTER, unless the to be filed shall be deemed to be filed Secretary, upon good cause found and when it is postmarked or when it is republished with the order, fixes an earlier ceived by the hearing clerk. effective date therefor: Provided, That (d) Computation of time. Sundays no marketing order shall me effec- and Federal holidays shall be included tive as to any person sought to be in computing the time allowed for the charged thereunder before either (1) it filing of any document or paper: Prohas been filed with the Office of the vided, That, when such time expires on Federal Register, or (2) such person has a Sunday or legal holiday, such period received actual notice of the issuance and shall be extended to include the next terms of the marketing order.

following business day. (e) Notice of issuance. After issuance

[25 F.R. 5907, June 28, 1960, as amended at of a marketing order, such order shall be 30 F.R. 254, Jan. 9, 1965)



$ 900.16 Discussion of issues, etc., of Subpart-Rules of Practice Governing proceeding prohibited.

Proceedings on Petitions To Modify Except as may be provided otherwise or To Be Exempted From Marketing in this subpart, no officer or employee of

Orders the Department shall, following the

AUTHORITY: $$ 900.50 to 900.71 Issued under close of the hearing in a marketing agreement or marketing order pro

sec. 5, 49 Stat. 753, as amended; 7 U.S.C.

608c. ceeding and prior to the execution of a marketing agreement the $ 900.50 Words in the singular form. issuance of a marketing order therein,

Words in this subpart in the singular discuss the issues, merits, or evidence in

form shall be deemed to import the volved in the proceeding with any per

plural, and vice versa, as the case may son interested in the result of the pro

demand. ceeding or with any representative of such person: Provided, however, That

$ 900.51 Definitions. the provisions of this section shall not As used in this subpart, the terms as preclude an officer or employee who has defined in the act shall apply with equal been duly assigned to, or who has super- force and effect. In addition, unless the vision over, a proceeding from discuss- context otherwise requires: ing with interested persons or their rep- (a) The term “act” means Public Act resentatives matters of procedure in No. 10, 73d Congress, as amended and connection with such proceeding. Inso- as reenacted and amended by the Agrifar as the provisions of this section are cultural Marketing Agreement Act of inconsistent with the provisions of Regu

1937, as amended (7 U. S. C. and Sup. lation 1544 of the publication entitled


(b) The term “Department” means “Regulations of the U. S. Department of

the United States Department of AgriAgriculture," the provisions of this sec

culture; tion shall prevail.

(c) The term "Secretary" means the $ 900.17 Additional documents to be Secretary of Agriculture of the United filed with hearing clerk.

States, or any officer or employee of the In addition to the documents or papers

Department to whom authority has here.

tofore been delegated, or to whom aurequired or authorized by the foregoing

thority may hereafter be delegated, to provisions of this subpart to be filed with

act in his stead; the hearing clerk, the hearing clerk shall

(d) The term "examiner” means any receive for filing and shall have custody

examiner in the Office of Hearing Exof all papers, reports, records, orders, and

aminers, United States Department of other documents which relate to the ad- Agriculture; ministration of any marketing agree- (e) The term "Administrator" means ment or marketing order and which the the Administrator of the Consumer and Secretary is required to issue or to Marketing Service, with power to redeleapprove.

gate, or any officer or employee of the

Department to whom authority has been $ 900.18 Hearing before Secretary. delegated or may hereafter be delegated

The Secretary may act in the place and to act in his stead. stead of a presiding officer in any pro- (f) [Reserved] ceeding under this subpart. When he so (g) The term "FEDERAL REGISTER" acts the hearing clerk shall transmit the means the publication provided for by record to the Secretary at the expiration

the act of July 26, 1935 (49 Stat. 500), of the period provided for the filing of and acts supplementary thereto and proposed findings of fac conclusions

amendatory thereof; and orders, and the Secretary shall

(b) The term “marketing order” means thereupon, after due consideration of the

any order or any amendment thereto

which may be issued pursuant to section record, issue his final decision in the pro

8c of the act; ceeding: Provided, That he may issue &

(1) The term "handler" means any tentative decision in which event the

person who, by the terms of a marketing parties shall be afforded an opportunity

order, is subject thereto, or to whom a to file exceptions before the issuance of

marketing order is sought to be made the final decision.


(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 oficer'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 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 interpre

tation 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 oficer 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 or 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 atidavits 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. $ 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 adverse party, be adjourned or recessed for such reasonable time as the presiding officer may determine to be necessary to protect the interests of the parties. Amendments subsequent to the first amendment or subsequent to the filing of an answer may be made only with leave of the presiding officer or with the written consent of the adverse party. $ 900.53 Withdrawal of petition.

If, at any time after the petition is filed, the petitioner desires to withdraw the same, he shall file with the hearing clerk (or, if filed during the course of a hearing, with the presiding officer) a written request for permission to withdraw. The Secretary may, in his discretion, thereupon dismiss the petition without further procedure: Provided, That, if the request to withdraw is filed after a hearing has been opened, permis sion to withdraw shall be granted only in exceptional circumstances. $ 900.54 Docket number.

Each proceeding, immediately following its institution, shall be assigned a docket number by the hearing clerk and thereafter the proceeding may be referred to by such number. $ 900.55 Presiding officers.

(a) Assignment. No presiding officer who has any pecuniary interest in the outcome of the proceeding, or who has participated in any investigation preceding the institution of the proceeding, shall serve as presiding officer in such proceeding.

(b) Conduct. The presiding officer shall conduct the proceeding in a fair and impartial manner and shall not discuss ex parte the merits of the proceeding with any person who is or who has been connected in any manner with the proceeding in an advocative or investigative capacity.

(c) Powers of presiding oficers. Subject to review by the Secretary, as provided elsewhere in this subpart, the presiding officer shall have power to:

(1) Rule upon motions and requests;

(2) Adjourn the hearing from time to time, and change the time and place of hearing;

(3) Administer oaths and affirmations and take affidavits;

(4) Issue subpenas, under the facsimile signature of the Secretary, requiring the attendance and testimony of witnesses and the production of books, records, contracts, papers, and other documentary evidence;

(5) Examine witnesses and receive evidence;

(6) Take or order, under the facsimile signature of the Secretary, the taking of depositions;

(7) Admit or exclude evidence;

(8) Hear oral argument on facts or law;

(9) Consolidate hearings upon two or more petitions pertaining to the same order;

(10) Do all acts and take all measures necessary for the maintenance of order at the hearing and the eficient conduct of the proceeding.

(d) Who may act in absence of presiding oficer. In case of the absence of the presiding officer or his inability to act, the powers and duties to be performed by him under these rules of practice in connection with a proceeding may, without abatement of the proceeding unless otherwise ordered by the Secretary, be assigned to any other presiding officer.

(e) Disqualification of presiding oficer. The presiding oficer may at any time withdraw as presiding officer in a proceeding if he deems himself to be disqualified. Upon 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 in

vestigation or holding such hearings, or both, as he may deem appropriate in the circumstances. $ 900.56 Consolidated hearings.

At the discretion of the presiding officer, hearings upon two or more petitions pertaining to the same order may be consolidated, and the evidence taken at such consolidated hearing may be embodied in a single record. $ 900.57 Intervention.

Intervention in proceedings subject to this subpart shall not be allowed, except that, in the discretion of the Secretary or the presiding officer, any person (other than the petitioner) showing a substantial interest in the outcome of a proceeding shall be permitted to participate in the oral argument and to file a brief. $ 900.58 Prehearing conferences.

In any proceeding in which it appears that such procedure will expedite the proceeding, the presiding officer, at any time prior to the commencement of or during the course of the hearing, may request the parties or their counsel to appear at a conference before him to consider (a) the simplification of issues; (b) the possibility of obtaining stipulations of fact and of documents which will avoid unnecessary proof; (c) the limitation of the number of expert or other witnesses; and (d) such other matters as may expedite and aid in the disposition of the proceeding. No transcript of such conference shall be made, but the presiding officer shall prepare and file for the record a written summary of the action taken at the conference, which shall incorporate any written stipulations or agreements made by the parties at the conference or as a result of the conference. If the circumstances are such that a conference is impracticable, the presiding officer may request the parties to correspond with him for the purpose of accomplishing any of the objects set forth in this section. The presiding officer shall forward copies of letters and documents to the parties as the circumstances require. Correspondence in such negotiations shall not be a part of the record, but the presiding officer shall submit a written summary for the record if any action is taken.

« PreviousContinue »