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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 policy of the act, or if the Secretary desires to propose a marketing agreement or marketing order, he shall sign and cause to be served a notice of hearing, as provided in this subpart. § 900.4
Institution of proceeding. (a) Filing and contents of the notice of hearing. The proceeding shall be instituted by filing the notice of hearing with the hearing clerk. The notice of hearing shall contain a reference to the authority under which the marketing agreement or marketing order is proposed; shall define the scope of the hearing as specifically as may be practicable; shall contain either the terms or substance of the proposed marketing agreement or marketing order a description of the subjects and issues involved and shall state the industry, area, and class of persons to be regulated, the time and place of such hearing, and the place where copies of such proposed marketing agreement or marketing order may be obtained or examined. The time of the hearing shall not be less than 15 days after the date of publication of the notice in the FEDERAL REGISTER, as provided in this subpart, unless the Administrator shall determine that an emergency exists which requires a shorter period of notice, in which case the period of notice shall be that which the Administrator may determine to be reasonable in the circumstances: Provided, That, in the case of hearings on amendments to marketing agreements or marketing orders, the time of the hearing may be less than 15 days but shall not be less than 3 days after the date of publication of the notice in the FEDERAL REGISTER.
(b) Giving notice of hearing and supplemental publicity. (1) The Administrator shall give or cause to be given notice of hearing in the following manner:
(i) By publication of the notice of hearing in the FEDERAL REGISTER;
(ii) By mailing a true copy of the notice of hearing to each of the persons known to the Administrator, to be interested therein;
(iii) By issuing a press release containing the complete text or a summary of the contents of the notice of hearing and making the same available to such newspapers in the area proposed to be subjected to regulation as reasonably will tend to bring the notice to the attention of the persons interested therein;
(iv) By forwarding copies of the notice of hearing addressed to the governors of such of the several States of the United States and to executive heads of such of the Territories and possessions of the United States as the Administrator, having due regard for the subject matter of the proposal and the public interest, shall determine, should be notified.
(2) Legal notice of the hearing shall be deemed to be given if notice is given in the manner provided by subparagraph (1) (i) of this paragraph; and failure to give notice in the manner provided in subparagraph (1) (ii), (iii), and (iv) of this paragraph shall not affect the legality of the notice.
(c) Record of notice and supplemental publicity. There shall be filed with the hearing clerk or submitted to the presiding officer at the hearing an affidavit or certificate of the person giving the notice provided in (b) (1) (iii) and (iv) of this section. In regard to the provisions relating to mailing in (b) (1) (i) of this section, a determination by the Administrator that such provisions have been complied with shall be filed with the hearing clerk or submitted to the presiding officer at the hearing. In the alternative, if notice is not given in the manner provided in (b) (1) (ii), (iii), and (iv) of this section there shall be filed with the hearing clerk or submitted to the presiding officer at the hearing a determination by the Administrator that such notice is impracticable, unnecessary, or contrary to the public interest with a brief statement of the reasons for such determination. Determinations by the Administrator herein provided shall be final. $ 900.5 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.
$ 900.6 Presiding officers.
(b) Certification to Secretary. The (a) Assignment. No presiding officer
presiding officer may in his discretion who has any pecuniary interest in the
submit or certify to the Secretary for
decision any motion, request, objection, outcome of a proceeding shall serve as
or other question addressed to the prepresiding officer in such proceeding.
siding oficer. (b) Powers of presiding officers. Subject to review by the Secretary, as pro- $ 900.8
Conduct of the hearing. vided elsewhere in this subpart, the pre
(a) Time and place. The hearing siding officer, in any proceeding, shall
shall be held at the time and place fixed have power to:
in the notice of hearing, unless the pre(1) Rule upon motions and requests;
siding officer shall have changed the time (2) Change the time and place of
or place, in which event the presiding ofhearing, and adjourn the hearing from
ficer shall file with the hearing clerk a time to time or from place to place;
notice of such change, which notice shall (3) Administer oaths and affirmations
be given in the same manner as provided and take afidavits;
in $ 900.4 (relating to the giving of notice (4) Examine and cross-examine wit
of the hearing): Provided, That, if the nesses and receive evidence;
change in time or place of hearing is (5) Admit or exclude evidence;
made less than 5 days prior to the date (6) Hear oral argument on facts or
previously fixed for the hearing, the prelaw;
siding officer, either in addition to or in (7) Do all acts and take all measures
lieu of causing the notice of the change necessary for the maintenance of order
to be given, shall announce, or cause to at the hearing and the efficient conduct
be announced, the change at the time of the proceeding.
and place previously fixed for the hear(c) Who may act in absence of pre
ing. siding officer. In case of the absence of
(b) Appearances (1) Right to apthe presiding officer or his inability to
pear. At the hearing, any interested peract, the powers and duties to be per
son shall be given an opportunity to formed by him under this part in con
appear, either in person or through his nection with a proceeding may, without
authorized counsel or representative, and abatement of the proceeding unless
to be heard with respect to matters releotherwise ordered by the Secretary, be
vant and material to the proceeding. assigned to any other presiding officer.
Any interested person who desires to be (d) Disqualification of presiding off
heard in person at any hearing under cer. The presiding officer may at any
these rules shall, before proceeding to time withdraw as presiding officer in a
testify, state his name, address, and ocproceeding if he deems himself to be dis
cupation. If any such person is appearqualified. Upon the filing by an inter
ing through a counsel or representative, ested person in good faith of a timely and
such person or such counsel or represuficient afidavit of personal bias or
sentative shall, before proceeding to disqualification of a presiding oficer, the
testify or otherwise to participate in the Secretary shall determine the matter as
hearing, state for the record the authora part of the record and decision in the
ity to act as such counsel or representaproceeding, after making such investiga
tive, and the names and addresses and tion or holding such hearings, or both, as
occupations of such person and such he may deem appropriate in the circum
counsel or representative. Any such stances.
person or such counsel or representative $ 900.7 Motions and requests.
shall give such other information re(a) General. All motions and re- specting his appearance as the presiding quests shall be filed with the hearing officer may request. clerk, except that those made during the (2) Debarment of counsel or reprecourse of the hearing may be filed with
sentative. Wherever, while a proceeding the presiding officer or may be stated
is pending before him, the presiding ofnorally and made a part of the transcript.
cer finds that a person, acting as counsel Except as provided in $ 900.15 (b) such
or representative for any person particimotions and requests shall be addressed to, and ruled on by, the presiding officer
pating in the proceeding, is guilty of unif made prior to his certification of the
ethical or unprofessional conduct, the transcript pursuant to $ 900.10 or by the
presiding officer may order that such perSecretary if made thereafter.
son 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.
(d) 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 afirmation. Cross-examination 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 oficer shall, insofar as practicable, exclude evidence which is Immaterial, irrelevant, or unduly repetitious, or which is not of the sort upon which responsible persons are accustomed to rely.
(2) Objections. If a party objects to the admission or rejection of any evidence or to any other ruling of the presiding omcer during the hearing, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The transcript shall not include argument or debate thereon except as ordered by the presiding officer. The ruling of the presiding officer on any objection shall be a part of the transcript.
Only objections made before the presiding officer may subsequently be relied upon in the proceeding.
(3) Proof and authentication of offcial records or documents. An oficial record or document, when admissible for any purpose, shall be admissible as evidence without the production of the person who made or prepared the same. Such record or document shall, in the discretion of the presiding oficer, be evidenced by an oficial publication thereof or by a copy attested by the person haying legal custody thereof and accompanied by a certificate that such person has the custody.
(4) Exhibits. All written statements, charts, tabulations, or similar data offered in evidence at the hearing shall, after identification by the proponent and upon satisfactory showing of the authenticity, relevancy, and materiality of the contents thereof, be numbered as exhibits and received in evidence and made a part of the record. Such exhibits shall be submitted in quadruplicate and in documentary form. In case the required number of copies is not made available, the presiding officer shall exercise his discretion as to whether said exhibits shall, when practicable, be read in evidence or whether additional copies shall be required to be submitted within a time to be specified by the presiding officer. If the testimony of a witness refers to a statute, or to a report or document (including the record of any previous hearing) the presiding officer, after inquiry relating to the identification of such statute, report, or document, 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 or document (including the record of any previous hearing) 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.
(5) Official notice. Oficial notice may 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 interested persons shall be given adequate notice, at the hearing or subsequent thereto, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed.
(6) 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 to 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. $ 900.9 Oral and written arguments.
(a) Oral argument before presiding officer. Oral argument before the presiding officer shall be in the discretion of the presiding oficer. Such argument, when permitted, 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.
(b) Briefs, proposed findings and conclusions. The presiding officer shall announce at the hearing a reasonable period of time within which interested
persons may file with the hearing clerk proposed findings and conclusions, and written arguments or briefs, based upon the evidence received at the hearing, citing, where practicable, the page or pages of the transcript of the testimony where such evidence appears. Factual material other than that adduced at the hearing or subject to official notice shall not be alluded to therein, and, in any case, shall not be considered in the formulation of the marketing agreement or marketing order. If the person filing a brief desires the Secretary to consider any objection made by such person to a ruling of the presiding officer, as provided in $ 900.8 (d), he shall include in the brief a concise statement concerning each such objection, referring where practicable, to the pertinent pages of the transcript. $ 900.10 Certification of the transcript.
The presiding officer shall notify the hearing clerk of the close of a hearing as soon as possible thereafter and of the time for filing written arguments, briefs, proposed findings and proposed conclusions, and shall furnish the hearing clerk with such other information as may be necessary. As soon as possible after the hearing, the presiding oficer shall transmit to the hearing clerk an original and three copies of the transcript of the testimony and the original and all copies of the exhibits not already on file in the office of the hearing clerk. He shall attach to the original transcript of testimony his certificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as he shall specify; and that the exhibits transmitted are all the exhibits as introduced at the hearing with such exceptions as he shall specify. A copy of such certificate shall be attached to each of the copies of the transcript of testimony. In accordance with such certificate the hearing clerk shall note upon the official record copy, and cause to be noted on other copies, of the transcript each correction detailed therein by adding or crossing out (but without obscuring the text as originally transcribed) at the appropriate place any words necessary to make the same conform to the correct meaning, as certified by the presiding officer. The hearing clerk shall obtain and file certifications to the effect that such corrections have been effected in copies other than the official record copy.
$ 900.11 Copies of the transcript.
(a) 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 tran. script 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.
(b) 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. $ 900.12 Administrator's recommended
decision. (a) Preparation. As soon as practicable following the termination of the period allowed for the filing of written arguments or briefs and proposed findings and conclusions the Administrator shall file with the hearing clerk a recommaended decision.
(b) Contents. The Administrator's recommended decision shall include: (1) A preliminary statement containing, a description of the history of the proceedings, a brief explanation of the material issues of fact, law, or discretion presented on the record, and proposed findings and conclusions with respect to such issues as well as the reasons or basis therefor; (2) A ruling upon each proposed finding or conclusion submitted by interested persons, and (3) An appropriate proposed marketing agreement or marketing order effectuating his recommendations.
(c) Exceptions to recommended decision. Immediately following the filing of his recommended decision, the Administrator shall give notice thereof, and opportunity to file exceptions thereto by publication in the FEDERAL REGISTER. Within a period of time specified in such notice any interested person may file with the hearing clerk exceptions to the Administrator's proposed marketing agreement or marketing order, or both, as the case may be, and a brief in support of such exceptions. Such exceptions shall be in writing, shall refer, where practicable, to the related pages of the transcript and may suggest appropriate
changes in the proposed marketing agreement or marketing order.
(d) Omission of recommended decision. The procedure provided in this section may be omitted only if the Secretary finds on the basis of the record that due and timely execution of his functions imperatively and unavoidably requires such omission. $ 900.13 Submission to Secretary.
Upon the expiration of the period allowed for filing exceptions or upon request of the Secretary, the hearing clerk shall transmit to the Secretary the record of the proceeding. Such record shall include: all motions and requests filed with the hearing clerk and rulings thereon; the certified transcript; any proposed findings or conclusions or written arguments or briefs that may have been filed; the Administrator's recommended decision, if any, and such exceptions as may have been filed. $ 900.13a Decision by Secretary.
After due consideration of the record, the Secretary shall render a decision. Such decision shall become a part of the record and shall include (a) a statement of his findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law or discretion presented on the record, (b) a ruling upon each proposed finding and proposed conclusion not previously ruled upon in the record, (c) a ruling upon each exception filed by interested persons and (d) either (1) & denial of the proposal to issue a marketing agreement or marketing order or (2) a marketing agreement and, if the findings upon the record so warrant, a marketing order, the provisions of which shall be set forth directly or by reference, regulating the handling of the commodity or product in the same manner and to the same extent as such marketing agreement, which order shall be complete except for its effective date and any determinations to be made under $ 900.14 (b) or $ 900.14 (c): Provided, That such marketing order shall not be executed, issued, or made effective until and unless the Secretary determines that the requirements of $ 900.14 (b) or $ 900.14 (c) have been met. $ 900.14 Execution of marketing agree
ment and issuance of marketing
order. (a) Execution of marketing agreement. If the Secretary has approved