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notice of the issuance and terms of the marketing order.
(e) Notice of issuance. After issuance of a marketing order, such order shall be filed with the hearing clerk, and notice thereof, together with notice of the effective date, shall be given by publication in the FEDERAL REGISTER. (7 U.S.C. 610(c).) $ 900.15 Filing; extensions of time;
effective date of filing; and compu
tation of time. (a) Filing, number of copies. Except as is provided otherwise in this subpart, all documents or papers required or authorized by the foregoing provisions of this subpart to be filed with the hearing clerk shall be filed in quadruplicate. Any document or paper, so required or authorized to be filed with the hearing clerk, shall, during the course of an oral hearing, be filed with the presiding officer.
(b) Extensions of time. The time for the filing of any document or paper required or authorized by the foregoing provisions of this subpart to be filed may be extended by the presiding officer (before the record is certified by the presiding officer) or by the Administrator (after the record is so certified by the presiding officer but before it is transmitted to the Secretary), or by the Secretary (after the record is transmitted to the Secretary) upon request filed, and if, in the judgment of the presiding officer, Administrator, or the Secretary, as the case may be, there is good reason for the extension. All rulings made pursuant to this paragraph shall be filed with the hearing clerk.
(c) Effective date of filing. Any document or paper required or authorized by the foregoing provisions of this subpart to be filled shall be deemed to be filed when it is postmarked or when it is received by the hearing clerk.
(d) 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 period shall be extended to include the next following business day. $ 900.16 Discussion of issues, etc.,
of proceeding prohibited. Except as may be provided otherwise in this subpart, no officer or employee of the Department shall, following the close of the hearing in a marketing agreement or marketing order proceeding and prior to the execution of a marketing agreement or the issuance of a marketing order therein, discuss the issues, merits, or evidence involved in the proceeding with any person interested in the result of the proceeding or with any representative of such person: Provided, however, That the provisions of this section shall not preclude an officer or employee who has been duly assigned to, or who has supervision over, a proceeding from discussing with interested persons or their representa
tives matters of procedure in connection with such proceeding. Insofar as the provisions of this section are inconsistent with the provisions of Regulation 1544 of the publication entitled “Regulations of the U.S. Department of Agriculture," the provisions of this section shall prevail. $ 900.17 Additional documents to be
filed with hearing clerk. In addition to the documents or papers required or authorized by the foregoing provisions of this subpart to be filed with the hearing clerk, the hearing clerk shall receive for filing and shall have custody of all papers, reports, records, orders, and other documents which relate to the administration of any marketing agreement or marketing order and which the Secretary is required to issue or to approve. $ 900.18 Hearing before Secretary.
The Secretary may act in the place and stead of a presiding officer in any proceeding under this subpart. When he so acts the hearing clerk shall transmit the record to the Secretary at the expiration of the period provided for the filing of proposed findings of fact, conclusions and orders, and the Secretary shall thereupon, after due consideration of the record, issue his final decision in the proceeding: Provided, That he may issue a tentative decision in which event the parties shall be afforded an opportunity to file exceptions before the issuance of the final decision. Subpart-Rules of Practice Governing Proceed
ings on Petitions To Modify or To Be Exempted From Marketing Orders AUTHORITY: $ $ 900.50 to 900.71 issued under sec. 5, 49 Stat. 753, as amended; 7 U.S.C. 608c. $ 900.50 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand. $ 900.51 Definitions.
As used in this subpart, the terms as defined in the act shall apply with equal force and effect. In addition, unless the context otherwise requires:
(a) The term "act" means Public Act No. 10, 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. and Sup. 601);
(b) The term "Department” means the United States Department of Agriculture;
(c) The term "Secretary" means the Secretary of Agriculture of the United States, or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated, to act in his stead;
(d) The term "examiner" means any examiner in the Office of Hearing Examiners, United States Department of Agriculture;
(e) The term “Administrator" means: As to programs relating to fruits, vegetables, tree nuts, hops, and such other commodities as may be assigned to the Agricultural Marketing Service, the Administrator of the Agricultural Marketing Service, and as to programs relating to milk, tobacco, and other commodities and their products as assigned, the Administrator of the Agricultural Stabilization and Conservation 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 their stead.
(g) The term “FEDERAL REGISTER" means the publication provided for by the act of July 26, 1935 (49 Stat. 500), and acts supplementary thereto and amendatory thereof;
(h) The term “marketing order" means any order or any amendment thereto which may be issued pursuant to section 8c of the act;
(1) The term "handler" means any person who, by the terms of a marketing order, is subject thereto, or to whom a marketing order is sought to be made applicable;
(1) The term "proceeding' means a proceeding before the Secretary arising under subsection (15) (A) of section 8c of the act;
(k) The term "hearing" means that part of the proceeding which involves the submission of evidence;
(1) The term "party" includes the Department;
(m) The term "hearing clerk" means the hearing clerk, United States Department of Agriculture, Washington, D.C.;
(n) The term "presiding officer" means the examiner conducting a proceeding under the act;
(0) The term “presiding officer's report” means the presiding officer's report to the Secretary and includes the presiding officer's proposed (1) findings of fact and conclusions with respect to all material issues of fact, law or discretion, as well as the reasons or basis therefor, (2) order and (3) rulings on findings, conclusions and orders submitted by the parties;
(p) The term "petition" includes amended petition. [25 F.R. 5907, June 28, 1960, as amended at 27 F.R. 9939, Oct. 10, 1962) $ 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, an the names, addresses, and respective positions held by its officers and directors; if an unincorporated association, the names and addresses of its officers, and the respective positions held by them; if a partnership, the name and address of each partner; (2) Reference to the specific terms
or provisions of the order, or the interpretation or application thereof, which are complained of;
(3) A full statement of the facts (avoiding a mere repetition of detailed evidence) upon which the petition is based, and which it is desired that the Secretary consider, setting forth clearly and concisely the nature of the petitioner's business and the manner in which petitioner claims to be affected by the terms or provisions of the order, or the interpretation or application thereof, which are complained of;
(4) A statement of the grounds on which the terms or provisions of the order, or the interpretation or application thereof, which are complained of, are challenged as not in accordance with law;
(5) Prayers for the specific relief which the petitioner desires the Secretary to grant;
(6) An affidavit by the petitioner, or, if the petitioner is not an individual, by an officer of the petitioner having knowledge of the facts stated in the petition, verifying the petition and stating that it is filed in good faith and not for purposes of delay.
(c) Application to dismiss petition>(1) Filing, contents, and responses thereto. If the Administrator is of the opinion that the petition, or any portion thereof, does not substantially comply, in form or content, with the act or with the requirements of paragraph (b) of this section, or is not filed in good faith, or is filed for purposes of delay, he may, within 30 days after the filing of the petition, file with the hearing clerk an application to dismiss the petition, or any portion thereof, on one 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 affidavits 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 filled by the petitioner with the hearing clerk not later than 20 days after the service of such notice upon the petitioner. Upon the ex
piration 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
$ 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 subsequest 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 fled, 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, permission 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 tho proceeding may be referred to by such number.
$ 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 filled 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 filled 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.
$ 900.55 Presiding officers.
(a) Assignment. No presiding officer who has any pecuniary interest in the outcomo 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 oficer 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 officers. 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 fascimile signature of the Secretary, requiring the ata tendance 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 facsimilo signature of the Secretary, the taking of depositions; (7) Admit or exclude evidence;
(8) Hear oral argument on facts or law; quest the parties to correspond with him for
(9) Consolidate hearings upon two or more the purp ise of accomplishing any of the petitions pertaining to the same order; objects set forth in this section. The pre
(10) Do all acts and take all measures siding officer shall forward copies of letters necessary for the maintenance of order at and documents to the parties as the circumthe hearing and the efficient conduct of the stances require. Correspondence in such proceeding.
negotiations shall not be a part of the record, (d) who may act in absence of presiding but the presiding officer shall submit a writofficer. In case of the absence of the presid- ten summary for the record if any action is ing officer or his inability to act, the powers taken. and duties to be performed by him under these rules of practice in connection with a $ 900.59 Motions and requests. proceeding may, without abatement of the
(a) General. All motions and requests proceeding unless otherwise ordered by the
shall be biled with the hearing clerk, except Secretary, be assigned to any other presiding
that those made during the course of an oral oficer. (e) Disqualification of presiding officer.
hearing may be filed with the presiding officer The presiding officer may at any time with
or may be stated orally and made a part of
the transcript. draw as presiding officer in a proceeding if he deems himself to be disqualified. Upon the
The presiding oficer is authorized to rule
upon all motions and requests filed or made filing by an interested person in good faith of a timely and sufficient affidavit of personal
prior to the transmittal by the hearing clerk
to the Secretary of the record as provided bias or disqualification of a presiding officer, the Secretary shall determine the matter as
in this subpart. The Secretary shall rule
upon all motions and requests filed after that. a part of the record and decision in the pro
time. ceeding, after making such investigation or holding such hearings, or both as he may
(b) Certification of motions. The sub
mission of certification of any motion, redeem appropriate in the circumstances.
quest, objection, or other question to the 8 900.56 Consolidated hearings.
Secretary prior to the transmittal of the
record to the Secretary, as provided in this At the discretion of the presiding officer,
subpart, shall be in the discretion of the hearings upon two or more petitions pertain
presiding officer. ing to the same order may be consolidated, and the evidence taken at such consolidated $ 900.60 Oral hearings before presiding hearing may be embodied in a single record.
officer. $ 900.57 Intervention.
(a) Time and place. The presiding officer
shall get a time and place for hearing and. Intervention in proceedings subject to this
shall file with the hearing clerk a notice statsubpart shall not be allowed, except that, in
ing the time and place of hearing. If any the discretion of the Secretary or the presid
change in the time or place of hearing ing officer, any person (other than the peti
becomes necessary, it shall be made by the tioner) showing a substantial interest in the
presiding oficer, who, in such event, shall file outcome of a proceeding shall be permitted to
with the hearing clerk a notice of the change.. participate in the oral argument and to file
Such notice shall be served upon the parties, a brief.
unless it is made during the course of an
oral hearing and $ 900.58 Prehearing conferences.
a part of
transcript. In any proceeding in which it appears that (b) Appearances—(1) Representation. In such procedure will expedite the proceeding, any proceeding under the act, the parties the presiding officer, at any time prior to
may appear in person or by counsel or other the commencement of or during the course representative. The Department, if repreof the hearing, may request the parties or sented by counsel, shall be represented by their counsel to appear at a conference before an attorney assigned by the General Counset him to consider (a) the simplification of of the Department, and such attorney shall issues; (b) the possibility of obtaining stipu- present or supervise the presentation of the lations of fact and of documents which will
position of the Department. avoid unnecessary proof; (c) the limitation (2) Debarment of counsel or representaof the number of expert or other witnesses; tive. Whenever, while a proceeding is pendand (d) such other matters as may expedite ing before him, the presiding officer finds. and aid in the disposition of the proceeding. that a person acting as counsel or representaNo transcript of such conference shall be tive for any party to the proceeding is guilty made, but the presiding officer shall prepare of unethical or unprofessional conduct, the and file for the record a written summary of presiding officer may order that such person the action taken at the conference, which be precluded from further acting as counsel shall incorporate any written stipulations or or representative in such proceeding. An. agreements made by the parties at the con
appeal to the Secretary may be taken from ference or as a result of the conference. II
any such order, but the proceeding shall not. the circumstances are such that a conference be delayed or suspended pending disposition 18 impracticable, the presiding officer may re- 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 representative.
In case the presiding officer has issued an order precluding a person 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 the issuance of the 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 the petitioner, after being duly notified, fails to appear at the hearing, he shall be deemed to have authorized the Secretary, without further procedure, to dismiss the proceeding with or without prejudice, as the Secretary may determine. In the event that the petitioner appears at the hearing and no representative of the Department appears, the presiding officer shall proceed ex parte to hear the evidence of the petitioner: Provided, That failure on the part of such representative of the Department to appear at a hearing shall not be deemed to be a waiver of the Department's right to file suggested findings of fact, conclusions, and order; to be served with a copy of the presiding officer's report; and to file exceptions with and to submit argument before the Secretary with respect thereto.
(c) Order of proceeding. Except as may be determined otherwise by the presiding officer, the petitioner shall proceed first at the hearing.
(d) Evidence-(1) In general. The hearing shall be publicly conducted, and the testimony given at the hearing shall be reported verbatim.
The testimony of witnesses at a hearing shall be upon oath or affirmation and subject to cross-examination.
Any witness may, in the discretion of the presiding officer, be examined separately and apart from all other witnesses except those who may be parties to the proceeding.
The presiding officer shall exclude, insofar as practicable, 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 the limitation of the scope of any examination or cross-examination, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding oficer. 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) 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 offcer, 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 identifi.. cation 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 offcer finds that the furnishing of copies is imparticable, 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 oficer 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.
(?; 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 char-acter: Provided, That the parties shall be given adequate notice, at the hearing or by