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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.
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.
(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 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
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 officer 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 official records or documents. An official 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 officer, be evidenced by an official publication thereof or by a copy attested by the person having legal custody thereof and accompanied by a certificate that such person has the custody.
(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.
acter: 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.
(5) Official notice. Official 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 char
(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 if the Secretary decides that the presiding officer's ruling in excluding the evidence was erroneous. The presiding officer shall not allow the insertion of such evidence in toto if the taking of such evidence will consume a considerable length of time at the hearing. In the latter event, if the Secretary decides that the presiding officer erred in excluding the evidence, and that such error was substantial, the hearing shall be reopened to permit the taking of such evidence.
Oral and written arguments.
(a) Oral argument before presiding officer. Oral argument before the presiding officer shall be in the discretion of the presiding officer. 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 officer 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 transcript and exhibits shall be made available by the hearing clerk for examination during official hours of business after prior request and reasonable notice to the hearing clerk.
(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.
(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 recommended decision.
(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.
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) a 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.
(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 >posed finding or conclusion submitted by Prested persons, and (3) An appropriate Dosed marketing agreement or marketing er effectuating his recommendations.
(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 transcripts; 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.
(a) Execution of marketing agreement. If the Secretary has approved a marketing agreement, as provided in § 900.13a, the Administrator shall cause copies thereof to be distributed for execution by the handlers eligible to become parties thereto. If and when such number of the handlers as the Secretary shall deem to be sufficient shall have executed the marketing agreement, the Secretary shall execute the same, and notice of its effective date shall be mailed by the hearing clerk to each person signatory thereto. A marketing agreement shall be effective and binding upon any party thereto even though such party may not have received the notice provided for in this paragraph, or the hearing clerk may have failed to mail such notice.
(b) Issuance of marketing order with marketing agreement. Whenever, as provided in paragraph (a) of this section, the Secretary executes a marketing agreement, and handlers also have executed the same as provided in section 8c (8) of the act, he shall, if he finds that it will tend to effectuate the purposes of the act, issue and make effective the marketing order, if any, which was filed as a part of his decision pursuant to § 900.13a: Provided, That the issuance of such order shall have been approved or favored by producers as required by section 8c (8) of the act.
(c) Issuance of marketing order without marketing agreement. If, despite the failure or refusal of handlers to sign the marketing agreement, as provided in section 8c (8) of the act, the Secretary makes the determinations required under section 8c (9) of the act, the Secretary shall issue and make effective the marketing order, if any, which was filed as a part of his decision pursuant to § 900.13a.
(d) Effective date of marketing order. No marketing order shall become effective less than 30 days after its publication in the FEDERAL REGISTER, unless the Secretary, upon good cause found and published with the order, fixes an earlier effective date therefor: Provided, That no marketing order shall become effective as to any person sought to be charged thereunder before either (1) it has been filed with the Office of the Federal Register, or (2) such person has received actual 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 computation 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. The provisions of this subpart concerning filing with the hearing clerk of hearing notices, recommended and final decisions, marketing agreements and orders, and all documents described in § 900.17 shall be met by filing a true copy thereof with the hearing clerk.
(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 filed 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. [25 F.R. 5907, June 28, 1960, as amended at 30 F.R. 254, Jan. 9, 1965]
§ 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 super
vision over, a proceeding from discussing with interested persons or their representatives 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 Proceedings 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.
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.
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;