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registration number of the economic poi- this subpart, or within such other time as son involved.

may be fixed by the Administrator or (b) Amendments to objections. Ob- examiner, an opposing party shall file an jections may be amended at any time answer to the motion or request or shall prior to the commencement of the public be deemed to have no objection to the hearing by leave of the examiner or by granting of the relief asked for in the written consent of all adverse parties. The motion or request. Unless specifically perexaminer shall freely grant such leave mitted by the Administrator or the exwhen justice so requires. If the examiner aminer on motion made by a party, the determines that additional time is nec- movant shall have no right to respond to essary in order to permit a party to pre- the answer to his motion. pare for matters raised by amendments (d) Certification of interlocutory issues to objections, the commencement of the to the Administrator. Except as provided hearing shall be delayed for an appro- herein, appeals shall lie to the Adminispriate period.

trator only from a final judgment by the 8 164.22 Filing copies of notification

hearing examiner. Appeals from other respecting registration.

rulings will, except as provided in this

section, lie only if the examiner certifies After a copy of the document setting

such rulings for appeal. The examiner forth the objections and requesting a shall certify a ruling for appeal to the public hearing is served upon the Ad

Administrator when: (1) The ruling inministrator, the Administrator shall file

volves an important question of law or with the hearing clerk a copy of the

policy about which there is substantial notice of cancellation or suspension of

ground for difference of opinion; and (2) the registration of such economic poison

either an immediate appeal from the rulor the registration refusal order.

ing will materially advance the ultimate § 164.23 Answer to objections.

termination of the proceeding or review

after the final judgment is issued will be The filing of an answer to objections

inadequate or ineffective. The examiner is not required. If the examiner finds that

shall certify rulings for appeal only upon the notice of cancellation or suspension

the request of a party. If the Adminisor denial of registration does not suffi

trator determines that certification was ciently articulate the reasons for such ac

improvidently granted, or takes no action tion, he may require the Agency to file

within 30 days of the certification, the an answer. The answer shall be filed

appeal shall be deemed dismissed. When within 30 days of receipt of the exam

a ruling is not certified by the examiner, iner's order.

it shall be reviewed by the Administra§ 164.24 Motions and requests.

tor only upon appeal from the final judg(a) General. All motions and requests

ment except when the Administrator deexcept those made orally during the

termines, upon request of a party and in course of a public hearing must be in

exceptional circumstances, that delaying writing and shall be filed with the hear

review would be deleterious to vital pubing clerk. The examiner is authorized to

lic or private interests. Except under exrule upon all motions and requests filed

traordinary circumstances, proceedings or made prior to the filing of his report

will not be stayed pending an interlocuwith the hearing clerk as hereinafter

tory appeal; a stay of more than 30 days provided in § 164.36. The Administrator

must be approved by the Administrator. will rule upon all motions and requests

Ordinarily, the interlocutory appeal will filed after that time.

be decided on the basis of the submis(b) Motions. All motions and requests sion made to the examiner, but the concerning the sufficiency of the objec- Administrator may allow further briefs tions must be made within 30 days after and oral argument. service of the objections. All such motions and requests shall state with par

164.25 Intervention. ticularity the ground upon which the ob- (a) Pleading. Any person may file a jection is alleged to be insufficient and petition for leave to intervene in a hearshall state the nature of the relief ing conducted under this Subpart. A perequested.

tition must set forth the grounds for the (c) Answers to motions and requests. proposed intervention and the position Within 10 days after service of any writ- and interest of the petitioner in the ten motion or request filed pursuant to proceeding.

97-025-73-758

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(b) When filed. A petition for leave to 15 days after the date of the mailing of intervene in a hearing may be filed any the application. time prior to the commencement of the (b) Examiner's order for taking depohearing. Any petition filed after that time sition. Upon receipt of an application shall contain, in addition to the informa- to take a deposition, the examiner may tion set forth in paragraph (a) of this order the deposition be taken. The section, a statement of good cause for the order shall be filed with the hearing failure to file the petition prior to the clerk and shall be served upon the commencement of the hearing. A motion parties and shall state: (1) The time to intervene for the purpose of appeal and place of the examination (which may be filed and submitted to the shall not be less than 10 days after the Administrator.

filing of the order); (2) the name of (c) Reply. Any opposition to a peti- the officer before whom the examination tion for leave to intervene must be filed is to be made; and (3) the name of the within 10 days after service of the deponent. The officer and the time and petition.

place need not be the same as those (d) Disposition. Leave to intervene will suggested in the application. be freely granted but only insofar as it (c) Qualifications of officer. The deporaises matters which are pertinent to and sition shall be made before the examiner, do not broaden the issues already pre- or before an officer authorized by the law sented. If leave is granted, the petitioner of the United States or by the law of shall thereby become a party with the full the place of the examination to adminisstatus of the original parties to the pro- ter oaths, or before an officer authorized ceedings. If leave is denied, petitioner

by the Administrator to administer oaths. may request the ruling be certified to the No deposition shall be made before an Administrator, pursuant to § 164.24(d),

officer who is a relative (within the third for a speedy appeal.

degree of blood or marriage), employee, (e) Amicus curiae. (1) Persons not attorney, or counsel of any party or who parties to the proceedings wishing to file is a relative (within the third degree briefs may do so by leave of the examiner by blood or marriage) or employee of granted on motion, A motion for leave any attorney or counsel for any party or shall identify the interest of the applicant

who is financially interested in the reand shall state the reasons why a brief sult of the proceeding. of an amicus curiae is desirable.

(d) Procedure on examination. (1) (2) Unless all parties otherwise con

Except as otherwise provided herein, a sent, an amicus curiae shall file its brief deponent shall be examined in accordwithin the time allowed the party whose ance with the Federal Rules of Civil Proposition the brief will support. Upon a cedure. The testimony of the deponent showing of good cause, the Administrator shall be recorded by the officer or by or examiner may grant permission for some person under his direction and in later filing.

his presence. In lieu of oral cross-exam

ination, parties may transmit written $ 164.26 Depositions.

cross-questions to the officer prior to (a) Application for taking deposition. the examination and the officer shall Upon the application of a party to the propound such cross-questions to the proceeding. the examiner may, at any deponent. time after the filing of the moving paper,

(2) The applicant must arrange for authorize, under the facsimile signature the examination of the witness either of the Administrator, the taking of testi- by oral examination or by wntten quesmony by deposition of a person willing tions. If it is found by the examito be deposed. The application shall be in ner, upon protest of a party to the writing and shall be filed with the hear- proceeding, that such party has his resiing clerk and shall set forth: (1) The

dence and his place of business more name and address of the proposed de

than 100 miles from the place of the ex

amination and that it would constitute ponent; (2) the name and address of the

an undue hardship upon such party to person (referred to in this section as the

be represented at the examination, the "officer"), qualified under the rules in this

applicant will be required to conduct the part to take depositions, before whom the

examination by means of questions. proposed examination is to be made; and When the examination is conducted by (3) the proposed time and place of the means of written questions, copies of the examination, which should be at least questions shall be served upon the other

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parties to the proceeding prior to the examiner, to allow the deposition to be
examination. After the deponent has sub- used. If any part of a deposition is put in
mitted his answers, copies of those ans- evidence by a party, any other party
wers shall be served upon all parties. may require the production of the re-
Within five (5) days of service of a copy mainder, or any portion, of the deposi-
of deponent's answers, any of the parties tion.
other than the party taking the deposi-
tion may file with the officer cross-ques-

8 164.27 Fees of witnesses.
tions to be submitted to deponent.

Witnesses who appear before the ex(e) Signature by witness. The trans- aminer or the Administrator shall be script of the deposition shall be read to paid the same fees and mileage that are or by the deponent, unless such reading

paid witnesses in the courts of the United is waived by the parties and the de- States, and witnesses whose depositions ponent. Any changes which the deponent are taken, and the persons taking the wishes to make shall be entered upon the

same, shall be entitled to the saine fees deposition by the officer, with a state

as are paid for like services in the courts ment of the reasons given by the depo

of the United States. Fees shall be paid nent for such changes. The changes may

by the party at whose instance the witnot be substantive in nature. The deposi

ness appears or the deposition is taken. tion shall be signed by the deponent, $ 164.28 Consolidation. unless the parties by stipulation waive such signing, or unless the deponent is

Whenever it appears to the examiner, illor cannot be found or refuses to

by motion or otherwise, that it will expesign. If the deponent does not sign the

dite or simplify consideration of the officer shall sign and shall state on the

issues in two or more docketed proceedrecord the reason why the deponent did

ings involving the same economic poison not sign. In such case the deposition

under this subpart, he may consolidate shall be as valid as though signed by

such proceedings. Consolidation shall not the deponent, unless the examiner finds

preclude the right of any party to raise that the reason given by the deponent

issues that could otherwise be raised if

such consolidation had not occurred. At for his refusal to sign requires rejection of the deposition in whole or in

the conclusion of proceedings consolipart.

dated under this section, the examiner (f) Certification by officer. The officer

shall issue one report under $ 164.36. shall certify on the deposition that the § 164.29 Prehearing conference. deponent was duly sworn by him and that the deposition is a true record of

(a) Except as otherwise provided the deponent's testimony. He shall then

herein, the examiner shall, prior to the send the deposition and two copies

commencement of the hearing and for thereof by registered mail to the hearing

the purpose of expediting the hearing,

file with the hearing clerk an order for a clerk.

prehearing conference. Such order shall (g) Use of depositions. A deposition ordered and taken in accord with the

direct the parties or their counsel to

consider (1) the simplification of issues; provisions of this section, and with the

(2) provisions of the Federal Rules of Civil

the necessity or desirability of

amendments to the pleadings; (3) the Procedure, may be used in a proceeding under the act if the examiner finds that

possibility of obtaining stipulations of the evidence is relevant and material and

fact and documents which will avoid (1) that the witness is dead; or (2) that

unnecessary proof; (4) the limitation the witness is at a greater distance than

of the number of experts and other 100 miles from the place of hearing, un

witnesses; (5) the use of verified state

ments in lieu of oral direct testimony; less it appears that the absence of the

and (6) any other matter that may exwitness was procured by the party offering the deposition; or (3) that the

pedite the hearing or aid in the disposiwitness is unable to attend or testify be

tion of the matter. At the prehearing cause of age, sickness, infirmity, or im

conference the parties will present a list prisonment; or (4), in any event, upon

of their expert witnesses with a brief application and notice that such excep

narrative description of the testimony of tional circumstances exist as to make it each and will submit all documents indesirable, in the interests of justice and tended to be introduced in evidence at with due regard to the importance of pre- the hearing. These documents shall be senting the testimony orally before the marked by the examiner as hearing ex

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hibits. Thereafter, witnesses or docu- (1) Rule upon motions and requests;
ments may be added only upon motion by (2) Set the time and place of hear-
a party and upon such conditions as the ing, adjourn the hearing from time to
examiner deems just in the circum- time, and change the time and place
stances. No transcript of such prehearing of hearing;
conference shall be made unless a request (3) Administer oaths and affirmations
therefor by one of the parties is granted and take affidavits;
by the examiner in view of the nature of (4) Examine witnesses;
the matters to be considered at the con- (5) Rule on objections and admit evi-
ference and the purposes of the confer- dence relevant and material to the issues
ence. In the absence of a transcript, the and exclude other evidence;
examiner shall prepare and file for the (6) Hear oral argument on the facts
record a written summary of the action or on the law; and
taken at such conference, which shall (7) Do all acts and take all measures
incorporate any written stipulations or necessary for the maintenance of order
agreements made by the parties at or as at the hearing and for the efficient, fair
a result of the conference.

and impartial conduct of the proceeding:
(b) If circumstances render a prehear- Provided, That the examiner shall not
ing impracticable, the examiner may re- interrupt the recording of the proceed-
quest the parties to correspond with him ings over the objection of any party.
for the purpose of accomplishing any of (e) Absence or change of examiner.
the objectives set forth in this section. In the case of the absence of the examiner
The examiner shall forward copies of or his inability to act, or his removal by
letters and documents sent to him in this disqualification or withdrawal, the powers
connection to the parties. Correspondence and duties to be performed by him under
in such negotiations shall not be a part this part in connection with a hearing
of the record, but the examiner shall assigned to him may, without abatement
submit a written summary for the record of the proceeding unless otherwise di-
if any action is taken.

rected by the Administrator, be assigned

to another examiner. $ 164.30 Qualifications and duties of examiner.

8 164.31 Procedure for a public hearing. (a) Qualifications. Examiners shall (a) Time and place of hearing. After have the qualifications required by stat- a proceeding has been instituted in acute and shall not have any direct con- cordance with the procedures set forth nection with the office of pesticides. No in this part the examiner, after giving person shall act to decide any matter careful consideration to the convenience in connection with a hearing where such of all the parties and the public interest, person has a financial interest in any of shall set a time and place for bearing the parties or a relationship with a party and shall file with the hearing clerk a that would make it otherwise inappro- notice stating the time and place of priate for him to act.

hearing which shall be served upon the (b) Disqualification of the examiner. parties. If any change in the time or (1) Any party may, by motion made to place of hearing is made, the examiner the examiner, request that the examiner shall file with the hearing clerk a notice disqualify himself and withdraw from of such change, which notice shall be the proceeding. The examiner shall then served upon the parties unless the change rule upon the motion and, upon request

is made during the course of the public of the movant, shall certify an adverse

hearing and is made a part of the ruling for appeal.

transcript. (2) An examiner may withdraw from (b) Appearances-(1) Representaany proceeding in which he deems him

tives. Parties may appear in person or self disqualified for any reason.

by counsel or other representative. Per(c) Conduct. The examiner shall con

sons who appear as counsel or in a repduct the proceeding in a fair and im

resentative capacity must conform to partial manner, and shall not consult

the standards of ethical conduct required with any party or person on any matter of practitioners before the courts of the in issue unless upon notice and oppor- United States. tunity for all parties to participate.

(2) Failure to appear. If any party to (d) Power. Subject to review, as pro- the proceeding after being duly notified, vided elsewhere in this part, the fails to appear at the hearing, he shall examiner shall have power to:

be deemed to have waived the right to

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participate in the public hearing in the U.S.C. 135b(c). If an advisory commitproceeding. In the event that a party tee has submitted a report concerning appears at the hearing and no party the registration of an economic poison appears for the opposing side, the exam- containing the same basic chemicals as iner shall recommend that a decision be the economic poison in issue, the examentered in favor of the party who is pres- iner may permit the introduction of the ent and the Administrator shall enter report and the material accompanying it. his decision in accordance with such (c) Testimony of member of advisory recommendation.

committee. If a matter concerning the (c) Broadcasting of proceedings. This registration of an economic poison had section is reserved for further considera- been submitted to an advisory committion and is not adopted at this time. tee, the testimony of the chairman of the $ 164.32 Order of proceeding and bur

advisory Committee, or other member den of proof.

designated by him pursuant to § 164.12

(k), with respect to the report and rec(a) At the hearing the proponent of ommendations of such committee shall the order of cancellation shall have the

be received on request of any party or the burden of going forward to present an examiner: Provided, however, That this affirmative case for the cancellation of

shall not preclude any other member of the registration. In the case of the denial

the advisory committee from appearing of an application for registration, the

and testifying at the hearing pursuant applicant shall have the burden of going to such a request. forward.

(d) Objections. If a party objects to (b) On all issues arising in connection

the admission or rejection of any eviwith the hearing the ultimate burden of dence or the limitation of the scope of persuasion shall rest with the proponent

any examination or cross-examination, of the registration.

he shall state briefly the grounds for such $164.33 Evidence.

objection. The transcript shall include

any argument or debate thereon, unless (a) General. The examiner shall ad

the examiner, with the consent of all mit all relevant and material evidence, parties, orders that such argument not be except evidence that is unduly repeti- transcribed. The ruling of the examiner tious. Relevant and material evidence

on any objection shall be a part of the may be received at any hearing even transcript. An automatic exception to though inadmissible under the rules or that ruling will follow. evidence applicable to judicial proceed- (e) Exhibits. Except where the exings. The weight to be given evidence aminer finds that the furnishing of copshall be determined by its reliability and ies is impracticable, a copy of each exprobative value. In all hearings the testi- hibit filed with the examiner shall be mony of witnesses shall be taken orally,

furnished to each other party. A true except as otherwise provided by these

copy of an exhibit may, in the discretion rules. Parties shall have the right to

of the examiner, be substituted for the cross-examine a witness who appears at original. the hearing. In multiparty proceedings (f) Official notice. Official notice may the examiner may limit cross-examina- be taken of such matters as are judicially tion to the Agency and to one other party noticed in the Federal courts: Provided, on each side if it appears that the cross- however, That the parties shall be given examination by one party will adequately

adequate opportunity to show that such protect parties similarly situated. Other

facts are erroneously noticed. parties may, however, engage in cross

(g) Offer of proof. Whenever evidence examination if they can demonstrate is excluded from the record, the party that their cross-examination will go into

offering such evidence may make an offer matters not already covered by previous

of proof, which shall be included in the cross-examination.

transcript. The offer of proof for ex(b) Report of an advisory committee.

cluded oral testimony shall consist of a If a matter concerning the registration brief statement describing the nature of of the economic poison in issue had been the evidence excluded. If the evidence submitted to an advisory committee, the consists of an exhibit, it shall be inserted report of the advisory committee and the in the record in total. In the event the material accompanying it shall be made Administrator decides that the exama part of the record of the hearing in iner's ruling in excluding the evidence accordance with the provisions of 7 was erroneous and prejudicial, the hear

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