(b) Procedure for disposition of petitions. Within 20 days following the service of any petition provided for in this section, the other party to the proceeding shall file with the hearing clerk an answer thereto. As soon as practicable thereafter, the Secretary shall announce his decision whether to grant or to deny the petition. Unless the Secretary shall determine otherwise, operation of the order shall not be stayed pending the decision to grant or to deny the petition. In the event that any such petition is granted by the Secretary, the applicable rules of practice, as set out elsewhere herein, shall be followed. A person filing a petition under this section shall be regarded as the complainant, although he shall be referred to as the complainant or respondent, depending upon his designation in the original proceeding.

§ 123.18 Hearings before Secretary.

The Secretary may act in the place and stead of an examiner in any proceeding under this part. 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 order in the proceeding: Provided, That he may issue a tentative order, in which event the parties shall be afforded an opportunity to file exceptions before the issuance of the final order.

§ 123.19 Filing; service; extensions of time; additional time for filing; and computation of time.

(a) Filing; number of copies. Except as is provided otherwise in this part, all documents or papers required or authorized by the rules in this part to be filed with the hearing clerk shall be filed in duplicate: Provided, That where there are more than two parties to the proceeding, a sufficient number of copies shall be filed so as to provide for service upon all the parties to the proceeding. Any document or paper, required or authorized under the rules in this part to be filed with the hearing clerk, shall, during the course of an oral hearing, be filed with the examiner.

(b) Service; proof of service. Copies of all such documents or papers shall be served upon the parties by the hearing clerk, by the examiner, or by some other employee of the Department, or by a United States marshal or his deputy.

Service shall be made either (1) by delivering a copy of the document or paper to the individual to be served or to a member of the partnership to be served or to the president, secretary, or other executive officer or any director of the corporation, organization, or association to be served, or to the attorney or agent of record of such individual, partnership, corporation, organization, or association; or (2) by leaving a copy of the document or paper at the principal office or place of business of such individual, partnership, corporation, organization, or association, or of his or its attorney or agent of record; or (3) by registering and mailing a copy of the document or paper, addressed to such individual, partnership, corporation, organization, or association, or to his or its attorney or agent of record, at his or its last known residence or principal office or place of business. Proof of service hereunder shall be made by the affidavit of the person who actually made the service: Provided, That, if the service be made by registered mail, as outlined in (3) above, proof of service shall be made by the return post-office receipt. The affidavit and post-office receipt contemplated in this part shall be filed with the hearing clerk, and the fact of filing thereof shall be noted on the docket of the proceeding.

(c) Extensions of time. The time for the filing of any document or paper required or authorized under the rules in this part to be filed may be extended by the examiner (before the examiner's report is filed) or by the Secretary (after the examiner's report is filed), if request for such extension of time is made prior to or on the final date allowed for such filing, and if, in the judgment of the examiner or the Secretary, as the case may be, after notice to and consideration of the views of the other party, there is good reason for the extension.

(d) Effective date of filing. Any document or paper required or authorized under the rules in this part to be filed shall be deemed to be filed at the time when it reaches the Department of Agriculture in Washington, D. C.

The

(e) Additional time for filing. time for the filing of any document or paper required or authorized under the rules in this part to be filed shall be five days longer when the party resides or has his or its principal place of business at any place west of 104° west longitude.

(f) Computation of time. Sundays and holidays shall be included in com

Oral and written arguments.

132.10

132.11

132.12

132.13

Certification of the transcript.

Copies of the transcript.

Administrator's recommended decision.

Submission to Secretary.

132.14 Decision by Secretary.

132.15 Execution of marketing agreement and issuance of marketing order. 132.16 Filing: extensions of time; effective date of filing; and computation of time.

132.17 Discussion of issues, etc., of proceeding prohibited.

132.18 Additional documents to be filed with hearing clerk.

132.19 Hearing before Secretary.

Subpart B-Rules of Practice Governing Proceeding on Petitions To Modify or To Be Exempted From Marketing Orders

132.50 Words in the singular form.

132.51

Definitions.

Sec. 132.71

132.72 132.73

Filing; service; extensions of time; effective date of filing; and computation of time.

Applications for interim relief.

Hearing before Secretary.

AUTHORITY: The provisions of this Part 132 issued under secs. 56-60, 49 Stat. 781, as amended, 782; 7 U.S.C. 851-855.

SOURCE: The provisions of this Part 132 appear at 26 F.R. 1898, Mar. 4, 1961, unless otherwise noted.

Subpart A-Rules of Practice and Procedure Governing Proceedings To Formulate Marketing Agreements and Marketing Orders Applicable to Anti-Hog-Cholera Serum and Hog-Cholera Virus

§ 132.1 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 Law 320, 74th Congress, approved August 24, 1935, as amended (49 Stat. 781, 72 Stat. 454; 7 U.S.C. 851-855).

(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 the Administrator of the Agricultural Research Service of the Department 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.

(f) The term "Service" means the Agricultural Research Service of the Department.

(g) The term "FEDERAL REGISTER" means the publication provided for by Public Law 220, 74th Congress, approved July 26, 1935 (49 Stat. 500; 44 U.S.C.

301 et seq.), and acts supplementary thereto and amendatory thereof.

(h) The term "hearing" means that part of the proceeding which involves the submission of evidence.

(i) The term "marketing agreement" means any marketing agreement or any amendment thereto which may be entered into pursuant to the act.

(j) The term "marketing order" means any order or any amendment thereto which may be issued pursuant to the act.

(k) The term "proceeding" means a proceeding upon the basis of which a marketing agreement may be entered into or a marketing order may be issued.

(1) The term "hearing clerk" means the hearing clerk, United States Department of Agriculture, Washington, D.C. (m) The term "presiding officer" means the examiner conducting a proceeding under the act. § 132.3

Proposals.

(a) A marketing agreement may be proposed by the Secretary or by any other person. If any person other than the Secretary proposes a marketing agreement, he shall file with the Adminstrator a written application, together with at least four copies of the proposal, requesting the Secretary to hold a hearing upon the proposal. Upon receipt of such proposal, the Administrator shall cause such investigation to be made and such consideration thereof to be given as, in his opinion, are warranted. the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement 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.

If

(b) If the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement or a marketing order will tend to effectuate the declared policy of the act, or if the Secretary desires to propose a marketing agreement, he shall sign and cause to be served a notice of hearing, as provided in this subpart.

§ 132.4 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 and marketing order, if any, 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 and marketing order, if any, or a description of the subjects and issues involved; and shall state the industry, area, and class or classes of persons to be regulated, the time and place of such hearing, and the place where copies of such proposed marketing agreement and marketing order, if any, 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 and marketing orders, if any, 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 the 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 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 paragraph (b) (1) (iii) and (iv) of this section. In regard to the provisions relating to mailing in paragraph (b) (1) (ii) 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 paragraph (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 as provided in this paragraph shall be final.

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.

§ 132.6 Presiding officers.

(a) Assignment. No presiding officer who has any pecuniary interest in the outcome of a proceeding shall serve as presiding officer in such proceeding.

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

(1) Rule upon motions and requests; (2) Change the time and place of hearing, and adjourn the hearing from time to time or from place to place;

(3) Administer oaths and affirmations and take affidavits;

(4) Examine and cross-examine witnesses and receive evidence;

(5) Admit or exclude evidence;

(6) Hear oral argument on facts or law;

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

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

(d) Disqualification of presiding officer. The presiding officer may at any time withdraw as presiding officer in a proceeding if he deems himself to be disqualified. Upon the filing by an interested person in good faith of a timely and sufficient affidavit of personal bias or disqualification of a presiding officer, the Secretary shall determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as he may deem appropriate in the circumstances.

§ 132.7 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 § 132.16(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 § 132.10 or by the Secretary if made thereafter.

The

(b) Certification to Secretary. presiding officer may in his discretion submit or certify to the Secretary fo decision any motion, request, objection or other question addressed to the presiding officer.

§ 132.8 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 § 132.4 (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. (i) Whenever, 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.

(ii) 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 Office of the Federal Register, and the affidavit or certificate of the giving of notice or the determination provided for in § 132.4(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. (1) The hearing shall be publicly conducted, and the testimony given at the hearing shall be reported verbatim.

(ii) Every witness shall, before proceeding to testify, be sworn or make affirmation. Cross-examination shall be permitted to the extent required for a full and true disclosure of the facts.

(iii) 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.

(iv) 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. (i) 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 pres ling officer on any objection shall be a part of the transcript.

(ii) 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