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Execution of marketing agreement and issuance of marketing order.
(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.
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 the Administrator of the Consumer and Marketing 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 his stead. (f) [Reserved]
(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;
(i) 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;
(j) 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 an amended petition.
[25 F.R. 5907, June 28, 1960, as amended at 26 F.R. 7796, Aug. 22, 1961, 28 F.R. 579, Jan. 23, 1963]
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, and 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
(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 filed by the petitioner with the hearing clerk not later than 20 days after the service of such notice upon the petitioner. Upon the expiration 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 may be. § 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 filed 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 filed 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. § 900.52b 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 subsequent 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.
Withdrawal of petition.
If, at any time after the petition is filed, 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 the proceeding may be referred to by such number.
(a) Assignment. No presiding officer who has any pecuniary interest in the outcome 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 officer 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 facsimile signature of the Secretary, requiring the attendance 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 facsimile signature of the Secretary, the taking of depositions;
(7) Admit or exclude evidence;
(8) Hear oral argument on facts or law; (9) Consolidate hearings upon two or more petitions pertaining to the same order;
(10) Do all acts and take all measures necessary for the maintenance of order at the hearing and the efficient conduct of the proceeding.
(d) 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 these rules of practice in connection with a proceeding may, without abatement of the proceeding unless otherwise ordered by the Secretary, be assigned to any other presiding officer.
(e) 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.
At the discretion of the presiding officer, hearings upon two or more petitions pertaining to the same order may be consolidated, and the evidence taken at such consolidated hearing may be embodied in a single record. § 900.57 Intervention.
Intervention in proceedings subject to this subpart shall not be allowed, except that, in the discretion of the Secretary or the presiding officer, any person (other than the petitioner) showing a substantial interest in the outcome of a proceeding shall be permitted to participate in the oral argument and to file a brief.
§ 900.58 Prehearing conferences.
In any proceeding in which it appears that such procedure will expedite the proceeding, the presiding officer, at any time prior to the commencement of or during the course of the hearing, may request the parties or their counsel to appear at a conference before him to consider (a) the simplification of issues; (b) the possibility of obtaining stipulations of fact and of documents which will avoid unnecessary proof; (c) the limitation of the number of expert or other witnesses; and (d) such other matters as may expedite and aid in the disposition of the proceeding. No transcript of such conference shall be made, but the presiding officer shall prepare and file for the record a written summary of the action taken at the conference, which shall incorporate any written stipulations or agreements made by the parties at the conference or as a result of the conference. If the circumstances are such that a conference is impracticable, the presiding officer may request the parties to correspond with him for the purpose of accomplishing any of the objects set forth in
this section. The presiding officer shall forward copies of letters and documents to the parties as the circumstances require. Correspondence in such negotiations shall not be a part of the record, but the presiding officer shall submit a written summary for the record if any action is taken.
Motions and requests.
(a) General. All motions and requests shall be filed with the hearing clerk, except that those made during the course of an oral hearing may be filed with the presiding officer or may be stated orally and made a part of the transcript.
The presiding officer is authorized to rule upon all motions and requests filed or made prior to the transmittal by the hearing clerk to the Secretary of the record as provided in this subpart. The Secretary shall rule upon all motions and requests filed after that time.
(b) Certification of motions. The submission or certification of any motion, request, objection, or other question to the Secretary prior to the transmittal of the record to the Secretary, as provided in this subpart, shall be in the discretion of the presiding officer.
(a) Time and place. The presiding officer shall set a time and place for hearing and shall file with the hearing clerk a notice stating the time and place of hearing. If any change in the time or place of hearing becomes necessary, it shall be made by the presiding officer, who, in such event, shall file with the hearing clerk a notice of the change. Such notice shall be served upon the parties, unless it is made during the course of an oral hearing and made a part of the transcript.
(b) Appearances (1) Representation. In any proceeding under the act, the parties may appear in person or by counsel or other representative. The Department, if represented by counsel, shall be represented by an attorney assigned by the General Counsel of the Department, and such attorney shall present or supervise the presentation of the position of the Department.
(2) Debarment of counsel or representative. Whenever, while a proceeding is pending before him, the presiding officer finds that a person acting as counsel or representative for any party to 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 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 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.