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ceeding, the presiding officer may, at any time (f) Certification by officer. The officer shall after the filing of the moving paper, order, certify on the deposition that the deponent under the facsimile signature of the Secre- was duly sworn by him and that the depositary, the taking of testimony by deposition. tion is a true record of the deponent's testiThe application shall be in writing and shall mony. He shall then securely seal the deposibe filed with the hearing clerk and shall set tion, together with two copies thereof, in an forth: (1) the name and address of the pro- envelope and mail the same by registered posed deponent; (2) the name and address mail to the hearing clerk. of the person (referred to hereinafter in this (g) Use of depositions. A deposition orsection as the “oficer"), qualified under the dered and taken in accord with the provisions rules in this part to take depositions, before of this section may be used in a proceeding whom the proposed examination is to be under the act if the presiding officer finds made; (3) the proposed time and place of that the evidence is otherwise admissible and the examination, which shall be at least 15 (1) that the witness is dead; or (2) that the days after the date of the mailing of the witness is at a distance greater than 100 application; and (4) the reasons why such miles from the place of hearing, unless it deposition should be taken.

appears that the absence of the witness was (c) Presiding officer's order for taking procured by the party offering the deposition; deposition. If, after the examination of the or (3) that the witness is unable to attend application, the presiding officer is of the or testify because of age, sickness, infirmity opinion that the deposition should be taken, or imprisonment; or (4) that the party offerhe shall order its taking. The order shall be ing the deposition has endeavored to profiled with the hearing clerk and shall be cure the attendance of the witness by subserved upon the parties and shall state: (1) pena but has been unable to do so; or (5) the time and place of the examination that such exceptional circumstances exist (which shall not be less than 10 days after as to make it desirable, in the interests of the filing of the order); (2) the name of justice, to allow the deposition to be used. the officer before whom the examination is If a deposition has been taken, and the party to be made; (3) the name of the deponent, upon whose application it was taken refuses The officer and the time and place need not to offer it in evidence, the other party may be the same as those suggested in the offer the deposition, or any part thereof, in application.

evidence. (d) Qualifications of officer. The deposition shall be taken before the presiding offi

$ 900.62 Subpenas. cer, or before an officer authorized by the (a) Issuance of subpenas. The attendance law of the United States or by the law of the of witnesses and the production of docuplace of the examination to administer oaths, mentary evidence from any place in the or before an officer authorized by the Secre- United States on behalf of any party to the tary to administer oaths.

proceeding may, by subpena, be required at (e) Procedure on examination. The de- any designated place of hearing. Subpenas ponent shall be examined under oath or may be issued by the Secretary or by the affirmation and shall be subject to cross- presiding officer, under the facsimile signaexamination. The testimony of the deponent ture of the Secretary, upon a reasonable shall be recorded by the officer or by some showing by the applicant of the grounds, person under his direction and in his pres- necessity, and reasonable scope thereof. ence. In lieu of oral examination, parties (b) Application for subpena duces tecum. may transmit written interrogatories to the Subpenas for the production of documenofficer prior to the examination and the officer tary evidence, unless issued by the presiding shall propound such interrogatories to the officer upon his own motion, shall be issued deponent.

only upon a verified written application. The applicant must arrange for the exami- Such application shall specify, as exactly as nation of the witness either by oral examina- possible, the documents desired and shall tion or by written interrogatories. If it is show their competency, relevancy, and mafound by the presiding officer, upon the pro- teriality and the necessity for their protest of a party to the proceeding, that such duction. party has his residence and his place of busi- (c) Service of subpenas. Subpenas may be ness more than 100 miles from the place of served (1) by a United States Marshal or his the examination and that it would constitute deputy, or (2) by any other person who is an undue hardship upon such party to be not less than 18 years of age, or (3) by represented at the examination, the appli- registering and mailing a copy of the subpena cant will be required to conduct the exami- addressed to the person to be served at his nation by means of interrogatories. When the or its last known residence or principal place examination is conducted by means of inter- of business or residence. Proof of service rogatories, copies of the interrogatories shall may be made by the return of service on the be served upon the other parties to the pro- subpena by the United States Marshall or ceeding at least five days prior to the date his deputy; or, if served by an individual set for the examination, and the other parties other than a United States Marshal or his shall be afforded an opportunity to file with deputy, by an affidavit of such person stating the officer cross-interrogatories at any time that he personally served a copy of the subprior to the time of the examination.

pena upon the person named therein; or, if service was by registered mail, by an affidavit siding officer shall have announced at the made by the person mailing the subpena that hearing a shorter or longer period of time) it was mailed as provided in this paragraph after the transcript has been filed with the and by the signed return post-office receipt: hearing clerk, as provided in paragraph (a) Provided, That, if the subpena is issued on of this section, each party may file with the behalf of the Department, the return receipt hearing clerk proposed findings of fact, conwithout an affidavit of mailing shall be suffi- clusions, and order, based solely upon the cient proof of service. In making personal evidence of record, and briefs in support service, the person making service shall leave thereof. a copy of the subpena with the person sub- (c) Presiding officer's report. The presiding penaed; the original, bearing or accompanied officer, within a reasonable time after the by the required proof of service, shall be re- termination of the period allowed for the turned to the official who issued the same. filing of proposed findings of fact, conclu

sions, and orders, and briefs in support $ 900.63 Fees and mileage.

thereof, shall prepare, upon the basis of the Witnesses who are subpenaed and who ap

record, and shall file with the hearing clerk, pear in such proceeding, including witnesses his report, a copy of which (together with whose depositions are taken, shall be paid notification of the date fixed by the presidthe same fees and mileage that are paid ing officer for the filing of exceptions therewitnesses in the courts of the United States, to) shall be served by the hearing clerk and persons taking depositions shall be en- upon each of the parties. titled to the same fees as are paid for like (d) Exceptions. Within a period of time services in the courts of the United States, (to be fixed by the presiding officer but not to be paid by the party at whose request the to exceed 20 days) after the filing of the deposition is taken. Witness fees and mileage presiding officer's report, the parties may file shall be paid by the party at whose instance exceptions to the report. Any party who dethe witnesses appear, and claims therefor, as sires to take exception to any matter set out to witnesses subpenaed on behalf of the De- in the report shall transmit his exceptions partment, shall be proved before the person in writing to the hearing clerk, referring, issuing the subpena, and, as to witnesses sub- where practicable, to the relevant pages of penaed on behalf of any other party, shall the transcript, and suggesting a corrected be presented to such party.

finding of fact, conclusion, or order. Within

the same period of time, each party shall $ 900.64 The presiding officer's report.

transmit to the hearing clerk a brief state(a) Filing the transcript of evidence. (1) ment in writing concerning each of the obAs soon as practicable after the close of the jections taken to the action of the presiding hearing, the presiding officer shall transmit officer, as set out in $ 900.60, upon which to the hearing clerk an original and three the party wishes to rely, referring, where copies of the transcript of the testimony and practicable, to the pertinent pages of the the original and all copies of the exhibits transcript. A party, if he files exceptions or not already on file in the office of the hearing a statement of objections, shall state in writclerk. The presiding officer shall attach to

ing whether he desires to make an oral arguthe original transcript of testimony his certfi- ment thereon before the Secretary; othercate stating that to the best of his knowledge

wise, it shall be considered that he does not and belief, the transcript is a true, correct,

desire to make such oral argument. and complete transcript of the testimony (e) Revision of presiding officer's report, given in the hearing except in such par- If exceptions are filed to the presiding offiticulars as he shall specify, and that the ex- cer's report, as provided in paragraph (d) hibits transmitted are all the exhibits re- of this section, the presiding officer, after ceived in evidence at the hearing with such consideration of such exceptions, shall make exceptions as he shall specify. A copy of and file with the hearing clerk a draft of such certification shall be attached to each the findings of fact, conclusions, and final copy of the transcript of testimony. In ac- order of the Secretary, which shall include cordance with such certificate the presiding such revision of his report as he deems to officer shall note on the original transcript be appropriate in view of such exceptions. and the hearing clerk shall cause to be noted

$ 900.65 Transmittal of record. on other copies of the transcript, each correction detailed in such certificate by adding The hearing clerk, immediately following or crossing out (but without obscuring the the filing of the revision of the presiding text as originally transcribed) at the appro- officer's report, or upon notification by the priate places any words necessary to make the presiding officer that no revision will be text conform to the correct meaning, as certi

made, shall transmit to the Secretary the

record of the proceeding. Such record shall fied by the presiding officer.

include: the petition; motions and requests (2) Immediately following the filing of

filed with the hearing clerk, and rulings the transcript, the hearing clerk shall advise

thereon; the transcript of the testimony each party to the proceeding as to the date taken at the hearing, together with the exof such filing.

hibits filed therein; any documents or papers (b) Proposed findings of fact, conclusions, filed in connection with prehearing conferand orders. Within 10 days (unless the pre- ences; such proposed findings of fact, con

clusions, and orders, and briefs in support thereof, as may have been filed in connection with the hearing; the presiding officer's report; such exceptions, statements of objections, and briefs in support thereof, as may have been filed in the proceeding; and the presiding officer's draft of the findings of fact, conclusions, and final order of the Secretary. 8 900.66 Argument before Secretary.

(a) Oral argument. Unless a party has included in his exceptions a request for oral argument or has filed a separate request for oral argument prior to the expiration of the last date for filing such exceptions, it shall be considered that he does not desire to make such oral argument. The granting of a request to make oral argument shall rest in the discretion of the Secretary.

(b) Briefs. The parties may, in the discretion of the Secretary, file written briefs either in addition to oral argument or in lieu thereof.

(c) Scope of argument. Except where the Secretary determines that argument on additional issues would be helpful, argument, whether oral or in a written brief, shall be limited to the issues raised by the exceptions and statement of objections, or to such issues as the Secretary may indicate. If the Secretary determines that additional issues should be argued, counsel for the parties shall be given reasonable notice of such determination, so as to permit the preparation of adequate argument on all the issues to be argued. $ 900.67 Consideration and issuance of

order. (a) Consideration of order. As soon as practicable after the receipt of the record from the hearing clerk, or in case argument was had, as soon as practicable thereafter, the Secretary, upon the basis of the record, shall begin his consideration of the final order to be issued in the proceeding. If an oral argument was held, the order shall be considered by and shall be issued over the signature of the official who heard such oral argument, unless the parties shall consent to a different arrangement. At no stage of the proceeding between its institution and the issuance of the order shall the Secretary discuss ex parte the merits of the proceeding with any person who is connected with the proceeding in an advocative or an investigative capacity, or with any representative of such person: Provided, however, That the Secretary may discuss the merits of the proceeding with such a person if all parties to the proceeding, or their representatives, have been given an opportunity to be present. If, notwithstanding the foregoing provisions of this section, a memorandum or other communication from any party, or from any person acting on behalf of any party, which relates to the merits of the proceeding, receives the personal attention of the Secretary (or, if an official other

than the Secretary is to issue the order, then of such other official) during the pendency of the proceeding, such memorandum or communication shall be regarded as argument made in the proceeding and shall be filed with the hearing clerk, who shall serve a copy thereof upon the opposite party to the proceeding, and opportunity shall be given the opposite party to file a reply thereto.

(b) Issuance of order. The order shall be issued and served upon the parties as the final order in the proceeding without further procedure: Provided, That, if the terms of the order differ substantially from those proposed in the report of the presiding officer, the Secretary shall, if he deems it advisable to do so, direct that a copy of the order be served upon the parties as a tentative order; and, in such event, opportunity shall be given the parties to file exceptions thereto and written arguments or briefs in support of such exceptions. In such case, if exceptions are filed within a period of time (to be fixed by the Secretary but not to exceed 20 days) following the service of the tentative order, the Secretary shall give consideration to and shall make such changes in the tentative order as he deems to be appropriate; otherwise, the tentative order shall become final, as of the day following the date of expiration of the period fixed for the filing of exceptions. $ 900.68 Applications for reopening

hearings; for rehearings or rearguments of proceedings; or for recon

sideration of orders. (a) Petition requisite-(1) Filing; service. An application for reopening the hearing to take further evidence, or for rehearing or reargument of the proceeding, or for 'reconsideration of the order shall be made by petition addressed to the Secretary and filed with the hearing clerk, who immediately shall notify and serve a copy thereof upon the other party to the proceeding. Every such petition shall state specifically the grounds relied upon.

(2) Petitions to reopen hearings. A petition to reopen the hearing for the purpose of taking additional evidence may be filed at any time prior to the issuance of the final order. Every such petition shall state briefly the nature and purpose of the evidence to be adduced, shall show that such evidence is not merely cumulative, and shall set forth a good reason why such evidence was not adduced at the hearing.

(3) Petitions to rehear or reargue proceedings, or to reconsider orders. A petition to rehear or reargue the proceeding or to reconsider the final order shall be filed within 15 days after the date of the service of such order. Every such petition shall state specifically the matters claimed to have been erroneously decided, and alleged errors must be briefly stated.

(b) Procedure for disposition of petitions. Within 10 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 the decision granting or denying the petition. Unless the Secretary shall determine otherwise, the issuance or operation of the order shall not be stayed pending the decision of the Secretary upon the petition. In the event that any such petition is granted by the Secretary, the applicable rules of practice, as set out elsewhere in this subpart, shall be followed. § 900.69 Filing; service; extensions of

time; effective date of filing; and

computation of time. (a) Filing; number of copies. Except as provided otherwise herein, all documents or papers required or authorized in this subpart to be filed with the hearing clerk shall be filed in quadruplicate: Provided, That, if there are more than two parties to the proceeding, a sufficient number of additional copies shall be filed so as to provide for service upon all the parties to the proceeding. Any document or paper, required or authorized in this subpart to be filed with the hearing clerk, shall, during the course of an oral hearing, be filed with the presiding officer.

(b) Service; proof of service. Copies of all such papers shall be served upon the parties by the hearing clerk, by the presiding officer, 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 principal office, place of business, or residence. Proof of service hereunder shall be made by the affidavit of the person who actually made the service. The affidavit contemplated herein 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 documents or papers required or authorized in this subpart to be filed may be extended upon (1) a written stipulation between the parties, or (2) upon the request

of a party, by the presiding officer before the transmittal of the record to the Secretary, or by the Secretary at any other time if, in the judgment of the Secretary or the presiding officer, as the case may be, there is good reason for the extension.

(d) Effective date of filing. Any document or paper, except a petition filed pursuant to $ 900.52, required or authorized under these rules to be filed shall be deemd to have been filed when it is postmarked, or when it is received by the hearing clerk. Any petition filed under $ 900.52 shall be deemed to be filed when it is received by the hearing clerk.

(e) Computation of time. Sundays and Federal holidays shall be included in computing the time allowed for the filling of any document or paper: Provided, That, when such time expires on a Sunday or legal holiday, such time shall be extended to include the next following business day. $ 900.70 Applications for interim relief.

(a) Filing the application. A person who has filed a petition pursuant to $ 900.52 may by separate application filed with the hearing clerk apply to the Secretary for an order postponing the effective date of, or suspending the application of, the marketing order or any provision thereof, or any obligation imposed in connection therewith, pending final determination of the proceeding.

(b) Contents of the application. The application shall contain a statement of the facts upon which the relief is requested, including any facts showing irreparable injury. The application must be signed and sworn to by the petitioner and any facts alleged therein which are not within his personal knowledge shall be supported by affidavits of a person or persons having personal knowledge of such facts or by proper documentary evidence thereof.

(c) Answer to application. Immediately upon receipt of the application, the hearing clerk shall transmit a copy thereof, together with all supporting papers, to the Administrator, who shall, within 20 days, or such other time fixed by the Secretary, after the filing of the application file an answer thereto with the hearing clerk.

(d) Contents of answer. The answer shall contain a statement of the objections, if any, of the Administrator to the application for interim relief, and may be supported by affidavits and documentary evidence.

(e) Transmittal to Secretary. Upon receiving the answer of the Administrator or upon the expiration of the time for filing the answer, the hearing clerk shall transmit to the Secretary for his decision all papers filed in connection with the application.

(f) Hearing and oral argument. The Secretary may, in his discretion, permit oral argument or the taking of testimony in connection with such application. However, unless written request therefor is filed with the hearing clerk prior to the transmittal of the papers to the Secretary, the parties shall be

deemed to häve waived oral argument and the taking of testimony.

(8) Decision by Secretary. The Secretary may grant or deny the application. Any action taken by the Secretary shall be in the form of an order filed with the hearing clerk and shall contain a brief statement of the reasons for the action taken. The hearing clerk shall cause copies of the order to be served upon the parties. $ 900.71 Hearing before Secretary.

The Secretary may act in the place and stead of a presiding officer in any proceeding hereunder. 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.

Subpart Procedure Governing Meetings To Arbi

trate and Mediate Disputes Relating to Sales of Milk or Its Products

AUTHORITY: $ $ 900.100 to 900.118 issued under sec. 3, 50 Stat. 248; 7 U.S.C. 671. $ 900.100 Words in the singular form.

Words in this subpart in the singular form shall be deemed to import the plural, and vice versa, as the case may demand. $ 900.101 Definitions.

As used in this subpart, the terms as defined in the act shall apply with equal force and effect. In addition, unless the context otherwise requires:

(a) The term "act" means section 3 of the Agricultural Marketing Agreement Act of 1937, as amended (50 Stat. 248, as amended; 7 U.S.C. 671);

(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 “General Counsel” means the General Counsel of the Department;

(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) The term "Service" means the consumer and Marketing Service.

(g) The term "Division" means the Dairy Division of the Service.

(h) The term "cooperative” means any association, incorporated or otherwise, which is in good faith owned or controlled by pro

ducers, or organizations thereof, of milk or its products, and which is bona fide engaged in the collective processing or preparing for market or handling or marketing, in the current of interstate or foreign commerce, of milk or its products;

(i) The term “arbitrator" means any officer or employee of the Service designated by the Administrator, pursuant to the act, to arbitrate a bona fide dispute with reference to the terms and conditions of the sale of milk or its products between a producer cooperative and purchasers, handlers, processors, or distributors of milk or its products;

(1) The term “mediator" means any officer or employee of the Service designated by the Administrator, pursuant to the act, to mediate a bona fide dispute with reference to terms and conditions of the sale of milk or its products between a producer cooperative and purchasers, handlers, processors, or distributors of milk or its products;

(k) The term “hearing clerk” means the hearing clerk, United States Department of Agriculture, Washington, D.C. [25 F.R. 5907, June 28, 1960, as amended at 26 F.R. 7797, Aug. 22, 1961, 28 F.R. 579, Jan. 23, 1963] $ 900.102 Filing of applications for

mediation or arbitration. All applications for mediation or arbitration, all submissions, and all corrrespondence regarding mediation or arbitration shall be addressed to the Secretary, attention of the Division. $ 900.103 Application for mediation.

An application for mediation by cooperative shall be in writing and shall include the following information:

(a) Names in full of the parties to the dispute and their addresses;

(b) Description of the cooperative organization and business, including copies of the articles of incorporation or association, bylaws, and membership contract; information regarding the number of shares of outstanding stock and the approximate portion owned by active producers; a statement of the function performed in connection with the collective processing, preparing, handling, or marketing of milk or its products; and data relative to the distribution of membership by States, the distribution by States of plant facilities for collecting, processing, or disposing of milk or its products, and the business operations for the year last past, including the total quantity of milk and its products handled by the applicant and the proportion of that quantity that was sold in States other than the States of production;

(c) Suggested time and place for meeting between parties and mediator. $ 900.104 Inquiry by the Administrator.

Upon receipt of an application for mediation, the Administrator, through such officers or employees of the Service as he may

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