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$ 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 edure: 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 seryice of any petition provided îor 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 seryice hereunder shall be made by the afidavit 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 deemed 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 filing 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 or 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 afidavits 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 have waived oral argument and the taking of testimony.
(g) 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.
8 900.71 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 Meet
ings To Arbitrate 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 producers, 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;
(j) The term “mediator" means any oficer 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 correspondence regarding mediation or arbitration shall be addressed to the Secretary, attention of the Division. $ 900.103 Application for mediation.
An application for mediation by a 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, by-laws, 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 prod
ucts; 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 designate, may make any inquiry which is deemed to be necessary or proper in order to determine whether a bona fide dispute exists. $ 900.105 Notification.
The Administrator, acting on behalf of the Secretary will notify the applicant as to whether he considers that mediation will effectuate the purpose of the act and as to whether he will mediate. $ 900.106 Assignment of mediator.
The Director of the Division shall assign a mediator, from the group designated by the Administrator, to act in such capacity. $ 900.107 Meetings.
All meetings held pursuant to $$ 900.103 to 900.109 shall be held with and under the direction of the mediator. & 900.108 Mediator's report.
The mediator, upon the completion of mediation proceedings, shall submit to the Administrator a complete report on such proceedings. 8 900.109 Mediation agreement.
An agreement arrived at by mediation shall not become effective until approved by the Secretary, and the Secretary will not approve an agreement if there is evidence of fraud, if there is a lack of evidence to support the agreement, or if the agreement provides for any unfair trade practice. $ 900.110 Application for arbitration.
An application for arbitration by a cooperative shall be in writing and shall contain the following information:
(a) Names in full of the parties to the dispute and their addresses;
(b) The same information required than thirty days from the effective date under $ 900.103 (b);
of the award; (c) Concise statement of dispute to (e) Name of arbitrator; be submitted;
(f) Time and place of arbitration, in(d) Originals or certified copies of cluding street address; all contracts, if any, involved in the dis
(g) Stipulation by the parties that pute, and of correspondence which has
they will produce any books, records, and passed between the parties and of any
correspondence required by the arbitraother documents or information relied
tor as being necessary to a fair deterupon;
mination of the dispute; (e) Dates before which it is desired
(h) Agreement by the parties that that the hearing shall be had and the
they will consider the award as final and award shall become effective;
will comply therewith; (f) Suggested time and place for arbi
(i) Stipulation by the parties that tration hearing.
arbitration is to take place under rules The applicant shall send a copy of the and regulations issued by the Secretary, application to each other party to the
and that any such rules and regulations dispute.
pertaining to mediation and arbitration & 900.111 Inquiry by the Administrator.
shall be considered a part of the submis
sion; Upon receipt of an application for
(j) Stipulation that a stenographic rearbitration, the Administrator, through
port of the proceedings must be made. such oficers or employees of the Service
The submission shall be signed by each as he may designate, may make any in
party before a notary public, and when quiry deemed to be necessary or proper
the signature is that of an agent of a in order to determine whether a bona fide dispute exists, to assist the parties in re
corporation or cooperative association,
the same shall be accompanied by eviducing the dispute to well-defined is
dence of the authority to sign. sues, and to select an arbitrator who
A submission may be withdrawn at any would be satisfactory to all parties.
time before the award, and any question $ 900.112 Notification.
held by the arbitrator to be a separable The Administrator, acting on behalf question may be withdrawn before award of the Secretary, within a reasonable by agreement of all parties.
When any time after the receipt of an application,
question is so withdrawn, the parties will notify the applicant as to whether he
shall file with the arbitrator the agreewill grant the application.
ment on that question reached by the
parties, showing all the details thereof, $ 900.113 Submission.
and the arbitrator shall include it in the Within a reasonable time after the re- record of the arbitration. ceipt of the Administrator's consent to
8 900.114 Designation of arbitrator. arbitrate, the parties to the dispute shall file with the Administrator a formal sub
The Administrator, after receiving the mission, which shall contain the follow
submission, will designate one or more ing information:
persons to act as arbitrator. (a) Names in full of the parties;
$ 900.115 Hearing. (b) Addresses of the parties to whom
The arbitrator shall have full discreall notifications and communications
tion to conduct the hearing in such concerning the arbitration shall be sent;
manner as will, in his opinion, enable (c) Description of the organization
him to ascertain all the facts in the case. and businesses of all parties to the dis
Parties to the dispute may appear in pute, including suficient information to
person or by duly accredited agents and show that the cooperative is a bona fide
may be represented by counsel. one, and that the parties are engaged in
All relevant and material evidence may activities in the current of interstate or foreign commerce;
be presented. The arbitrator shall not
be bound by the legal rules of evidence. (d) Concise statement of the specific
The arbitrator, in the presence of the questions submitted and a brief outline of the contentions of each party to the
parties, may require the production of dispute, and a statement as to the period
books and records for examination by of time during which the award shall himself, but not for examination of confibe in effect, said period to be not less dential information by other parties to