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and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), as amended.
(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: As to programs relating to fruits, vegetables, tree nuts, hops, and such other commodities as may be assigned to the Agricultural Marketing Service, the Administrator of the Agricultural Marketing Seryice, and as to programs relating to milk, tobacco, and other commodities and their products as assigned, the Administrator of the Agricultural Stabilization and Conservation 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 their stead.
(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 "hearing" means that part of the proceeding which involves the submission of evidence.
(1) The term “marketing agreement" means any marketing agreement or any amendment thereto which may be entered into pursuant to section 8b of the act.
(J) The term "marketing order" means any order or any amendment thereto which may be issued pursuant to section 8c of the act, and after notice and hearing as required by said section.
(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. [25 F.R. 5907, June 28, 1960, as amended at 27 F.R. 9939, Oct. 10, 1962) $ 900.3 Proposals.
(a) A marketing agreement or a marketing order may be proposed by the Secretary or by any other person. If any person other than the Secretary proposes a marketing agreement or marketing order, he shall file with the Administrator 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. If the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement or marketing order 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.
(b) If the investigation and consideration lead the Administrator to conclude that the proposed marketing agreement or marketing order will tend to effectuate the declared policy of the act, or if the Secretary desires to propose a marketing agreement or marketing order, he shall sign and cause to be served a notice of hearing, as provided in this subpart. $ 900.4 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 or marketing order 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 or marketing order or a description of the subjects and issues involved and shall state the industry, area, and class of persons to be regulated, the time and place of such hearing, and the place where copies of such proposed marketing agreement or marketing order 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 or marketing orders, the tinie 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 hearing in the following manner:
(1) By publication of the notice of hearing in the FEDERAL REGISTER;
(11) 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 in the
area proposed to be subjected to regulation 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) (1) of this paragraph; and failure to give notice in the manner provided in subparagraph (1) (11), (111), and (iv) of this paragraph shall not affect the legality of the notice.
(c) Record of notice and supplemental publicity. There shall be filled with the hearing clerk or submitted to the presiding officer at the hearing an afidavit or certificate of the person giving the notice provided in (b) (1) (ul) and (iv) of this section. In regard to the provisions relating to malling in (b) (1) (11) of this section, a determination by the Administrator that such provisions have been complied with shall be fled with the hearing clerk or submitted to the presiding oficer at the hearing. In the alternative, if notice is not given in the manner provided in (b) (1) (11), (111), and (iv) of this section there shall be filled 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 herein provided shall be final.
(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 oficer 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 suficient affidavit of personal bias or disqualification of a presiding oficer, 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. $ 900.7 Motions and requests.
(a) General. All motions and requests shall be filled with the hearing clerk, except that those made during the course of the hearing may be filled with the presiding officer or may be stated orally and made a part of the transcript.
Except as provided in $ 900.15(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 $ 900.10 or by the Secretary 11 made thereafter.
(b) Certification to Secretary. The presiding officer may in his discretion submit or certify to the Secretary for decision any motion, request, objection, or other question addressed to the presiding oficer. $ 900.8 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 oficer 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 $ 900.4 (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 ilxed 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 re
$ 900.5 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.
$ 900.6 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 afirmations and take affidavits;
(4) Examine and cross-examine witnesses and receive evidence;
(5) Admit or exclude evidence;
spect 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. I any such person is appearing through a counsel or representative, such person or such counsel or representative shall, before 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. 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 oficer may suspend the proceeding for a reasonable time for the purpose of enabling the client to obtain other counsel or other representative.
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 Division of the Federal Register, and the affidavit or certificate of the giving of notice or the determination provided for in $ 900.4(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. The hearing shall be publicly conducted, and the testimony given at the bearing shall be reported verbatim.
Every witness shall, before proceeding to testify, be sworn or make affirmation. Crossexamination shall be permitted to the extent required for a full and true disclosure of the facts.
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,
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. 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 presiding officer on any objection shall be a part of the transcript.
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 oficial record or document, when admissible for any purpose, shall be admissible as evidence without the production of the person who made or prepared the same. Such record or document shall, in the discretion of the presiding officer, be evidenced by an official publication thereof or by a copy attested by the person having legal custody thereof and accompanied by a certificate that such person has the custody.
(4) Exhibits. All written statements, charts, tabulations, or similar data offered in evidence at the hearing shall, after identification by the proponent and upon satisfactory showing of the authenticity, relevancy, and materiality of the contents thereof, be numbered as exhibits and received in evidence and made a part of the record. Such exhibits shall be submitted in quadruplicate and in documentary form. In case the required number of copies is not made available, the presiding officer shall exercise his discretion as to whether said exhibits shall, when practicable, be read in evidence or whether additional copies shall be required to be submitted within a time to be specified by the presiding officer. If the testimony of a witness refers to a statute, or to a report or document (including the record of any previous hearing) the presiding oficer, after in. quiry relating to the identification of such statute, report, or document, shall determine whether the same shall be produced at the hearing and physically be made a part of the evidence as an exhibit, or whether it shall be incorporated into the evidence by reference. If relevant and material matter offered in evidence is embraced in a report or document (including the record of any previous hearing) containing immaterial or irrelevant matter, such immaterial or irrelevant matter shall be excluded and shall be segregated insofar as practicable, subject to the direction of the presiding officer.
(5) Official notice. Official notice may be taken of such matters as are judicially noticed by the courts of the United States and of any other matter of technical, scientific or commercial fact of established character: Provided, That interested persons shall be given adequate notice, at the hearing or subsequent thereto, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed.
(6) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof shall consist of a brief statement describing the evidence to be of fered. If the evidence consists of a brief oral statement or of an exhibit, it shall be inserted into the transcript in toto. In such event, it shall be considered a part of the transcript if the Secretary decides that the presiding officer's ruling in excluding the evidence was erroneous. The presiding oficer shall not allow the insertion of such evidence in toto if the taking of such evidence will consume a considerable length of time at the hearing. In the latter event, if the Secretary decides that the presiding officer erred in excluding the evidence, and that such error was substantial, the hearing shall be reopened to permit the taking of such evidence. $ 900.9
Oral and written arguments. (a) Oral argument before presiding officer. Oral argument before the presiding oficer shal be in the discretion of the presiding officer. Such argument, when permitted, may be limited by the presiding officer to any extent that he finds necessary for the expeditious disposition of the proceeding and shall be reduced to writing and made part of the transcript.
(b) Briefs, proposed findings and conclusions. The presiding officer shall announce at the hearing a reasonable period of time within which interested persons may file with the hearing clerk proposed findings and conclusions, and written arguments or briefs, based upon the evidence received at the hearing, citing, where practicable, the page or pages of the transcript of the testimony where such evidence appears. Factual material other than that adduced at the hearing or subject to official notice shall not be alluded to therein, and, in any case, shall not be considered in the formulation of the marketing agreement or marketing order. If the person filing a brief desires the Sec
retary to consider any objection made by such person to a ruling of the presiding officer, as provided in $ 900.8(d), he shall include in the brief a concise statement concerning each such objection, referring where practicable, to the pertinent pages of the transcript. $ 900.10 Certification of the transcript.
The presiding officer shall notify the hearing clerk of the close of a hearing as soon as possible thereafter and of the time for filing written arguments, briefs, proposed findings and proposed conclusions, and shall furnish the hearing clerk with such other information as may be necessary. As soon as possible after the hearing, the presiding officer shall transmit to the hearing clerk an original and three copies of the transcript of the testimony and the original and all copies of the exhibits not already on file in the office of the hearing clerk. He shall attach to the original transcript of testimony his certificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as he shall specify; and that the exhibits transmitted are all the exhibits as introduced at the hearing with such exceptions as he shall specify. A copy of such certificate shall be attached to each of the copies of the transcript of testimony. In accordance with such certificate the hearing clerk shall note upon the oficial record copy, and cause to be noted on other copies, of the transcript each correction detailed therein by adding or crossing out (but without obscuring the text as originally transcribed) at the appropriate place any words necessary to make the same conform to the correct meaning, as certified by the presiding officer. The hearing clerk shall obtain and file certifications to the effect that such corrections have been effected in copies other than the official record copy $ 900.11 Copies of the transcript.
(a) During the period in which the proceeding has an active status in the Department, a copy of the transcript and exhibits shall be kept on file in the office of the hearing clerk, where it shall be available for examination during official hours of business. Thereafter said transcript and exhibits shall be made available by the hearing clerk for examination during official hours of business after prior request and reasonable notice to the hearing clerk.
(b) If a personal copy of the transcript is desired, such copy may be obtained upon written application Aled with the reporter and upon payment of fees at the rate (if any) provided in the contract between the reporter and the Secretary. $ 900.12 Administrator's recommended
decision. (a) Preparation. As soon as practicable following the termination of the period al
lowed for the filing of written arguments or briefs and proposed indings and conclusions the Administrator shall file with the hearing clerk a recommended decision.
(b) Contents. The Administrator's recommended decision shall include: (1) A preliminary statement containing a description of the history of the proceedings, a brief explanation of the material issues of fact, law, or discretion presented on the record, and proposed findings and conclusions with respect to such issues as well as the reasons or basis therefor: (2) A ruling upon each proposed finding or conclusion submitted by interested persons, and (3) An appropriate proposed marketing agreement or marketing order effectuating his recommendations.
(c) Exceptions to recommended decision. Immediately following the filing of his recommended decision the Administrator shall give notice thereof, and opportunity to file exceptions thereto by publication in the FEDERAL REGISTER. Within a period of time specified in such notice any interested person may file with the hearing clerk exceptions to the Administrator's proposed marketing agreement or marketing order, or both, as the case may be, and a brief in support of such exceptions. Such exceptions shall be in writing, shall refer, where practicable, to the related pages of the transcript and may suggest appropriate changes in the proposed marketing agreement or marketing order.
(d) Omission of recommended decision. The procedure provided in this section may be omitted only if the Secretary finds on the basis of the record that due and timely execution of his functions imperatively and unavoidably requires such omission. $ 900.13 Submission to Secretary.
Upon the expiration of the period allowed for filing exceptions or upon request of the Secretary, the hearing clerk shall transmit to the Secretary the record of the proceeding. Such record shall include: all motions and requests filled with the hearing clerk and rulings thereon; the certified transcript; any proposed findings or conclusions or written arguments or briefs that may have been filed; the Administrator's recommended decision, if any, and such exceptions as may have been filled. 8 900.13a Decision by Secretary.
After due consideration of the record, the Secretary shall render a decision. Such decision shall become a part of the record and shall include (a) a statement of his findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law or discretion presented on the record, (b) a ruling upon each proposed finding and proposed conclusion not previously ruled upon in the record, (c) a ruling upon each exception filed by interested persons and (d) either (1) a denial of the proposal to issue a marketing agreement or marketing order or (2) a marketing agree
ment and, if the findings upon the record so warrant, a marketing order, the provisions of which shall be set forth directly or by reference, regulating the handling of the com-modity or product in the same manner and to the same extent as such marketing agreement, which order shall be complete except for its effective date and any determinations to be made under $ 900.14(b) or $ 900.14(c): Provided, That such marketing order shall not be executed, issued, or made effective until and unless the Secretary determines that the requirements of $ 900.14(b) $ 900.14(c) have been met. $ 900.14 Execution of marketing agree
ment 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 filled with the Ofice of the Federal Register, or (2) such person has received actual