[Federal Register Volume 60, Number 30 (Tuesday, February 14, 1995)]
[Rules and Regulations]
[Pages 8446-8467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3464]
[[Page 8445]]
_______________________________________________________________________
Part II
Department of Agriculture
_______________________________________________________________________
Agricultural Marketing Service
Grain Inspection, Packers and Stockyards Administration
Office of the Secretary
_______________________________________________________________________
7 CFR Parts 0 and 1
7 CFR Part 47, et al.
9 CFR Chapter II et al.
Rules of Practice; Final Rule
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 /
Rules and Regulations
[[Page 8446]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary of Agriculture
7 CFR Parts 0 and 1
Agricultural Marketing Service
7 CFR Parts 47, 50, 51, 52, 53, 54, and 97
Grain Inspection, Packers and Stockyards Administration
9 CFR Chapter II and Part 202
Rules of Practice
AGENCY: Office of the Secretary of Agriculture, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the Rules of Practice Governing Formal
Adjudicatory Proceedings Instituted by the Secretary Under Various
Statutes, the Rules of Practice Governing Cease and Desist Proceedings
Under Section 2 of the Capper-Volstead Act, the Rules of Practice Under
the Perishable Agricultural Commodities Act, and the Rules of Practice
Applicable to Reparation Proceedings Under the Packers and Stockyards
Act. This final rule provides that conferences shall be conducted by
telephone or correspondence, hearings shall be conducted by audio-
visual telecommunication, and depositions shall be conducted either in
the manner agreed to by the parties or by telephone, unless the person
conducting the proceeding determines that the conference, hearing, or
deposition may be conducted by some other means. The final rule also
provides for the use of recordings of hearings and depositions and the
exchange of written narrative statements of the direct testimony prior
to hearings to be conducted by telephone. These amendments will save
the government and those who participate in the proceedings time and
money.
In addition, this rule amends 9 CFR chapter II to reflect the
abolishment of the Packers and Stockyards Administration and the
establishment of the Grain Inspection, Packers and Stockyards
Administration in the recent Department of Agriculture reorganization.
EFFECTIVE DATE: This final rule is effective March 16, 1995, except for
the amendments to the chapter heading of 9 CFR chapter II and the
references to the agency name in the chapter which are effective upon
publication in the Federal Register.
FOR FURTHER INFORMATION CONTACT: William Jenson, Senior Counsel,
Regulatory Division, Office of the General Counsel, USDA, room 2422,
South Building, 14th Street and Independence Avenue SW., Washington, DC
20250, (202) 720-2453.
SUPPLEMENTARY INFORMATION:
Background
The Department conducts a number of adjudicatory proceedings in
which conferences, depositions, and hearings are held. Many of these
conferences, depositions, and hearings are conducted by personal
attendance which necessitates travel by those who participate in the
conferences, depositions, and hearings.
Generally, conferences at which personal attendance is required are
attended by the person conducting the proceeding (an administrative law
judge, hearing officer, examiner, or presiding officer), the parties to
the proceeding, and counsel for the parties to the proceeding.
Depositions are attended by an officer authorized to administer oaths,
a court reporter, the parties, counsel for the parties, and the
deponent. Hearings are attended by the person conducting the
proceeding, the parties to the proceeding, counsel for the parties to
the proceeding, a court reporter, and witnesses called by the parties.
The costs associated with travel to conferences, depositions, and
hearings (meals, lodging, and actual travel expense) are often
substantial. These travel costs burden all taxpayers and particularly
burden the individuals who attend these proceedings. In addition to
expenditure of money, individuals personally attending the proceedings
often must spend valuable time traveling to and from these conferences,
depositions, and hearings.
Proposed Rule
Therefore, on February 25, 1994, we published a document in the
Federal Register (59 FR 9114-9136) proposing to amend the Rules of
Practice Governing Formal Adjudicatory Proceedings Instituted by the
Secretary Under Various Statutes (7 CFR 1.130 through 1.151) (referred
to as the ``Uniform Rules'' below), the Rules of Practice Governing
Cease and Desist Proceedings Under Section 2 of the Capper-Volstead Act
(7 CFR 1.160 through 1.175) (referred to as the ``Capper-Volstead
Rules'' below), the Rules of Practice Under the Perishable Agricultural
Commodities Act Applicable to Reparation Proceedings (7 CFR 47.1
through 47.25 and 47.46) (referred to as the ``PACA Reparation Rules''
below), the Rules of Practice Under the Perishable Agricultural
Commodities Act Applicable to Determinations as to Whether a Person is
Responsibly Connected With A Licensee Under the Perishable Agricultural
Commodities Act (7 CFR 47.1, 47.2(a) through 47.2(h), and 47.47 through
47.68) (referred to as the ``PACA Responsibly Connected Rules'' below),
and the Rules of Practice Applicable to Reparation Proceedings Under
the Packers and Stockyards Act (9 CFR 202.101 through 202.123)
(referred to as the ``P&S Reparation Rules'' below). Specifically, we
proposed to provide that: (1) Conferences may be conducted by
telephone, correspondence, audio-visual telecommunication, or by
personal attendance of the participants; (2) depositions and hearings
may be conducted by telephone, audio-visual telecommunication, or
personal attendance of the participants; (3) hearings and depositions
may be recorded rather than transcribed; and (4) prior to a hearing,
parties exchange written narrative statements of the direct testimony
they intend to introduce at the hearing.
Comments on the Proposed Rule
We solicited comments concerning the proposal for a 60-day comment
period ending April 26, 1994. We received 12 comments by that date. One
of the commenters requested that we reopen and extend the comment
period. In response to that request, on June 22, 1994, we published a
document in the Federal Register (59 FR 32138) reopening and extending
the comment period until July 22, 1994. We received two additional
comments by the close of the reopening and extension of the comment
period. The fourteen comments were from the following organizations and
individual: (1) The Administrative Law Section of the American Bar
Association; (2) the Agriculture Law Committee, Administrative Law
Section of the American Bar Association; (3) the American Meat
Institute; (4) the Eastern Meat Packers Association; (5) the Federal
Administrative Law Judges Conference; (6) the Forum of United States
Administrative Law Judges; (7) Janet L. Heins; (8) Holland & Knight;
(9) the Livestock Marketing Association; (10) the National Association
of Perishable Agricultural Receivers; (11) Olsson, Frank and Weeda,
P.C.; (12) the Society for Animal Protective Legislation; (13) the
United Fresh Fruit & Vegetable Association; and (14) the Western States
Meat Association. [[Page 8447]]
All of the commenters generally opposed the proposed rule. However,
many of these commenters supported some aspects of the proposal. Seven
of the commenters stated that the Department should experiment with
adjudicatory proceedings conducted by telecommunication, two commenters
praised the Department's effort to save money expended on adjudicatory
proceedings, and two of the commenters supported the elimination of
gender specific references.
The comments and our responses to those comments are as follows.
1. Constitutional Due Process
Ten commenters stated that a hearing conducted by telecommunication
would violate the constitutional right to due process.
We disagree with these comments. Prior to drafting the proposed
rule, we carefully examined whether hearings conducted by
telecommunication provide a full and fair evidentiary hearing that
comports with due process. We concluded that the due process clause
does not preclude the use of telecommunication in adjudicatory
proceedings.
The memorandum containing our analysis and findings was placed in
the rulemaking record upon publication of the proposed rule. As we
stated in that memorandum, due process is flexible and calls for such
procedural protections as the particular situation demands. Morrissey
v. Brewer, 408 U.S. 471 (1972). The courts have applied a balancing
test that examines: (1) The private interest that will be affected by
the official action; (2) the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and (3) the
government's interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural
requirement would entail. Mathews v. Eldridge, 424 U.S. 319 (1976).
The question of what process is due requires flexibility rather
than an either/or analysis which assumes that either face-to-face oral
hearings are always required or that face-to-face oral hearings are
never required. The proposed rule provides such flexibility. Hearings
would be conducted by telephone, audio-visual telecommunication, or by
the personal attendance of any individual who is expected to
participate in the hearing. Under the proposal, the person conducting
the proceeding would determine which method of conducting the hearing
is to be used in a particular instance based, in part, on the need to
conduct the hearing in a manner that would not prejudice any of the
parties to the proceeding. (See proposed 7 CFR 1.141(b) (3) and (4),
1.168(b) (3) and (4), 47.15(c) (3) and (4), and 47.49(f) (2) and (3)
and 9 CFR 202.112(a) (3) and (4).)
Despite our view that the proposal provides the person conducting
the proceeding with sufficient flexibility to tailor the manner in
which a hearing is conducted so that due process is provided, we have
made changes that address the due process concerns raised by the
commenters.
Specifically, the final rule provides that the hearings held under
the Uniform Rules, the Capper-Volstead Rules, the PACA Reparation
Rules, the PACA Responsibly Connected Rules, and the P&S Reparation
Rules shall be conducted by audio-visual telecommunication unless the
person conducting the proceeding determines that conducting the hearing
by personal attendance of any individual who is expected to participate
in the hearing: (1) Is necessary to prevent prejudice to a party; (2)
is necessary because of a disability of any individual expected to
participate in the hearing; or (3) would cost less than conducting the
hearing by audio-visual telecommunication.
The person conducting the proceeding may, in his or her sole
discretion or in response to a motion by a party to the proceeding,
conduct the hearing by telephone only if the person conducting the
proceeding finds that a hearing conducted by telephone: (1) Would
provide a full and fair evidentiary hearing; (2) would not prejudice
any party; and (3) would cost less than conducting the hearing by
audio-visual telecommunication or personal attendance of any individual
who is expected to participate in the hearing. (See 7 CFR 1.141(b) (3)
and (4), 1.168(b) (3) and (4), 47.15(c) (3) and (4), and 47.49(f) (2)
and (3) and 9 CFR 202.112(a) (3) and (4) in this final rule.)
2. Compliance with the Administrative Procedure Act
Four commenters stated that a hearing conducted by
telecommunication would violate the Administrative Procedure Act. All
four commenters stated that a hearing conducted by telecommunication
would deprive the parties of their right to cross-examine witnesses in
violation of 5 U.S.C. 556(d). Two commenters stated that a hearing
conducted by telecommunication would deprive the judge of the ability
to control the proceeding to ensure that only reliable evidence is
received. One commenter stated that a hearing conducted by
telecommunication would deprive the parties of the right to participate
in the hearing in violation of 5 U.S.C. 554(c) and the right to present
oral or documentary evidence in violation of 5 U.S.C. 556(d).
We disagree with these comments. Prior to drafting the proposed
rule, we carefully examined whether hearings conducted by
telecommunication would violate the Administrative Procedure Act. We
concluded that the Administrative Procedure Act does not preclude the
use of telecommunication in adjudicatory proceedings. The memorandum
containing our analysis and findings was placed in the rulemaking
record upon publication of the proposed rule.
There is no provision in the Administrative Procedure Act that
explicitly requires face-to-face adjudicatory hearings and we found
nothing to indicate that Congress intended to exclude the use of
telecommunication in adjudicatory proceedings conducted pursuant to the
Administrative Procedure Act. As previously discussed in this
rulemaking document, this final rule amends the Uniform Rules, the
Capper-Volstead Rules, the PACA Reparation Rules, the PACA Responsibly
Connected Rules, and the P&S Reparation Rules to provide that the
hearings shall be conducted by audio-visual telecommunication unless
the person conducting the proceeding determines that conducting the
hearing by personal attendance of any individual who is expected to
participate in the hearing: (1) Is necessary to prevent prejudice to a
party; (2) is necessary because of a disability of any individual
expected to participate in the hearing; or (3) would cost less than
conducting the hearing by audio-visual telecommunication. A hearing
conducted by audio-visual telecommunication allows full cross-
examination with an ability to observe the demeanor of the witness;
provides an opportunity to transmit and receive documents by the use of
facsimile; provides for a prior exchange of exhibits; and allows the
person conducting the proceeding full control of the course of the
hearing. If a hearing conducted by telecommunication would not
constitute a full and fair hearing, the person conducting the hearing
may require a face-to-face hearing.
Further, the final rule provides that the person conducting the
proceeding may, in his or her sole discretion or in response to a
motion by a party to the proceeding, conduct the hearing by telephone
only if the person conducting the proceeding finds that a hearing
conducted by telephone: (1) Would [[Page 8448]] provide a full and fair
evidentiary hearing; (2) would not prejudice any party; and (3) would
cost less than conducting the hearing by audio-visual telecommunication
or personal attendance of any individual who is expected to participate
in the hearing.
Toward this end, we proposed to amend the Uniform Rules, the
Capper-Volstead Rules, the PACA Reparation Rules, the PACA Responsibly
Connected Rules, and the P&S Reparation Rules to authorize the person
conducting a proceeding to: (1) Require each party to provide all other
parties and the person conducting the proceeding with a copy of any
exhibit that the party intends to introduce into evidence prior to any
hearing to be conducted by telephone or audio-visual telecommunication;
and (2) require that any hearing to be conducted by telephone or audio-
visual telecommunication be conducted at locations at which the parties
and the person conducting the proceeding are able to transmit documents
during the hearing. These proposed provisions (see proposed 7 CFR
1.144(c) (9) and (11), 1.173(d) (7) and (8), 47.11(c) (9) and (11), and
47.56 (g) and (h) and 9 CFR 202.118(a) (8) and (10)) regarding the
exchange of exhibits prior to a hearing conducted by telecommunication
and the ability to transmit documents during a hearing conducted by
telecommunication are designed to ensure that all parties have a full
opportunity to participate in the hearing, present oral or documentary
evidence, and cross-examine witnesses.
We have retained these provisions in the final rule with one minor
modification to correct an oversight in the proposed rule. As stated
above, proposed 7 CFR 1.144(c)(11), 1.173(d)(8), 47.11(c)(11), and
47.56(h) and 9 CFR 202.118(a)(10) would authorize a person conducting a
proceeding to require that any hearing to be conducted by telephone or
audio-visual telecommunication be conducted at locations at which the
parties and the person conducting the proceeding are able to transmit
documents during the hearing. We have amended 7 CFR 1.144(c)(11),
1.173(d)(8), 47.11(c)(11), and 47.56(h) and 9 CFR 202.118(a)(10) to
authorize a person conducting a proceeding to require that any hearing
to be conducted by telephone or audio-visual telecommunication be
conducted at locations at which the parties and the person conducting
the proceeding are able to transmit and receive documents during the
hearing.
3. Statutory Requirements
One commenter stated that the plain meaning of statutes that
require hearings to be held ``before the Secretary'' is that face-to-
face hearings are required. Therefore, any hearings under those
statutes which are conducted by telecommunication would be inconsistent
with those statutes.
Numerous hearings conducted under the rules of practice which this
final rule amends are conducted pursuant to statutes that require
hearings ``before the Secretary.'' We fully examined whether hearings
conducted by telecommunication in which some or all of the evidence is
introduced at locations other than the location at which the person
conducting the proceeding is situated would violate statutes that
require hearings to be conducted ``before the Secretary.'' We concluded
that such hearings would not violate these statutes. The memorandum
containing our analysis and findings was placed in the rulemaking
record upon publication of the proposed rule.
A few courts have found that telephone hearings were insufficient
due to language of the statute under which the hearings were conducted.
For example, in Purba v. Immigration & Naturalization Service, 884 F.
2d 516 (9th Cir. 1989), the court held that a deportation hearing must
be conducted in the physical presence of the immigration judge, absent
the consent of the parties, because the statute under which the hearing
was held required the hearing to be ``before'' the judge. The court
found the plain meaning of the word ``before'' is ``in the presence
of,'' ``in sight of,'' or ``face-to-face with'' a person and that
conducting the hearing by telephone was not a hearing ``before'' the
judge. However, the Supreme Court has recently held that where Congress
has not decided, any alternative dictionary definition of a word that
has a rational effect under a statute is a possibility for agency
choice, and the courts are to defer to the agency's choice of the
interpretation of the word, if it is reasonable. National Railroad
Passenger Corp. v. Boston and Maine Corp., ____ U.S. ____, 112 S. Ct.
1394 (1992).
The eleventh circuit, applying the rationale in National Railroad
Passenger Corp., found that a hearing conducted by telephone did not
violate the Immigration and Nationality Act that provides that a
``[d]etermination of deportability * * * shall be made only on the
record in a proceeding before a special inquiry officer.'' Bigby v.
United States Immigration and Naturalization Service, 21 F. 3d 1059
(11th Cir. 1994). (Emphasis added.) The eleventh circuit explicitly
rejected the argument that ``before'' was susceptible of only one
meaning. The court found that the word ``before'' did not of necessity
mean ``in front of'' or ``in the presence of,'' thereby mandating that
the special inquiry officer be physically present at a hearing required
to be held ``before'' the special inquiry officer. The court found that
``before'' could be used in a jurisdictional sense and mean ``to be
judged or acted on by'' or ``under the official or formal consideration
of.'' The court, citing Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), held that ``[i]n the
absence of unambiguous congressional intent, we defer to an agency's
reasonable interpretation of a statute it is charged with
administering.
None of the statutes that require proceedings to be conducted
``before the Secretary'' under which hearings are conducted pursuant to
the rules of practice amended by this final rule define the word
``before'' nor do these statutes provide any clear indication of
congressional intent with respect to the meaning of the word ``before''
as used in these statutes. Therefore, it is reasonable for the
Department to find that the word ``before,'' as used in these statutes,
is jurisdictional and means ``to be judged or acted on by,'' ``under
the official or formal consideration of,'' or ``under the cognizance or
jurisdiction of.''
4. Credibility Determinations
Seven commenters stated that hearings conducted by
telecommunication negatively impact credibility determinations. Five
commenters focused exclusively on the need for the judge to observe
demeanor to determine credibility. One commenter stated that it is
important for all participants to assess credibility of other
participants. Four commenters raised the specter of witnesses reading
prepared statements without the knowledge of all participants.
Hearings conducted by audio-visual telecommunication do not impact
credibility determinations because the fact finder is able to see and
hear witnesses in a hearing conducted by audio-visual telecommunication
in much the same manner and to the same extent as the fact finder would
see and hear witnesses in a face-to-face hearing. Hearings conducted by
telephone may, but do not necessarily, negatively impact credibility
determinations.
While we believe that the proposal provides the person conducting
the proceeding with sufficient flexibility to tailor the manner in
which a hearing is conducted so that credibility
[[Page 8449]] determinations are not negatively impacted, in the final
rule we made substantial changes to these proposed provisions which
address the concerns regarding credibility raised by the commenters.
The final rule provides that hearings conducted under the Uniform
Rules, the Capper-Volstead Rules, the PACA Reparation Rules, the PACA
Responsibly Connected Rules, and the P&S Reparation Rules shall be
conducted by audio-visual telecommunication unless the person
conducting the proceeding determines that conducting the hearing by
personal attendance of any individual who is expected to participate in
the hearing: (1) Is necessary to prevent prejudice to a party; (2) is
necessary because of a disability of any individual expected to
participate in the hearing; or (3) would cost less than conducting the
hearing by audio-visual telecommunication.
The person conducting the proceeding may, in his or her sole
discretion or in response to a motion by a party to the proceeding,
conduct the hearing by telephone only if the person conducting the
proceeding finds that a hearing conducted by telephone: (1) Would
provide a full and fair evidentiary hearing; (2) would not prejudice
any party; and (3) would cost less than conducting the hearing by
audio-visual telecommunication or personal attendance of any individual
who is expected to participate in the hearing. (See 7 CFR 1.141(b) (3)
and (4), 1.168(b) (3) and (4), 47.15(c) (3) and (4), and 47.49(f) (2)
and (3) and 9 CFR 202.112(a) (3) and (4) in this final rule.)
We do expect that, after the effective date of this final rule, a
number of hearings will be conducted by telephone based upon a finding
by the person conducting the proceeding that a hearing conducted by
telephone will provide a full and fair evidentiary hearing; will not
prejudice any party; and will cost less than conducting the hearing by
audio-visual telecommunication or personal attendance of any individual
who is expected to participate in the hearing.
Numerous courts have found that hearings conducted by telephone do
not increase the risk of error because witness demeanor cannot be
viewed. In Casey v. O'Bannon, 536 F. Supp. 350 (E.D. Pa. 1982), the
court determined that plaintiffs failed to prove that the constitution
compels face-to-face hearings and that there is a risk of an erroneous
deprivation by virtue of the telephone procedures as they currently
exist. The court was influenced by testimony at trial showing that
``hearing examiners can effectively judge credibility over the phone by
noting voice responses, pauses, levels of irritation and other
factors'' and a survey showing that 82% of examiners who have presided
over telephone hearings believe they can judge credibility in hearings
conducted by telephone. Id., at 353-54, citing Attitudes Towards the
Use of the Telephone in Administrative Fair Hearings, The California
Experience, 31 Admin. L. Rev. 247 (1979).
Further, in Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 131
(2nd Cir. 1967), the Second Circuit stated, ``Utica finds in the due
process clause of the Fifth Amendment a requirement that when there are
issues of credibility, as was assumed to be true here, no determination
of fact may be made unless the decider has either seen the witnesses
himself or has been furnished with a report as to the credibility by
another who has * * *. We discern no such absolute in the history laden
words of the Fifth Amendment; Utica would freeze what is usually a
sensible rule of judicial administration into a constitutional
imperative.'' The court further noted that when the Constitution was
adopted the settled practice in the English chancery courts was to take
evidence almost wholly by deposition. Id., at 131 n. 3. Utica was cited
as support in at least two other federal cases involving the fact
finder's inability to observe demeanor. See Moore v. Ross, 687 F.2d
604, 609-10 (2nd Cir. 1982), cert. denied, 459 U.S. 1115 (1983); Blake
v. Ambach, 691 F.Supp. 651, 655-56 (S.D.N.Y. 1988).
Numerous state courts have also upheld the use of telephone
hearings under circumstances in which the issue of demeanor and
credibility was raised. In Babcock v. Employment Division, 696 P.2d 19,
21 (Or. App 1985), the court considered credibility the most difficult
issue for unemployment compensation telephone hearings, yet stated that
while ``[p]hysical appearance can be a clue to credibility, * * * of
equal or greater importance is what a witness says and how she says
it.'' The Oregon appellate court was satisfied ``that the audible
indicia of a witness' demeanor are sufficient for a referee to make an
adequate judgment as to believability.'' Id.
In State, ex. rel. Human Services Department v. Gomez, 657 P.2d
117, 124 (N.M. 1983), the court rejected Gomez's contention that the
telephonic hearing was not meaningful because his efforts to remain on
welfare depended upon his credibility and the hearing officer could not
judge credibility without seeing him. The court did state that
credibility may be a minimal factor in disability determination, but
``a requirement that the hearing officer also see Gomez testify * * *
would impose the rigidities of judicial procedure on what is supposed
to be an informal proceeding.'' Id., at 124-25.
5. Exchange of Direct Testimony of Each Witness a Party Will Call
We proposed to amend the Uniform Rules, the Capper-Volstead Rules,
the PACA Reparation Rules, the PACA Responsibly Connected Rules, and
the P&S Reparation Rules to provide that unless the hearing is
scheduled to begin less than 20 days after the person conducting the
proceeding issues a notice stating the time of the hearing, each party
must exchange, in writing, with all other parties, a verified narrative
statement of the direct testimony of each witness that the party will
call to provide oral direct testimony at the hearing. (See proposed 7
CFR 1.141(g), 1.168(f), 47.15(f), and 47.58(a) and 9 CFR 202.112(e).)
One commenter objected to the exchange of direct testimony of each
witness. Two commenters stated that they had no objection to the
exchange of direct testimony as long as each witness is required ``to
appear in court for cross-examination.''
The requirement that parties exchange the written narrative
statements of the direct testimony of witnesses the parties intend to
call at a hearing may, in some instances, necessitate a significant
expenditure of time and resources. Based on our past experience, many
administrative proceedings conducted under the rules of practice which
we are amending are settled just prior to the scheduled date of
hearing. In these circumstances, the preparation and exchange of a
written verified narrative statement of the oral direct testimony of
each witness the parties intend to call would constitute an unnecessary
expenditure of time and resources. One of the purposes of this final
rule is to make adjudicatory proceedings conducted by the Department as
efficient as possible. Therefore, this final rule limits the provisions
regarding the exchange of written verified narrative statements of the
oral direct testimony of witnesses the parties intend to call to
hearings to be conducted by telephone. Except as discussed below, we
have retained the provision regarding the exchange of written verified
narrative statements of oral direct testimony prior to hearings
conducted by telephone to expedite these hearings, prevent surprise,
ensure that all parties have a full opportunity to participate in the
hearing and cross-examine witnesses, and assist the
[[Page 8450]] person conducting the hearing with credibility
determinations.
Proposed 7 CFR 1.141(g), 1.168(f), 47.15(f), and 47.58(a) and 9 CFR
202.112(e) would have required each party to obtain written verified
narrative statements of oral direct testimony of all witnesses the
party intends to call to provide oral direct testimony. Under the
proposal, testimony would be limited to the written direct testimony.
Occasionally parties call hostile witnesses or witnesses over whom they
have no control to provide oral direct testimony at hearings in
proceedings conducted under the Uniform Rules, the Capper-Volstead
Rules, the PACA Reparation Rules, the PACA Responsibly Connected Rules,
and the P&S Reparation Rules. Requiring a party to obtain and exchange
written verified narrative statements from hostile witnesses and
witnesses over whom a party has no control could result in a party's
inability to introduce relevant and material evidence at a hearing.
Therefore, this final rule provides that each party need only obtain
and exchange written verified narrative statements of the oral direct
testimony of the following witnesses that the party intends to call at
hearings to be conducted by telephone: (1) The party; (2) the employees
and agents of the party; and (3) the party's expert witnesses. The oral
direct testimony provided by a witness at a hearing conducted by
telephone will be limited to the presentation of the written direct
testimony, unless the person conducting the hearing finds that oral
direct testimony which is supplemental to the written direct testimony
would further the public interest and would not constitute surprise.
6. Verbatim Recordings in Lieu of Transcripts
We proposed to amend the Uniform Rules, the Capper-Volstead Rules,
the PACA Reparation Rules, the PACA Responsibly Connected Rules, and
the P&S Reparation Rules to provide for the use of recordings of
hearings, and, where applicable, depositions. Four commenters opposed
the use of recordings. One commenter objected to the use of recordings
of hearings and depositions rather than transcripts, but did not state
the basis for the objection. Three commenters stated that the review of
a recording is more time-consuming than the review of a transcript of
the same proceeding and the citation of relevant portions of a
recording more difficult than the citation of relevant portions of a
transcript. Two commenters stated that transcripts of prehearing
conferences are necessary at a hearing in order to refer to evidentiary
rulings made in prehearing conferences and transcripts of depositions
are necessary for the proper cross-examination of witnesses. One
commenter noted that the Department would have to purchase equipment to
enable its counsel to review recordings.
We made changes based on these comments. The final rule requires
that hearings to be conducted by telephone shall be recorded verbatim
by electronic recording device. Hearings conducted by audio-visual
telecommunication or the personal attendance of any individual who is
expected to participate in the hearing shall be transcribed, unless the
person conducting the hearing finds that recording the hearing verbatim
would expedite the proceeding and the person conducting the hearing
orders the hearing to be recorded verbatim. The person conducting the
hearing shall certify that to the best of his or her knowledge and
belief the recording with exhibits that were accepted into evidence is
the record of the hearing. The final rule provides that if a party
requests the transcript of a hearing or part of a hearing and the
person conducting the hearing determines that the disposition of the
proceeding would be expedited by a transcript of the hearing or part of
a hearing, the person conducting the hearing shall order the verbatim
transcription of the recording as requested by the party. (See 7 CFR
1.141(i), 1.168(h), 47.15(i), and 47.60 and 9 CFR 202.112(i) in this
final rule.) The final rule provides that transcripts and recordings of
hearings conducted under the Uniform Rules and the Capper-Volstead
Rules shall be made available to any person at actual cost of
duplication. (See 7 CFR 1.141(i) and 1.168(h) in this final rule.) We
have retained the provisions regarding the cost and availability of
transcripts that are currently in the PACA Reparation Rules, the PACA
Responsibly Connected Rules, and the P&S Reparation Rules (see current
7 CFR 47.15(g) and 47.60 and 9 CFR 202.112(h)) and have applied these
cost and availability provisions to recordings. (See 7 CFR 47.15(i) and
47.60 and 9 CFR 202.112 (i) in this final rule.)
The discretion provided to the person conducting the hearing to
order that a transcript be provided to a party rather than a recording
will ensure that transcripts are available when a party does not have
access to equipment that enables that party to use recordings. Further,
we believe that parties will be able to review recordings as quickly as
they review transcripts by using the fast forward and reverse modes
that are available on most recording devices. In addition, relevant
portions of recordings can be referenced by time, revolution, or some
other method, as determined by the person conducting the proceeding.
Prior to this rulemaking proceeding, none of the rules of practice
which are the subject of this rulemaking proceeding required that
prehearing conferences be recorded and we did not propose to require
the transcription of prehearing conferences. Therefore, the comment
regarding the transcription of prehearing conferences in order to refer
to evidentiary rulings made in prehearing conferences is beyond the
scope of this rulemaking proceeding.
7. ``Practical'' Problems
Four commenters stated that hearings conducted by telecommunication
would result in what the commenters characterized as ``practical
problems.''
(a) One commenter stated that hearings conducted by
telecommunication would impair the ability of the parties to observe
documents and call witnesses.
We proposed to amend the Uniform Rules, the Capper-Volstead Rules,
the PACA Reparation Rules, the PACA Responsibly Connected Rules, and
the P&S Reparation Rules to authorize the person conducting a
proceeding to: (1) Require each party to provide all other parties and
the person conducting the proceeding with a copy of any exhibit that
the party intends to introduce into evidence prior to any hearing to be
conducted by telephone or audio-visual telecommunication; and (2)
require that any hearing to be conducted by telephone or audio-visual
telecommunication be conducted at locations at which the parties and
the person conducting the proceeding are able to transmit documents
during the hearing. These proposed provisions (see proposed 7 CFR
1.144(c) (9) and (11), 1.173(d) (7) and (8), 47.11(c) (9) and (11), and
47.56 (g) and (h) and 9 CFR 202.118(a) (8) and (10)) regarding the
exchange of exhibits prior to a hearing conducted by telecommunication
and the ability to transmit documents during a hearing conducted by
telecommunication are designed to ensure that all parties have a full
opportunity to participate in the hearing, present oral or documentary
evidence, and cross-examine witnesses.
As we stated above, we have retained these provisions in the final
rule with one minor modification to correct an oversight in the
proposed rule.
Further, we proposed to amend the Uniform Rules, the Capper-
Volstead [[Page 8451]] Rules, the PACA Reparation Rules, the PACA
Responsibly Connected Rules, and the P&S Reparation Rules to provide
that unless the hearing is scheduled to begin less than 20 days after
the person conducting the proceeding issues a notice stating the time
of the hearing, each party must exchange, in writing, with all other
parties, the direct testimony of each witness that the party will call
to provide oral direct testimony at the hearing. (See proposed 7 CFR
1.141(g), 1.168(f), 47.15(f), and 47.58(a) and 9 CFR 202.112(e).) The
written direct testimony must be in narrative form and must be
verified. The written direct testimony of witnesses shall be exchanged
by the parties at least 10 days prior to the hearing. The oral direct
testimony provided by a witness at the hearing will be limited to the
presentation of the written direct testimony, unless the person
conducting the proceeding finds that oral direct testimony which is
supplemental to the written direct testimony would expedite the
proceeding and would not constitute surprise. These provisions
regarding exchange of direct testimony are designed to ensure that all
parties have a full opportunity to participate in the hearing, and
cross-examine witnesses. As discussed above, we have limited the
provisions regarding the exchange of written verified narrative
statements of oral direct testimony to hearings to be conducted by
telephone and to certain specified witnesses.
These provisions will ensure that parties to adjudicatory
proceedings conducted under the rules of practice which we are amending
will have ample opportunity to observe documents.
We do not agree with the comment that parties will have any more
difficulty calling witnesses in a hearing conducted by
telecommunication than parties will have when calling witnesses in a
face-to-face hearing. The commenter did not provide any basis for this
concern.
(b) One commenter stated that no provision can be made in hearings
conducted by telecommunication for--the introduction of real evidence,
the examination of a witness regarding documents that the witness has
in his or her possession on entering the courtroom, the examination of
a witness regarding his or her ability to read at a distance, the
request that a witness draw a picture; or any ``other unexpected
events.''
We have not made any change based on this comment. Very few of the
hearings conducted under the rules of practice which this final rule
amends necessitate the introduction of real evidence, the examination
of a witness regarding documents that the witness has in his or her
possession on entering the courtroom, the examination of a witness
regarding his or her ability to read at a distance, or the request that
a witness draw a picture.
As discussed previously in this rulemaking document, the final rule
provides that the person conducting the proceeding may require hearings
conducted by telecommunication to be held at locations at which the
parties and the person conducting the proceeding are able to transmit
and receive documents during the hearing. This requirement will enable
parties to examine witnesses regarding documents that the witness has
in his or her possession on entering the courtroom and the ability to
read at a distance, and to request witnesses to draw pictures or
diagrams in hearings conducted by telecommunication.
If real evidence is to be introduced in a hearing, the hearing or
that part of the hearing in which the real evidence is to be introduced
can be conducted by the personal attendance of those who are to
participate in the hearing. As stated above, the person conducting the
proceeding can require the hearing to be conducted by personal
attendance of any individual who is expected to participate in the
hearing if personal attendance is necessary to prevent prejudice to a
party. The inability of a party to introduce admissible evidence
because a hearing is conducted by telecommunication may prejudice a
party, and, in such circumstances, a face-to-face hearing will be
conducted.
(c) Two commenters stated that hearings conducted by
telecommunication would reduce the appearance of justice.
We disagree with the comment and have not made any change based on
this comment. The quality of justice will not be affected by this final
rule. If any party will be prejudiced by a hearing conducted by
telecommunication, the person conducting the proceeding will require
the hearing to be conducted by personal attendance of any individual
who is expected to participate in the hearing. The use of audio-visual
technology preserves due process, promotes ease of participation by
those for whom travel is difficult, and allows each party and the
person conducting the proceeding to participate fully and with the
effect of face-to-face confrontation. Therefore, we believe that this
final rule will in fact heighten the appearance and fact of justice
done.
(d) Two commenters stated that hearings conducted by
telecommunication would make sequestration difficult.
A person conducting a hearing by telecommunication could order
sequestration in the same manner in which it is ordered in a face-to-
face hearing. We agree that, in most situations, the person conducting
a hearing by telecommunication will not be in a position to determine
whether a sequestration order has been followed. We expect that all
parties in adjudicatory proceedings conducted by the Department and
counsel to those parties will make every effort to comply with lawful
orders issued by the person conducting the proceeding.
(e) Two commenters stated that hearings conducted by
telecommunication would make recesses impractical.
We disagree and have made no change based on these comments.
Recesses can be called as easily in a hearing conducted by
telecommunication as in a hearing conducted by personal attendance of
those involved with the hearing.
(f) Four commenters stated that prompting witnesses at hearings
conducted by telecommunication would be difficult to control.
Prompting of witnesses can occur in face-to-face hearings, but we
do agree that, in some situations, it may be more difficult for a
person conducting a hearing to detect witness prompting at a hearing
conducted by telecommunication than to detect witness prompting at a
hearing conducted by personal attendance of participants. However,
prompting of witnesses in hearings conducted by audio-visual
telecommunication will be far more difficult to conceal from other
parties and the person conducting a hearing than in hearings conducted
by telephone. In fact, current audio-visual technology can provide the
person conducting the proceeding and the parties with virtually
unlimited vision in the room in which a hearing is being conducted. We
believe that the potential prompting problem is minimized by making
audio-visual hearings the prevalent method of hearing.
(g) Two commenters stated that hearings conducted by
telecommunication could be negated by a signal or power failure or
electronic interference.
We disagree. If a signal or power failure were to occur, the
hearing would be adjourned until such time as the hearing could be
resumed. That portion of the hearing which is completed prior to the
signal or power failure would not be negated. A signal or power failure
which causes the adjournment of a [[Page 8452]] hearing conducted by
telecommunication is not different than an event, such as a power
failure or fire in the building in which a hearing is being conducted,
that may cause the person conducting a face-to-face hearing to
temporarily adjourn a hearing.
(h) One commenter stated that the rules of practice would be
subject to challenge which would add to uncertainty and cost money to
defend.
While proceedings conducted by telecommunication could be
challenged, we believe that these challenges can be easily defended.
Above, we cited a number of cases in which adjudicatory proceedings
conducted by telecommunication have been challenged, and the state and
federal agencies conducting proceedings by telecommunication have
prevailed.
(i) Two commenters stated that hearings conducted by
telecommunication would often necessitate the employment of multiple
counsel by each party to observe witness demeanor at each location at
which a hearing is being held.
The final rule does not require counsel to be present at the
location at which a witness is testifying in a proceeding conducted by
telecommunication. While we do not believe that the presence of counsel
at each location at which witnesses testify is necessary, a party may
chose to have counsel present at some or all of the locations at which
witnesses testify in hearings conducted by telecommunication. Such an
expenditure would be at the option of each party to the proceeding.
8. The Rulemaking Record
Six commenters stated that the rulemaking record is deficient.
(a) Four commenters stated that the cost-benefit analysis is
inadequate or nonexistent.
We have not made any change based upon these comments. In
accordance with Executive Order 12866, we prepared an assessment in
connection with the preparation of the notice of proposed rulemaking
which preceded this final rule. The assessment, which was included in
the rulemaking record, contains a discussion of the costs and benefits
associated with the proposed rule. Again, in accordance with Executive
Order 12866, we prepared an assessment in connection with the
preparation of this final rule. The assessment, which was included in
the rulemaking record, contains a discussion of the costs and benefits
associated with the final rule.
(b) Two commenters stated that there was no ``justification of the
technical feasibility of conducting cross-examination via audio-visual
devices.''
We have not made any change based upon these comments. Prior to
preparing the proposed rule, we thoroughly examined the range of
equipment available to conduct adjudicatory proceedings by
telecommunication. We found that both the telephone and audio-visual
telecommunication equipment are generally adequate to conduct cross-
examinations. Again, the final rule amends the Uniform Rules, the
Capper-Volstead Rules, the PACA Reparation Rules, the PACA Responsibly
Connected Rules, and the P&S Reparation Rules, to provide that hearings
will be conducted by the personal attendance of any individual who is
expected to participate in the hearing if the person conducting the
proceeding finds that personal attendance: (1) Is necessary to prevent
prejudice to a party; (2) is necessary because of a disability of any
individual expected to participate in the hearing; or (3) would cost
less than conducting the hearing by audio-visual telecommunication. The
person conducting the proceeding may, in his or her sole discretion or
in response to a motion by a party to the proceeding, conduct the
hearing by telephone only if the person conducting the proceeding finds
that a hearing conducted by telephone: (1) would provide a full and
fair evidentiary hearing; (2) would not prejudice any party; and (3)
would cost less than conducting the hearing by audio-visual
telecommunication or personal attendance of any individual who is
expected to participate in the hearing.
(c) One commenter stated that it did not have adequate notice of
the proposed rule, and, therefore, the comment period should be
extended.
On June 22, 1994, in response to this comment, we published a
document in the Federal Register (59 FR 32138) reopening and extending
the comment period until July 22, 1994.
9. Suggestions
(a) Five commenters stated that the Department should experiment
with proceedings conducted by telecommunication on a limited basis.
We have not made any change based on these comments. The use of
telecommunication in adjudicatory proceedings is not new. Numerous
state and federal agencies have conducted adjudicatory proceedings by
telecommunication in the past. We believe that experience of other
state and federal agencies is sufficient to enable the Department to
forego the implementation of telecommunication on an experimental
basis.
(b) Five commenters stated that hearings should only be conducted
by telecommunication when the parties agree.
We have not made any change based on this comment. The final rule
provides the parties with ample opportunity to make the person
conducting the proceeding aware of the parties' preferences regarding
the manner in which the hearing should be conducted and to persuade the
person conducting the proceeding to conduct the hearing in a manner
other than that ordered by the person conducting the proceeding.
Specifically, the final rule amends the Uniform Rules, the Capper-
Volstead Rules, the PACA Reparation Rules, the PACA Responsibly
Connected Rules, and the P&S Reparation Rules to provide that any party
may move that the hearing be conducted by telephone or personal
attendance of any individual expected to attend the hearing rather than
by audio-visual telecommunication. Further, within 10 days after the
person conducting the proceeding issues a notice stating the manner in
which the hearing is to be conducted, any party may move that the
person conducting the proceeding reconsider the manner in which the
hearing is to be conducted. (See 7 CFR 1.141(b)(2), 1.168(b)(2),
47.15(c)(2), and 47.53 (b) and (c) and 9 CFR 202.112(b) (2) and (3) in
this final rule.)
(c) Two commenters stated that the parties should elect the manner
in which depositions are to be held and judges should only be involved
if the parties cannot agree.
We agree with the commenters with respect to the PACA Reparation
Rules and the P&S Reparation Rules. We proposed to amend the Uniform
Rules, the PACA Reparation Rules, and the P&S Reparation Rules to
provide that a deposition shall be conducted by telephone unless the
person conducting the proceeding determines that conducting the
deposition by audio-visual telecommunication: (1) Would cost less than
conducting the deposition by telephone; (2) is necessary to prevent
prejudice to a party; or (3) is necessary because of a disability of
any individual expected to participate in the deposition. If the
deposition is not conducted by telephone, the deposition shall be
conducted by audio-visual telecommunication unless the person
conducting the proceeding determines that conducting the deposition by
personal attendance of any individual who is expected to participate in
the deposition: (1) Would cost less than [[Page 8453]] conducting the
deposition by telephone or audio-visual telecommunication; (2) is
necessary to prevent prejudice to a party; or (3) is necessary because
of a disability of any individual expected to participate in the
deposition.
However, the government is never a party in proceedings conducted
under the PACA Reparation Rules and the P&S Reparation Rules and incurs
very little cost associated with depositions taken in PACA and P&S
reparation proceedings. Therefore, the final rule provides that in
proceedings conducted under the PACA Reparation Rules and the P&S
Reparation Rules the parties may agree upon the manner in which the
depositions are to be conducted and the person conducting the
proceeding will only determine the manner in which a deposition is to
be conducted when the parties cannot agree. (See 7 CFR 47.16(b) (3) and
(4) and 9 CFR 202.109(d) (4) and (5) in this final rule.)
(d) One commenter opposed the proposal, but urged the Department to
modernize its rules and to form an ad hoc committee to review the
rules.
We welcome any comments or petitions for rulemaking which any
interested member of the public may wish to make regarding any of the
Department's rules of practice, but we do not believe that it is
necessary to form a committee to review the Department's rules or
practice. The Department regulation regarding petitions for issuance,
amendment, or repeal of a rule is set forth in 7 CFR 1.28.
(e) Two commenters supported conducting conferences by telephone
when the judge decides that the use of the telephone is appropriate.
We did not make any change based on these comments. The proposed
rule provided that conferences are to be held either by telephone or by
correspondence unless certain findings are made by the person
conducting the proceeding. The final rule retains those provisions.
Conclusion
Based on the rationale in the proposed rule and this rulemaking
document, we are adopting the provisions of the proposal as a final
rule except as previously discussed in this rulemaking document and
except for minor editorial changes for clarity. In addition, since the
preparation of the notice of proposed rulemaking 7 CFR 180.300 has been
redesignated as 7 CFR 97.300. Therefore, we have removed the amendment
of 7 CFR 180.300 in this final rule and, instead, amended 7 CFR 97.300.
Further, based upon the general need to allow the person conducting
the proceeding to tailor the manner in which the proceeding is
conducted to prevent prejudice to any party and to ensure that any
hearing is a full and fair evidentiary hearing, we have eliminated all
of the provisions which appeared in the proposal concerning
interlocutory appeal. Specifically, we proposed to amend 7 CFR 1.143(e)
to allow any party to appeal to the Judicial Officer a Judge's order:
(1) To conduct a conference by audio-visual telecommunication or
personally attend a conference; (2) to conduct a hearing by audio-
visual telecommunication or personally attend a hearing; or (3) to
conduct a deposition by audio-visual telecommunication or personally
attend a deposition. Further, we proposed to amend 7 CFR 47.13(b) to
allow any party to appeal to the Secretary an examiner's order: (1) To
conduct a conference by audio-visual telecommunication or personally
attend a conference; (2) to conduct a hearing by audio-visual
telecommunication or personally attend a hearing; or (3) to conduct a
deposition by audio-visual telecommunication or personally attend a
deposition. Further still, we proposed to amend 7 CFR 1.172(e) to allow
any party to appeal to the Judicial Officer a Judge's order: (1) To
conduct a conference by audio-visual telecommunication or personally
attend a conference; or (2) to conduct a hearing by audio-visual
telecommunication or personally attend a hearing. Finally, we proposed
to amend 9 CFR 202.118(b) to allow any party to appeal to the Judicial
Officer a presiding officer's order: (1) To conduct a conference by
audio-visual telecommunication or personally attend a prehearing
conference; (2) to conduct an oral hearing by audio-visual
telecommunication or personally attend an oral hearing; or (3) to
conduct a deposition by audio-visual telecommunication or personally
attend a deposition. None of these proposed amendments concerning
interlocutory appeal have been adopted in this final rule.
Further, the proposed rule amended the Uniform Rules, the PACA
Responsibly Connected Rules, and the P&S Reparation Rules to require
hearings to be recorded verbatim by an electronic recording device.
Only if a party to the proceeding requests a transcript of the hearing
or a part of the hearing and the person conducting the proceeding
determines that the disposition of the proceeding would be expedited by
a transcript of the hearing could the person conducting the proceeding
order the verbatim transcription of the recording as requested by the
party. We proposed to require that any presiding person's order to
transcribe a hearing and the basis for the order be reduced to a
written order and filed with the Hearing Clerk. We have eliminated the
requirement that the order of the person conducting the proceeding and
the basis of that order be reduced to a written order and filed with
the Hearing Clerk. (See 7 CFR 1.141(i) and 47.60 and 9 CFR 202.112(i)
in this final rule.) We do not believe that an order regarding
transcription of a hearing must be handled in a manner different than
any other order issued by the person conducting the proceeding.
Finally, the Department will bear the entire cost of audio-visual
transmission and only some of the travel costs related to face-to-face
hearings, conferences, and depositions. Therefore, there could be rare
circumstances in which the overall cost of conducting a conference,
hearing, or deposition by audio-visual telecommunication may be cheaper
than conducting the same conference, hearing, or deposition in some
other manner and at the same time the Department's cost of conducting
the conference, hearing, or deposition by audio-visual
telecommunication could be higher than conducting that conference,
hearing, or deposition in some other manner. In order to avoid a
measurable increase in costs to the Department, this final rule
provides that if the person conducting the proceeding finds that a
hearing or deposition conducted by audio-visual telecommunication would
measurably increase costs to the Department, the hearing or deposition
shall be conducted by personal attendance or by telephone. If the
person conducting the proceeding finds that a conference conducted by
audio-visual telecommunication would measurably increase costs to the
Department, the conference shall be conducted by personal attendance,
by telephone, or by correspondence. (See 7 CFR 1.140(c), 1.141(b),
1.148(b), 1.167(b), 1.168(b), 47.14(c), and 47.15(c), and 9 CFR
202.110(b) and 202.112(a) in this final rule.) We did not make this
change with respect to depositions conducted under the PACA Reparation
Rules or the P&S Reparation Rules because the government is never a
party in proceedings conducted under those rules and incurs very little
cost associated with depositions taken in PACA and P&S reparation
proceedings. [[Page 8454]]
Establishment of the Grain Inspection, Packers and Stockyards
Administration
Pursuant to Public Law 103-354, the Federal Crop Insurance Reform
and Department of Agriculture Reorganization Act of 1994, the Secretary
of Agriculture published a notice of the Department's reorganization
establishing the Grain Inspection, Packers and Stockyards
Administration (59 FR 66517). This rule includes amendments to 9 CFR
chapter II which are necessary to bring agency regulations in alignment
with the departmental reorganization.
Executive Order 12866 and Regulatory Flexibility Act
We are issuing this final rule in conformance with Executive Order
12866. This rule has been determined to be significant and has been
reviewed by the Office of Management and Budget under Executive Order
12866.
This final rule provides for conducting certain conferences,
depositions, and hearings in connection with proceedings under the
Uniform Rules, the Capper-Volstead Rules, the PACA Reparation Rules,
the PACA Responsibly Connected Rules, and the P&S Reparation Rules by
telecommunication. Further, the final rule provides for the use of
recordings in connection with depositions and hearings conducted under
the Uniform Rules, the Capper-Volstead Rules, the PACA Reparation
Rules, the PACA Responsibly Connected Rules, and the P&S Reparation
Rules. Finally, this final rule requires each party to exchange, in
writing, with all other parties in the proceeding a verified narrative
statement of the oral direct testimony of certain specified witnesses
the party intends to call in hearings to be conducted by telephone.
These amendments are designed to save money associated with the
purchase of transcripts and time and money associated with travel to
conferences, depositions, and hearings.
Most of the costs of the proceedings conducted under the Uniform
Rules, the Capper-Volstead Rules, the PACA Reparation Rules, the PACA
Responsibly Connected Rules, and the P&S Reparation Rules are borne by
the United States, which is not a small entity. The vast majority of
conferences, hearings, and depositions held under the rules we are
amending are conducted at locations convenient to the private
individuals participating in the proceeding. Therefore, the United
States will incur most of the costs associated with travel in
connection with the proceedings. Further, most conferences held under
the rules that we are amending are currently held by telephone, unless
the conference is held during the hearing. Therefore, this final rule
will not result in a change with respect to the manner in which most
conferences are conducted.
Nonetheless, we believe that private individuals who participate in
conferences, depositions, and hearings conducted by telecommunication,
which will be paid for by the United States, will reduce costs which
are associated with travel, even to convenient locations, and private
parties who participate in these proceedings will save the difference
between the cost of transcripts and recordings in depositions and
hearings in which recordings are used.
Most of the private individuals who participate in proceedings
conducted under the Uniform Rules, the Capper-Volstead Rules, the PACA
Reparation Rules, the PACA Responsibly Connected Rules, and the P&S
Reparation Rules are small entities. This final rule will result in a
small economic impact on private individuals who participate in the
proceedings in question.
Under these circumstances, the Secretary has determined that this
action will not have a significant economic impact on a substantial
number of small entities.
Executive Order 12778
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule: (1) Preempts all State and local laws and
regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
The Paperwork Reduction Act of 1980 does not apply to this rule
because the rule does not seek answers to identical questions or impose
reporting or record keeping requirements on 10 or more persons, and the
information collected is not used for general statistical purposes.
List of Subjects
7 CFR Part 0
Conflict of interest.
7 CFR Part 1
Administrative practice and procedure, Agriculture, Antitrust,
Blind, Claims, Concessions, Cooperatives, Equal access to justice,
Federal buildings and facilities, Freedom of information, Lawyers,
Privacy.
7 CFR Part 47
Administrative practice and procedure, Agricultural commodities,
Agricultural Marketing Service, Brokers.
7 CFR Part 50
Administrative practice and procedure, Agricultural commodities,
Agricultural Marketing Service.
7 CFR Part 51
Agricultural commodities, Food grades and standards, Fruits, Nuts,
Reporting and recordkeeping requirements, Vegetables.
7 CFR Part 52
Food grades and standards, Food labeling, Frozen foods, Fruit
juices, Fruits, Reporting and recordkeeping requirements, Vegetables.
7 CFR Part 53
Cattle, Hogs, Livestock, Sheep.
7 CFR Part 54
Food grades and standards, Food labeling, Meat and meat products.
7 CFR Part 97
Administrative practice and procedure, Labeling, Plants.
9 CFR Part 202
Agriculture, Animals, Administrative practice and procedure,
Reparation proceedings.
Accordingly, 7 CFR part 0, part 1, subpart H and subpart I, part
47, part 50, part 51, part 52, part 53, part 54, and part 97 and 9 CFR
part 202 are amended as follows:
TITLE 7--[AMENDED]
SUBTITLE A--OFFICE OF THE SECRETARY OF AGRICULTURE
PART 0--EMPLOYEE RESPONSIBILITIES AND CONDUCT
1. The authority citation for part 0 is revised to read as follows:
Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965 Comp., page 306;
5 CFR 735.104; 18 U.S.C. 207(j), unless otherwise noted.
Sec. 0.735-11 [Amended]
2. Section 0.735-11 is amended as follows:
a. In paragraph (b)(6), by adding the words ``or such monitoring or
recording occurs in the course of a Department of Agriculture
proceeding conducted by telephone or audio-visual telecommunication and
the person conducting the proceeding is an administrative law judge,
hearing officer, examiner, or presiding officer'' immediately before
the semicolon. [[Page 8455]]
b. In paragraph (b)(7), by adding the words ``or such monitoring or
recording occurs in the course of a Department of Agriculture
proceeding conducted by telephone or audio-visual telecommunication and
the person conducting the proceeding is an administrative law judge,
hearing officer, examiner, or presiding officer'' immediately before
the semicolon.
PART 1--ADMINISTRATIVE REGULATIONS
3. The authority citation for part 1, subpart H, is revised to read
as follows:
Authority: 5 U.S.C. 301; 7 U.S.C. 61, 87e, 149, 150gg, 162, 163,
164, 228, 268, 499o, 608c(14), 1592, 1624(b), 2151, 2621, 2714,
2908, 3812, 4610, 4815, 4910; 15 U.S.C. 1828; 16 U.S.C. 620d,
1540(f), 3373; 21 U.S.C. 104, 111, 117, 120, 122, 127, 134e, 134f,
135a, 154, 463(b), 621, 1043; 43 U.S.C. 1740; 7 CFR 2.35, 2.41.
Sec. 1.131 [Amended]
4. In Sec. 1.131, paragraph (a), the second sentence is revised to
read ``Section 1.26 shall be inapplicable to proceedings covered by
this subpart.''
Sec. 1.132 [Amended]
5. Section 1.132 is amended as follows:
a. In paragraph (d), the reference to ``459g'' is removed and
``450g'' added in its place.
b. In paragraph (d), the reference to ``1970 ed. appendix, p. 550''
is removed and ``App. (1988)'' added in its place.
c. In paragraph (d), the reference to ``7 CFR 2.35(a)'' is removed
and ``Sec. 2.35(a) of this chapter'' added in its place.
d. Section 1.132 is amended by removing all alphabetical paragraph
designations and placing the definitions in alphabetical order.
Sec. 1.133 [Amended]
6. In Sec. 1.133, paragraph (a)(1), the first sentence is amended
by removing the words ``of this subpart''.
Sec. 1.140 [Amended]
7. In Sec. 1.140, the section heading is revised to read as set
forth below; paragraph (a)(1) introductory text is amended by removing
the word ``prehearing'' and revising the second sentence to read
``Reasonable notice of the time, place, and manner of the conference
shall be given.''; paragraph (b) is amended by removing the word
``prehearing''; and paragraph (c) is revised to read as follows:
Sec. 1.140 Conferences and procedure.
* * * * *
(c) Manner of Conference. (1) The conference shall be conducted by
telephone or correspondence unless the Judge determines that conducting
the conference by audio-visual telecommunication:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the conference; or
(iii) Would cost less than conducting the conference by telephone
or correspondence. If the Judge determines that a conference conducted
by audio-visual telecommunication would measurably increase the United
States Department of Agriculture's cost of conducting the conference,
the conference shall be conducted by personal attendance of any
individual who is expected to participate in the conference, by
telephone, or by correspondence.
(2) If the conference is not conducted by telephone or
correspondence, the conference shall be conducted by audio-visual
telecommunication unless the Judge determines that conducting the
conference by personal attendance of any individual who is expected to
participate in the conference:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the conference; or
(iii) Would cost less than conducting the conference by audio-
visual telecommunication.
* * * * *
Sec. 1.141 [Amended]
8. Section 1.141 is amended as follows:
a. Paragraph (b) is revised to read as set forth below.
b. Paragraph (e) is amended by removing the words ``of these
rules'' both times they appear.
c. Paragraph (g)(7) is amended by adding the words ``or recording''
immediately after the word ``transcript'' each of the three times the
word ``transcript'' appears.
d. Paragraphs (g) and (h) are redesignated as paragraphs (h) and
(i) respectively.
e. New paragraph (g) is added to read as set forth below.
f. Redesignated paragraph (i) is revised to read as set forth
below.
Sec. 1.141 Procedure for hearing.
* * * * *
(b) Time, place, and manner. (1) If any material issue of fact is
joined by the pleadings, the Judge, upon motion of any party stating
that the matter is at issue and is ready for hearing, shall set a time,
place, and manner for hearing as soon as feasible after the motion is
filed, with due regard for the public interest and the convenience and
necessity of the parties. The Judge shall file with the Hearing Clerk a
notice stating the time and place of the hearing.3 This notice
shall state whether the hearing will be conducted by telephone, audio-
visual telecommunication, or personal attendance of any individual
expected to participate in the hearing. The Judge's determination
regarding the manner of the hearing shall be made in accordance with
paragraphs (b)(3) and (b)(4) of this section. If any change in the
time, place, or manner of the hearing is made, the Judge shall file
with the Hearing Clerk a notice of such change, which notice shall be
served upon the parties, unless it is made during the course of an oral
hearing and made part of the transcript or recording, or actual notice
is given to the parties.
\3\The place of hearing in a proceeding under the Packers and
Stockyards Act shall be set in accordance with the Packers and
Stockyards Act (7 U.S.C. 228 (e) and (f)). In essence, if there is
only one respondent, the hearing is to be held as near as possible
to the respondent's place of business or residence depending on the
availability of an appropriate location for conducting the hearing.
If there is more than one respondent and they have their places of
business or residence within a single unit of local government, a
single geographical area within a State, or a single State, the
hearing is to be held as near as possible to their places of
business or residence depending on the availability of an
appropriate location for conducting the hearing. If there is more
than one respondent, and they have their places of business or
residence distant from each other, 7 U.S.C. 228 (e) and (f) have no
applicability.
---------------------------------------------------------------------------
(2) (i) If any material issue of fact is joined by the pleadings
and the matter is at issue and is ready for hearing, any party may move
that the hearing be conducted by telephone or personal attendance of
any individual expected to attend the hearing rather than by audio-
visual telecommunication. Any motion that the hearing be conducted by
telephone or personal attendance of any individual expected to attend
the hearing must be accompanied by a memorandum in support of the
motion stating the basis for the motion and the circumstances that
require the hearing to be conducted other than by audio-visual
telecommunication.
(ii) Within 10 days after the Judge issues a notice stating the
manner in which the hearing is to be conducted, any party may move that
the Judge reconsider the manner in which the hearing is to be
conducted. Any motion for reconsideration must be accompanied by a
memorandum in support of the motion stating the basis for the motion
and the circumstances that require the hearing to be conducted other
than in accordance with the Judges's notice. [[Page 8456]]
(3) The hearing shall be conducted by audio-visual
telecommunication unless the Judge determines that conducting the
hearing by personal attendance of any individual who is expected to
participate in the hearing:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the hearing; or
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication. If the Judge determines that a hearing conducted by
audio-visual telecommunication would measurably increase the United
States Department of Agriculture's cost of conducting the hearing, the
hearing shall be conducted by personal attendance of any individual who
is expected to participate in the hearing or by telephone.
(4) The Judge may, in his or her sole discretion or in response to
a motion by a party to the proceeding, conduct the hearing by telephone
if the Judge finds that a hearing conducted by telephone:
(i) Would provide a full and fair evidentiary hearing;
(ii) Would not prejudice any party; and
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication or personal attendance of any individual who is
expected to participate in the hearing.
* * * * *
(g) Written statements of direct testimony. (1) Except as provided
in paragraph (g)(2) of this section, each party must exchange with all
other parties a written narrative verified statement of the oral direct
testimony that the party will provide at any hearing to be conducted by
telephone; the direct testimony of each employee or agent of the party
that the party will call to provide oral direct testimony at any
hearing to be conducted by telephone; and the direct testimony of each
expert witness that the party will call to provide oral direct
testimony at any hearing to be conducted by telephone. The written
direct testimony of witnesses shall be exchanged by the parties at
least 10 days prior to the hearing. The oral direct testimony provided
by a witness at a hearing conducted by telephone will be limited to the
presentation of the written direct testimony, unless the Judge finds
that oral direct testimony which is supplemental to the written direct
testimony would further the public interest and would not constitute
surprise.
(2) The parties shall not be required to exchange testimony in
accordance with this paragraph if the hearing is scheduled to begin
less than 20 days after the Judge's notice stating the time of the
hearing.
* * * * *
(i) Transcript or recording. (1) Hearings to be conducted by
telephone shall be recorded verbatim by electronic recording device.
Hearings conducted by audio-visual telecommunication or the personal
attendance of any individual who is expected to participate in the
hearing shall be transcribed, unless the Judge finds that recording the
hearing verbatim would expedite the proceeding and the Judge orders the
hearing to be recorded verbatim. The Judge shall certify that to the
best of his or her knowledge and belief any recording made pursuant to
this paragraph with exhibits that were accepted into evidence is the
record of the hearing.
(2) If a hearing is recorded verbatim, a party requests the
transcript of a hearing or part of a hearing, and the Judge determines
that the disposition of the proceeding would be expedited by a
transcript of the hearing or part of a hearing, the Judge shall order
the verbatim transcription of the recording as requested by the party.
(3) Recordings or transcripts of hearings shall be made available
to any person at actual cost of duplication.
Sec. 1.142 [Amended]
9. Section 1.142 is amended as follows:
a. In paragraph (a), the heading is amended by adding the words
``or recording'' immediately after the word ``transcript''.
b. Paragraph (a)(1) is amended by adding the words ``or recording''
immediately after the word ``transcript''.
c. Paragraph (a)(2) is amended by adding the words ``or recording''
immediately after the word ``transcript'' both times the word
``transcript'' appears.
d. Paragraph (a)(3) is amended by adding the words ``or recording''
immediately after the word ``transcript'' each of the three times the
word ``transcript'' appears.
e. Paragraph (c)(2) is amended by removing the words ``of the
record'' and adding the words ``or recording'' in their place.
Sec. 1.144 [Amended]
10. Section 1.144 is amended as follows:
a. Paragraph (c)(2) is revised to read as set forth below.
b. Paragraphs (c)(9) and (c)(10) are redesignated as paragraphs
(c)(13) and (c)(14) respectively.
c. New paragraphs (c)(9), (c)(10), (c)(11), and (c)(12) are added
to read as set forth below.
Sec. 1.144 Judges.
* * * * *
(c) * * *
(2) Set the time, place, and manner of a conference and the
hearing, adjourn the hearing, and change the time, place, and manner of
the hearing;
* * * * *
(9) Require each party to provide all other parties and the Judge
with a copy of any exhibit that the party intends to introduce into
evidence prior to any hearing to be conducted by telephone or audio-
visual telecommunication;
(10) Require each party to provide all other parties with a copy of
any document that the party intends to use to examine a deponent prior
to any deposition to be conducted by telephone or audio-visual
telecommunication;
(11) Require that any hearing to be conducted by telephone or
audio-visual telecommunication be conducted at locations at which the
parties and the Judge are able to transmit and receive documents during
the hearing;
(12) Require that any deposition to be conducted by telephone or
audio-visual telecommunication be conducted at locations at which the
parties are able to transmit and receive documents during the
deposition;
* * * * *
Sec. 1.145 [Amended]
11. Section 1.145 is amended as follows:
a. In paragraph (a), the reference to ``Sec. 1.141(g)(2)'' is
removed and ``Sec. 1.141(h)(2)'' added in its place.
b. In paragraph (c), the second sentence is amended by adding the
words ``or recording'' immediately after the word ``transcript''.
Sec. 1.147 [Amended]
12. In section 1.147, paragraph (c)(2) is amended by removing the
words ``of this part''; and paragraph (d) is amended by removing the
words ``of this part''.
Sec. 1.148 [Amended]
13. Section 1.148 is amended as follows:
a. Paragraph (b) is revised to read as set forth below:
b. In paragraph (f), the words ``or recording'' are added
immediately after the word ``transcript'' in the paragraph heading; in
paragraph (f)(1), once; in paragraph (f)(2), twice; and in paragraph
(f)(3), twice.
Sec. 1.148 Depositions.
* * * * * [[Page 8457]]
(b) Judge's order for taking deposition. (1) If the Judge finds
that the testimony may not be otherwise available at the hearing, the
taking of the deposition may be ordered. The order shall be filed with
the Hearing Clerk and shall state:
(i) The time of the deposition;
(ii) The place of the deposition;
(iii) The manner of the deposition (telephone, audio-visual
telecommunication, or personal attendance of those who are to
participate in the deposition);
(iv) The name of the officer before whom the deposition is to be
made; and
(v) The name of the deponent. The officer and the time, place, and
manner need not be the same as those suggested in the motion for the
deposition.
(2) The deposition shall be conducted by telephone unless the Judge
determines that conducting the deposition by audio-visual
telecommunication:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the deposition; or
(iii) Would cost less than conducting the deposition by telephone.
If the Judge determines that a deposition conducted by audio-visual
telecommunication would measurably increase the United States
Department of Agriculture's cost of conducting the deposition, the
deposition shall be conducted by personal attendance of any individual
who is expected to participate in the deposition or by telephone.
(3) If the deposition is not conducted by telephone, the deposition
shall be conducted by audio-visual telecommunication unless the Judge
determines that conducting the deposition by personal attendance of any
individual who is expected to participate in the deposition:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the deposition; or
(iii) Would cost less than conducting the deposition by telephone
or audio-visual telecommunication.
* * * * *
Sec. 1.149 [Amended]
14. In Sec. 1.149, paragraph (b), the last sentence is amended by
removing the words ``of this part''.
15. The authority citation for part 1, subpart I, is revised to
read as follows:
Authority: 7 U.S.C. 291, 292; 7 CFR 2.35, 2.41.
Sec. 1.161 [Amended]
16. Section 1.161 is amended as follows:
a. In paragraph (c), the words ``or her'' are added immediately
after the word ``his''.
b. In paragraph (g), the reference to ``1976 ed., appendix, p.
764'' is removed and ``App. (1988)'' added in its place.
c. In paragraph (g), the reference to ``7 CFR 2.35'' is removed and
``Sec. 2.35(a) of this chapter'' added in its place.
d. In paragraph (g), the words ``or she'' are added immediately
after the word ``he''.
e. Section 1.161 is amended by removing all alphabetical paragraph
designations and placing the definitions in alphabetical order.
Sec. 1.162 [Amended]
17. Section 1.162 is amended as follows:
a. In paragraph (b), in the first sentence, the word ``part'' is
removed and the word ``paragraph'' added in its place.
b. In paragraph (b), in the first sentence, the word ``he'' is
removed and the words ``the Secretary'' added in its place.
c. In paragraph (b), in the second sentence, the word ``he'' is
removed and ``, the Secretary'' added in its place.
Sec. 1.164 [Amended]
18. In Sec. 1.164, paragraph (a), the first sentence is amended by
removing the word ``his'' and adding the words ``the respondent's'' in
its place.
Sec. 1.167 [Amended]
19. Section 1.167 is revised to read as follows:
Sec. 1.167 Conference
(a) Purpose. Upon motion of a party or upon the Judge's own motion,
the Judge may direct the parties to attend a conference when the Judge
finds that the proceeding would be expedited by discussions on matters
of procedure and/or possible stipulations. The conference may include
discussions regarding:
(1) Simplification of the issues;
(2) Limitation of expert or other witnesses;
(3) The orderly presentation of evidence; and
(4) Any other matters that may expedite and aid in the disposition
of the proceeding.
(b) Manner of the Conference. (1) The conference shall be conducted
by telephone or correspondence unless the Judge determines that
conducting the conference by audio-visual telecommunication:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the conference; or
(iii) Would cost less than conducting the conference by telephone
or correspondence. If the Judge determines that a conference conducted
by audio-visual telecommunication would measurably increase the United
States Department of Agriculture's cost of conducting the conference,
the conference shall be conducted by personal attendance of any
individual who is expected to participate in the conference, by
telephone, or by correspondence.
(2) If the conference is not conducted by telephone or
correspondence, the conference shall be conducted by audio-visual
telecommunication unless the Judge determines that conducting the
conference by personal attendance of any individual who is expected to
participate in the conference:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the conference; or
(iii) Would cost less than conducting the conference by audio-
visual telecommunication.
Sec. 1.168 [Amended]
20. Section 1.168 is amended as follows:
a. In paragraph (e)(1), the first sentence is amended by removing
the word ``reported'' and adding the words ``transcribed or recorded''
in its place.
b. In paragraph (e)(2), the first sentence is amended by removing
the word ``he'' and by adding the words ``the party'' in its place.
c. In paragraph (e)(2), the second sentence is amended by adding
the words ``or recording'' immediately after the word ``transcript''.
d. Paragraph (e)(6) is amended by adding the words ``or recording''
immediately after the word ``transcript'' each of the three times the
word ``transcript'' appears.
e. Paragraphs (b), (c), (d), and (e) are redesignated as (c), (d),
(e), and (g) respectively.
f. New paragraphs (b), (f), and (h) are added to read as follows:
Sec. 1.168 Procedure for hearing.
* * * * *
(b) Manner of hearing. (1) The Judge shall file with the Hearing
Clerk a notice stating whether the hearing will be conducted by
telephone, audio-visual telecommunication, or personal attendance of
any individual expected to attend the hearing and the Judge's
determination regarding the manner of [[Page 8458]] hearing shall be
made in accordance with paragraphs (b)(3) and (b)(4) of this section.
If any change in the manner of the hearing is made, the Judge shall
file with the Hearing Clerk a notice of the change, which notice shall
be served on the parties, unless it is made during the course of an
oral hearing and made part of the transcript or recording, or actual
notice is given to the parties.
(2)(i) Any party may move that the hearing be conducted by
telephone or personal attendance of any individual expected to attend
the hearing rather than by audio-visual telecommunication. Any motion
that the hearing be conducted by telephone or personal attendance of
any individual expected to attend the hearing must be accompanied by a
memorandum in support of the motion stating the basis for the motion
and the circumstances that require the hearing to be conducted other
than by audio-visual telecommunication.
(ii) Within 10 days after the Judge issues a notice stating the
manner in which the hearing is to be conducted, any party may move that
the Judge reconsider the manner in which the hearing is to be
conducted. Any motion for reconsideration must be accompanied by a
memorandum in support of the motion stating the basis for the motion
and the circumstances that require the hearing to be conducted other
than in accordance with the Judges's notice.
(3) The hearing shall be conducted by audio-visual
telecommunication unless the Judge determines that conducting the
hearing by personal attendance of any individual who is expected to
participate in the hearing:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the hearing; or
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication. If the Judge determines that a hearing conducted by
audio-visual telecommunication would measurably increase the United
States Department of Agriculture's cost of conducting the hearing, the
hearing shall be conducted by personal attendance of any individual who
is expected to participate in the hearing or by telephone.
(4) The Judge may, in his or her sole discretion or in response to
a motion by a party to the proceeding, conduct the hearing by telephone
if the Judge finds that a hearing conducted by telephone:
(i) Would provide a full and fair evidentiary hearing;
(ii) Would not prejudice any party; and
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication or personal attendance of any individual who is
expected to participate in the hearing.
* * * * *
(f) Written statements of direct testimony. (1) Except as provided
in paragraph (f)(2) of this section, each party must exchange with all
other parties a written narrative verified statement of the oral direct
testimony that the party will provide at any hearing to be conducted by
telephone; the direct testimony of each employee or agent of the party
that the party will call to provide oral direct testimony at any
hearing to be conducted by telephone; and the direct testimony of each
expert witness that the party will call to provide oral direct
testimony at any hearing to be conducted by telephone. The written
direct testimony of witnesses shall be exchanged by the parties at
least 10 days prior to the hearing. The oral direct testimony provided
by a witness at a hearing conducted by telephone will be limited to the
presentation of the written direct testimony, unless the Judge finds
that oral direct testimony which is supplemental to the written direct
testimony would further the public interest and would not constitute
surprise.
(2) The parties shall not be required to exchange testimony in
accordance with this paragraph if the hearing is scheduled to begin
less than 20 days after the Judge's notice stating the time of the
hearing.
* * * * *
(h) Transcript or recording. (1) Hearings to be conducted by
telephone shall be recorded verbatim by electronic recording device.
Hearings conducted by audio-visual telecommunication or the personal
attendance of any individual who is expected to participate in the
hearing shall be transcribed, unless the Judge finds that recording the
hearing verbatim would expedite the proceeding and the Judge orders the
hearing to be recorded verbatim. The Judge shall certify that to the
best of his or her knowledge and belief any recording made pursuant to
this paragraph with exhibits that were accepted into evidence is the
record of the hearing.
(2) If a hearing is recorded verbatim, a party requests the
transcript of a hearing or part of a hearing, and the Judge determines
that the disposition of the proceeding would be expedited by a
transcript of the hearing or part of a hearing, the Judge shall order
the verbatim transcription of the recording as requested by the party.
(3) Recordings or transcripts of hearings shall be made available
to any person at actual cost of duplication.
* * * * *
Sec. 1.169 [Amended]
21. Section 1.169 is amended as follows:
a. In paragraph (a), the heading is revised to read ``Corrections
to transcript or recording.''
b. In paragraph (a)(1), the words ``or recording'' are added
immediately after the word ``transcript''.
c. In paragraph (a)(2), the words ``or recording'' are added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
d. In paragraph (a)(3), the words ``or recording'' are added
immediately after the word ``transcript'' each of the three times the
word ``transcript'' appears.
e. In paragraph (c), in the last sentence, the word ``herein'' is
removed.
Sec. 1.170 [Amended]
22. Section 1.170 is amended as follows:
a. In paragraph (a), in the second sentence, the reference to
``Sec. 1.167(e)(2)'' is removed and ``Sec. 1.168(g)(2)'' added in its
place.
b. In paragraph (c), the words ``or recording'' are added
immediately after the word ``transcript''.
c. In paragraph (i), in the last sentence, the word ``herein'' is
removed.
Sec. 1.171 [Amended]
23. Section 1.171 is amended by removing the word ``herein''.
Sec. 1.172 [Amended]
24. In Sec. 1.172, paragraph (a) is amended by adding the words
``or recording'' immediately after the word ``transcript''.
Sec. 1.173 [Amended]
25. Section 1.173 is amended as follows:
a. In paragraph (b)(1), the words ``or herself'' are added
immediately after the word ``himself''.
b. In paragraph (b)(2), the word ``he'' is removed and the words
``the Judge'' added in its place.
c. In paragraph (b)(2), the words ``or herself'' are added
immediately after the word ``himself''.
d. In paragraph (d), in the introductory language, the words ``or
her,'' are added immediately after the word ``him''.
e. Paragraph (d)(2) is revised to read as set forth below.
[[Page 8459]]
f. Paragraph (d)(7) is redesignated as paragraph (d)(9).
g. New paragraphs (d)(7) and (d)(8) are added to read as set forth
below.
h. In paragraph (e), the word ``his'' is removed and the words
``the Judge's'' added in its place.
i. In paragraph (e), the word ``him'' is removed and the words
``the Judge'' are added in its place both times the word ``him''
appears.
Sec. 1.173 Judges.
* * * * *
(d) * * *
(2) Set the time, place, and manner of any conference, set the
manner of the hearing, adjourn the hearing, and change the time, place,
and manner of the hearing;
* * * * *
(7) Require each party to provide all other parties and the Judge
with a copy of any exhibit that the party intends to introduce into
evidence prior to any hearing to be conducted by telephone or audio-
visual telecommunication;
(8) Require that any hearing to be conducted by telephone or audio-
visual telecommunication be conducted at locations at which the parties
and the Judge are able to transmit and receive documents during the
hearing;
* * * * *
Sec. 1.174 [Amended]
26. In Sec. 1.174, paragraph (c) is amended by adding the words
``or recording'' immediately after the word ``transcript''.
SUBTITLE B--REGULATIONS OF THE DEPARTMENT OF AGRICULTURE
CHAPTER I--AGRICULTURAL MARKETING SERVICE
PART 47--RULES OF PRACTICE UNDER THE PERISHABLE AGRICULTURAL
COMMODITIES ACT
27. The authority citation for part 47 is revised to read as
follows:
Authority: 7 U.S.C. 499o; 7 CFR 2.17(a)(8)(xiii),
2.50(a)(8)(xiii).
Sec. 47.2 [Amended]
28. Section 47.2 is amended as follows:
a. In paragraph (c), the words ``or her'' are added immediately
after the word ``his''.
b. In paragraph (e), the words ``or her'' are added immediately
after the word ``his''.
c. In paragraph (f), the words ``or her'' are added immediately
after the word ``his''.
d. In paragraph (h), the words ``or her'' are added immediately
after the word ``his''.
Sec. 47.3 [Amended]
29. Section 47.3 is amended as follows:
a. In paragraph (b)(1), in the first sentence, the word ``his'' is
removed and the words ``the Director's'' added in its place.
b. Paragraph (c) is revised to read as follows:
Sec. 47.3 Institution of proceedings.
* * * * *
(c) Status of person filing informal complaint. The person filing
an informal reparation complaint shall not be a party to any
disciplinary proceeding which may be instituted as a result of the
informal reparation complaint. The person filing an informal reparation
complaint shall have no legal status in the reparation proceeding,
except as he or she may be subpoenaed as a witness or deposed without
expense to him or her.
Sec. 47.4 [Amended]
30. In section 47.4, paragraph (b)(2) is amended by removing the
words ``of this part''.
Sec. 47.5 [Amended]
31. Section 47.5 is amended by removing the words ``of these
regulations in this part'' and ``of the regulations in this part'' and
revising the last sentence to read as follows:
Sec. 47.5 Scope and applicability of rules of practice.
* * * In addition, except to the extent that they are inconsistent
with Secs. 1.130 through 1.151 of this chapter, Secs. 47.1 through 47.5
and 47.46 are also applicable to procedures governing the filing and
disposition of formal complaints and other moving papers relating to
administrative proceedings to enforce the Act pursuant to Secs. 1.130
through 1.151 of this chapter.
Sec. 47.11 [Amended]
32. Section 47.11 is amended as follows:
a. In paragraph (b), in the second sentence, the word ``he'' is
removed and the words ``the Secretary'' are added in its place.
b. In paragraph (c), in the introductory language, the words
``elsewhere in the regulations'' are removed.
c. In paragraph (c), in the introductory language, the words ``or
her'' are added immediately after the word ``him''.
d. Paragraph (c)(2) is revised to read as set forth below.
e. Paragraph (c)(9) is redesignated as (c)(13).
f. New paragraphs (c)(9), (c)(10), (c)(11), and (c)(12) are added
to read as set forth below.
g. In paragraph (d), the word ``him'' is removed and the words
``the examiner'' added in its place.
Sec. 47.11 Examiners.
* * * * *
(c) * * *
(2) Set the time, place, and manner of the hearing, adjourn the
hearing, and change the time, place, and manner of the hearing;
* * * * *
(9) Require each party to provide all other parties and the
examiner with a copy of any exhibit that the party intends to introduce
into evidence prior to any hearing to be conducted by telephone or
audio-visual telecommunication;
(10) Require each party to provide all other parties with a copy of
any document that the party intends to use to examine a deponent prior
to any deposition to be conducted by telephone or audio-visual
telecommunication;
(11) Require that any hearing to be conducted by telephone or
audio-visual telecommunication be conducted at locations at which the
parties and the examiner are able to transmit and receive documents
during the hearing;
(12) Require that any deposition to be conducted by telephone or
audio-visual telecommunication be conducted at locations at which the
parties are able to transmit and receive documents during the
deposition;
* * * * *
Sec. 47.12 [Amended]
33. Section 47.12 is amended by removing the word ``he'' and adding
the words ``the petitioner'' each of the three times the word ``he''
appears.
Sec. 47.13 [Amended]
34. Section 47.13 is amended as follows:
a. In paragraph (a)(1), the words ``or recording'' are added
immediately after the word ``transcript''.
b. Paragraph (b) is revised to read as follows:
Sec. 47.13 Motions and requests.
* * * * *
(b) Certification to the Secretary. The submission or certification
of any motion, request, objection, or other question to the Secretary
prior to transmittal of the record to the Secretary as provided in this
part shall be made by and in the discretion of the examiner. The
examiner may either rule upon or certify the motion, request,
objection, or other question to the Secretary, but not both.
[[Page 8460]]
Sec. 47.14 [Amended]
35. Section 47.14 is revised to read as follows:
(a) In any proceeding in which it appears that a conference will
expedite the proceeding, the examiner, at any time prior to or during
the course of the oral hearing, may request the parties or their
counsel to appear at a conference before the examiner to consider:
(1) The simplification of the issues;
(2) The necessity or the desirability of amendments to the
pleadings;
(3) The possibility of obtaining stipulations of fact and of
documents which will avoid unnecessary proof;
(4) The limitation of the number of expert or other witnesses; or
(5) Such other matters as may expedite and aid in the disposition
of the proceeding.
(b) No transcript or recording of the conference shall be made. If
the conference is conducted by correspondence, the examiner shall
forward copies of letters and documents to the parties as circumstances
require. The correspondence in connection with a conference shall not
be part of the record. The examiner shall prepare and file for the
record a written summary of the action agreed upon or 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.
(c) Manner of the Conference. (1) The conference shall be conducted
by telephone or correspondence unless the examiner determines that
conducting the conference by audio-visual telecommunication:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the conference; or
(iii) Would cost less than conducting the conference by telephone
or correspondence. If the examiner determines that a conference
conducted by audio-visual telecommunication would measurably increase
the United States Department of Agriculture's cost of conducting the
conference, the conference shall be conducted by personal attendance of
any individual who is expected to participate in the conference, by
telephone, or by correspondence.
(2) If the conference is not conducted by telephone or
correspondence, the conference shall be conducted by audio-visual
telecommunication unless the examiner determines that conducting the
conference by personal attendance of any individual who is expected to
participate in the conference:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the conference; or
(iii) Would cost less than conducting the conference by audio-
visual telecommunication.
Sec. 47.15 [Amended]
36. Section 47.15 is amended as follows:
a. Paragraph (c) is revised to read as set forth below.
b. In paragraph (d)(2), the word ``he'' is removed and the words
``the party'' are added in its place.
c. In paragraph (d)(2), the words ``or her'' are added immediately
after the word ``his''.
d. In paragraph (d)(3)(i), the words ``or her'' are added
immediately after the word ``him''.
e. In paragraph (f)(2)(i), the word ``he'' is removed and the words
``the party'' are added in its place.
f. In paragraphs (f)(2)(i), the words ``or recording'' are added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
g. In paragraph (f)(6)(ii), ``recording,'' is added immediately
after ``document,'' both times ``document,'' appears.
h. In paragraph (f)(8), the words ``or recording'' are added
immediately after the word ``transcript'' the three times the word
``transcript'' appears.
i. In paragraph (g), in the first sentence, the words ``hereinafter
provided'' are removed and the words ``provided in this part'' are
added in their place.
j. In paragraph (g), in the second sentence, the word ``he'' is
removed and the words ``the examiner'' are added in its place.
k. Paragraphs (f), (g), and (h) are redesignated as (g), (h), and
(i) respectively.
l. A new paragraph (f) is added to read as set forth below.
m. Redesignated paragraph (i) is revised to read as set forth
below.
Sec. 47.15 Oral hearing before examiner.
* * * * *
(c) Time, place, and manner. (1) If and when the proceeding has
reached the stage of oral hearing, the examiner, giving careful
consideration to the convenience of the parties, shall set a time for
hearing and shall file with the hearing clerk a notice stating the time
and place of hearing. Unless the parties otherwise agree, the place of
the hearing shall be the place in which the respondent is engaged in
business. This notice shall state whether the hearing will be conducted
by telephone, audio-visual telecommunication, or personal attendance of
any individual expected to participate in the hearing and the
examiner's determination regarding the manner of the hearing shall be
made in accordance with paragraphs (c)(3) and (c)(4) of this section.
If any change in the time, place, or manner of the hearing is made, the
examiner shall file with the hearing clerk a notice of the change. The
notice of any change in the time, place, or manner of the hearing shall
be served on the parties, unless it is made during the course of an
oral hearing and made part of the transcript or recording, or actual
notice is given to the parties.
(2)(i) If and when the proceeding has reached the stage of oral
hearing, any party may move that the hearing be conducted by telephone
or personal attendance of any individual expected to attend the hearing
rather than by audio-visual telecommunication. Any motion that the
hearing be conducted by telephone or personal attendance of any
individual expected to attend the hearing must be accompanied by a
memorandum in support of the motion stating the basis for the motion
and the circumstances that require the hearing to be conducted other
than by audio-visual telecommunication.
(ii) Within 10 days after the examiner issues a notice stating the
manner in which the hearing is to be conducted, any party may move that
the examiner reconsider the manner in which the hearing is to be
conducted. Any motion for reconsideration must be accompanied by a
memorandum in support of the motion stating the basis for the motion
and the circumstances that require the hearing to be conducted other
than in accordance with the examiner's notice.
(3) The hearing shall be conducted by audio-visual
telecommunication unless the examiner determines that conducting the
hearing by personal attendance of any individual expected to attend the
hearing:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the hearing; or
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication. If the examiner determines that a hearing conducted
by audio-visual telecommunication would measurably increase the United
States Department of Agriculture's cost of conducting the hearing, the
hearing shall be conducted by personal attendance of any individual who
is expected to participate in the hearing or by telephone.
[[Page 8461]]
(4) The examiner may, in his or her sole discretion or in response
to a motion by a party to the proceeding, conduct the hearing by
telephone if the examiner finds that a hearing conducted by telephone:
(i) Would provide a full and fair evidentiary hearing;
(ii) Would not prejudice any party; and
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication or personal attendance of any individual who is
expected to participate in the hearing.
* * * * *
(f) Written statements of direct testimony. (1) Except as provided
in paragraph (f)(2) of this section, each party must exchange with all
other parties a written narrative verified statement of the oral direct
testimony that the party will provide at any hearing to be conducted by
telephone; the direct testimony of each employee or agent of the party
that the party will call to provide oral direct testimony at any
hearing to be conducted by telephone; and the direct testimony of each
expert witness that the party will call to provide oral direct
testimony at any hearing to be conducted by telephone. The written
direct testimony of witnesses shall be exchanged by the parties at
least 10 days prior to the hearing. The oral direct testimony provided
by a witness at a hearing conducted by telephone will be limited to the
presentation of the written direct testimony, unless the examiner finds
that oral direct testimony which is supplemental to the written direct
testimony would further the public interest and would not constitute
surprise.
(2) The parties shall not be required to exchange testimony in
accordance with this paragraph if the hearing is scheduled to begin
less than 20 days after the examiner's notice stating the time of the
hearing.
* * * * *
(i) Transcript or recording. (1) Hearings to be conducted by
telephone shall be recorded verbatim by electronic recording device.
Hearings conducted by audio-visual telecommunication or the personal
attendance of any individual who is expected to participate in the
hearing shall be transcribed, unless the examiner finds that recording
the hearing verbatim would expedite the proceeding and the examiner
orders the hearing to be recorded verbatim.
(2) If a hearing is recorded verbatim, a party requests the
transcript of a hearing or part of a hearing, and the examiner
determines that the disposition of the proceeding would be expedited by
a transcript of the hearing or part of a hearing, the examiner shall
order the verbatim transcription of the recording as requested by the
party.
(3) If a reporter transcribes or records the testimony at a
hearing, the reporter shall deliver the original transcript or
recording, with exhibits thereto attached, to the examiner, who will
retain such copy for the official file and for use in preparing his or
her report. The reporter will also deliver to the examiner such other
copy or copies as may be ordered by the Department, which copy or
copies the examiner will forward to the hearing clerk.
(4) Parties to the proceeding, or others, who desire a copy of the
transcript or recording of the hearing may place orders at the hearing
with the reporter, who will furnish and deliver such copies direct to
the purchaser upon payment of the applicable rate.
* * * * *
Sec. 47.16 [Amended]
37. Section 47.16 is amended as follows:
a. Paragraphs (a)(3) and (a)(4) are revised and (a)(5) and (a)(6)
are added to read as set forth below.
b. Paragraph (b) is revised to read as set forth below.
c. Paragraph (d)(1) is revised to read as set forth below.
d. In paragraph (e), in the first sentence, the word ``him'' is
removed and the words ``the officer'' added in its place.
e. In paragraph (e), in the second sentence, the word ``He'' is
removed and the words ``The officer'' added in its place.
Sec. 47.16 Depositions.
(a) * * *
(3) the proposed time of the deposition which, unless otherwise
agreed, shall be at least 30 days after the date of the mailing of the
application; (4) the proposed place of the deposition; (5) the proposed
manner in which the deposition is to be conducted (telephone, audio-
visual telecommunication, or by personal attendance of the individuals
who are expected to participate in the deposition); and (6) the reasons
for taking the deposition.
(b) Examiner's order for taking deposition. (1) If, after
examination of the application, the examiner is of the opinion that the
deposition should be taken, the examiner shall order the taking of the
deposition. The order shall be filed with the hearing clerk and shall
be served by the hearing clerk upon the parties in accordance with
Sec. 47.4.
(2) The order shall state:
(i) The time of the deposition (which unless otherwise agreed shall
not be less than 20 days after the filing of the order);
(ii) The place of the deposition;
(iii) The manner of the deposition (telephone, audio-visual
telecommunication, or personal attendance of those who are to
participate in the deposition);
(iv) The name of the officer before whom the deposition is to be
made; and
(v) The name of the deponent.
(3) The deposition shall be conducted in the manner (telephone,
audio-visual telecommunication, or personal attendance of those who are
to participate in the deposition) agreed to by the parties.
(4) If the parties cannot agree on the manner in which the
deposition is to be conducted:
(i) The deposition shall be conducted by telephone unless the
examiner determines that conducting the deposition by audio-visual
telecommunication:
(A) Is necessary to prevent prejudice to a party;
(B) Is necessary because of a disability of any individual expected
to participate in the deposition; or
(C) Would cost less than conducting the deposition by telephone.
(ii) If the deposition is not conducted by telephone, the
deposition shall be conducted by audio-visual telecommunication unless
the examiner determines that conducting the deposition by personal
attendance of any individual who is expected to participate in the
deposition:
(A) Is necessary to prevent prejudice to a party;
(B) Is necessary because of a disability of any individual expected
to participate in the deposition; or
(C) Would cost less than conducting the deposition by telephone or
audio-visual telecommunication.
* * * * *
(d) Procedure on examination. (1) The deponent shall be examined
under oath or affirmation and shall be subject to cross-examination.
The testimony of the deponent shall be recorded by the officer or some
person under the officer's direction. In lieu of oral examination,
parties may transmit written questions to the officer prior to
examination and the officer shall propound the written questions to the
deponent.
* * * * * [[Page 8462]]
Sec. 47.17 [Amended]
38. In Sec. 47.17, paragraph (c), the last sentence is amended by
removing the words ``of this part''.
Sec. 47.19 [Amended]
39. Section 47.19 is amended as follows:
a. In paragraph (a), the heading is revised to read ``Certification
of transcript or recording.''.
b. In paragraph (a), the words ``or recording'' are added
immediately after the word ``transcript'' each of the five times the
word ``transcript'' appears.
c. In paragraph (a), the words ``or her'' are added immediately
after the word ``his'' both times time the word ``his'' appears.
d. In paragraph (a) the word ``he'' is removed and the words ``the
examiner'' added in its place both times the word ``he'' appears.
e. In paragraph (b), in the second sentence, the words ``or she''
are added immediately after the word ``he''.
f. In paragraph (d)(3), the word ``his'' is removed and the words
``the party's'' are added in its place.
g. In paragraph (d)(6), in the first sentence, the words ``or her''
are added immediately after the word ``his''.
h. In paragraph (e), the words ``or her'' are added immediately
after the word ``his''.
Sec. 47.20 [Amended]
40. Section 47.20 is amended as follows:
a. In paragraph (b)(2), the words ``or she'' are added immediately
after the word ``he'' both times the word ``he'' appears.
b. In paragraph (h), ``(or she)'' is added immediately after the
word ``he'' both times the word ``he'' appears.
c. In paragraph (k), the words ``or her'' are added immediately
after the word ``his''.
d. In paragraph (l), the words ``or her'' are added immediately
after the word ``his''.
Sec. 47.21 [Amended]
41. Section 47.21 is amended by adding the words ``or recording''
immediately after the word ``transcript'' and by removing the word
``prehearing''.
Sec. 47.22 [Amended]
42. In Sec. 47.22, paragraph (a) is amended by removing the
reference to ``Sec. 47.15(g)'' and adding ``Sec. 47.15(h)'' in its
place.
Sec. 47.23 [Amended]
43. Section 47.23 is amended by removing the word ``he'' and adding
the words ``the Secretary'' in its place each of the three times the
word ``he'' appears; and by adding the words ``or her'' immediately
after the word ``his'' each of the three times the word ``his''
appears.
Sec. 47.24 [Amended]
44. In Sec. 47.24, paragraph (a) is amended by removing the word
``he'' and adding the words ``the Secretary'' in its place both times
the word ``he'' appears.
Sec. 47.25 [Amended]
45. In Sec. 47.25, paragraph (e) is amended by removing the words
``the regulations in'', and by adding the words ``or her'' immediately
after the word ``him''.
Sec. 47.46 [Amended]
46. Section 47.46 is amended by removing the word ``he'' and adding
the words ``the Secretary'' both times the word ``he'' appears; and
adding the words ``or her'' immediately after the word ``his''.
Sec. 47.47 [Amended]
47. Section 47.47 is amended as follows:
a. In the introductory language, the reference to ``7 CFR 47.2 (a)
through (h)'' is removed and ``Secs. 47.2 (a) through (h)'' added in
its place.
b. In the introductory language, the reference to ``7 CFR 47.47
through 47.68'' is removed and ``Secs. 47.47 through 47.68'' added in
its place.
c. Section 47.47 is amended by removing all paragraph designations
and placing the definitions in alphabetical order.
Sec. 47.49 [Amended]
48. In section 47.49, paragraph (f) is revised to read as follows:
Sec. 47.49 Determinations.
* * * * *
(f)(1) The presiding officer will order that an oral hearing be
held if one is requested by the petitioner, or if the presiding officer
determines that an oral hearing is necessary. A verbatim record shall
be made of the hearing. In the event that an oral hearing is neither
requested by the petitioner, nor ordered by the presiding officer, the
presiding officer shall provide the petitioner a copy of the official
file, and give the parties an opportunity to submit documents and other
evidence to support their positions, as well as written arguments
pertaining to their positions.
(2) If an oral hearing is held, it shall be conducted by audio-
visual telecommunication unless the presiding officer determines that
conducting the hearing by the personal attendance of any individual
expected to attend the hearing:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the hearing; or
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication. If the presiding officer determines that a hearing
conducted by audio-visual telecommunication would measurably increase
the United States Department of Agriculture's cost of conducting the
hearing, the hearing shall be conducted by personal attendance of any
individual who is expected to participate in the hearing or by
telephone.
(3) The presiding officer may, in his or her sole discretion or in
response to a motion by a party to the proceeding, conduct the hearing
by telephone if the presiding officer finds that a hearing conducted by
telephone:
(i) Would provide a full and fair evidentiary hearing;
(ii) Would not prejudice any party; and
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication or personal attendance of any individual who is
expected to participate in the hearing.
Sec. 47.53 [Amended]
49. Section 47.53 is revised to read as follows:
Sec. 47.53 Notice of time, place, and manner of hearing and
provision of the official file.
(a) Upon assignment of the matter for oral hearing, the presiding
officer shall notify the parties by serving them with copies of the
notice of hearing, stating the time and place of the hearing. The
notice shall state whether the oral hearing will be conducted by
telephone, audio-visual telecommunication, or personal attendance of
any individual expected to attend the hearing, and the presiding
officer's determination regarding the manner of the hearing shall be
made in accordance with Sec. 47.49(f)(2) and Sec. 47.49(f)(3). The
parties will be notified as soon as possible of any change in the time,
place, or manner of the hearing.
(b) If the presiding officer orders an oral hearing, any party may
move that the hearing be conducted by telephone or personal attendance
of any individual expected to attend the hearing rather than by audio-
visual telecommunication. Any motion that the hearing be conducted by
telephone or personal attendance of any individual
[[Page 8463]] expected to attend the hearing must be accompanied by a
memorandum in support of the motion stating the basis for the motion
and the circumstances that require the hearing to be conducted other
than by audio-visual telecommunication.
(c) Within 10 days after the presiding officer issues a notice
stating the manner in which the hearing is to be conducted, any party
may move that the presiding officer reconsider the manner in which the
hearing is to be conducted. Any motion for reconsideration must be
accompanied by a memorandum in support of the motion stating the basis
for the motion and the circumstances that require the hearing to be
conducted other than in accordance with the presiding officer's notice.
(d) Upon assignment of the matter for oral hearing, the presiding
officer shall make the official file a part of the records of the
proceeding and shall provide the petitioner with a copy of the official
file.
Sec. 47.56 [Amended]
50. Section 47.56 is amended as follows:
a. Paragraph (b) is revised to read as set forth below.
b. Paragraphs (g) and (h) are redesignated as paragraphs (i) and
(j) respectively.
c. New paragraphs (g) and (h) are added to read as set forth below.
Sec. 47.56 Powers of presiding officer.
* * * * *
(b) Set the time, place, and manner of the hearing, adjourn the
hearing, and change the time, place, and manner of the hearing;
* * * * *
(g) Require each party to provide all other parties and the
presiding officer with a copy of any exhibit that the party intends to
introduce into evidence prior to any hearing to be conducted by
telephone or audio-visual telecommunication;
(h) Require that any hearing to be conducted by telephone or audio-
visual telecommunication be conducted at locations at which the parties
and the presiding officer are able to transmit and receive documents
during the hearing;
* * * * *
Sec. 47.58 [Amended]
51. Section 47.58 is amended as follows:
a. In paragraph (b), the words ``or recording'' are added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
b. In paragraph (f), the words ``or recording'' are added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
c. Paragraphs (a), (b), (c), (d), (e), and (f) are redesignated as
(b), (c), (d), (e), (f), and (g) respectively.
d. A new paragraph (a) is added to read as follows:
Sec. 47.58 Evidence.
(a) Written statements of direct testimony. (1) Except as provided
in paragraph (a)(2) of this section, each party must exchange with all
other parties a written narrative verified statement of the oral direct
testimony that the party will provide at any hearing to be conducted by
telephone; the direct testimony of each employee or agent of the party
that the party will call to provide oral direct testimony at any
hearing to be conducted by telephone; and the direct testimony of each
expert witness that the party will call to provide oral direct
testimony at any hearing to be conducted by telephone. The written
direct testimony of witnesses shall be exchanged by the parties at
least 10 days prior to the hearing. The oral direct testimony provided
by a witness at a hearing conducted by telephone will be limited to the
presentation of the written direct testimony, unless the presiding
officer finds that oral direct testimony which is supplemental to the
written direct testimony would further the public interest and would
not constitute surprise.
(2) The parties shall not be required to exchange testimony in
accordance with this paragraph if the hearing is scheduled to begin
less than 20 days after the presiding officer's notice stating the time
of the hearing.
* * * * *
Sec. 47.59 [Amended]
52. Section 47.59 is amended as follows:
a. The section heading is revised to read ``Filing transcripts or
recordings and exhibits.''
b. In section 47.59, the words ``or recording'' are added
immediately after the word ``transcript'' each of the five times the
word ``transcript'' appears.
Sec. 47.60 [Amended]
53. Section 47.60 is revised to read as follows:
Sec. 47.60 Transcript or recording.
(a) Hearings to be conducted by telephone shall be recorded
verbatim by electronic recording device. Hearings conducted by audio-
visual telecommunication or the personal attendance of any individual
who is expected to participate in the hearing shall be transcribed,
unless the presiding officer finds that recording the hearing verbatim
would expedite the proceeding and the presiding officer orders the
hearing to be recorded verbatim. The presiding officer shall certify
that to the best of his or her knowledge and belief any recording made
pursuant to this paragraph with exhibits that were accepted into
evidence is the record of the hearing.
(b) If a hearing is recorded verbatim, a party requests the
transcript of a hearing or part of a hearing, and the presiding officer
determines that the disposition of the proceeding would be expedited by
a transcript of the hearing or part of a hearing, the presiding officer
shall order the verbatim transcription of the recording as requested by
the party.
(c) Parties to the proceeding who desire a copy of the transcript
or recording of the hearing may place orders at the hearing with the
reporter who will furnish and deliver such copies direct to the
purchaser upon payment therefore at the rate provided by the contract
between the reporter and the Department for such reporting services.
Sec. 47.62 [Amended]
54. In Sec. 47.62, the last sentence is amended by removing the
words ``of this part''.
PART 50--RULES OF PRACTICE GOVERNING WITHDRAWAL OF INSPECTION AND
GRADING SERVICES
55. The authority citation for part 50 is revised to read as
follows:
Authority: 7 U.S.C. 1621 et seq.; 7 CFR 2.35, 2.41.
56. Part 50 is revised to read as follows:
PART 50--RULES OF PRACTICE GOVERNING WITHDRAWAL OF INSPECTION AND
GRADING SERVICES
Subpart A--General
Sec.
50.1 Scope and applicability of rules of practice.
Subpart B--Supplemental Rules of Practice
50.10 Definitions.
50.11 Conditional withdrawal of service.
50.12 Summary suspension of service.
Subpart A--General
Sec. 50.1 Scope and applicability of rules of practice.
(a) The Rules of Practice Governing Formal Adjudicatory Proceedings
Instituted by the Secretary Under Various Statutes set forth in
Secs. 1.130 [[Page 8464]] through 1.151 of this title are rules of
practice applicable to adjudicatory proceedings under the regulations
promulgated under 7 U.S.C. 1621 et seq. for denial or withdrawal of
inspection, certification, or grading service. In addition, the
supplemental rules of practice in subpart B of this part shall be
applicable to adjudicatory proceedings under the regulations
promulgated under 7 U.S.C. 1621 et seq. for denial or withdrawal of
inspection, certification, or grading service.
(b) Neither the rules of practice in Secs. 1.130 through 1.151 of
this title nor the supplemental rules of practice in subpart B of this
part modify existing procedures for refusing to inspect, grade, or
certify a specific lot of a product because of adulteration, improper
preparation of the lot for grading, improper presentation of the lot
for grading, or because of failure to comply with any similar
requirements set forth in applicable regulations.
Subpart B--Supplemental Rules of Practice
Sec. 50.10 Definitions.
Director. The Director of the Division or any employee of the
Division to whom authority to act in his or her stead is delegated.
Division. The Division of the Agricultural Marketing Service,
United States Department of Agriculture, initiating the withdrawal of
inspection, certification, or grading service.
Mailing. Depositing an item in the United States mail with postage
affixed and addressed as necessary to cause the item to be delivered to
the address shown by ordinary mail, certified mail, or registered mail.
Sec. 50.11 Conditional withdrawal of service.
(a) The Director may withdraw grading or inspection service from a
person for correctable cause. The grading or inspection service
withdrawn, after appropriate corrective action is taken, will be
restored immediately, or as soon thereafter as a grader or inspector
can be made available.
(b) Written notice of withdrawal of grading or inspection service
under this section shall be given to the person from whom grading or
inspection services will be withdrawn in advance of withdrawal,
whenever it is feasible to provide such an advance written notice. If
advance written notice is not given, the withdrawal action and the
reasons for the withdrawal shall be confirmed as promptly as
circumstances permit, unless the deficiency which is the basis for the
withdrawal has already been corrected.
Sec. 50.12 Summary suspension of service.
(a) General. In any situation in which the integrity of grading or
inspection service would be jeopardized if the grading or inspection
service were continued pending a decision in a proceeding to withdraw
grading or inspection service, such service to the respondent may be
suspended effective on the third day after mailing of a written notice
of the suspension of service to the respondent's last known address or
designated address or upon actual receipt of the written notice,
whichever is earlier.
(b) Actual or threatened physical violence. In any case of actual
or threatened physical violence to an inspector or grader, grading and
inspection services to the respondent may be suspended prior to the
transmittal of the written notice of suspension to the respondent. A
written notice shall be given as promptly as circumstances permit.
PART 51 [AMENDED]
57. The authority citation for part 51 is revised to read as
follows:
Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50; unless
otherwise noted.
Sec. 51.46 [Amended]
58. Section 51.46 is amended by revising the last sentence to read
``The Rules of Practice Governing Formal Adjudicatory Proceedings
Instituted by the Secretary Under Various Statutes set forth in
Secs. 1.130 through 1.151 of this title and the Supplemental Rules of
Practice in part 50 of this chapter shall govern proceedings conducted
pursuant to this section.''
PART 52 [AMENDED]
59. The authority citation for part 52 is revised to read as
follows:
Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.
Sec. 52.54 [Amended]
60. In Sec. 52.54, paragraph (a) is amended by revising the last
sentence to read ``The Rules of Practice Governing Formal Adjudicatory
Proceedings Instituted by the Secretary Under Various Statutes set
forth in Secs. 1.130 through 1.151 of this title and the Supplemental
Rules of Practice in part 50 of this chapter shall be applicable to
such debarment action.''
PART 53-LIVESTOCK (GRADING, CERTIFICATION, AND STANDARDS)
61. The authority citation for part 53 is revised to read as
follows:
Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.
Sec. 53.13 [Amended]
62. In Sec. 53.13, paragraph (a)(2) is revised to read as follows:
Sec. 53.13 Denial or withdrawal of service.
(a) * * *
(2) Procedure. All cases arising under this paragraph shall be
conducted in accordance with the Rules of Practice Governing Formal
Adjudicatory Proceedings Instituted by the Secretary Under Various
Statutes set forth in Secs. 1.130 through 1.151 of this title and the
Supplemental Rules of Practice in part 50 of this chapter.
* * * * *
PART 54--MEATS, PREPARED MEATS, AND MEAT PRODUCTS (GRADING,
CERTIFICATION, AND STANDARDS)
63. The authority citation for part 54 is revised to read as
follows:
Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.
Sec. 54.11 [Amended]
64. In Sec. 54.11, paragraph (a)(2) is revised to read as follows:
Sec. 54.11 Denial or withdrawal of service.
(a) * * *
(2) Procedure. All cases arising under this paragraph shall be
conducted in accordance with the Rules of Practice Governing Formal
Adjudicatory Proceedings Instituted by the Secretary Under Various
Statutes set forth in Secs. 1.130 through 1.151 of this title and the
Supplemental Rules of Practice in part 50 of this chapter.
* * * * *
PART 97--PLANT VARIETY PROTECTION
65. The authority citation for part 97 is revised to read as
follows:
Authority: 7 U.S.C. 2321, 2326, 2352, 2353, 2356, 2371, 2402(b),
2403, 2426, 2427, 2501(c); 7 CFR 2.17, 2.50.
Sec. 97.300 [Amended]
66. In Sec. 97.300, paragraph (d), the last sentence is revised to
read ``If a formal hearing is requested, the proceeding shall be
conducted in accordance with the Rules of Practice Governing Formal
Adjudicatory Proceedings Instituted by the Secretary Under Various
Statutes set forth in Secs. 1.130 through 1.151 of this title.''
[[Page 8465]]
TITLE 9--[AMENDED]
Chapter II--Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs), Department of Agriculture
67. The heading of 9 CFR chapter II is revised to read as set forth
above.
68. In 9 CFR chapter II, consisting of parts 200 to 205, all
references to ``Packers and Stockyards Administration'' are revised to
read ``Grain Inspection, Packers and Stockyards Administration (Packers
and Stockyards Programs)'' and all references to ``P&SA'' are revised
to read ``GIPSA''.
PART 202--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE PACKERS
AND STOCKYARDS ACT
69. The authority citation for part 202 is revised to read as
follows:
Authority: 7 U.S.C. 228(a); 7 CFR 2.17(e), 2.56.
Sec. 202.102 [Amended]
70. Section 202.102 is amended by removing all paragraph
designations and placing the definitions in alphabetical order.
Sec. 202.103 [Amended]
71. In Sec. 202.103, paragraph (a), the second sentence is amended
by removing the words ``the provisions of''.
Sec. 202.105 [Amended]
72. In Sec. 202.105, paragraph (f)(2) is amended by removing the
words ``of this part''.
Sec. 202.109 [Amended]
73. Section 202.109 is amended as follows:
a. Paragraph (a)(5) is revised to read as set forth below.
b. In paragraph (c)(2), in the second sentence, the word ``pace''
is removed and the word ``place'' is added in its place.
c. Paragraph (d) is revised to read as set forth below.
d. In paragraph (g), the words ``or recording'' are added
immediately after the word ``transcript'' each of the four times the
word ``transcript'' appears.
e. In paragraph (h), the words ``or recording'' are added
immediately after the word ``transcript'' each of the four times the
word ``transcript'' appears.
f. In paragraph (i), the words ``or recording'' are added
immediately after the word ``transcript'' each of the six times the
word ``transcript'' appears and, in the first sentence, the words ``the
provisions of'' are removed.
g. In paragraph (j), the word ``therein'' is removed and the words
``in the deposition'' added in its place.
h. In paragraph (l), the words ``or recording'' are to be added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
Sec. 202.109 Rule 9: Depositions.
(a) * * *
(5) if oral, a suggested time and place where the proposed
deposition is to be made and a suggested manner in which the proposed
deposition is to be conducted (telephone, audio-visual
telecommunication, or by personal attendance of the individuals who are
expected to participate in the deposition). The application for an
order for the taking of testimony by deposition shall be made in
writing, unless it is made orally on the record at an oral hearing.
* * * * *
(d) Order. (1) The presiding officer, if satisfied that good cause
for taking the deposition is present, may order the taking of the
deposition.
(2) The order shall be served on the parties and shall include:
(i) The name and address of the officer before whom the deposition
is to be made;
(ii) The name of the deponent;
(iii) Whether the deposition will be oral or on written questions;
(iv) If the deposition is oral, the manner in which the deposition
is to be conducted (telephone, audio-visual telecommunication, or
personal attendance of those who are to participate in the deposition);
and
(v) The time, which shall not be less than 20 days after the
issuance of the order, and place.
(3) The officer, time, place, and manner of the deposition as
stated in the presiding officer's order need not be the same as the
officer, time, place, and manner suggested in the application.
(4) The deposition shall be conducted in the manner (telephone,
audio-visual telecommunication, or personal attendance of those who are
to participate in the deposition) agreed to by the parties.
(5) If the parties cannot agree on the manner in which the
deposition is to be conducted:
(i) The deposition shall be conducted by telephone unless the
presiding officer determines that conducting the deposition by audio-
visual telecommunication:
(A) Is necessary to prevent prejudice to a party;
(B) Is necessary because of a disability of any individual expected
to participate in the deposition; or
(C) Would cost less than conducting the deposition by telephone.
(ii) If the deposition is not conducted by telephone, the
deposition shall be conducted by audio-visual telecommunication unless
the presiding officer determines that conducting the deposition by
personal attendance of any individual who is expected to participate in
the deposition:
(A) Is necessary to prevent prejudice to a party;
(B) Is necessary because of a disability of any individual expected
to participate in the deposition; or
(C) Would cost less than conducting the deposition by telephone or
audio-visual telecommunication.
* * * * *
Sec. 202.110 [Amended]
74. Section 202.110 is amended as follows:
a. In paragraph (a), the last sentence, the words ``or recording''
are added immediately after the word ``transcript''.
b. Paragraph (b) is revised to read as set forth below.
Sec. 202.110 Rule 10: Prehearing Conference.
* * * * *
(b) Manner of the prehearing conference. (1) The prehearing
conference shall be conducted by telephone or correspondence unless the
presiding officer determines that conducting the prehearing conference
by audio-visual telecommunication:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the prehearing conference; or
(iii) Would cost less than conducting the prehearing conference by
telephone or correspondence. If the presiding officer determines that a
prehearing conference conducted by audio-visual telecommunication would
measurably increase the United States Department of Agriculture's cost
of conducting the prehearing conference, the prehearing conference
shall be conducted by personal attendance of any individual who is
expected to participate in the prehearing conference, by telephone, or
by correspondence.
(2) If the prehearing conference is not conducted by telephone or
correspondence, the prehearing conference shall be conducted by audio-
visual telecommunication unless the presiding officer determines that
conducting the prehearing conference by personal attendance of any
individual who is expected to participate in the prehearing conference:
(i) Is necessary to prevent prejudice to a party; [[Page 8466]]
(ii) Is necessary because of a disability of any individual
expected to participate in the prehearing conference; or
(iii) Would cost less than conducting the prehearing conference by
audio-visual telecommunication.
Sec. 202.112 [Amended]
75. Section 202.112 is be amended as follows:
a. Paragraph (a) is revised to read as set forth below.
b. Paragraph (b) is revised to read as set forth below.
c. In paragraph (e)(2), in the second sentence, the words ``or
recording'' are added immediately after the word ``transcript'', and
the word ``thereon'' is removed and the words ``on objections'' added
in its place.
d. In paragraph (e)(3), the words ``or recording'' are added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
e. In paragraph (e)(5), the word ``thereof'' is removed and the
words ``of the Department'' added in its place, and the word
``therein'' is removed and the words ``in the record of the
Department'' added in its place.
f. Paragraphs (e), (f), (g), (h), (i), and (j) are redesignated as
(f), (g), (h), (i), (j), and (k) respectively.
g. New paragraph (e) is added to read as set forth below.
h. Redesignated paragraph (i) is revised to read as set forth
below.
i. In redesignated (j), the heading is revised to read ``Filing,
and presiding officer's certificate, of the transcript or recording.'';
the words ``or recording'' are added immediately after the word
``transcript'' each of the 10 times the word ``transcript'' appears;
and the words ``or recorded'' are added immediately after the word
``transcribed''.
j. In redesignated paragraph (k), the heading is revised to read
``Keeping of copies of the transcript or recording.''; and the words
``or recording'' are added immediately after the word ``transcript''
each of the three times the word ``transcript'' appears.
Sec. 202.112 Rule 12: Oral hearing.
(a) Time, place, and manner. (1) If and when the proceeding has
reached the stage where an oral hearing is to be held, the presiding
officer shall set a time, place, and manner for oral hearing. The time
shall be set based upon careful consideration to the convenience of the
parties. The place shall be set in accordance with paragraph (a)(2) of
this section and careful consideration to the convenience of the
parties. The manner in which the hearing is to be conducted shall be
determined in accordance with paragraphs (a)(3) and (a)(4) of this
section.
(2) The place shall be set in accordance with paragraphs (e) and
(f) of section 407 of the Act, if applicable. In essence, under
paragraphs (e) and (f) of section 407 of the Act, if the complainant
and the respondent, or all of the parties, if there are more than two,
have their principal places of business or residence within a single
unit of local government, a single geographical area within a State, or
a single State, the oral hearing is to be held as near as possible to
such places of business or residence, depending on the availability of
an appropriate location for conducting the hearing. If the parties have
such places of business or residence distant from each other, then
paragraphs (e) and (f) of section 407 of the Act are not applicable.
(3) The oral hearing shall be conducted by audio-visual
telecommunication unless the presiding officer determines that
conducting the oral hearing by personal attendance of any individual
who is expected to participate in the hearing:
(i) Is necessary to prevent prejudice to a party;
(ii) Is necessary because of a disability of any individual
expected to participate in the hearing; or
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication. If the presiding officer determines that a hearing
conducted by audio-visual telecommunication would measurably increase
the United States Department of Agriculture's cost of conducting the
hearing, the hearing shall be conducted by personal attendance of any
individual who is expected to participate in the hearing or by
telephone.
(4) The presiding officer may, in his or her sole discretion or in
response to a motion by a party to the proceeding, conduct the hearing
by telephone if the presiding officer finds that a hearing conducted by
telephone:
(i) Would provide a full and fair evidentiary hearing;
(ii) Would not prejudice any party; and
(iii) Would cost less than conducting the hearing by audio-visual
telecommunication or personal attendance of any individual who is
expected to participate in the hearing.
(b) Notice. (1) A notice stating the time, place, and manner of
oral hearing shall be served on each party prior to the time of the
oral hearing. The notice shall state whether the oral hearing will be
conducted by telephone, audio-visual telecommunication, or personal
attendance of any individual expected to participate in the hearing. If
any change is made in the time, place, or manner of the oral hearing, a
notice of the change shall be served on each party prior to the time of
the oral hearing as changed, unless the change is made during the
course of an oral hearing and shown in the transcript or on the
recording. Any party may waive such notice, in writing, or orally on
the record at an oral hearing and shown in the transcript or on the
recording.
(2) If the presiding officer orders an oral hearing, any party may
move that the hearing be conducted by telephone or personal attendance
of any individual expected to attend the hearing rather than by audio-
visual telecommunication. Any motion that the hearing be conducted by
telephone or personal attendance of any individual expected to attend
the hearing must be accompanied by a memorandum in support of the
motion stating the basis for the motion and the circumstances that
require the hearing to be conducted other than by audio-visual
telecommunication.
(3) Within 10 days after the presiding officer issues a notice
stating the manner in which the hearing is to be conducted, any party
may move that the presiding officer reconsider the manner in which the
hearing is to be conducted. Any motion for reconsideration must be
accompanied by a memorandum in support of the motion stating the basis
for the motion and the circumstances that require the hearing to be
conducted other than in accordance with the presiding officer's notice.
* * * * *
(e) Written statements of direct testimony. (1) Except as provided
in paragraph (e)(2) of this section, each party must exchange with all
other parties a written narrative verified statement of the oral direct
testimony that the party will provide at any hearing to be conducted by
telephone; the direct testimony of each employee or agent of the party
that the party will call to provide oral direct testimony at any
hearing to be conducted by telephone; and the direct testimony of each
expert witness that the party will call to provide oral direct
testimony at any hearing to be conducted by telephone. The written
direct testimony of witnesses shall be exchanged by the parties at
least 10 days prior to the hearing. The oral direct testimony provided
by a witness at a hearing conducted by telephone will be limited to the
presentation of the written direct [[Page 8467]] testimony, unless the
presiding officer finds that oral direct testimony which is
supplemental to the written direct testimony would further the public
interest and would not constitute surprise.
(2) The parties shall not be required to exchange testimony in
accordance with this paragraph if the hearing is scheduled to begin
less than 20 days after the presiding officer's notice stating the time
of the hearing.
* * * * *
(i) Transcript or recording. (1) Hearings to be conducted by
telephone shall be recorded verbatim by electronic recording device.
Hearings conducted by audio-visual telecommunication or the personal
attendance of any individual who is expected to participate in the
hearing shall be transcribed, unless the presiding officer finds that
recording the hearing verbatim would expedite the proceeding and the
presiding officer orders the hearing to be recorded verbatim. The
presiding officer shall certify that to the best of his or her
knowledge and belief any recording made pursuant to this paragraph with
exhibits that were accepted into evidence is the record of the hearing.
(2) If a hearing is recorded verbatim, a party requests the
transcript of a hearing or part of a hearing, and the presiding officer
determines that the disposition of the proceeding would be expedited by
a transcript of the hearing or part of a hearing, the presiding officer
shall order the verbatim transcription of the recording as requested by
the party.
(3) Parties to the proceeding who desire copies of the transcript
or recording of the oral hearing may make arrangements with the
reporter, who will furnish and deliver such copies direct to such
parties, upon receipt from such parties of payment for the transcript
or recording, at the rate provided by the contract between the reporter
and the Department for such reporting service.
* * * * *
Sec. 202.115 [Amended]
76. Section 202.115 is amended as follows:
a. Paragraph (b), the second sentence is amended by adding the
words ``or recording'' immediately after the word ``transcript''.
b. Paragraph (d) is revised to read as set forth below.
Sec. 202.115 Rule 15: Submission for final consideration.
* * * * *
(d) Oral argument. There shall be no right to oral argument other
than that provided in rule 12(h), Sec. 202.112(h).
Sec. 202.118 [Amended]
77. Section 202.118 is amended as follows:
a. Paragraph (a)(1) is revised to read as set forth below.
b. In paragraph (a)(7), the word ``and'' is removed.
b. Paragraph (a)(8) is redesignated as paragraph (a)(12).
c. New paragraphs (a)(8), (a)(9), (a)(10), and (a)(11) are added to
read as set forth below.
202.118 Rule 18: Presiding officer.
(a) * * *
(1) Set the time, place, and manner of a prehearing conference and
an oral hearing, adjourn the oral hearing from time to time, and change
the time, place, and manner of oral hearing;
* * * * *
(8) Require each party to provide all other parties and the
presiding officer with a copy of any exhibit that the party intends to
introduce into evidence prior to any oral hearing to be conducted by
telephone or audio-visual telecommunication;
(9) Require each party to provide all other parties with a copy of
any document that the party intends to use to examine a deponent prior
to any deposition to be conducted by telephone or audio-visual
telecommunication;
(10) Require that any hearing to be conducted by telephone or
audio-visual telecommunication be conducted at locations at which the
parties and the presiding officer are able to transmit and receive
documents during the hearing;
(11) Require that any deposition to be conducted by telephone or
audio-visual telecommunication be conducted at locations at which the
parties are able to transmit and receive documents during the
deposition; and
* * * * *
Done in Washington, D.C., this 31st day of January, 1995.
Richard E. Rominger,
Acting Secretary of Agriculture.
[FR Doc. 95-3464 Filed 2-13-95; 8:45 am]
BILLING CODE 3410-01-P
