[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Proposed Rules]
[Pages 4342-4347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1968]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 47
[Docket Number FV98-358]
Amendments to Rules of Practice Under the Perishable Agricultural
Commodities Act (PACA)
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: The Department of Agriculture (USDA) is proposing to amend the
Rules of Practice under the Perishable Agricultural Commodities Act
(other than formal disciplinary proceedings). In addition to bringing
several sections of the Rules of Practice into compliance with the PACA
Amendments of 1995, USDA is proposing numerous additional changes in an
effort to enhance customer service.
DATES: Comments must be received by March 1, 1999.
ADDRESSES: Interested persons are invited to submit written comments
concerning this proposal. Comments must be sent to Charles W. Parrott,
Assistant Chief, PACA Branch, Fruit and Vegetable Division, AMS, USDA,
Room 2095-So. Bldg., P.O. Box 96456, Washington, DC 20090-6456. Echarles__w__parrott@usda.gov. All comments should reference the docket
number and the date and page number of this issue in the Federal
Register and will be made available for public inspection in the PACA
Branch during regular business hours and posted on the internet at
www.ams.usda.gov/fv/paca.htm.
FOR FURTHER INFORMATION CONTACT: Charles W. Parrott, Assistant Chief,
PACA Branch, Room 2095-So. Bldg., Fruit and Vegetable Division, AMS,
USDA, Washington, D.C. 20250, Phone (202) 720-4180.
SUPPLEMENTARY INFORMATION:
Background
The Perishable Agricultural Commodities Act (PACA or Act)
establishes a code of fair trading practices for the marketing of fresh
and frozen fruits and vegetables in interstate and foreign commerce.
The Act requires that parties fulfill their contractual obligations,
and provides a forum where firms that buy and sell fruits and
vegetables can settle commercial disputes outside of the civil court
system. Under the PACA, these disputes, or reparation complaints, are
handled first on an informal basis in an attempt to achieve an amicable
settlement between the disputing parties. About 75 percent of all
reparation complaints are resolved informally, generally within eight
weeks. However, if an informal settlement is not reached, there is a
formal complaint procedure available under which USDA's Judicial
Officer issues a binding decision in the case. The Rules of Practice
applicable to reparation proceedings inform the industry of USDA's
procedures and requirements for the handling of informal and formal
complaints under the PACA.
Agricultural Marketing Service (AMS) believes that amending the
Rules of Practice will enhance customer service by expediting the
handling of
[[Page 4343]]
documents in PACA reparation proceedings. For example, the Rules of
Practice applicable to reparation proceedings presently require that
the initial attempt to serve formal reparation documents must be made
by certified or registered mail. The amendments will expand the options
for the service of certain documents to include private or commercial
mail delivery.
The amendments would also clarify certain regulations and
definitions. The Rules of Practice are being amended throughout Part 47
to replace the term ``shortened procedure'' with ``documentary
procedure''. This more accurately reflects a formal reparation process
that does not involve an oral hearing.
A number of definitions have been amended in the Rules of Practice.
Due to the reorganization of AMS, a definition of the ``Fruit and
Vegetable Programs'' would be substituted for the definition of
``Division,'' a definition of ``Associate Administrator'' would be
substituted for the definition of ``Deputy Administrator,'' and a
definition of ``Deputy Administrator'' would be substituted for the
definition of ``Director.'' Additionally, the words ``Program'' and
``Deputy Administrator'' would be substituted for ``Division'' and
``Director'' respectively, wherever they appear in Part 47. The term
``examiner'', Sec. 47.2(i)(1) has been expanded to indicate that senior
marketing specialists may also prepare decisions in shortened or
``documentary procedure'' cases under the review of USDA's Office of
the General Counsel (OGC). The definition of ``examiner's report'' in
Sec. 47.2(j) has been shortened to eliminate the references to
Administrative Law Judges because they do not participate in reparation
cases and do not write examiner's reports. As already indicated, the
definitions of ``mail'' and ``re-mail'' have been expanded to allow for
additional methods of service to include commercial or private mail
delivery services. The section regarding informal complaints,
Sec. 47.3, would be revised to require that the complaint be in writing
and would allow for the filing of an informal complaint by facsimile
transmission. The required information to be contained in an informal
complaint would be slightly revised for clarification purposes. The
revision changes ``car initial and number, if carlot;'' to read
``carrier identification;'' and corrects a typographical error in
Sec. 47.3(a) (2) (vii) by inserting the word ``and'' between the words
``gross net.'' A statement regarding the required filing fee of $60.00
would be added to the text. Without the required accompanying fee, a
reparation case file will not be opened and the statute of limitations
would not be tolled. Additionally, paragraph (c) of that section
regarding the ``Status of person filing informal complaint'' would be
eliminated because it is not pertinent to these regulations.
In section 47.4, which addresses service matters, revisions would
permit the commercial or the private delivery of certain documents and
describe when service is perfected under the various mailing options.
By expanding ways to ``mail'' and ``re-mail'', service options will be
more flexible and accommodating. Additionally, the reference to the
service of the Chief's determination that a person was responsibly
connected with a licensee will be deleted from paragraph (b)(1) because
this issue is addressed in Sec. 47.49 of the regulations (7 CFR 47.49).
The section that delineates formal complaints in the Rules of
Practice would be changed to include a requirement that a formal
complaint be filed within nine months of notification that complainant
may proceed formally or complainant will lose the opportunity to
proceed with a formal complaint. Additionally, the rules would now
require that a $300.00 handling fee must accompany the filing of a
formal complaint in order for the complaint to be served upon the
respondent. If respondent files a counterclaim as part of its answer,
it must also include the $300.00 handling fee. The handling fee for
formal complaints is required by the Act and including it in the rules
is a change to conform with the 1995 Amendments.
Significant changes would be made to section 47.9, which addresses
the reply to a counterclaim or set-off, in order to require the same
information in the reply that is now required in the answer. The
counterclaim or set-off would be treated as a formal complaint filed by
the respondent, and therefore, failure to reply would be a default on
complainant's part as to the counterclaim or the set-off. In the
current rules, a failure to file a reply is treated as a denial of the
allegations of the counterclaim or set-off; the proposed changes will
create a parallel between the filing of a complaint and the filing of a
counterclaim or set-off.
With the new expanded definition of examiner in section 47.2(i),
section 47.11 is amended to clarify that only OGC attorneys, and not
other USDA employees, would be granted certain powers under this
section of the regulations because only OGC attorneys may conduct oral
hearings. The examiner's powers would be amended to include the ability
to require parties to provide copies of exhibits prior to hearings and
depositions in any type of hearing. Currently, this power is limited to
audio-visual and telephone hearings, but it is appropriate to expand
the examiner's powers in this way in order to promote efficiency. In
addition, only OGC attorneys may permit intervention of a party for
good cause shown. While the definition of examiner has been expanded
for documentary procedures, any non-attorney examiner's powers would be
specified and reviewed in order to ensure that legally sound and
consistent reparation decisions are prepared. The Rules of Practice
would be changed throughout to reflect this assignment of
responsibilities.
The proposed amendments update the Rules of Practice to comply with
the 1995 PACA Amendments which raised the minimum claim for damages
required for an oral hearing from $15,000 to $30,000. Another
correction that would be made in sections 47.11 and 47.16 is the
clarification that any subpoenas or orders for depositions would be
made over the facsimile signature of the Secretary. In addition, the
regulations regarding oral hearings would no longer permit complainant
to submit evidence in the form of depositions in lieu of appearing in
person or by counsel. Instead, all parties would be required to appear
in person or through a representative.
The section which discusses the deposition process would be
expanded to include references to the possibility of depositions in a
case that is converted from an oral hearing case to a documentary
procedure case. Currently, the section does not refer to this type of
deposition; the regulations only refer to depositions linked to oral
hearings.
In order to ensure sufficient opportunity for review by the
examiner and sufficient notice to the individual who is subpoenaed,
section 47.17 would be amended to require that applications for
subpoena be received at least thirty days prior to the hearing or
deposition date, and that the subpoena be issued at least twenty days
before the date of appearance. An exception may be made for good cause
shown.
All filings with regard to claims for fees and expenses in oral
hearing cases and the resultant objections would be filed with the
Hearing Clerk instead of the examiner in order to ensure that the
documents are properly filed into the official record kept by the
Hearing Clerk. The Hearing Clerk's Office would also be the appropriate
place to file petitions for rehearing, reargument, reconsideration of
orders, reopening of hearings and reopening after a default. Anywhere
in the regulations that the
[[Page 4344]]
words ``hearing clerk'' appears would be replaced by the words
``Hearing Clerk''.
As already discussed, the term ``shortened procedure'' would be
changed to ``documentary procedure''. In the documentary procedure
section, the rule regarding verification of pleadings or statements
would be expanded to note that certification by a notary public alone
is not sufficient, rather, a signed verifying statement must be
appended to the document.
Procedures for requesting a reopening after a default would be
removed from the provision that covers filing, extensions of time,
effective date of filing, computations of time, and official notice and
moved to the more appropriate section that deals with rehearing,
reargument, reconsideration of orders, and reopening of hearings. In
addition, the provision for reopening after a default would be revised
to permit a petition to reopen the proceedings to be filed before the
expiration of 30 days from the date of issuance of the default order.
This revision would eliminate any confusion that exists in the current
regulation because it does not provide a time certain for filing. The
amendment clarifies that the filing must be made before the Default
Order becomes final. For all filings, the provision for computation of
time would be corrected to include Saturdays as well as Sundays and
holidays.
Executive Orders 12866 and 12988
This proposed rule, issued under the Perishable Agricultural
Commodities Act (7 U.S.C. 499 et. seq.), as amended, has been
determined to be not significant for the purposes of Executive Order
12866, and therefore, has not been reviewed by the Office of Management
and Budget (OMB).
This proposed rule has been reviewed under Executive Order 12988,
Civil Justice Reform and is not intended to have retroactive effect.
This proposed rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule. There are no administrative procedures which
must be exhausted prior to any judicial challenge to the provisions of
this rule.
Effects on Small Businesses
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et. seq.), USDA has considered the economic
impact of this proposed rule on small entities. The purpose of the RFA
is to fit regulatory actions to the scale of businesses subject to such
actions in order that small businesses will not be unduly or
disproportionately burdened. Small agricultural service firms have been
defined by the Small Business Administration (13 CFR 121) as those
whose with less than 500 employees. The PACA requires all businesses
that operate subject to its provisions maintain a license issued by
USDA. There are approximately 15,700 PACA licensees, a majority of
which may be classified as small entities.
The proposed revisions to the PACA Rules of Practice would
streamline USDA procedures and requirements for handling of informal
and formal complaints under the PACA. In Fiscal Year 1998, there were
2198 informal reparation claims, 21 counterclaims, and 563 formal
reparation cases filed with USDA under the PACA. The proposed revisions
to the reparation Rules of Practice would apply only to firms that
utilize USDA's service for resolving commercial disputes under the
PACA. AMS believes that the revisions to the Rules of Practice will
enhance customer service to the industry by expediting the handling of
documents in PACA reparation proceedings. Most of the proposed
revisions provide notice to claimants of the procedure that AMS will
follow in adjudicating claims. For example, the proposed revision that
provides for additional methods of service of formal documents by AMS
will not produce any economic effect on licensees initially. But, if
the use of commercial and/or express delivery services take the place
of certified mail, licensees may be required to absorb the additional
costs through marginally higher fees.
There are some proposed revisions, however, that would affect the
rights and obligations of claimants. For example, claimants must be
certain to adhere to the filing requirements for both informal and
formal complaints, which require the payment of statutorily mandated
filing and handling fees, respectively. If the required fees do not
accompany a filing, a claimant may lose access to the reparation forum.
These revisions, and others, may affect a claimant's due process
rights, which are difficult to quantify. However, since the reparation
forum is but one available means to resolve contract disputes
concerning perishable agricultural products in interstate commerce, AMS
has determined that the provisions of this proposed rule would not have
a significant economic impact on a substantial number of small
entities.
Paperwork Reduction Act
In compliance with OMB regulations (5 CFR, Part 1320) which
implement the Paperwork Reduction Act of 1995 (Pub. L. 104-13), the
information collection and record keeping requirements covered by this
proposed rule were approved by OMB on April 1, 1998, and expire on
April 30, 2001.
List of Subjects in 7 CFR Part 47
Administrative practice and procedure, Agricultural commodities,
Brokers.
For the reasons set forth in the preamble, 7 CFR Part 47 is
proposed to be amended as follows:
PART 47--[AMENDED]
1. The authority citation for part 47 is revised to read as
follows:
Authority: 7 U.S.C. 499o; 7 CFR 2.22(a)(1)(viii)(L),
2.79(a)(8)(xiii).
2. Section 47.2 is amended by removing paragraph (j)(2) and
redesignating paragraph (j)(1) as paragraph (j) and revising paragraphs
(e), (g), (h), (i), (s), and (t) to read as follows:
Sec. 47.2 Definitions.
* * * * *
(e) Associate Administrator means the Associate Administrator of
the Service, or any officer or employee of the Service to whom
authority has heretofore lawfully been delegated, or to whom authority
may hereafter lawfully be delegated, to act in his or her stead.
* * * * *
(g) Fruit and Vegetable Programs means the Fruit and Vegetable
Programs of the Agricultural Marketing Service.
(h) Deputy Administrator means the Deputy Administrator of the
Fruit and Vegetable Programs or any officer or employee of the Fruit
and Vegetable Programs to whom authority has heretofore lawfully been
delegated, or to whom authority may hereafter lawfully be delegated by
the Deputy Administrator, to act in his stead.
(i) Examiner. In connection with reparation proceedings, the term
``examiner'' is synonymous with ``presiding officer'' and means any
attorney employed in the Office of the General Counsel of the
Department, or in connection with reparation proceedings conducted
pursuant to the documentary procedure in Sec. 47.20, the term
``examiner'' may mean any other employee of the PACA Branch whose work
is reviewed by an attorney employed in the Office of the General
Counsel of the Department.
* * * * *
(s) Mail means to deposit an item in the United State Mail with
postage affixed and addressed as necessary to cause it to be delivered
to the address
[[Page 4345]]
shown by ordinary mail, or by certified mail or registered mail if
specified, or to cause a properly addressed item to be delivered by a
commercial or private mail delivery service to the address shown.
(t) Re-mail means to mail by ordinary mail to an address an item
that has been returned after being sent to the same address by
certified or registered mail or by a commercial or private mail
delivery service.
5. In Sec. 47.3, the first sentence in paragraph (a)(2) and
paragraph (a)(2)(iv) are revised, in paragraph (a)(2)(vii) the word
``and'' is added between the words ``gross'' and ``net'', paragraph (c)
is removed, and a new paragraph (a)(4) is added to read as follows:
Sec. 47.3 Institution of proceedings.
(a) * * *
(1) * * *
(2) Informal complaints may be made in writing by telegram, by
letter, or by facsimile transmission, setting forth the essential
details of the transaction complained of. * * *
* * * * *
(iv) Carrier identification;
* * * * *
(4) The informal complaint shall be accompanied by a filing fee of
$60 as required by the Act.
* * * * *
7. Section 47.4 is amended by revising the section heading and
paragraphs (b)(1), (b)(3), (c)(1), and (d)(1) to read as follows:
Sec. 47.4 Service and proof of service.
* * * * *
(b) Service on party. (1) Any complaint or other document initially
served on a person to make that person a party respondent in a
proceeding, a final order, or other document specifically ordered by
the presiding officer or Judicial Officer to be served by certified or
registered mail, or commercial or private mail delivery service, shall
be deemed to be received by any party to a proceeding on the date of
delivery by certified or registered mail, or commercial or private mail
delivery service to the last known principal place of business of such
party, last known principal place of business of the attorney or
representative of record of such party, last known residence of such
party if an individual: Provided, That, if any such document or paper
is sent by certified, registered, commercial, or private mail, but is
returned, it shall be deemed to be received by such party on the date
of the re-mailing by ordinary mail to the same address.
* * * * *
(3) Any document or paper served other than by certified,
registered, commercial, or private mail on any party to a proceeding
shall be deemed to be received by such party on the date of:
* * * * *
(c) * * *
(1) Delivery by certified, registered, commercial, private or mail
to the last known principal address of such person, last know principal
place of business of the attorney or representative of record of such
person, or last known residence of such person if an individual;
* * * * *
(d) * * *
(1) A certified or registered mail receipt returned by the postal
service with a signature, or a signed receipt returned by a private or
commercial mail delivery service;
* * * * *
8. In Sec. 47.6, paragraphs (a) and (c) are revised to read as
follows:
Sec. 47.6 Formal Complaints.
(a) Filing; contents; number of copies. (1) If the procedure
provided in Sec. 47.3(b) fails to effect an amicable or informal
settlement, the person who filed the informal complaint may, if further
proceedings are desired, file a formal complaint with the Fruit and
Vegetable Programs. The formal complaint shall be filed within nine
months of notification of the opportunity to proceed formally. Failure
to file a formal reparation complaint within the time prescribed shall
result in the waiver of further proceedings on the claim alleged in the
informal complaint.
(2) The formal complaint shall set forth the information and be
accompanied by the papers indicated in Sec. 47.3(a)(2) and (3),
including a statement of the amount of damages claimed, with the basis
therefor, and the method of determination. The original and three
copies shall be furnished for filing, and service on the respondent. If
there is more than one respondent, a further copy shall be furnished
for each additional respondent.
* * * * *
(c) Service upon respondent; proof of service. Upon receipt by the
Fruit and Vegetable Programs of the formal complaint, the accompanying
papers and the $300 handling fee required by the Act, a copy thereof
shall be served by the Fruit and Vegetable Programs upon the respondent
in accordance with Sec. 47.4. If the complaint is not in the proper
form, the Fruit and Vegetable Programs shall return it and inform the
complainant of the deficiencies therein.
* * * * *
9. In Sec. 47.8, paragraph (a) is amended by adding a sentence at
the end of the section to read as follows:
Sec. 47.8 The answer.
(a) * * * If the answer includes a counterclaim, the answer shall
be accompanied by the $300 handling fee required by the Act for formal
complaints.
* * * * *
10. In Sec. 47.9, paragraphs (b) and (c) are revised to read as
follows:
Sec. 47.9 The reply.
* * * * *
(b) Contents. The reply shall be confined strictly to the matters
alleged in the counterclaim or set-off in the answer. It shall contain
a precise statement of the facts which constitute the grounds of
defense to the counterclaim or set-off, and shall specifically admit,
deny, or explain each of the allegations of the counterclaim or set-
off, unless the complainant is without knowledge, in which case the
reply shall so state; or a statement that the complainant admits all of
the allegations of the counterclaim or set-off; or a statement
containing an admission of liability in an amount less than that
alleged in the counterclaim or set-off and a denial of liability for
the remaining amount.
(c) Failure to file reply. Failure to file a reply shall be deemed
a waiver of hearing on the counterclaim or set-off and an admission of
the allegations contained in the counterclaim or set-off. If no reply
is filed, the allegations of the counterclaim or set-off shall be
deemed admitted.
11. In Sec. 47.11, the introductory text of paragraph (c), and
paragraphs (c)(4), (c)(9), (c)(10) and (c)(13) are revised to read as
follows:
Sec. 47.11 Examiners.
* * * * *
(c) Powers. Subject to review by the Secretary, as provided in this
Part, the examiner who is an attorney employed in the Office of the
General Counsel of the Department, in any proceeding assigned to him or
her, shall have power to:
* * * * *
(4) Issue subpoenas over the facsimile signature of the Secretary
requiring the attendance and testimony of witnesses and the production
of books, contracts, papers, and other documentary evidence;
* * * * *
[[Page 4346]]
(9) Require each party, prior to any hearing, to provide all other
parties and the examiner with a copy of any exhibit that the party
intends to introduce into evidence;
(10) Require each party, prior to any deposition, to provide all
other parties and the examiner with a copy of any document that the
party intends to use to examine a deponent;
* * * * *
(13) Do all acts and take all measures necessary for the
maintenance of order and for the efficient conduct of the proceeding.
* * * * *
12. In Sec. 47.12, the introductory text is revised to read as
follows:
Sec. 47.12 Intervention.
At any time after the institution of a proceeding and before it has
been submitted to the Secretary for final consideration, the Secretary
or the examiner as defined in Sec. 47.2(i)(1) may, upon petition in
writing and for good cause show, permit any person to intervene
therein. The peition shall state with preciseness and particularity:
* * * * *
13. In Sec. 47.15, paragraphs (a)(1), (a)(2), (b) and (d)(1) are
revised to read as follows:
Sec. 47.15 Oral hearing before the examiner.
(a) When permissible. (1) Where the amount of the damages claimed,
either in the complaint or in the counterclaim, does not exceed
$30,000, an oral hearing shall not be held, unless deemed necessary or
desirable by the Fruit and Vegetable Programs or unless granted by the
examiner as defined in Sec. 47.2(i)(1), upon application of complainant
or respondent setting forth the peculiar circumstances making an oral
hearing necessary for a proper presentation of the case.
(2) Where the amount of damages claimed, either in the complaint or
in the counterclaim, is in excess of $30,000, the procedure provided in
this section (except as provided in Sec. 47.20(b)(2)) shall be
applicable.
(b) Request for hearing. Any party may request an oral hearing on
the facts by including such request in the complaint. Failure to
request an oral hearing within the time allowed for filing of the
reply, or within 10 days after the expiration of the time allowed for
filing an answer, shall constitute a waiver of such hearing, and any
party so failing to request an oral hearing will be deemed to have
agreed that the proceeding may be decided upon a record formed under
the documentary procedure provided in Sec. 47.20.
* * * * *
(d) Appearances--(1) Representation. In any proceeding under the
Act, the parties may appear in person or by counsel or other
representative.
* * * * *
14. In Sec. 47.16, the introductory text of paragraph (a), and
paragraph (b)(1) are revised to read as follows:
Sec. 47.16 Depositions.
(a) Application for taking deposition. Upon the application of a
party to the proceeding, the examiner as defined in Sec. 47.2(i)(1)
may, except as provided in paragraph (b), at any time after the filing
of the moving papers, order, over the facsimile signature of the
Secretary, the taking of testimony by deposition. The application shall
be in writing, shall be filed with the Hearing Clerk, and shall set
forth:
* * * * *
(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, or if the parties are using depositions in
lieu of affidavits pursuant to Sec. 47.20(b)(2), the examiner shall
order the taking of the deposition. In no case, except for good cause
shown, may the examiner order the taking of a deposition less than 10
days prior to the designated date of deposition. The order shall be
filed with the Hearing Clerk upon the parties in accordance with
Sec. 47.4.
* * * * *
15. In Sec. 47.17, a sentence is added at the end of paragraph (a)
to read as follows:
Sec. 47.17 Subpoenas.
(a) Issuance of subpoenas. * * * Except for good cause shown,
applications for subpoenas shall be filed with the Hearing Clerk at
least 30 days prior to the designated date of hearing or deposition.
Except for good cause shown, the examiner shall not issue subpoenas
less than 20 days prior to the designated date of hearing or
deposition.
* * * * *
16. In Sec. 47.19, paragraphs (d)(1), (d)(4), (d)(5) and (d)(6) are
revised to read as follows:
Sec. 47.19 Post-hearing procedure before the examiner.
* * * * *
(d) Claim for award of fees and expenses--(1) Filing. Prior to the
close of the hearing, or within 20 days thereafter, each party may file
with the Hearing Clerk a claim for the award of the fees and expenses
which he incurred in connection with the oral hearing. No award of fees
and expenses to the prevailing party and against the losing party shall
be made unless a claim therefor has been filed, and failure to file a
claim within the time allowed shall constitute a waiver thereof.
* * * * *
(4) Service of claim. A copy of each such claim filed shall be
served by the Hearing Clerk on the other party or parties to the
proceeding.
(5) Objections to claim. Within 20 days after being served with a
copy of a claim for fees and expenses, the party so served may file
with the Hearing Clerk written objections to the allowance of any or
all of the items claimed. If evidence is offered in support of an
objection, it must be in affidavit form. A copy of any such objections
shall be served by the Hearing Clerk on the other party or parties.
(6) Reply to objections to claim. A claimant who is served with a
copy of objections to his or her claim may, within 20 days after such
service, file with the Hearing Clerk a reply to such objection. If
evidence is offered in support of a reply, it must be in affidavit
form. A copy of any such reply shall be served by the Hearing Clerk on
the other party or parties.
* * * * *
17. In Sec. 47.20, the section heading, the first sentence of
paragraph (a), paragraphs (b)(1), (b)(2), and the introductory text of
paragraph (h) are revised to read as follows:
Sec. 47.20 Documentary procedure.
(a) In general. The documentary procedure described in this section
shall, whenever it is applicable as provided in paragraph (b) of this
section, take the place and serve in lieu of the oral hearing procedure
hereinbefore provided. Under the documentary procedure, the pleadings
of the parties, if verified in accordance with paragraph (h) of this
section, and any report of investigation filed with the hearing clerk
pursuant to Sec. 47.7 will be considered as evidence in the proceeding.
* * *
(b) When applicable--(1) Where damages claimed do not exceed
$30,000. The documentary procedure provided for in this section shall
(except as provided in Sec. 47.15(a)) be used in all reparation
proceedings in which the amount of damages claimed, either in the
complaint or in the counterclaim, does not exceed $30,000.
(2) Where damages claimed exceed $30,000. In any proceeding in
which the amount of damages claimed, either in the complaint or in the
counterclaim, is greater than $30,000, the examiner,
[[Page 4347]]
whenever he or she is of the opinion that proof may be fairly and
adequately presented by use of the documentary procedure provided for
in this section, shall suggest to the parties that they consent to the
use of such procedure. Parties are free to consent to such procedure if
they choose, and declination of consent will not affect or prejudice
the rights or interests of any party. A party, if he or she has not
waived oral hearing, may consent to the use of the documentary
procedure on the condition that depositions rather than affidavits be
used. In such case, if the other party agrees, depositions shall be
required to be filed in lieu of verified statements. If any party who
has not waived oral hearing does not consent to the use of the
documentary procedure, the proceeding will be set for oral hearing. The
suggestion that the documentary procedure be used need not originate
with the examiner. Any party may address a request to the examiner
asking that the documentary procedure be used.
* * * * *
(h) Verification. Verification shall be made under oath of any
facts set forth in the pleading or statement, by the person who signs
the pleading or statement. Certification by a notary public is
insufficient. The form of verification may be as follows:
* * * * *
18. Section 47.21 is revised to read as follows:
Sec. 47.21 Transmittal of record.
The hearing clerk, immediately after the filing of the examiners'
report, shall transmit to the Secretary the record of the proceeding.
Such record shall include: The pleadings; motions and requests filed,
and rulings thereon; the report of investigation conducted by the Fruit
and Vegetable Programs; the transcript or record of the testimony taken
at the hearing, together with the exhibits filed therein; any
statements or stipulations filed under the documentary procedure; any
documents or papers filed in connection with conferences; such proposed
findings of fact, conclusions, and orders and briefs as may have been
permitted to be filed in connection with the hearing as provided in
Sec. 47.19(b) and (c); such statements of objections, and briefs in
support thereof, as may have been filed in the proceeding; and the
examiner's report.
* * * * *
19. In Sec. 47.24, the section heading and paragraph (a) are
revised and a new paragraph (d) is added to read as follows:
Sec. 47.24 Rehearing, reargument, reconsideration of orders, reopening
of hearings, reopening after default.
(a) Petitions to rehear, reargue, and reconsider. A petition for
rehearing or reargument of the proceeding, or for reconsideration of
the order, shall be made by petition to the Secretary filed with the
Hearing Clerk within 20 days after the date of service of the order.
Every such petition shall state specifically the matters claimed to
have been erroneously decided and the alleged errors. If the Secretary
concludes that the questions raised by the petition have been
sufficiently considered in the issuance of the order, the Secretary
shall dismiss the peition without service on the other party.
Otherwise, the Secretary shall direct that a copy of the petition be
served upon such party by the Hearing Clerk. The filing of a petition
to rehear or reargue a proceeding, or to reconsider an order, shall
automatically operate to set aside the order pending final action on
the petition. Only one petition to rehear, reargue, or reconsider will
be accepted from each party, except when a mathematical or
typographical error appears in either the original decision and order
or in the decision on reconsideration.
* * * * *
(d) Reopening after default. The party in default in the filing of
an answer or reply required or authorized under this part may petition
to reopen the proceeding at any time prior to the expiration of 30 days
from the date of service of the default order. If, in the judgment of
the examiner, after notice to and consideration of the views of the
other party(ies), there is good reason for granting such relief, the
party in default will be allowed 20 days from the date of the order
reopening the proceeding to file an answer.
20. In Sec. 47.25, the section heading and paragraph (d) are
revised, paragraph (e) is removed and paragraph (f) is redesignated as
paragraph (e) to read as follows:
Sec. 47.25 Filing; extensions of time; effective date of filing;
computations of time; official notice.
* * * * *
(d) Computations of time. Saturdays, Sundays and holidays shall be
included in computing the time allowed for the filing of any document
or paper: Provided, That, when such time expires on a Saturday, Sunday
or Federal holiday, such period shall be extended to include the next
following business day.
* * * * *
21. Part 47 is amended by removing the words ``hearing clerk'' and
adding in their place the words ``Hearing Clerk'', everywhere they
appear.
22. Part 47 is amended by removing the word ``Division'' and adding
in its place the words ``Fruit and Vegetable Programs'', everywhere
they appear.
23. Part 47 is amended by removing the words ``Director'' and
``Director's'', and adding in their place the words ``Deputy
Administrator'' and ``Deputy Administrator's'' respectively, everywhere
they appear.
Dated: January 21, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-1968 Filed 1-27-99; 8:45 am]
BILLING CODE 3410-02-P
