[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3824]
[[Page Unknown]]
[Federal Register: February 25, 1994]
VOL. 59, NO. 38
Friday, February 25, 1994
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DEPARTMENT OF AGRICULTURE
Office of the Secretary
7 CFR Parts 0, 1, 47, 50, 51, 52, 53, 54, and 180
Packers and Stockyards Administration
9 CFR Part 202
Rules of Practice
AGENCY: Office of the Secretary of Agriculture, USDA.
ACTION: Proposed rule.
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SUMMARY: We propose to amend 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. The proposal would provide that conferences shall be conducted by
telephone or correspondence, and hearings and depositions by telephone
unless the person conducting the proceeding orders that the conference,
hearing and deposition be conducted by audio-visual telecommunication
or personal attendance. This proposal would also provide for the use of
recordings of hearings and depositions. These amendments would save the
government and those who participate in the proceedings time and money.
DATES: Consideration will be given only to comments received on or
before April 26, 1994.
ADDRESSES: Please send an original and three copies of your comments to
William Jenson, Senior Counsel, Office of the General Counsel, USDA,
Room 2422, South Building, 14th Street and Independence Avenue SW.,
Washington, DC 20250. Comments received may be inspected at USDA, Room
2422, South Building, 14th Street and Independence Avenue SW.,
Washington, DC 20250, between 8 a.m. and 4:30 p.m., Monday through
Friday, except holidays. Persons wishing to inspect comments are
encouraged to call ahead (202) 720-2453 to facilitate entry.
FOR FURTHER INFORMATION CONTACT:
Mary Hobbie, Deputy Assistant General Counsel, Trade Practices
Division, Office of the General Counsel, USDA, room 2446, South
Building, 14th Street and Independence Avenue SW., Washington, DC
20250, (202) 720-5293.
SUPPLEMENTARY INFORMATION:
Background
The Department conducts a number of adjudicatory proceedings in
which conferences, depositions, and hearings are held. Many of the
conferences, depositions, and hearings are conducted by personal
attendance which necessitates travel by those who participate in the
conference, deposition, or hearing.
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 Department 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.
We believe that most conferences conducted in connection with
adjudicatory proceedings, held by the Department can be conducted by
telephone or correspondence, and that most depositions and hearings
conducted in connection with adjudicatory proceedings held by the
Department can be conducted by telephone or audio-visual
telecommunication. Therefore, we propose 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), 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 below as the ``PACA Responsibly Connected Rules''), and
the Rules of Practice Applicable to Reparation Proceedings Under the
Packers and Stockyards Act (9 CFR 202.101 through 202.123) (referred to
below as the P&S Reparation Rules) as described below, to specifically
provide that conferences may be conducted by telephone, correspondence,
audio-visual telecommunication, or by personal attendance of the
participants and to specifically provide that depositions and hearings
may be conducted by telephone, audio-visual telecommunication, or
personal attendance of the participants.
We also propose to amend these rules of practice to allow the use
of recordings of depositions and hearings instead of requiring the
transcription of depositions and hearings. Transcription of hearings
and depositions is more expensive than recording hearings and
depositions, and transcriptions do not provide a better record of
hearings and depositions than audio or audio-visual recordings.
The Department conducts numerous hearings in accordance with rules
of practice which we are not proposing to amend. However, the vast
majority of the Department's adjudicatory proceedings are conducted in
accordance with the Uniform Rules, the Capper-Volstead Rules, the PACA
Reparation Rules, the PACA Responsibly Connected Rules, and the P&S
Reparation Rules which we are proposing to amend. We intend to review
other Department rules of practice applicable to other Department
proceedings (both adjudicatory and non-adjudicatory) and, if
appropriate, propose to amend those rules of practice to provide for
conducting all or part of those proceedings by telecommunication and to
provide for recordings in lieu of transcription.
We have carefully considered the due process concerns that could be
raised regarding Department proceedings conducted by telecommunication.
This proposal provides for conducting conferences, depositions, and
hearings by personal attendance in circumstances in which any party may
be prejudiced by conducting the conference, deposition, or hearing by
telecommunication or when a disability of any individual expected to
participate in the conference, deposition, or hearing necessitates that
the conference, deposition, or hearing be conducted by personal
attendance.
Conferences
Current 7 CFR 1.140(c) provides that in the event that the Judge
concludes that personal attendance by the Judge and the parties or
counsel at a conference under the Uniform Rules is unwarranted or
impracticable, but determines that a conference would expedite the
proceeding, the Judge may conduct the conference by telephone or
correspondence. Current 7 CFR 1.167 provides that the Judge may direct
the parties to attend a conference under the Capper-Volstead Rules when
the Judge finds that the conference would expedite the proceeding.
Title 4, CFR, Sec. 1.167 does not state the manner in which the
conference is to be held. Current 7 CFR 47.14 provides that an examiner
conducting a proceeding under the PACA Reparation Rules may request the
parties to appear at a conference before the examiner to expedite or
aid in the disposition of the proceeding. If appearance is not
practical, the examiner may request the parties to correspond with the
examiner to expedite or aid in the disposition of the proceeding.
(There are no provisions for conferences under the PACA Responsibly
Connected Rules). Current 9 CFR 202.110 provides that the presiding
officer conducting a proceeding under the P&S Reparation Rules, at any
time prior to the commencement of a hearing, may request the parties or
their counsel to appear at a conference to expedite and aid in the
disposition of the proceeding. If appearance at the conference is
impracticable, the presiding officer may conduct the conference by
telephone or correspondence.
We propose to amend 7 CFR 1.140(c), 1.167, and 47.14 and 9 CFR
202.110 to provide that conferences shall be conducted by telephone or
correspondence unless the Judge (the examiner, under the PACA
Reparation Rules; and the presiding officer, under the P&S Reparation
Rules) determines that audio-visual telecommunication of the
conference: (1) Would cost less than conducting the conference by
telephone or correspondence; (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 conference. We also propose that if the
conference is not conducted by telephone or correspondence that it
shall be conducted by audio-visual telecommunication unless the Jude
(the examiner, under the PACA Reparation Rules; and the presiding
officer, under the P&S Reparation Rules) determines that personal
attendance of any individual expected to participate in the conference:
(1) Would cost less than conducting the conference by 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 conference.
We believe that the vast majority of conferences should be
conducted by telephone or correspondence. These conferences are
generally held to narrow issues, focus testimony, discuss settlement,
and expedite the proceeding. Observations of demeanor for the purposes
of determining credibility of persons participating in such conferences
is not relevant to the conference.
We propose three specific bases for an order by the person
conducting the proceeding that the conference be conducted by audio-
visual telecommunication rather than telephone or correspondence.
First, the person conducting the proceeding could order that the
conference be conducted by audio-visual telecommunication when the
person conducting the proceeding determines that a conference conducted
by audio-visual telecommunication would cost less than conducting the
conference by telephone or correspondence. We believe that most
conferences conducted by telephone or correspondence will be less
expensive than conferences conducted by audio-visual telecommunication.
However, there are rare situations in which conferences conducted by
audio-visual telecommunication may be less expensive than conferences
conducted by telephone or correspondence. For instance, conferences
conducted by audio-visual telecommunication held during or just prior
to a hearing conducted by audio-visual telecommunication may be less
expensive than conferences conducted by correspondence or telephone.
Second, the person conducting the proceeding could order that a
conference be conducted by audio-visual telecommunication if conducting
the conference by audio-visual telecommunication is necessary to
prevent prejudice to a party. While this is extremely unlikely, there
may be unusual circumstances in which a party is denied due process or
is put at a disadvantage if the party is required to participate in a
conference conducted by telephone or correspondence and this prejudice
would be negated by conducting the conference by audio-visual
telecommunication.
Third, the person conducting the proceeding could order that a
conference be conducted by audio-visual telecommunication if it is
necessary because of a disability of any individual expected to
participate in the conference. For instance, if an individual expected
to participate in the conference has a severe speech or hearing
impediment and has difficulty communicating in writing, an audio-visual
telecommunication conference, instead of a conference conducted by
telephone, may be necessary.
Further, we propose that, if the conference is not conducted by
telephone or correspondence, the conference shall be conducted by
audio-visual telecommunication unless the person conducting the
proceeding determines that conducting the conference by personal
attendance of any individual who is expected to participate in the
conference: (1) Would cost less than conducting the conference by
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 conference.
We propose three bases for an order by the person conducting the
proceeding to require that the conference be conducted by personal
attendance of the participants instead of audio-visual
telecommunication. These are the same bases as we propose with respect
to a presiding person's order that the conference be conducted by
audio-visual telecommunication instead of by telephone or
correspondence.
We also propose that any determination be the person conducting the
proceeding that audio-visual telecommunication or personal attendance
of any individual at a conference is necessary, and the basis for that
determination, must be reduced to a written order and filed with the
Hearing Clerk, unless the person conducting the proceeding orders the
audio-visual telecommunication of a conference to be held during a
hearing conducted by audio-telecommunication or personal attendance of
an individual at a conference to be held during a hearing and that
individual is personally attending the hearing. A party may appeal the
presiding person's order to the Judicial Officer (the Secretary, under
the PACA Reparation Rules) by filing an interlocutory appeal petition
with the Hearing Clerk.
We believe that the cost of conferences conducted by audio-visual
telecommunication and personal attendance should be avoided, if
possible, and that the parties who generally bear most of the costs
associated with conferences conducted by audio-visual telecommunication
or personal attendance should be given an opportunity to appeal orders
to conduct these conferences by audio-visual telecommunication or
personal attendance. In order to limit a party's ability to disrupt a
scheduled conference, we also propose that no party may file an
interlocutory appeal petition within 5 days of the scheduled date of
the conference, and any interlocutory appeal petition must be filed
within 10 days after service of a presiding person's order on the party
filing the interlocutory appeal petition.
We also propose that, within 10 days after the service of a copy of
an interlocutory appeal petition, any party to the proceeding, other
than the party who filed the interlocutory appeal petition, may file
with the Hearing Clerk a response in support of or in opposition to the
interlocutory appeal petition.
In order to allow the Judicial Officer (the Secretary, under the
PACA Reparation Rules) time to consider both the appeal from the
presiding person's order to attend a conference personally and any
response to the appeal, we propose that the presiding person's order
which is the subject of a party's interlocutory appeal petition shall
be stayed from the time the interlocutory appeal petition is filed
until 5 days after the Judicial Officer's (the Secretary's, under the
PACA Reparation Rules) ruling on the interlocutory appeal petition is
served on all of the parties to the proceeding.
Hearings
Current 7 CFR 1.141(b) provides that, under the Uniform Rules, the
Judge shall set the time and place of hearing by notice filed with the
Hearing Clerk. Further, if any change in the time or place is made, the
Judge is required to give the parties notice of the change. Current 7
CFR 1.168 sets forth the procedure for hearings under the Capper-
Volstead Rules. Current 7 CFR 47.15 provides that, under the PACA
Reparation Rules, the examiner shall set the time and place of hearing
by notice filed with the Hearing Clerk. Further, if any change in the
time or place is made, the examiner is required to give the parties
notice of the change. Current 7 CFR 47.49(f) provides that, under the
PACA Responsibly Connected Rules, the presiding officer shall issue an
order for a hearing if one is requested by the petitioner or found
necessary by the presiding officer. Currently, in all cases in which
there is an oral hearing, the presiding officer must require the
petitioner to appear in person for the purpose of oral testimony and
examination. Current 7 CFR 47.53 requires the presiding officer to
provide the parties to the proceeding with notice of the time and place
of hearing and notice of any change in the time or place of hearing.
Current 9 CFR 202.112 provides that, under the P&S Reparation Rules,
the presiding officer shall set a time and place for oral hearing and
provide notice to the parties prior to the oral hearing. Further, if
any change in the time or place is made, the presiding officer is
required to give notice of the change.
We propose to amend 7 CFR 1.141(b), 47.15(c), and 47.53 and 9 CFR
202.112(b) to provide that the presiding person's notice shall also
state the manner in which the hearing is to be held (telephone, audio-
visual telecommunication, or personal attendance of any individual
expected to participate in the hearing). Further, we propose to amend 7
CFR 1.141(b), 1.168, 47.15, and 47.49(f) and 9 CFR 202.112(a) to
require that the hearing shall be conducted by telephone unless the
person conducting the proceeding determines that conducting the hearing
by audio-visual telecommunication: (1) Would cost less than conducting
the hearing by telephone; (2) is necessary to prevent prejudice to a
party; (3) is necessary because of the importance of observing the
demeanor of any individual who is expected to testify at the hearing;
or (4) is necessary because of a disability of any individual expected
to participate in the hearing.
We propose four specific bases for an order by the person
conducting the proceeding that an audio-visual hearing be conducted
instead of a hearing conducted by telephone. First, the person
conducting the proceeding could order that the hearing be conducted by
audio-visual communication if conducting the hearing by audio-visual
telecommunication would cost less than conducting the hearing by
telephone. Given the current relative cost and availability of the two
technologies, we believe that most, if not all, hearings conducted by
telephone will be less expensive than hearings conducted by audio-
visual telecommunication.
Second, the person conducting the proceeding could order that a
hearing be conducted by audio-visual telecommunication if conducting
the hearing by audio-visual telecommunication is necessary to prevent
prejudice to a party. While this is extremely unlikely, there may be
unusual circumstances in which a party is denied due process or is put
at a disadvantage if the party is required to participate in a hearing
conducted by telephone and this prejudice would be negated by
conducting the hearing by audio-visual telecommunication.
Third, the person conducting the proceeding could order that the
hearing be conducted by audio-visual telecommunication instead of by
telephone if the person conducting the proceeding determines that
audio-visual telecommunication is necessary because of the importance
of observing the demeanor of any individual who is expected to testify
at the hearing. Hearings are often held when there is a dispute of
fact. However, the credibility of those who are expected to testify at
these hearings is generally not an issue. In the vast majority of
hearings, disputes regarding facts arise because the parties honestly
disagree regarding events that took place, the relevance or materiality
of events to the proceeding, and the relevance or materiality of
mitigating circumstances. Therefore, only in unusual circumstances
would the demeanor of persons testifying at a hearing necessitate a
hearing conducted by audio-visual telecommunication instead of a
hearing conducted by telephone. Further, voice is an excellent
determinant of credibility.
Fourth, the person conducting the proceeding could order that a
hearing be conducted by audio-visual telecommunication if it is
necessary because of a disability of any individual expected to
participate in the hearing. For instance, if an individual expected to
participate in the hearing has a severe speech or hearing impediment,
an audio-visual telecommunication hearing, instead of a hearing
conducted by telephone, may be necessary.
Further, we propose that, if the hearing is not conducted by
telephone, the hearing 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) Would
cost less than conducting the hearing 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 hearing.
We propose only three bases for an order by the person conducting
the proceeding to require that the hearing be conducted by personal
attendance of the participants instead of audio-visual
telecommunications. These are the same bases as we propose with respect
to a presiding person's order that the hearing be conducted by audio-
visual telecommunication instead of by telephone, except that there is
no provision for requiring personal attendance because of the necessity
of observing demeanor of an individual who is expected to testify at
the hearing. A hearing conducted by audio-visual telecommunication
would provide as good an opportunity to observe demeanor of witnesses
as a hearing conducted by personal attendance.
We also propose to require that any order by the person conducting
the proceeding that the hearing be conducted by audio-visual
telecommunication or by the personal attendance of those who
participate in the hearing be reduced to a written order which, within
proposed specified time limits, may be appealed to the Judicial Officer
(the Secretary, under the PACA Reparation Rules; the Administrator,
under the PACA Responsibly Connected Rules) by a party. Hearings
conducted by audio-visual telecommunication or by personal attendance
are substantially more expensive than hearings conducted by telephone,
and parties who generally bear most of these costs should have the
right to appeal an order to conduct the hearing by audio-visual
telecommunication or by personal attendance. We further propose that no
party may file an interlocutory appeal petition within 10 days of a
scheduled hearing and that any interlocutory appeal petition must be
filed within 10 days after service of the presiding person's order.
This will limit a party's ability to disrupt a scheduled hearing.
Further still, we propose that, if an interlocutory appeal petition
is timely filed, the presiding person's order to conduct the hearing by
audio-visual telecommunication or by personal attendance would be
stayed to allow the Judicial Officer (the Secretary, under the PACA
Reparation Rules; the Administrator, under the PACA Responsibly
Connected Rules) to rule on the interlocutory appeal.
Additionally, we propose to amend 7 CFR 1.141(b), 1.168(b),
47.15(c), and 47.53 and 9 CFR 202.112 (a) and (b) to specifically
provide that a party may move that a hearing be conducted by audio-
visual telecommunication or personal attendance. Any such motion would
be required to be accompanied by a memorandum stating the basis for the
motion and the circumstances that require the hearing to be conducted
other than telephonically. Further, parties who want reconsideration of
the presiding person's order concerning the manner of the hearing would
be required to make a motion for reconsideration within 10 days of the
order. This motion would have to 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 person's order.
Finally, current footnote in 7 CFR 1.141(b) provides that, if there
is one respondent in a hearing, the hearing is to be held as near as
possible to the respondent's place of business or residence, depending
on the availability of a courtroom or other appropriate hearing room.
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 a courtroom or other
appropriate hearing room. We propose to amend footnote 3 in
Sec. 1.141(b) to eliminate the references to courtrooms and hearing
rooms because hearings conducted by telephone or audio-visual
telecommunication will not necessarily be conducted in courtrooms or
hearing rooms. Instead, we propose to amend footnote 3 in Sec. 1.141(b)
so that the proximity of a hearing to the respondent(s) place(s) of
business or residence will be dependent on an appropriate location for
conducting the hearing. Current 9 CFR 202.112(a) contains similar
provisions which we also propose to amend.
Depositions
Current 7 CFR 1.148(b) provides that, under the Uniform Rules, if
the Judge finds that testimony may not be otherwise available at a
hearing, the Judge may order the taking of a deposition. The order must
state the time and place of the deposition. Current 7 CFR 47.16(b)
provides that, under the PACA Reparation Rules, the examiner may, upon
application of a party, order the taking of a deposition. The order
must state the time and place of the deposition. Current 9 CFR 202.109
provides that, under the P&S Reparation Rules, the presiding officer
may, upon application of a party, order the taking of a deposition. The
order must state the time and place of the deposition. (There are no
provisions for ordering a deposition under the Capper-Volstead Rules or
under the PACA Responsibly Connected Rules.)
We propose to amend 7 CFR 1.148(b) and 47.16 and 9 CFR 202.109(d)
to require that the order of the person conducting the proceeding
include the manner (telephone, audio-visual telecommunication, or
personal attendance) of the deposition. Further, we propose to require
that the deposition 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.
We propose three specific bases for an order by the person
conducting the proceeding that the deposition be conducted by audio-
visual telecommunication instead of by telephone. First, the person
conducting the proceeding could order that the deposition be conducted
by audio-visual communication if the deposition conducted by audio-
visual telecommunication would cost less than conducting the deposition
by telephone. Given the current relative cost and availability of the
two technologies we believe that most, if not all, depositions
conducted by telephone will be less expensive than depositions
conducted by audio-visual telecommunication.
Second, the person conducting the proceeding could order an audio-
visual telecommunication deposition if a deposition conducted by audio-
visual telecommunication is necessary to prevent prejudice to a party.
While this is extremely unlikely, there may be unusual circumstances in
which a party is denied due process or is put at a disadvantage if the
party is required to participate in a deposition by telephone and this
prejudice would be negated by conducting the deposition by audio-visual
telecommunication.
Third, the person conducting the proceeding could order an audio-
visual telecommunication deposition if audio-visual telecommunication
is necessary because of a disability of any individual expected to
participate in the deposition. For instance, if an individual expected
to participate in the deposition has a severe speech or hearing
impediment, a deposition conducted by audio-visual telecommunication
may be necessary.
We further propose that 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 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.
These are the same bases we proposed with respect to a presiding
person's order that the deposition be conducted by audio-visual
telecommunication instead of by telephone.
We are not proposing that the person presiding over the proceeding
order a deposition conducted by audio-visual telecommunication based
upon a determination that it is necessary to observe the demeanor of a
person testifying at the deposition because depositions are not
generally attended by the person conducting the proceeding, and,
therefore, there is no opportunity for the fact finder to observe
demeanor at these depositions.
We also propose that any determination by the person conducting the
proceeding that a deposition be conducted by audio-visual
telecommunication or personal attendance of any individual expected to
testify in the deposition, and the basis for this determination, must
be reduced to a written order which shall be filed with the Hearing
Clerk and which may be appealed by any party within proposed specified
time limits. Depositions conducted by audio-visual telecommunication or
by personal attendance are substantially more expensive than
depositions conducted by telephone, and parties who generally bear most
of these costs should have the right to appeal an order to conduct the
deposition by audio-visual telecommunication or by personal attendance.
We further propose that no party may file an interlocutory appeal
petition within 10 days of a scheduled deposition and that any
interlocutory appeal petition must be filed within 10 days after
service of the presiding person's order. This will limit a party's
ability to disrupt a scheduled deposition.
Further still, we propose that, if an interlocutory appeal petition
is timely filed, the presiding person's order to conduct the deposition
by audio-visual telecommunication or by personal attendance would be
stayed to allow the Judicial Officer (the Secretary, under the PACA
Reparation Rules) to rule on the interlocutory appeal.
Recordings
Current 7 CFR 1.141(h) provides that hearings, under the Uniform
Rules, shall be recorded and transcribed verbatim and that transcripts
shall be made available to any person at cost. Current 7 CFR 47.60
provides that, under the PACA Responsibly Connected Rules, any party
who desires a transcript of a hearing may place an order with the
reporter, who will furnish and deliver a copy of the transcript at the
rate provided by contract between the reporter and the Department.
Current 9 CFR 202.112(h) provides that, under the P&S Reparation Rules,
any party who desires a transcript of a hearing may place an order with
the reporter, who will furnish and deliver a copy of the transcript at
the rate provided by contract between the reporter and the Department.
(There is no similar provision under the Capper-Volstead Rules or the
PACA Reparation Rules.)
We propose to amend 7 CFR 1.141(h) and 47.60 and 9 CFR 202.112(h)
to require that hearings be recorded verbatim by an electronic
recording device. Only if a party requests the transcript of a hearing
or part of a hearing, and the person conducting the proceeding
determines that the disposition of the proceeding would be expedited by
a transcript of the hearing or part of a hearing, could the person
conducting the proceeding order the verbatim transcription of the
recording as requested by the party. Any presiding person's order to
transcribe a hearing or part of a hearing and the basis for the order
must be reduced to a written order and filed with the Hearing Clerk. We
also propose to require that recordings or transcripts of hearings be
made available to any person at actual cost of duplication.
We propose this amendment because the cost of transcription is more
expensive than the cost of recording a hearing. We believe that a
hearing or parts of a hearing should only be transcribed when a
transcript of the hearing or part of the hearing would expedite the
proceeding.
Further, we propose amendments to current 7 CFR 1.148 and 9 CFR
202.109 to provide for recordings of depositions taken in proceedings
conducted under the Uniform Rules and the P&S Reparation Rules. The
PACA Reparation Rules currently allow the recording of depositions. As
stated above, there are no provisions for ordering a deposition under
the Capper-Volstead Rules or under the PACA Responsibly Connected
Rules.
We propose appropriate amendments to 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 in the same manner as transcripts are currently used.
Certification or Appeal
Current 7 CFR 1.143(e) provides that, for proceedings conducted in
accordance with the Uniform Rules, the submission or certification of
any motion, request, objection, or other question to the Judicial
Officer prior to filing an appeal from an initial decision of the Judge
shall be made by and in the discretion of the Judge. Current 7 CFR
1.172(e) contains an identical provision relating to proceedings
conducted in accordance with the Capper-Volstead Rules. Current 7 CFR
47.13(b) provides that, in proceedings conducted in accordance with the
PACA Reparation Rules, the submission or certification of any motion,
request, objection, or other question to the Secretary prior to the
transmittal of the record to the Secretary shall be in the discretion
of the examiner. Current 9 CFR 202.118(b) provides that, in proceedings
conducted under the P&S Reparation Rules, the presiding officer is
authorized to rule on all motions and requests filed in the proceeding
prior to the submission of the presiding officer's report to the
Judicial Officer. Further, 9 CFR 202.118(b) provides that the
submission or certification of any question to the Judicial Officer,
prior to the submission of the presiding officer's report to the
Judicial Officer, shall be in the discretion of the presiding officer.
We propose to amend 7 CFR 1.143(e) to allow any party to appeal to
the Judicial Officer a Judge's order: (1) To 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 propose to amend 7 CFR 47.13(b) to allow any party to
appeal to the Secretary an examiner's order: (1) To 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 propose to amend 7 CFR 1.172(e) to allow any party to
appeal to the Judicial Officer a Judge's order: (1) To personally
attend a conference; or (2) to conduct a hearing by audio-visual
telecommunication or personally attend a hearing. Finally, we propose
to amend 9 CFR 202.118(b) to allow any party to appeal to the Judicial
Officer a presiding officer's order: (1) To 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. (As stated above, the Capper-Volstead Rules do not
contain provisions relating to depositions. The PACA Responsibly
Connected Rules do not contain provisions restricting interlocutory
appeals to the Administrator.)
Powers of the Person Conducting the Proceeding
Current 7 CFR 1.144(c) sets forth the powers of the Judges assigned
to proceedings conducted under the Uniform Rules. Current 7 CFR
1.144(c)(2) provides that Judges shall have the power to set the time
and place of a conference and the hearing and change the time and place
of the hearing. Current 7 CFR 1.173 sets forth the powers of Judges
assigned to proceedings under the Capper-Volstead Rules. Current 7 CFR
1.173(d)(2) provides that Judges shall have the power to set the time
and place of any requested conference, adjourn a hearing from time to
time, and change the time and place of hearing. Current 7 CFR 47.11
sets forth the powers of examiners assigned to proceedings conducted
under the PACA Reparation Rules. Current 7 CFR 47.11(c)(2) provides
that the examiner shall have the power to set the time and place of
hearing, adjourn the hearing from time to time, and change the place
and time of hearing. Current 7 CFR 47.56 sets forth the powers of the
presiding officer assigned to proceedings under the PACA Responsibly
Connected Rules. Current 7 CFR 47.56(b) provides that the presiding
officer shall have the power to set the time and place of hearing,
adjourn the hearing from time to time, and change the place and time of
hearing. Current 9 CFR 202.118 sets forth the powers of a presiding
officer assigned to proceedings under the P&S Reparation Rules. Current
9 CFR 202.118(a)(1) provides that the presiding officer shall have the
power to set the time and place of prehearing conference and oral
hearing, adjourn the oral hearing from time to time, and change the
place and time of oral hearing.
We propose to expand these powers to allow the person conducting a
proceeding under the Uniform Rules, the Capper-Volstead Rules, the PACA
Reparation Rules, and the P&S Reparation Rules to set the manner of
conferences (telephone, audio-visual telecommunication or personal
attendance). (There is no provision for conferences under the PACA
Responsibly Connected Rules.) Further, we propose to expand these
powers to allow the person conducting a proceeding under the Uniform
Rules, the Capper-Volstead Rules, the PACA Reparation Rules, the PACA
Responsibly Connected Rules and the P&S Reparation Rules to set the
manner of hearings (telephone, audio-visual telecommunication or
personal attendance) and to change the manner of the hearing. As stated
above, before a conference may be conducted by personal attendance, the
person presiding over the proceeding would be required to make certain
specified determinations as set forth in proposed 7 CFR 1.140(c),
proposed 7 CFR 1.167(b), proposed 7 CFR 47.14(c), and proposed 9 CFR
202.110(b), and before a hearing would be conducted by audio-visual
telecommunication or by personal attendance, the person presiding over
the proceeding would be required to make certain specified
determinations set forth in proposed 7 CFR 1.141(b), proposed 7 CFR
1.168(b), proposed 7 CFR 47.15(c), proposed 7 CFR 47.49(f), and
proposed 9 CFR 202.112(a).
In addition, we propose to add two new powers to the list of
presiding person's powers specified in current 7 CFR 1.144(c),
1.173(d), 47.11(c), and 47.56 and 9 CFR 202.118(a). First, in proposed
7 CFR 1.144(c)(9), proposed 7 CFR 1.173(d)(7), proposed 7 CFR
47.11(c)(9), proposed 7 CFR 47.56(g), and proposed 9 CFR 202.118(a)(8),
we provide the person conducting the proceeding with the power to
require each party to provide all other parties and the presiding
person 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. We believe that this power is necessary
to expedite hearings conducted by telephone or audio-visual
telecommunication when the parties expect to introduce numerous
exhibits.
We also propose to provide the person conducting proceedings under
the Uniform Rules, the PACA Reparation Rules, and the P&S Reparation
Rules with the power to require parties participating in a deposition
conducted by telephone or audio-visual telecommunication to exchange
any documents which the parties expect to use for the examination of a
deponent prior to the deposition. There are no provisions for ordering
a deposition under the Capper-Volstead Rules or the PACA Responsibly
Connected Rules.
Second, we propose in 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 provide persons
conducting proceedings with the power 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. This
would enable each party to enter or use exhibits during a hearing which
the party did not provide to the person conducting the proceeding and
other parties prior to the hearing.
We also propose to provide the person conducting proceedings under
the Uniform Rules, the PACA Reparation Rules, and the P&S Reparation
Rules to 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 documents during the deposition. There are
no provisions for ordering a deposition under the Capper-Volstead Rules
or the PACA Responsibly Connected Rules.
Written Statements of Direct Testimony
Current 7 CFR 1.141 sets forth the procedure for hearing under the
Uniform Rules; current 7 CFR 1.168 sets forth the procedure for hearing
under the Capper-Volstead Rules; current 7 CFR 47.15 sets forth the
procedure for oral hearing before an examiner under the PACA Reparation
Rules; current 7 CFR 47.58 sets forth the rules of evidence at hearings
conducted under the PACA Responsibly Connected Rules; and current 9 CFR
202.112 sets forth the procedure for oral hearing under the P&S
Reparation Rules.
We propose to amend 7 CFR 1.141, 1.168, 47.15, and 47.58 and 9 CFR
202.112 to require that each party must exchange, in writing, with all
other parties, the direct testimony of each witness the party will
call. This written direct testimony would be required to be in
narrative form and verified, and exchanged by the parties at least 10
days prior to the hearing. Further, the oral direct testimony provided
by a witness at the hearing would be limited to 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. If adopted, this requirement would expedite the hearing and
would eliminate a party's being taken by surprise concerning any
material aspect of the direct testimony to be introduced at the
hearing.
This requirement would not apply if the hearing is scheduled to
begin less than 20 days after the notice, issued by the person
conducting the proceeding, stating the time of the hearing. In a few
instances, hearings are held on an expedited basis and it would be
difficult for the parties to adequately prepare written testimony prior
to the hearing.
7 CFR Part 50
We are proposing to eliminate all of the Rules of Practice
Governing Withdrawal of Inspection and Grading Services in 7 CFR part
50, except those rules relating to conditional withdrawal of services
in current 7 CFR 50.11 and 50.12 and summary suspension of service in
current 7 CFR 50.40.
Title 7, CFR 1.131(b) provides that the Uniform Rules are
applicable to adjudicatory proceedings under the Agricultural Marketing
Act of 1946 (7 U.S.C. 1621 et seq.) for the denial or withdrawal of
inspection, certification, or grading service. Title 7, CFR part 50
contains rules of practice governing withdrawal of inspection and
grading services furnished under the Agricultural Marketing Act of 1946
(7 U.S.C. 1621 et seq.). Since 1977, when the Department promulgated
the Uniform Rules, all proceedings regarding the withdrawal of
inspection and grading services furnished under the Agricultural
Marketing Act of 1946 (7 U.S.C. 1621 et seq.) have been conducted in
accordance with the Uniform Rules. Further, in the future, we do not
intend to conduct proceedings regarding withdrawal of inspection and
grading services furnished under the Agricultural Marketing Act of 1946
(7 U.S.C. 1621 et seq.) in accordance with the rules of practice in 7
CFR part 50. Therefore, we propose to delete all of the rules of
practice in 7 CFR part 50 with the exception of the provisions which
relate to conditional withdrawal and summary withdrawal of inspection
and grading services.
There is no provision in the Uniform Rules which would provide for
conditional withdrawal and summary suspension of inspection and grading
services furnished under the Agricultural Marketing Act of 1946 (7
U.S.C. 1621 et seq.). Therefore, we are proposing to retain the
provisions in 7 CFR part 50 which relate to conditional withdrawal of
service and summary suspension of service. These provisions, found in
current 7 CFR 50.11, 50.12, and 50.40, would be retained in proposed 7
CFR 50.11 and 50.12. In addition, for clarity, proposed 7 CFR 50.1
identifies the scope of proposed 7 CFR 50.11 and 50.12; and proposed 7
CFR 50.10 defines words used in proposed 7 CFR 50.11 and 50.12.
Current 7 CFR 51.46, 52.54(a), 53.13(a)(2), 54.11(a)(2), and
180.300(d) contain cross references to the Rules of Practice Governing
Withdrawal of Inspection and Grading Services in 7 CFR part 50. We are
proposing to amend these cross references because of the above-
mentioned changes to 7 CFR part 50. Title 7, CFR 51.46, 52.54(a),
53.13(a)(2), and 54.11(a)(2) would be amended to require that the
proceedings referenced be held in accordance with the Uniform Rules and
proposed 7 CFR part 50. Title 7, CFR 180.300(d) would be amended to
require that the proceeding referenced be held in accordance with the
Uniform Rules.
7 CFR Part 0
Current 7 CFR 0.735-11(b)(6) provides that, except as authorized by
the Inspector General with the consent of a party to the conversation
when necessary in criminal investigations, Department employees are
prohibited from monitoring or recording, or authorizing or permitting
others under their administrative control to monitor or record,
telephone conversations for the purpose of taking a verbatim transcript
of all or part of the conversation, unless such monitoring or recording
is agreed to in advance by all participants in the conversation.
Current 7 CFR 0.735-11(b)(7) provides that, except as authorized by the
Inspector General with the consent of a party to the conversation when
necessary in criminal investigations, Department employees are
prohibited from utilizing a mechanical or electronic device to monitor
or record nontelephone conversations, unless such monitoring or
recording is agreed to in advance by all participants in the
conversation. We propose to amend 7 CFR 0.735-11(b)(6) and 0.735-
11(b)(7) to allow monitoring and recording conversations during the
course of a Department proceeding held by telephone or audio-visual
telecommunication that is conducted by an administrative law judge,
hearing officer, examiner, or presiding officer.
Minor and Non-substantive Changes
We are proposing a number of minor and non-substantive changes.
Specifically, we are proposing to: (1) Eliminate all gender specific
references in 7 CFR 1.160 through 1.175 and part 47; (2) correct all
improper cross references in 7 CFR 1.130 through 1.151, 1.160 through
1.175, and part 47; (3) correct minor errors in the authority citations
in 7 CFR 1.130 through 1.151, 1.160 through 1.175, and part 47; (4)
alphabetize the words and terms defined in 7 CFR 1.132, 1.161, and
47.47 and 9 CFR 202.102; and (5) eliminate an erroneous reference to
``complaint'' in Sec. 1.141(f) and replace it with a reference to
``complainant''. In addition, we have proposed to change the references
to ``prehearing conferences'' in 7 CFR 1.130 through 1.151, 1.160
through 1.175, and part 47 to ``conference'' because the ``prehearing
conferences'' referred to in these regulations may be held prior to or
during a hearing. Further still, we propose other minor non-substantive
changes for clarity.
Executive Order 12866 and Regulatory Flexibility Act
We are issuing this proposed rule in conformance with Executive
Order 12866.
The changes we are proposing would provide 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 changes we are proposing would
provide for the use of recordings, rather than transcripts, in
connection with most 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 proposal would require each party to exchange, in
writing, with all other parties in the proceeding, the direct testimony
of each witness the party intends to call. These proposed 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 coast 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 propose
to amend are conducted at locations convenient to the private
individuals participating in the proceeding. This requires the United
States to incur most of the costs associated with travel in connection
with the proceedings. Further, most conferences held under the rules
that we are proposing to amend are currently held by telephone, unless
the conference is held during the hearing. Therefore, this proposal
would not result in a change with respect to the manner in which most
conferences are conducted.
Nonetheless, we believe that, if this rule is adopted, 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.
Most of the private individuals who participate in proceedings
conducted under the Uniform Rules, the Capper-Volstead Rules, the PACA
Reparation Rules, the PACA Responsibility Connected Rules, and the P&S
Reparation Rules are small entities. If adopted, this proposed rule
would result in a small economic impact on private individuals who
participate in the proceedings in question.
Under these circumstances, the Secretary has determined that, if
adopted, this proposed rule would not have a significant economic
impact on a substantial number of small entities.
Executive Order 12778
This proposed rule has been reviewed under Executive Order 12778,
Civil Justice Reform. If this rule is adopted: (1) All State and local
laws and regulations that are in conflict with this rule will be
preempted; (2) no retroactive effect will be given to this rule; and
(3) administrative proceedings will not be required before parties may
file suit in court challenging this rule.
Paperwork Reduction Act
The Paperwork Reduction Act of 1980 does not apply to this proposed
rule since the proposed rule does not seek answers to identical
questions or impose reporting or recordkeeping 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
Administrataive 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 180
Administrative practice and procedure, Labeling, Plants.
7 CFR Part 202
Administrative practice and procedure, Agriculture, Animals,
Reparation proceedings.
Accordingly, we propose to amend 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 180 and 9 CFR part 202 as follows:
Title 7--[Amended]
PART 0--EMPLOYEE RESPONSIBILITIES AND CONDUCT
1. The authority citation for part 0 would be revised to read as
follows:
Authority: E.O. 11222, 30 FR 6469, 3 CFR, 1965, Supp.; 5 CFR
735.104; 18 U.S.C. 207(j), unless otherwise noted.
Sec. 0.735-11 [Amended]
2. Section 0.735-11 would be 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.
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, would be 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 would be
revised to read ``Section 1.26 shall be inapplicable to proceedings
covered by this subpart.''
Sec. 1.132 [Amended]
5. Section 1.132 would be amended as follows:
a. In paragraph (d), the reference to ``459g'' would be removed and
``450g'' added in its place.
b. In paragraph (d), the reference to ``1970 ed. appendix, p. 550''
would be removed and ``App. (1988)'' added in its place.
c. In paragraph (d), the reference to ``7 CFR 2.35(a)'' would be
removed and ``Sec. 2.35(a) of this chapter'' added in its place.
d. Section 1.132 would be amended by removing all paragraph
designations and placing the definitions in alphabetical order.
Sec. 1.133 [Amended]
6. In Sec. 1.133, paragraph (a)(1), the first sentence would be
amended by removing the words ``of this subpart''.
Sec. 1.140 [Amended]
7. In Sec. 1.140, the section heading would be revised to read as
set forth below; paragraphs (a)(1) and (b) would be amended by removing
the word ``prehearing'' in the two places the word appears; and
paragraph (c) would be 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) Would cost less than conducting the conference by telephone or
correspondence;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the conference.
(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) Would cost less than conducting the conference by audio-visual
telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the conference.
(3) Any determination by the Judge that audio-visual
telecommunication or personal attendance of any individual at a
conference is necessary and the basis for the Judge's determination as
provided in paragraph (c)(1) or (c)(2) of this section must be reduced
to a written order and filed with the Hearing Clerk, unless the Judge
orders the conference to be conducted by audio-visual telecommunication
during a hearing that is being conducted by audio-visual
telecommunication or the personal attendance of an individual at a
conference to be held during a hearing and that individual is
personally attending the hearing.
(4) A party may appeal to the Judicial Officer the Judge's order
issued under this paragraph requiring a conference to be conducted by
audio-visual telecommunication or personal attendance of any individual
expected to participate in the conference by filing an interlocutory
appeal petition with the Hearing Clerk. No party may file an
interlocutory appeal petition within 5 days of the scheduled date of
the conference, and any interlocutory appeal petition must be filed
within 10 days after service of a Judge's order on the party filing the
interlocutory appeal petition.
(5) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the Hearing
Clerk a response in support of or in opposition to the interlocutory
appeal petition.
(6) The Judge's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 5 days after the Judicial
Officer's ruling on the interlocutory appeal petition is served on all
of the parties to the proceeding.
* * * * *
Sec. 1.141 [Amended]
8. Section 1.141 would be amended as follows:
a. Paragraph (b) would be revised to read as set forth below.
b. Paragraph (e) would be amended by removing the words ``of these
rules'' both times they appear.
c. Paragraph (f) would be amended by removing the word
``complaint'' and adding ``complainant'' in its place.
d. Paragraph (g)(7) would be amended by adding the words ``or
recording'' immediately after the word ``transcript'' each of the three
times the word ``transcript'' appears.
e. Paragraphs (g) and (h) would be redesignated as paragraphs (h)
and (i) respectively.
f. New paragraph (g) would be added to read as set forth below.
g. Redesignated paragraph (i) would be 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
and place 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) through (b)(5) 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.
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\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.
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(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 audio-visual telecommunication or
personal attendance of any individual expected to attend the hearing
rather than by telephone. Any motion that the hearing be conducted by
audio-visual telecommunication 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
telephonically.
(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 telephone unless the Judge
determines that conducting the hearing by audio-visual
telecommunication:
(i) Would cost less than conducting the hearing by telephone;
(ii) Is necessary to prevent prejudice to a party;
(iii) Is necessary because of the importance of observing the
demeanor of any individual who is expected to testify at the hearing;
or
(iv) Is necessary because of a disability of any individual
expected to participate in the hearing.
(4) If the hearing is not conducted by the telephone, 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) Would cost less than conducting the hearing by telephone or
audio-visual telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the hearing.
(5) Any determination by the Judge that conducting the hearing by
audio-visual telecommunication or personal attendance of any individual
expected to participate in the hearing is necessary and the basis for
the Judge's determination as provided in paragraph (b)(3) or (b)(4) of
this section must be reduced to a written order which shall be filed
with the Hearing Clerk.
(6) A party may appeal to the Judicial Officer the Judge's order
issued under this paragraph requiring a hearing to be conducted by
audio-visual telecommunication or personal attendance of any individual
expected to participate in the hearing by filing an interlocutory
appeal petition with the Hearing Clerk. No party may file an
interlocutory appeal petition within 10 days of the scheduled date of
the hearing and any interlocutory appeal petition must be filed within
10 days after service of a Judge's order on the party filing the
interlocutory appeal petition.
(7) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the Hearing
Clerk a response in support of or in opposition to the interlocutory
appeal petition.
(8) The Judge's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 10 days after the Judicial
Officer's ruling on the interlocutory appeal petition is served on all
of the parties to the proceeding.
* * * * *
(g) Written statements of a direct testimony. Unless the hearing is
scheduled to begin less than 20 days after the Judge's 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. 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 Judge finds
that oral direct testimony which is supplemental to the written direct
testimony would expedite the proceeding and would not constitute
surprise.
* * * * *
(i) Transcript or recording. Hearings shall be recorded verbatim by
electronic recording device. If 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. The Judge's
order to transcribe a hearing or part of a hearing and the basis for
the order, as provided in this paragraph, must be reduced to a written
order and filed with the Hearing Clerk. The recordings or transcript of
hearings shall be made available to any person at actual cost of
duplication.
Sec. 1.142 [Amended]
9. Section 1.142 would be amended as follows:
a. In paragraph (a), the heading would be amended by adding the
words ``or recording'' immediately after the word ``transcript''.
b. Paragraph (a)(1) would be amended by adding the words ``or
recording'' immediately after the word ``transcript''.
c. Paragraph (a)(2) would be amended by adding the words ``or
recording'' immediately after the word ``transcript''.
d. Paragraph (a)(3) would be amended by adding the words ``or
recording'' immediately after the word ``transcript''.
e. Paragraph (c)(2) would be amended by removing the words ``of the
record'' and adding the words ``or recording'' in their place.
Sec. 1.143 [Amended]
10. In Sec. 1.143, paragraph (e) would be revised to read as
follows:
Sec. 1.143 Motions and requests.
* * * * *
(e) Certification or appeal to the Judicial Officer. (1) Except as
provided in paragraph (e)(2) of this section, the submission or
certification of any motion, request, objection, or other question to
the Judicial Officer prior to filing an appeal pursuant to Sec. 1.145
shall be made by and in the discretion of the Judge. The Judge may
either rule upon or certify the motion, request, objection, or other
question to the Judicial Officer, but not both.
(2) Any party may appeal to the Judicial Officer a Judge's order
issued under:
(i) Sec. 1.140(c) to conduct a conference by audio-visual
telecommunication or personally attend a conference;
(ii) Sec. 1.141(b) to conduct a hearing by audio-visual
telecommunication or personally attend a hearing; or
(iii) Sec. 1.148(b) to conduct a deposition by audio-visual
telecommunication or personally attend a deposition.
Sec. 1.144 [Amended]
11. Section 1.144 would be amended as follows:
a. Paragraph (c)(2) would be revised to read as set forth below.
b. Paragraphs (c)(9) and (c)(10) would be redesignated as
paragraphs (c)(13) and (c)(14) respectively.
c. New paragraphs (c)(9), (c)(10), (c)(11), and (c)(12) would be
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 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 documents during the deposition;
* * * * *
Sec. 1.145 [Amended]
12. Section 1.145 would be amended as follows:
a. In paragraph (a), the reference to ``Sec. 1.141(g)(2)'' would be
removed and ``Sec. 1.141(h)(2)'' added in its place.
b. In paragraph (c), the second sentence would be amended by adding
the words ``or recording'' immediately after the word ``transcript''.
Sec. 1.147 [Amended]
13. In section 1.147, paragraph (c)(2) would be amended by removing
the words ``of this part''; and paragraph (d) would be amended by
removing the words ``of this part''.
Sec. 1.148 [Amended]
14. Section 1.148 would be amended as follows:
a. Paragraph (b) would be revised to read as set forth below:
(b) In paragraph (f), the words ``or recording'' would be 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.
* * * * *
(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) Would cost less than conducting the deposition by telephone;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the deposition.
(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 hearing:
(i) Would cost less than conducting the hearing by telephone or
audio-visual telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the deposition.
(4) Any determination by the Judge that conducting the deposition
by audio-visual telecommunication or personal attendance of any
individual expected to participate in the deposition is necessary and
the basis for the Judge's determination as provided in paragraph (b)(2)
or (b)(3) of this section must be reduced to a written order which
shall be filed with the Hearing Clerk.
(5) A party may appeal to the Judicial Officer the Judge's order
issued under this paragraph requiring a deposition to be conducted by
audio-visual telecommunication or personal attendance of any individual
expected to participate in the deposition by filing an interlocutory
appeal petition with the Hearing Clerk. No party may file an
interlocutory appeal petition within 10 days of the scheduled date of
the deposition and any interlocutory appeal petition must be filed
within 10 days after service of a Judge's order on the party filing the
interlocutory appeal petition.
(6) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the Hearing
Clerk a response in support of or in opposition to the interlocutory
appeal petition.
(7) The Judge's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 10 days after the Judicial
Officer's ruling on the interlocutory appeal petition is served on all
of the parties to the proceeding.
* * * * *
Sec. 1.149 [Amended]
15. In Sec. 1.149, paragraph (b), the last sentence would be
amended by removing the words ``of this part''.
16. The authority citation for part 1, subpart I, would be revised
to read as follows:
Authority: 7 U.S.C. 291, 292; 7 CFR 2.35, 2.41.
Sec. 1.161 [Amended]
17. Section 1.161 would be amended as follows:
a. In paragraph (c), the word ``he'' would be removed and the word
``be'' added in its place.
b. In paragraph (c), the words ``or her'' would be added
immediately after the word ``his''.
c. In paragraph (g), the reference to ``1976 ed., appendix, p.
764'' would be removed and ``App. (1988)'' added in its place.
d. In paragraph (g), the reference to ``7 CFR 2.35'' would be
removed and ``Sec. 2.35(a) of this chapter'' added in its place.
e. In paragraph (g), the words ``or she'' would be added
immediately after the word ``he''.
f. Section 1.161 would be amended by removing all paragraph
designations and placing the definitions in alphabetical order.
Sec. 1.162 [Amended]
18. Section 1.162 would be amended as follows:
a. In paragraph (b), in the first sentence, the word ``part'' would
be removed and the word ``paragraph'' added in its place.
b. In paragraph (b), in the second sentence, the word ``he'' would
be removed and '', the Secretary'' added in its place.
Sec. 1.164 [Amended]
19. In Sec. 1.164, paragraph (a), the first sentence would be
amended by removing the word ``his'' and adding the words ``the
respondent's'' in its place.
Sec. 1.167 [Amended]
20. Section 1.167 would be 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) Would cost less than conducting the conference by telephone or
correspondence; '
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the conference.
(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) Would cost less than conducting the conference by audio-visual
telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the conference.
(3) Any determination by the Judge that conducting the conference
by audio-visual telecommunication or personal attendance of any
individual expected to participate in the conference is necessary and
the basis for the Judge's determination as provided in paragraph (b)(1)
or (b)(2) of this section must be reduced to a written order and filed
with the Hearing Clerk, unless the Judge orders the conference to be
conducted by audio-visual telecommunication during a hearing that is
being conducted by audio-visual telecommunication or the personal
attendance of an individual at a conference to be held during a hearing
and that individual is personally attending the hearing.
(4) A party may appeal to the Judicial Officer the Judge's order
issued under this paragraph requiring a conference to be conducted by
audio-visual telecommunication or personal attendance of any individual
expected to participate in the conference by filing an interlocutory
appeal petition with the Hearing Clerk. No party may file an
interlocutory appeal petition within 5 days of the scheduled date of
the conference and any interlocutory appeal petition must be filed
within 10 days after service of a Judge's order or the party filing the
interlocutory appeal petition.
(5) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the Hearing
Clerk a response in support of or in opposition to the interlocutory
appeal petition.
(6) The Judge's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 5 days after the Judicial
Officer's ruling on the interlocutory appeal petition is served on all
the parties to the proceeding.
Sec. 1.168 [Amended]
21. Section 1.168 would be amended as follows:
a. In paragraph (e)(1), the first sentence would be amended by
removing the word ``reported'' and adding the words ``transcribed or
recorded'' in its place.
b. In paragraph (e)(2), the first sentence would be amended by
removing the word ``he'' and by adding the words ``the party'' in its
place.
c. In paragraph (e)(2), the second sentence would be amended by
adding the words ``or recording'' immediately after the word
``transcript''.
d. Paragraph (e)(6) would be 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) would be redesignated as (c),
(d), (e), and (f) respectively.
f. New paragraphs (b) and (f) would be 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 hearing shall be made in
accordance with paragraphs (b)(3) through (b)(5) 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 audio-
visual telecommunication or personal attendance of any individual
expected to attend the hearing rather than by telephone. Any motion
that the hearing be conducted by audio-visual telecommunication 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 telephonically.
(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 telephone unless the Judge
determines that conducting the hearing by audio-visual
telecommunication:
(i) Would cost less than conducting the hearing by telephone;
(ii) Is necessary to prevent prejudice to a party;
(iii) Is necessary because of the importance of observing the
demeanor of any individual who is expected to testify at the hearing;
or
(iv) Is necessary because of a disability of any individual
expected to participate in the hearing.
(4) If the hearing is not conducted by telephone, 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) Would cost less than conducting the hearing by telephone or
audio-visual telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the hearing.
(5) Any determination by the Judge that conducting the hearing by
audio-visual telecommunication or personal attendance of any individual
expected to participate in the hearing is necessary and the basis for
the Judge's determination as provided in paragraph (b)(3) or (b)(4) of
this section must be reduced to a written order which shall be filed
with the Hearing Clerk.
(6) A party may appeal to the Judicial Officer the Judge's order
issued under this paragraph requiring a hearing to be conducted by
audio-visual telecommunication or personal attendance of any individual
expected to participate in the hearing by filing an interlocutory
appeal petition with the Hearing Clerk. No party may file an
interlocutory appeal petition within 10 days of the scheduled date of
the hearing and any interlocutory appeal petition must be filed within
10 days after service of a Judge's order on the party filing the
interlocutory appeal petition.
(7) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the Hearing
Clerk a response in support of or in opposition to the interlocutory
appeal petition.
(8) The Judge's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 10 days after the Judicial
Officer's ruling on the interlocutory appeal petition is served on all
of the parties to the proceeding.
* * * * *
(f) Written statements of direct testimony. Unless the hearing is
scheduled to begin less than 20 days after the Judge's 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. 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 Judge finds
that oral direct testimony which is supplemental to the written direct
testimony would expedite the proceeding and would not constitute
surprise.
* * * * *
Sec. 1.169 [Amended]
22. Section 1.169 would be amended as follows:
a. In paragraph (a), the heading would be revised to read
``Corrections to transcript or recording.''
b. In paragraph (a)(1), the words ``or recording'' would be added
immediately after the word ``transcript''.
c. In paragraph (a)(2), the words ``or recording'' would be added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
d. In paragraph (a)(3), the words ``or recording'' would be 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''
would be removed.
Sec. 1.170 [Amended]
23. Section 1.170 would be amended as follows:
a. In paragraph (a), in the second sentence, the reference to
``Sec. 1.167(e)(2)'' would be removed and ``Sec. 1.168(g)(2)'' added in
its place.
b. In paragraph (c), the words ``or recording'' would be added
immediately after the word ``transcript''.
c. In paragraph (i), in the last sentence, the word ``herein''
would be removed.
Sec. 1.171 [Amended]
24. Section 1.171 would be amended by removing the word ``herein''.
Sec. 1.172 [Amended]
25. Section 1.172 would be amended as follows:
a. In paragraph (a), the words ``or recording'' would be added
immediately after the word ``transcript''.
b. Paragraph (e) would be revised to read as follows:
Sec. 1.172 Motions and requests.
* * * * *
(e) Certification or appeal to the Judicial Officer. (1) Except as
provided in paragraph (e)(2) of this section, the submission or
certification of any motion, request, objection, or other question to
the Judicial Officer prior to the time when the Judge's certification
of the transcript or recording is filed with the Hearing Clerk, shall
be made by and in the discretion of the Judge. The Judge may either
rule upon or certify the motion, request, objection, or other question
to the Judicial Officer, but not both.
(2) Any party may appeal to the Judicial Officer a Judge's order
issued under Sec. 1.167(b) to conduct a conference by audio-visual
telecommunication or personally attend a conference, or a Judge's order
issued under Sec. 1.168(b) to conduct a hearing by audio-visual
telecommunication or personally attend a hearing.
Sec. 1.173 [Amended]
26. Section 1.173 would be amended as follows:
a. In paragraph (b)(1), the words ``or herself'' would be added
immediately after the word ``himself''.
b. In paragraph (b)(2), the word ``he'' would be removed and the
words ``the Judge'' added in its place.
c. In paragraph (b)(2), the words ``or herself'' would be added
immediately after the word ``himself''.
d. In paragraph (d), in the introductory language, the words ``or
her,'' would be added immediately after the word ``him''.
e. Paragraph (d)(2) would be revised to read as set forth below.
f. Paragraph (d)(7) would be redesignated as paragraph (d)(9).
g. New paragraphs (d)(7) and (d)(8) would be added to read as set
forth below.
h. In paragraph (e), the word ``his '' would be removed and the
words ``the Judge's'' added in its place.
i. In paragraph (e), the word ``him'' would be removed and the
words ``the Judge'' would be 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 documents during the hearing;
* * * * *
Sec. 1.174 [Amended]
27. In Sec. 1.174, paragraph (c) would be amended by adding the
words ``or recording'' after the word ``transcript''.
PART 47--RULES OF PRACTICE UNDER THE PERISHABLE AGRICULTURAL
COMMODITIES ACT
28. The authority citation for part 47 would be 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]
29. Section 47.2 would be amended as follows:
a. In paragraph (c), the words ``or her'' would be added
immediately after the word ``his''.
b. In paragraph (e), the words ``or her'' would be added
immediately after the word ``his''.
c. In paragraph (f), the words ``or her'' would be added
immediately after the word ``his''.
d. In paragraph (h), the words ``or her'' would be added
immediately after the word ``his''.
Sec. 47.3 [Amended]
30. Section 47.3 would be amended as follows:
a. In paragraph (b)(1), in the first sentence, the word ``his''
would be removed and the words ``the Director's'' added in its place.
b. Paragraph (c) would be 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]
31. In section 47.4, paragraph (b)(2) would be amended by removing
the words ``of this part''.
Sec. 47.5 [Amended]
32. Section 47.5 would be amended by removing the words ``of these
regulations in this part'' both times the words appear and revising the
last sentence to read as follows: ``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]
33. Section 47.11 would be amended as follows:
a. In paragraph (b), in the second sentence, the word ``he'' would
be removed and the words ``the Secretary'' would be added in its place.
b. In paragraph (c), in the introductory language, the words
``elsewhere in the regulations'' would be removed.
c. In paragraph (c), in the introductory language, the words ``or
her'' would be added immediately after the word ``him''.
d. Paragraph (c)(2) would be revised to read as set forth below.
e. Paragraph (c)(9) would be redesignated as (c)(13).
f. New paragraphs (c)(9), (c)(10), (c)(11), and (c)(12) would be
added to read as set forth below.
g. In paragraph (d), the word ``him'' would be 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 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 documents during the deposition;
* * * * *
Sec. 47.12 [Amended]
34. Section 47.12 (b), (c), and (d) would be amended by removing
the word ``he'' and adding the words ``the petitioner''.
Sec. 47.13 [Amended]
35. Section 47.13 would be amended as follows:
a. In paragraph (a)(1), the words ``or recording'' would be added
immediately after the word ``transcript''.
b. Paragraph (b) would be revised to read as follows:
Sec. 47.13 Motions and requests.
* * * * *
(b) Certification or appeal to the Secretary. (1) Except as
provided in paragraph (b)(2) of this section, 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.
(2) Any party may appeal to the Secretary an examiner's order
issued:
(i) Under Sec. 47.14(c) to conduct a conference by audio-visual
telecommunication or personally attend a conference;
(ii) Under Sec. 47.15(c) to conduct a hearing by audio-visual
telecommunication or personally attend a hearing; or
(iii) Under Sec. 47.16(b) to conduct a deposition by audio-visual
telecommunication or personally attend a deposition.
36. Section 47.14 would be revised to read as follows:
Sec. 47.14 Conferences.
(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) Would cost less than conducting the conference by telephone or
correspondence;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the conference.
(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) Would cost less than conducting the conference by audio-visual
telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the conference.
(3) Any determination by the examiner that conducting the
conference by audio-visual telecommunication or personal attendance of
any individual expected to participate in the conference is necessary
and the basis for the examiner's determination as provided in paragraph
(c)(1) or (c)(2) of this section must be reduced to a written order and
filed with the Hearing Clerk, unless the examiner orders the conference
to be conducted by audio-visual telecommunication during a hearing that
is being conducted by audio-visual telecommunication or the personal
attendance of an individual at a conference to be held during a hearing
and that individual is personally attending the hearing.
(4) A party may appeal to the Secretary the examiner's order issued
under this paragraph requiring a conference to be conducted by audio-
visual telecommunication or personal attendance of any individual
expected to participate in the conference by filing an interlocutory
appeal petition with the Hearing Clerk. No party may file an
interlocutory appeal petition within 5 days of the scheduled date of
the conference and any interlocutory appeal petition must be filed
within 10 days after service of an examiner's order on the party filing
the interlocutory appeal petition.
(5) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the Hearing
Clerk a response in support of or in opposition to the interlocutory
appeal petition.
(6) The examiner's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 5 days after the
Secretary's ruling on the interlocutory appeal petition is served on
all of the parties to the proceeding.
Sec. 47.15 [Amended]
37. Section 47.15 would be amended as follows:
a. Paragraph (c) would be revised to read as set forth below.
b. In paragraph (d)(2), the word ``he'' would be removed and the
words ``the party'' would be added in its place.
c. In paragraph (d)(2), the words ``or her'' would be added
immediately after the word ``his''.
d. In paragraph (d)(3)(i), the words ``or her'' would be added
immediately after the word ``him''.
e. In paragraphs (f)(2)(i), the words ``or recording'' would be
added immediately after the word ``transcript'' both times the word
``transcript'' appears.
f. In paragraph (f)(6)(ii), ``recording,'' would be added
immediately after ``document,'' both times ``document,'' appears.
g. In paragraph (f)(8), the words ``or recording'' would be added
immediately after the word ``transcript'' the three times the word
``transcript'' appears.
h. In paragraph (g), in the first sentence, the words ``hereinafter
provided'' would be removed and the words ``provided in this part''
would be added in their place.
i. In paragraph (g), in the second sentence, the word ``he'' would
be removed and the words ``the examiner'' would be added in its place.
j. In paragraph (h), the paragraph heading would be revised to read
``Transcript or recording.''
k. In paragraph (h), the words ``or recording'' would be added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
l. Paragraphs (f), (g), and (h) would be redesignated as (g), (h),
and (i) respectively.
m. A new paragraph (f) would be added 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 audio-
visual telecommunication or personal attendance of any individual
expected to attend the hearing rather than by telephone. Any motion
that the hearing be conducted by audio-visual telecommunication 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 telephonically.
(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 telephone unless the examiner
determines that conducting the hearing by audio-visual
telecommunication:
(i) Would cost less than conducting the hearing by telephone;
(ii) Is necessary to prevent prejudice to a party;
(iii) Is necessary because of the importance of observing the
demeanor of any individual who is expected to testify at the hearing;
or
(iv) Is necessary because of a disability of any individual
expected to participate in the hearing.
(4) If the hearing is not conducted by telephone, it shall be
conducted by audio-visual telecommunication unless the examiner
determines that conducting the hearing by personal attendance of any
individual who is expected to participate in the hearing:
(i) Would cost less than conducting the hearing by telephone or
audio-visual telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the hearing.
(5) Any determination by the examiner that conducting the hearing
by audio-visual telecommunication or personal attendance of any
individual expected to participate in the hearing is necessary and the
basis for the examiner's determination as provided in paragraphs (c)(3)
or (c)(4) of this section must be reduced to a written order which
shall be filed with the hearing clerk.
(6) A party may appeal to the Secretary the examiner's order issued
under this paragraph requiring a hearing to be conducted by audio-
visual telecommunication or personal attendance of any individual
expected to participate in the hearing by filing an interlocutory
appeal petition with the hearing clerk. No party may file an
interlocutory appeal petition within 10 days of the scheduled date of
the hearing and any interlocutory appeal petition must be filed within
10 days after service of an examiner's order on the party filing the
interlocutory appeal petition.
(7) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the hearing
clerk a response in support of or in opposition to the interlocutory
appeal petition.
(8) The examiner's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 10 days after the
Secretary's ruling on the interlocutory appeal petition is served on
all of the parties to the proceeding.
* * * * *
(f) Written statements of direct testimony. Unless the hearing is
scheduled to begin less than 20 days after the examiner's 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. 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 examiner finds
that oral direct testimony which is supplemental to the written direct
testimony would expedite the proceeding and would not constitute
surprise.
* * * * *
Sec. 47.16 [Amended]
38. Section 47.16 would be amended as follows:
a. Paragraphs (a)(3) and (a)(4) would be revised and paragraphs
(a)(5) and (a)(6) would be added to read as set forth below.
b. Paragraph (b) would be revised to read as set forth below.
c. Paragraph (d)(1) would be revised to read as set forth below.
d. In paragraph (e), in the first sentence, the word ``him'' would
be removed and the words ``the officer'' added in its place.
e. In paragraph (e), in the second sentence, the word ``He'' would
be 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 by telephone unless the
examiner determines that conducting the deposition by audio-visual
telecommunication:
(i) Would cost less than conducting the deposition by telephone;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the disposition.
(4) 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
hearing:
(i) Would cost less than conducting the deposition by telephone or
audio-visual telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the deposition.
(5) Any determination by the examiner that conducting the
deposition by audio-visual telecommunication or personal attendance of
any individual expected to participate in the deposition is necessary
and the basis for the examiner's determination as provided in paragraph
(b)(3) or (b)(4) of this section must be reduced to a written order
which shall be filed with the hearing clerk.
(6) A party may appeal to the Secretary the examiner's order issued
under this paragraph requiring a deposition to be conducted by audio-
visual telecommunication or personal attendance of any individual
expected to participate in the deposition by filing an interlocutory
appeal petition with the hearing clerk. No party may file an
interlocutory appeal petition within 10 days of the scheduled date of
the deposition and any interlocutory appeal petition must be filed
within 10 days after service of an examiner's order on the party filing
the interlocutory appeal petition.
(7) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the hearing
clerk a response in support of or in opposition to the interlocutory
appeal petition.
(8) The examiner's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 10 days after the
Secretary's ruling on the interlocutory appeal petition is served on
all of the parties to the proceeding.
* * * * *
(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.
* * * * *
Sec. 47.17 [Amended]
39. In Sec. 47.17, paragraph (c), the last sentence would be
amended by removing the words ``of this part''.
Sec. 47.19 [Amended]
40. Section 47.19 would be amended as follows:
a. In paragraph (a), the heading would be revised to read
``Certifiation of transcript or recording.''.
b. In paragraph (a), the words ``or recording'' would be added
immediately after the word ``transcript'' each of the five times the
word ``transcript'' appears.
c. In paragraph (a), the words ``or her'' would be added
immediately after the word ``his'' both times time the word ``his''
appears.
d. In paragraph (a) of the word ``he'' would be 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''
would be added immediately after the word ``he''.
f. In paragraph (d)(3), the word ``his'' would be removed and the
words ``the party's'' would be added in its place.
g. In paragraph (d)(6), in the first sentence, the words ``or her''
would be added immediately after the word ``his''.
h. In paragraph (e) the words ``or her'' would be added immediately
after the word ``his''.
Sec. 47.20 [Amended]
41. Section 47.20 would be amended as follows:
a. In paragraph (b)(2) the words ``or she'' would be added
immediately after the word ``he'' both times the word ``he'' appears.
b. In paragraph (h) the words ``(or she)'' would be added
immediately after the word ``he'' both times the word ``he'' appears.
c. In paragraph (k) the words ``or her'' would be added immediately
after the word ``his''.
d. In paragraph (l) the words ``or her'' would be added immediately
after the word ``his''.
Sec. 47.21 [Amended]
42. Section 47.21 would be amended by adding the words ``or
recording'' immediately after the word ``transcript'' and by removing
the word ``prehearing''.
Sec. 47.22 [Amended]
43. In Sec. 47.22, paragraph (a) would be amended by removing the
reference to ``Sec. 47.15(g)'' and adding ``Sec. 47.15(h)'' in its
place.
Sec. 47.23 [Amended]
44. Section 47.23 would be 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]
45. In Sec. 47.24, paragraph (a) would be 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]
46. In Sec. 47.25, paragraph (e) would be amended by removing the
words ``the regulations in'', and by adding the words ``or her''
immediately after the word ``him''.
Sec. 47.46 [Amended]
47. Section 47.46 would be 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]
48. Section 47.47 would be amended as follows:
a. In the introductory language, the reference to ``7 CFR 47.2 (a)
through (h)'' would be 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'' would be removed and ``Secs. 47.47 through 47.68''
added in its place.
c. Section 47.47 would be amended by removing all paragraph
designations and placing the definitions in alphabetical order.
Sec. 47.49 [Amended]
49. In section 47.49, paragraph (f) would be 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) The hearing shall be conducted by telephone unless the
presiding officer determines that conducting the hearing by audio-
visual telecommunication:
(i) Would cost less than conducting the hearing by telephone;
(ii) Is necessary to prevent prejudice to a party;
(iii) Is necessary because of the importance of observing the
demeanor of any individual who is expected to testify at the hearing;
or
(iv) Is necessary because of a disability of any individual
expected to participate in the hearing.
(3) If the hearing is not conducted by telephone, the hearing shall
be conducted by audio-visual telecommunication unless the presiding
officer determines that conducting the hearing by personal attendance
of any individual who is expected to participate in the hearing:
(i) Would cost less than conducting the hearing by telephone or
audio-visual telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the hearing.
(4) Any determination by the presiding officer that conducting the
hearing by audio-visual telecommunication or personal attendance of any
individual expected to participate in the hearing is necessary and the
basis for the presiding officer's determination as provided in
paragraph (f)(2) or (f)(3) of this section must be reduced to a written
order which shall be filed with the Administrator.
(5) A party may appeal to the Administrator the presiding officer's
order issued under this paragraph requiring a hearing to be conducted
by audio-visual telecommunication or personal attendance of any
individual expected to participate in the hearing by filing an
interlocutory appeal petition with the Administrator. No party may file
an interlocutory appeal petition within 10 days of the scheduled date
of the hearing and any interlocutory appeal petition be filed within 10
days after service of a presiding officer's order on the party filing
the interlocutory appeal petition.
(6) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the
Administrator a response in support of or in opposition to the
interlocutory appeal petition.
(7) The presiding officer's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 10 days after the
Administrator's ruling on the interlocutory appeal petition is served
on all of the parties to the proceeding.
50. Section 47.53 would be 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) through Sec. 47.49(f)(4). 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 audio-visual telecommunication or
personal attendance of any individual expected to attend the hearing
rather than by telephone. Any motion that the hearing be conducted by
audio-visual telecommunication 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
telephonically.
(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]
51. Section 47.56 would be amended as follows:
a. Paragraph (b) would be revised to read as set forth below.
b. Paragraphs (g) and (h) would be redesignated as paragraphs (i)
and (j) respectively.
c. New paragraphs (g) and (h) would be 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 office 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 documents during the
hearing;
* * * * *
Sec. 47.58 [Amended]
52. Section 47.58 would be amended as follows:
a. In paragraph (b), the words ``or recording'' would be added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
b. In paragraph (f), the words ``or recording'' would be added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
c. Paragraphs (a), (b), (c), (d), (e), and (f) would be
redesignated as (b), (c), (d), (e), (f), and (g) respectively.
d. A new paragraph (a) would be added to read as follows:
Sec. 47.58 Evidence.
(a) Written statements of direct testimony. Unless the hearing is
scheduled to begin less than 20 days after the presiding officer's
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. 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
presiding officer finds that oral direct testimony which is
supplemental to the written direct testimony would expedite the
proceeding and would not constitute surprise.
* * * * *
Sec. 47.59 [Amended]
53. Section 47.59 would be amended as follows:
a. The section heading would be revised to read ``Filing
transcripts or recordings and exhibits.''
b. In section 47.59, the words ``or recording'' would be added
immediately after the word ``transcript'' each of the five times the
word ``transcript'' appears.
54. Section 47.60 would be revised to read as follows:
Sec. 47.60 Transcript or recording.
Hearings shall be recorded verbatim by electronic recording device.
If 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. The presiding officer's
order to transcribe a hearing or part of a hearing and the basis for
the order, as provided in this paragraph, must be reduced to a written
order and filed with the Hearing Clerk. The recordings or transcripts
of hearings shall be made available to any person at actual cost of
duplication.
Sec. 47.62 [Amended]
55. In Sec. 47.62, the last sentence would be amended by removing
the words ``of this part''.
PART 50--RULES OF PRACTICE GOVERNING WITHDRAWAL OF INSPECTION AND
GRADING SERVICES
56. The authority citation for part 50 would be revised to read as
follows:
Authority: 7 U.S.C. 1621 et seq.; 7 CFR 2.35, 2.41.
57. Part 50 would be revised to read as follows:
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 promulgated in
Secs. 1.130 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 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, except where 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 such 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--FRESH FRUITS, VEGETABLES AND OTHER PRODUCTS (INSPECTION,
CERTIFICATION, AND STANDARDS)
58. The1,2 authority citation for part 51 would be revised to
read as follows:
\1\Among such other products are the following: Raw nuts;
Christmas trees and evergreens; flowers and flower bulbs; and onion
sets.
\2\None of the requirements in this part shall excuse failure to
comply with any federal, State, county, or municipal laws applicable
to products covered in this part.
---------------------------------------------------------------------------
Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50; unless
otherwise noted.
Sec. 51.46 [Amended]
59. Section 51.46(d) would be 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--PROCESSED FRUITS AND VEGETABLES, PROCESSED PRODUCTS
THEREOF, AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
60. The\3\ authority citation for part 52 would be revised to read
as follows:
\3\Among such other processed food products are the following:
Honey; molasses, except for stockfeed; nuts and nut products, except
oil; sugar (cane, beet, and maple); sirups (blended), sirups except
from grain; tea; cocoa; coffee; spices; condiments.
---------------------------------------------------------------------------
Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.
Sec. 52.54 [Amended]
61. In Sec. 52.54, paragraph (a) introductory text, would be
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)
62. The authority citation for part 53 would be revised to read as
follows:
Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.
63. In Sec. 53.13, paragraph (a)(2) would be 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)
64. The authority citation for part 54 would be revised to read as
follows:
Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.50.
65. In Sec. 54.11, paragraph (a)(2) would be 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 180--REGULATIONS AND RULES OF PRACTICE UNDER THE PLANT VARIETY
PROTECTION ACT
66. The authority citation for part 180 would be revised to read as
follows:
Authority: 7 U.S.C. 2326, 2352, 2353, 2356, 2371, 2402(b), 2403,
2426, 2427, 2501(c); 7 CFR 2.17, 2.50.
Sec. 180.300 [Amended]
67. In Sec. 180.300, paragraph (d), the last sentence would be
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.''
Title 9--[Amended]
PART 202--RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE PACKERS
AND STOCKYARDS ACT
68. The authority citation for part 202 would be revised to read as
follows:
Authority: 7 U.S.C. 228(a); 7 CFR 2.17(e), 2.56.
Sec. 202.102 [Amended]
69. Section 202.102 would be amended by removing all paragraph
designations and placing the definitions in alphabetical order.
Sec. 202.103 [Amended]
70. In Sec. 202.103, paragraph (a), the second sentence would be
amended by removing the words ``the provisions of''.
Sec. 202.105 [Amended]
71. In Sec. 202.105, paragraph (f)(2) would be amended by removing
the words ``of this part''.
Sec. 202.109 [Amended]
72. Section 202.109 would be amended as follows:
a. Paragraph (a)(5) would be revised to read as set forth below.
b. In paragraph (c)(2), in the second sentence, the word ``pace''
would be removed and the word ``place'' would be added in its place.
c. Paragraph (d) would be revised to read as set forth below.
d. In paragraph (g), the words ``or recording'' would be added
immediately after the word ``transcript'' each of the four times the
word ``transcript'' appears.
e. In paragraph (h), the words ``or recording'' would be added
immediately after the word ``transcript'' each of the four times the
word ``transcript'' appears.
f. In paragraphs (i)(3), (i)(4), and the concluding text, the words
``or recording'' would be 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'' would be
removed.
g. In paragraph (j), the word ``therein'' would be removed and the
words ``in the deposition'' added in its place.
h. In paragraph (l), the words ``or recording'' would 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 of the deposition
(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 by telephone unless the
presiding officer determines that conducting the deposition by audio-
visual telecommunication:
(i) Would cost less than conducting the deposition by telephone;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the deposition.
(5) 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
hearing:
(i) Would cost less than conducting the deposition by telephone or
audio-visual telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the deposition.
(6) Any determination by the presiding officer that conducting the
deposition by audio-visual telecommunication or personal attendance of
any individual expected to participate in the deposition is necessary
and the basis for the presiding officer's determination as provided in
paragraph (d)(4) or (d)(5) of this section must be reduced to a written
order which shall be filed with the hearing clerk.
(7) A party may appeal to the Judicial Officer the presiding
officer's order requiring a deposition to be conducted by audio-visual
telecommunication or personal attendance of any individual expected to
participate in the deposition by filing an interlocutory appeal
petition with the hearing clerk. No party may file an interlocutory
appeal petition within 10 days of the scheduled date of the deposition
and any interlocutory appeal petition must be filed within 10 days
after service of a presiding officer's order on the party filing the
interlocutory appeal petition.
(8) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the hearing
clerk a response in support of or in opposition to the interlocutory
appeal petition.
(9) The presiding officer's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 10 days after the Judicial
Officer's ruling on the interlocutory appeal petition is served on all
of the parties to the proceeding.
* * * * *
Sec. 202.110 [Amended]
73. Section 202.110 would be amended as follows:
a. In paragraph (a), in the concluding text, the words ``or
recording'' would be added immediately after the word ``transcript''.
b. Paragraph (b) would be revised to read as set forth below.
Sec. 202.110 Rule 10: Prehearing Conference.
* * * * *
(b) Manner of the prehearing conference. (1) prehearing conference
shall be conducted by telephone or correspondence unless the presiding
officer determines that conducting the prehearing conference by audio-
visual telecommunication:
(i) Would cost less than conducting the prehearing conference by
telephone or correspondence;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the prehearing conference.
(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) Would cost less than conducting the prehearing conference by
audio-visual telecommunication;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the prehearing conference.
(3) Any determination by the presiding officer that conducting the
prehearing conference by audio-visual telecommunication or personal
attendance of any individual expected to participate in the prehearing
conference is necessary and the basis for the presiding officer's
determination as provided in paragraph (b)(1) or (b)(2) of this section
must be reduced to a written order and filed with the hearing clerk.
(4) A party may appeal to the Judicial officer the presiding
officer's order issued under this paragraph requiring a prehearing
conference to be conducted by audio-visual telecommunication or
personal attendance of any individual expected to participate in the
conference by filing an interlocutory appeal petition with the hearing
clerk. No party may file an interlocutory appeal petition within 5 days
of the scheduled date of the conference and any interlocutory appeal
petition must be filed within 10 days after service of a presiding
officer's order on the party filing the interlocutory appeal petition.
(5) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the hearing
clerk a response in support of or in opposition to the interlocutory
appeal petition.
(6) The presiding officer's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 5 days after the Judicial
Officer's ruling on the interlocutory appeal petition is served on all
of the parties to the proceeding.
Sec. 202.112 [Amended]
74. Section 202.112 would be amended as follows:
a. Paragraph (a) would be revised to read as set forth below.
b. Paragraph (b) would be revised to read as set forth below.
c. In paragraph (e)(2), the second sentence, the words ``or
recording'' would be added immediately after the word ``transcript'',
and the word ``thereon'' would be removed.
(d) In paragraph (e)(3), the words ``or recording'' would be added
immediately after the word ``transcript'' both times the word
``transcript'' appears.
e. In paragraph (e)(5), the word ``thereof'' would be removed and
the words ``of the Department'' added in its place, and the word
``therein'' would be removed and the words ``in the record of the
Department'' added in its place.
f. Paragraphs (e), (f), (g), (h), (i), and (j) would be
redesignated as (f), (g), (h), (i), (j), and (k) respectively.
g. New paragraph (e) would be added to read as set forth below.
h. Redesignated paragraph (i) would be revised to read as set forth
below.
i. In redesignated (j), the heading would be revised to read
``Filing, and presiding officer's certificate, of the transcript or
recording.''; the words ``or recording'' would be added immediately
after the word ``transcript'' each of the 10 times the word
``transcript'' appears; and the words ``or recorded'' would be added
immediately after the word ``transcribed''.
j. In redesignated paragraph (k), the heading would be revised to
read ``Keeping of copies of the transcript or recording.''; and the
words ``or recording'' would be 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 shall be set in accordance with paragraphs (a)(3)
through (a)(5) 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 telephone unless the
presiding officer determines that conducting the oral hearing by audio-
visual telecommunication:
(i) Would cost less than conducting the oral hearing by telephone;
(ii) Is necessary to prevent prejudice to a party;
(iii) Is necessary because of the importance of observing the
demeanor of any individual who is expected to testify at the oral
hearing; or
(iv) Is necessary because of a disability of any individual
expected to participate in the oral hearing.
(4) If the oral hearing is not conducted by telephone, it 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) Would cost less than conducting the oral hearing by telephone
or audio-visual telecommunications;
(ii) Is necessary to prevent prejudice to a party; or
(iii) Is necessary because of a disability of any individual
expected to participate in the oral hearing.
(5) Any determination by the presiding officer that conducting the
oral hearing by audio-visual telecommunication or personal attendance
of any individual expected to participate in the oral hearing is
necessary and the basis for the presiding officer's determination as
provided in paragraph (a)(3) or (a)(4) of this section must be reduced
to a written order which shall be filed with the hearing clerk.
(6) A party may appeal to the Judicial Officer the presiding
officer's order issued under this paragraph requiring an oral hearing
to be conducted by audio-visual telecommunication or personal
attendance of any individual expected to participate in the oral
hearing by filing an interlocutory appeal petition with the hearing
clerk. No party may file an interlocutory appeal petition within 10
days of the scheduled date of the oral hearing and any interlocutory
appeal petition must be filed within 10 days after service of a
presiding officer's order on the party filing the interlocutory appeal
petition.
(7) Within 10 days after the service of a copy of an interlocutory
appeal petition, any party to the proceeding, other than the party who
filed the interlocutory appeal petition, may file with the hearing
clerk a response in support of or in opposition to the interlocutory
appeal petition.
(8) The presiding officer's order which is the subject of a party's
interlocutory appeal petition shall be stayed from the time the
interlocutory appeal petition is filed until 10 days after the Judicial
Officer's ruling on the interlocutory appeal petition is served on all
of the parties to the proceeding.
(b) Notice. A notice stating the time, place, and manner or 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 audio-visual telecommunication or
personal attendance of any individual expected to attend the hearing
rather than by telephone. Any motion that the hearing be conducted by
audio-visual telecommunication 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
telephonically.
(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. Unless the hearing is
scheduled to begin less than 20 days after the presiding officer's
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. 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
presiding officer finds that oral direct testimony which is
supplemental to the written direct testimony would expedite the
proceeding and would not constitute surprise.
* * * * *
(i) Transcript or recording. (1) Oral hearings shall be recorded
verbatim by electronic recording device. If a party requests the
transcript of an oral hearing or part of an oral hearing and the
presiding officer determines that the disposition of the proceeding
would be expedited by a transcript of the oral hearing or part of an
oral hearing, the presiding officer shall order the verbatim
transcription of the recording as requested by the party. The presiding
officer's order to transcribe an oral hearing or part of an oral
hearing and the basis for the order, as provided in this paragraph,
must be reduced to a written order and filed with the hearing clerk.
(2) Copies of transcripts or recordings of oral hearings shall be
made available to any person at actual cost of duplication.
* * * * *
Sec. 202.115 [Amended]
75. Section 202.115 would be amended as follows:
a. Paragraph (b), the second sentence would be amended by adding
the words ``or recording'' immediately after the word ``transcript''.
b. Paragraph (d) would be 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]
76. Section 202.118 would be amended as follows:
a. Paragraph (a)(1) would be revised to read as set forth below.
b. Paragraph (a)(8) would be redesignated as paragraph (a)(12).
c. New paragraphs (a)(8), (a)(9), (a)(10), and (a)(11) would be
added to read as set forth below.
d. Paragraph (b) would be revised to read as set forth below.
Sec. 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 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 documents during the deposition;
* * * * *
(b) Motions and requests. (1) Except as provided in paragraph
(b)(2) of this section, the presiding officer is authorized to rule on
all motions and requests filed in the proceeding prior to the
submission of the presiding officer's report to the Judicial Officer,
Provided, That a presiding officer is not authorized to dismiss a
complaint. Except as provided in paragraph (b)(2) of this section, the
submission or certification of any question to the Judicial Officer,
prior to the submission of the presiding officer's report to the
Judicial Officer, shall be in the discretion of the presiding officer.
(2) Any party may appeal to the Judicial Officer a presiding
officer's order issued under:
(i) Rule 9(d), Sec. 202.109(d), to conduct a deposition by audio-
visual telecommunication or personally attend a deposition;
(ii) Rule 10(b), Sec. 202.110(b), to conduct a prehearing
conference by audio-visual telecommunication or personally attend a
prehearing conference; or
(iii) Rule 12(a), Sec. 202.112(a), to conduct an oral hearing by
audio-visual telecommunication or personally attend an oral hearing.
* * * * *
Done in Washington, DC, this 11th day of February, 1994.
Mike Espy,
Secretary of Agriculture.
[FR Doc. 94-3824 Filed 2-24-94; 8:45 am]
BILLING CODE 3410-01-M
