[Federal Register Volume 64, Number 135 (Thursday, July 15, 1999)]
[Rules and Regulations]
[Pages 38103-38108]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18047]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 64, No. 135 / Thursday, July 15, 1999 / Rules
and Regulations
[[Page 38103]]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 47
[Docket Number FV98-358]
Amendments to Rules of Practice Under the Perishable Agricultural
Commodities Act (PACA)
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The Department of Agriculture (USDA) is amending the Rules of
Practice under the Perishable Agricultural Commodities Act (other than
formal disciplinary proceedings). In addition to bringing several
sections of the Rules of Practice into compliance with the PACA
Amendments of 1995, USDA is making other changes to enhance customer
service.
EFFECTIVE DATE: August 16, 1999.
FOR FURTHER INFORMATION CONTACT: Charles W. Parrott, Assistant Chief,
PACA Branch, Room 2095-So. Bldg., Fruit and Vegetable Division, AMS,
USDA, Washington, D.C. 20250, Phone (202) 720-4180, Echarles.parrott@usda.gov.
SUPPLEMENTARY INFORMATION:
Background
The Perishable Agricultural Commodities Act (PACA or Act)
establishes a code of fair trading practices for the marketing of fresh
and frozen fruits and vegetables in interstate and foreign commerce.
The Act requires that parties fulfill their contractual obligations,
and provides a forum where firms that buy and sell fruits and
vegetables can settle commercial disputes outside of the civil court
system. Under the PACA, these disputes, or reparation complaints, are
handled first on an informal basis in an attempt to achieve an amicable
settlement between the disputing parties. About 75 percent of all
reparation complaints are resolved informally, generally within eight
weeks. However, if an informal settlement is not reached, there is a
formal complaint procedure available under which USDA's Judicial
Officer issues a binding decision in the case. The Rules of Practice
applicable to reparation proceedings inform the industry of USDA's
procedures and requirements for the handling of informal and formal
complaints under the PACA.
A proposed rule to amend the regulations was published in the
Federal Register on January 28, 1999 (64 FR 4342). The proposal amended
several sections of the Rules of Practice to comply with the PACA
Amendments of 1995, and made numerous other changes to enhance customer
service. Comments on the proposed rule were to be submitted by March 1,
1999. The Agricultural Marketing Service (AMS) received two comments.
We received comments from JSG Trading Corp. (JSG), Tinton Falls,
New Jersey and McCarron & Associates (McCarron), Washington, D.C. JSG
objected to the Department of Agriculture's (USDA) handling of
reparation cases in general. McCarron suggested some additional
revisions to further enhance customer service.
In its comment, JSG objected to the preparation of draft reparation
decisions by PACA Branch personnel (Sec. 47.2(i)). The commentor
questioned whether PACA personnel could be impartial in the preparation
of such drafts. We believe that the commentor's concern is misplaced
because the knowledge and expertise of PACA personnel have always been
utilized in resolving disputes involving perishable agricultural
commodities. These services are routinely sought by the parties
involved. USDA, of course, has no vested interest in the outcome of any
complaints. PACA Branch personnel have a widely recognized history of
professional impartiality. Moreover, we believe that the commentor's
concern is more than adequately addressed by the provision which
requires that all draft decisions prepared by PACA Branch personnel be
reviewed by an attorney employed by the Office of the General Counsel.
Therefore, AMS is making no change based on this comment.
McCarron's comments touched on several points. With regard to
Sec. 47.6(a), he suggested that the appropriate period of time to
elapse before a file is permanently closed be left to the judgment of
the Deputy Administrator, and that it not exceed 20 days. The proposed
amendment to Sec. 47.6(a) allowed a complainant nine months to file a
formal complaint after informal handling had been completed. After
further consideration, we agree that a 9-month period allows more time
than is needed for a complainant to decide to proceed with a formal
complaint. However, the suggested 20-day period is considered too
short. Therefore, the final rule provides a complainant with 90 days to
file a formal complaint after the informal handling by the PACA Branch
has been completed. McCarron further suggested that the wording of this
section clarify that the waiver of further proceedings applies only to
actions before the Secretary of Agriculture. The Rules of Practice
under the Perishable Agricultural Commodities Act (other than formal
disciplinary proceedings) apply, however, only to reparation
proceedings filed before the Secretary of Agriculture. Therefore, with
the exception of the change discussed above, Sec. 47.6(a) will remain
as proposed.
With regard to Sec. 47.9, McCarron addressed the proposed
requirement that complainant in a reparation complaint respond to a
counterclaim or be held to have admitted the respondent's allegations
contained in the counterclaim. McCarron stated that this alteration is
overly legalistic, adds nothing to assist the decision-maker, and
unduly delays resolution of the matter. We are making no change to the
rule based on this comment because a counterclaim has the same weight
in the formal complaint process as does a complaint, and it is a matter
of equity that both parties be treated equally and be required to
answer any positive charges against them. No changes to the final rule
are necessary.
With regard to Secs. 47.15(a)(1) and 47.16(a), McCarron stated that
it is not clear that the examiner who may grant a hearing or authorize
taking depositions in connection with an oral hearing, is the presiding
officer or an agency employee. This was addressed in the change to
Sec. 47.2(i), where it is made clear that agency employees are to act
as
[[Page 38104]]
examiners solely in cases handled through the documentary procedure. No
change in the final rule is necessary.
With regard to Sec. 47.20, McCarron suggested the addition of
language to clarify that the $30,000 figure for determining whether a
complaint may be handled through oral hearing, should be the principal
amount of the claim only, and should not include interests and/or costs
associated with the claim. We agree with his suggestion. Therefore, we
have changed the final rule to reflect that the $30,000 threshold
amount for an oral hearing not include accrued interest.
Finally, McCarron suggested that a time limit be placed on USDA for
the resolution of informal complaints and for the issuance of decision
and orders, from the time the case is ready for decision. Such
restricted deadlines could, however, run afoul of conditions outside
the control of the agency. In fact, most informal complaints are at
present being resolved within 90 days of their opening, and the great
majority of documentary procedure decisions are being issued within 90
days from the time the case is ready for decision.
Agricultural Marketing Service (AMS) believes that the amendments
to the Rules of Practice will enhance customer service by allowing
certain documents in formal PACA reparation proceedings to be served
via private or commercial mail delivery, in addition to service by
certified or registered mail.
The amendments clarify certain regulations and definitions.
Throughout the Rules of Practice, the term ``shortened procedure'' was
replaced with ``documentary procedure'' to reflect more accurately a
formal reparation process that does not involve an oral hearing.
Due to the reorganization of AMS, the definition of the ``Fruit and
Vegetable Programs'' was substituted for the definition of
``Division,'' the definition of ``Associate Administrator'' was
substituted for the definition of ``Deputy Administrator,'' and the
definition of ``Deputy Administrator'' was substituted for the
definition of ``Director.'' Additionally, the words ``Program'' and
``Deputy Administrator'' were substituted for ``Division'' and
``Director'' respectively, wherever they appeared in Part 47. The term
``examiner'', Sec. 47.2(i)(1) was expanded to indicate that senior
marketing specialists may also prepare decisions in shortened or
``documentary procedure'' cases subject the review of USDA's Office of
the General Counsel (OGC). The definition of ``examiner's report'' in
Sec. 47.2(j) was shortened to eliminate the references to
Administrative Law Judges because they do not participate in reparation
cases and do not write examiner's reports. The definitions of ``mail''
and ``re-mail'' were expanded to allow for additional methods of
service to include commercial or private mail delivery services. The
section regarding informal complaints, Sec. 47.3, was revised to
require that the complaint be in writing and allow for the filing of an
informal complaint by facsimile transmission. In addition, the
information required in an informal complaint was revised for
clarification purposes. The revision changed ``car initial and number,
if carlot;'' to read ``carrier identification;'' and corrected a
typographical error in Sec. 47.3(a) (2) (vii) by inserting the word
``and'' between the words ``gross net.'' A statement regarding the
required filing fee of $60.00 was added to the text. Additionally,
paragraph (c) of that section regarding the ``Status of person filing
informal complaint'' was eliminated because it is not pertinent to
these regulations.
Section 47.4, which addresses service matters, was revised to
permit the commercial or the private delivery of certain documents and
now describes when service is perfected under the various mailing
options. Additionally, the reference to the service of the Chief's
determination that a person was responsibly connected with a licensee
was deleted from paragraph (b)(1) because this issue is addressed in
Sec. 47.49 of the regulations (7 CFR 47.49).
The section that delineates formal complaints in the Rules of
Practice was changed to include the requirement that a formal complaint
be filed within ninety days of notification that complainant may
proceed formally, or the complainant loses the opportunity to proceed
with a formal complaint. Additionally, the rules were revised to
require that a $300.00 handling fee must accompany the filing of a
formal complaint or counterclaim before AMS will serve the complaint on
the respondent(s). The handling fee for formal complaints was included
in the Rules of Practice to comform with the PACA Amendments of 1995.
Significant changes were made to Sec. 47.9, which addresses the
reply to a counterclaim or set-off. The counterclaim or set-off will
now be treated as a formal complaint filed by the respondent, and
therefore, failure to reply will be a default on complainant's part as
to the counterclaim or the set-off. In the previous rules, a failure to
file a reply was treated as a denial of the allegations of the
counterclaim or set-off, whereas the revised rules have created a
parallel between the filing of a complaint and the filing of a
counterclaim or set-off.
With the new expanded definition of examiner in Sec. 47.2(i),
Sec. 47.11 was amended to clarify that only OGC attorneys, and not
other USDA employees, are granted certain powers under this section of
the regulations because only OGC attorneys conduct oral hearings. The
examiner's powers now include the ability to require parties to provide
copies of exhibits prior to hearings and depositions in any type of
hearing.
The Rules of Practice were amended to comply with the 1995 PACA
Amendments which raised the minimum claim for damages required for an
oral hearing from $15,000 to $30,000. Sections 47.11 and 47.16 were
amended to clarify that subpoenas or orders for depositions are made
over the facsimile signature of the Secretary. In addition, the
regulations regarding oral hearings no longer permit a complainant to
submit evidence in the form of depositions in lieu of appearing in
person or by counsel. Instead, all parties are now required to appear
in person or through a representative at oral hearings.
The section which discusses the deposition process was expanded to
include references to the possibility of depositions in a case that is
converted from an oral hearing case to a documentary procedure case.
In order to ensure sufficient opportunity for review by the
examiner and sufficient notice to the individual who is subpoenaed,
Sec. 47.17 was amended to require that applications for subpoena be
received at least thirty days prior to the hearing or deposition date,
and that the subpoena be issued at least twenty days before the date of
appearance. An exception may be made for good cause shown.
All filings with regard to claims for fees and expenses in oral
hearing cases and the resultant objections will now be filed with the
Hearing Clerk instead of the examiner in order to ensure that the
documents are properly filed into the official record kept by the
Hearing Clerk. The Hearing Clerk's Office is now the appropriate place
to file petitions for rehearing, reargument, reconsideration of orders,
reopening of hearings and reopening after a default. The regulations
were revised by replacing the words ``hearing clerk'' with the words
``Hearing Clerk'.
As previously stated, the term ``shortened procedure'' was changed
to ``documentary procedure''. In the documentary procedure section, the
rule regarding verification of pleadings or statements was expanded to
note that
[[Page 38105]]
certification by a notary public alone is not sufficient; rather, a
signed verifying statement must be appended to the document.
Procedures for requesting a reopening after a default were removed
from the provision that covers filing, extensions of time, effective
date of filing, computations of time, and official notice and were
moved to the more appropriate section that deals with rehearing,
reargument, reconsideration of orders, and reopening of hearings. In
addition, the provision for reopening after a default was revised to
permit a petition to reopen the proceedings to be filed before the
expiration of 30 days from the date of issuance of the default order.
This revision eliminates any confusion that existed in the previous
regulation because it did not provide a time certain for filing. The
amendment clarified that the filing must be made before the Default
Order becomes final. For all filings, the provision for computation of
time was revised to include Saturdays as well as Sundays and holidays.
Executive Orders 12866 and 12988
This final rule, issued under the Perishable Agricultural
Commodities Act (7 U.S.C. 499 et seq.), as amended, has been determined
to be not significant for the purposes of Executive Order 12866, and
therefore, has not been reviewed by the Office of Management and Budget
(OMB).
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform, and is not intended to have retroactive effect.
This final rule will not preempt any State or local laws, regulations,
or policies, unless they present an irreconcilable conflict with this
rule. There are no administrative procedures which must be exhausted
prior to any judicial challenge to the provisions of this rule.
Effects on Small Businesses
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et seq.), USDA has considered the economic
impact of this final rule on small entities. The purpose of the RFA is
to fit regulatory actions to the scale of businesses subject to such
actions in order that small businesses will not be unduly or
disproportionately burdened. Small agricultural service firms have been
defined by the Small Business Administration (13 CFR part 121) as those
whose with less than 500 employees. The PACA requires all businesses
that operate subject to its provisions maintain a license issued by
USDA. There are approximately 15,700 PACA licensees, a majority of
which may be classified as small entities.
The revisions to the PACA Rules of Practice streamline USDA
procedures and requirements for handling of informal and formal
complaints under the PACA. In Fiscal Year 1998, there were 2198
informal reparation claims, 21 counterclaims, and 563 formal reparation
cases filed with USDA under the PACA. The revisions to the reparation
Rules of Practice apply only to firms that utilize USDA's service for
resolving commercial disputes under the PACA. AMS believes that these
revisions to the Rules of Practice will enhance customer service to the
industry by expediting the handling of documents in PACA reparation
proceedings. Most of the revisions provide notice to claimants of the
procedure that AMS will now follow in adjudicating claims. For example,
the proposed revision that provides for additional methods of service
of formal documents by AMS will not produce any economic effect on
licensees initially. But, if the use of commercial and/or express
delivery services take the place of certified mail, licensees may be
required to absorb the additional costs through marginally higher user
fees.
There are some revisions, however, that will affect the rights and
obligations of claimants. For example, claimants must be certain to
adhere to the filing requirements for both informal and formal
complaints, which require the payment of statutorily mandated filing
and handling fees, respectively. If the required fees do not accompany
a filing, a claimant may lose access to the reparation forum. These
revisions, and others, may affect a claimant's due process rights,
which are difficult to quantify. However, since the reparation forum is
but one available means to resolve contract disputes concerning
perishable agricultural products in interstate commerce, AMS has
determined that the provisions of this final rule will not have a
significant economic impact on a substantial number of small entities.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 does not apply to this final
rule since it does not seek answers to identical questions or reporting
or recordkeeping requirements imposed on ten or more persons, and the
information collected is not used for general statistical purposes.
List of Subjects in 7 CFR Part 47
Administrative practice and procedure, Agricultural commodities,
Brokers.
For the reasons set forth in the preamble, 7 CFR part 47 is amended
as follows:
PART 47--[AMENDED]
1. The authority citation for part 47 is revised to read as
follows:
Authority: 7 U.S.C. 499o; 7 CFR 2.22(a)(1)(viii)(L),
2.79(a)(8)(xiii).
2. Section 47.2 is amended by removing paragraph (j)(2) and
redesignating paragraph (j)(1) as paragraph (j) and revising paragraphs
(e), (g), (h), (i), (s), and (t) to read as follows:
Sec. 47.2 Definitions.
* * * * *
(e) Associate Administrator means the Associate Administrator of
the Service, or any officer or employee of the Service to whom
authority has heretofore lawfully been delegated, or to whom authority
may hereafter lawfully be delegated, to act in his or her stead.
* * * * *
(g) Fruit and Vegetable Programs means the Fruit and Vegetable
Programs of the Agricultural Marketing Service.
(h) Deputy Administrator means the Deputy Administrator of the
Fruit and Vegetable Programs or any officer or employee of the Fruit
and Vegetable Programs to whom authority has heretofore lawfully been
delegated, or to whom authority may hereafter lawfully be delegated by
the Deputy Administrator, to act in his stead.
(i) Examiner. In connection with reparation proceedings, the term
``examiner'' is synonymous with ``presiding officer'' and means any
attorney employed in the Office of the General Counsel of the
Department, or in connection with reparation proceedings conducted
pursuant to the documentary procedure in Sec. 47.20, the term
``examiner'' may mean any other employee of the PACA Branch whose work
is reviewed by an attorney employed in the Office of the General
Counsel of the Department.
* * * * *
(s) Mail means to deposit an item in the United States Mail with
postage affixed and addressed as necessary to cause it to be delivered
to the address shown by ordinary mail, or by certified mail or
registered mail if specified, or to cause a properly addressed item to
be delivered by a commercial or private mail delivery service to the
address shown.
(t) Re-mail means to mail by ordinary mail to an address an item
that has been returned after being sent to the same address by
certified or registered mail or
[[Page 38106]]
by a commercial or private mail delivery service.
5. In Sec. 47.3, the first sentence in paragraph (a)(2) and
paragraph (a)(2)(iv) are revised, in paragraph (a)(2)(vii) the word
``and'' is added between the words ``gross'' and ``net'', paragraph (c)
is removed, and a new paragraph (a)(4) is added to read as follows:
Sec. 47.3 Institution of proceedings.
(a) * * *
(1) * * *
(2) Informal complaints may be made in writing by telegram, by
letter, or by facsimile transmission, setting forth the essential
details of the transaction complained of. * * *
* * * * *
(iv) Carrier identification;
* * * * *
(4) The informal complaint shall be accompanied by a filing fee of
$60 as required by the Act.
* * * * *
7. Section 47.4 is amended by revising the section heading and
paragraphs (b)(1), (b)(3), (c)(1), and (d)(1) to read as follows:
Sec. 47.4 Service and proof of service.
* * * * *
(b) Service on Party. (1) Any complaint or other document initially
served on a person to make that person a party respondent in a
proceeding, a final order, or other document specifically ordered by
the presiding officer or Judicial Officer to be served by certified or
registered mail, or commercial or private mail delivery service, shall
be deemed to be received by any party to a proceeding on the date of
delivery by certified or registered mail, or commercial or private mail
delivery service to the last known principal place of business of such
party, last known principal place of business of the attorney or
representative of record of such party, last known residence of such
party if an individual: Provided, That, if any such document or paper
is sent by certified, registered, commercial, or private mail, but is
returned, it shall be deemed to be received by such party on the date
of the re-mailing by ordinary mail to the same address.
* * * * *
(3) Any document or paper served other than by certified,
registered, commercial, or private mail on any party to a proceeding
shall be deemed to be received by such party on the date of:
* * * * *
(c) * * *
(1) Delivery by certified, registered, commercial, private or mail
to the last known principal address of such person, last know principal
place of business of the attorney or representative of record of such
person, or last known residence of such person if an individual;
* * * * *
(d) * * *
(1) A certified or registered mail receipt returned by the postal
service with a signature, or a signed receipt returned by a private or
commercial mail delivery service;
* * * * *
8. In Sec. 47.6, paragraphs (a) and (c) are revised to read as
follows:
Sec. 47.6 Formal complaints.
(a) Filing; contents; number of copies. (1) If the procedure
provided in Sec. 47.3(b) fails to effect an amicable or informal
settlement, the person who filed the informal complaint may, if further
proceedings are desired, file a formal complaint with the Fruit and
Vegetable Programs. The formal complaint shall be filed within ninety
days of notification of the opportunity to proceed formally. Failure to
file a formal reparation complaint within the time prescribed shall
result in the waiver of further proceedings on the claim alleged in the
informal complaint.
(2) The formal complaint shall set forth the information and be
accompanied by the papers indicated in Sec. 47.3(a)(2) and (3),
including a statement of the amount of damages claimed, with the basis
therefor, and the method of determination. The original and three
copies shall be furnished for filing, and service on the respondent. If
there is more than one respondent, a further copy shall be furnished
for each additional respondent.
* * * * *
(c) Service upon respondent; proof of service. Upon receipt by the
Fruit and Vegetable Programs of the formal complaint, the accompanying
papers and the $300 handling fee required by the Act, a copy thereof
shall be served by the Fruit and Vegetable Programs upon the respondent
in accordance with Sec. 47.4. If the complaint is not in the proper
form, the Fruit and Vegetable Programs shall return it and inform the
complainant of the deficiencies therein.
* * * * *
9. In Sec. 47.8, paragraph (a) is amended by adding a sentence at
the end of the section to read as follows:
Sec. 47.8 The answer.
(a) * * * If the answer includes a counterclaim, the answer shall
be accompanied by the $300 handling fee required by the Act for formal
complaints.
* * * * *
10. In Sec. 47.9, paragraphs (b) and (c) are revised to read as
follows:
Sec. 47.9 The reply.
* * * * *
(b) Contents. The reply shall be confined strictly to the matters
alleged in the counterclaim or set-off in the answer. It shall contain
a precise statement of the facts which constitute the grounds of
defense to the counterclaim or set-off, and shall specifically admit,
deny, or explain each of the allegations of the counterclaim or set-
off, unless the complainant is without knowledge, in which case the
reply shall so state; or a statement that the complainant admits all of
the allegations of the counterclaim or set-off; or a statement
containing an admission of liability in an amount less than that
alleged in the counterclaim or set-off and a denial of liability for
the remaining amount.
(c) Failure to file reply. Failure to file a reply shall be deemed
a waiver of hearing on the counterclaim or set-off and an admission of
the allegations contained in the counterclaim or set-off. If no reply
is filed, the allegations of the counterclaim or set-off shall be
deemed admitted.
11. In Sec. 47.11, the introductory text of paragraph (c), and
paragraphs (c)(4), (c)(9), (c)(10) and (c)(13) are revised to read as
follows:
Sec. 47.11 Examiners.
* * * * *
(c) Powers. Subject to review by the Secretary, as provided in this
Part, the examiner who is an attorney employed in the Office of the
General Counsel of the Department, in any proceeding assigned to him or
her, shall have power to:
* * * * *
(4) Issue subpoenas over the facsimile signature of the Secretary
requiring the attendance and testimony of witnesses and the production
of books, contracts, papers, and other documentary evidence;
* * * * *
(9) Require each party, prior to any hearing, to provide all other
parties and the examiner with a copy of any exhibit that the party
intends to introduce into evidence;
(10) Require each party, prior to any deposition, to provide all
other parties and the examiner with a copy of any document that the
party intends to use to examine a deponent;
* * * * *
[[Page 38107]]
(13) Do all acts and take all measures necessary for the
maintenance of order and for the efficient conduct of the proceeding.
* * * * *
12. In Sec. 47.12, the introductory text is revised to read as
follows:
Sec. 47.12 Intervention.
At any time after the institution of a proceeding and before it has
been submitted to the Secretary for final consideration, the Secretary
or the examiner as defined in Sec. 47.2(i)(1) may, upon petition in
writing and for good cause show, permit any person to intervene
therein. The petition shall state with preciseness and particularity:
* * * * *
13. In Sec. 47.15, paragraphs (a)(1), (a)(2), (b) and (d)(1) are
revised to read as follows:
Sec. 47.15 Oral hearing before the examiner.
(a) When permissible. (1) Where the amount of the damages claimed,
either in the complaint or in the counterclaim, does not exceed $30,000
(excluding interest), an oral hearing shall not be held, unless deemed
necessary or desirable by the Fruit and Vegetable Programs or unless
granted by the examiner as defined in Sec. 47.2(i)(1), upon application
of complainant or respondent setting forth the peculiar circumstances
making an oral hearing necessary for a proper presentation of the case.
(2) Where the amount of damages claimed, either in the complaint or
in the counterclaim, is in excess of $30,000 (excluding interest), the
procedure provided in this section (except as provided in
Sec. 47.20(b)(2)) shall be applicable.
(b) Request for hearing. Any party may request an oral hearing on
the facts by including such request in the complaint. Failure to
request an oral hearing within the time allowed for filing of the
reply, or within 10 days after the expiration of the time allowed for
filing an answer, shall constitute a waiver of such hearing, and any
party so failing to request an oral hearing will be deemed to have
agreed that the proceeding may be decided upon a record formed under
the documentary procedure provided in Sec. 47.20.
* * * * *
(d) Appearances--(1) Representation. In any proceeding under the
Act, the parties may appear in person or by counsel or other
representative.
* * * * *
14. In Sec. 47.16, the introductory text of paragraph (a), and
paragraph (b)(1) are revised to read as follows:
Sec. 47.16 Depositions:
(a) Application for taking deposition. Upon the application of a
party to the proceeding, the examiner as defined in Sec. 47.2(i)(1)
may, except as provided in paragraph (b) of this section, at any time
after the filing of the moving papers, order, over the facsimile
signature of the Secretary, the taking of testimony by deposition. The
application shall be in writing, shall be filed with the Hearing Clerk,
and shall set forth:
* * * * *
(b) Examiner's order for taking deposition. (1) If, after
examination of the application, the examiner is of the opinion that the
deposition should be taken, or if the parties are using depositions in
lieu of affidavits pursuant to Sec. 47.20(b)(2), the examiner shall
order the taking of the deposition. In no case, except for good cause
shown, may the examiner order the taking of a deposition less than 10
days prior to the designated date of deposition. The order shall be
filed with the Hearing Clerk upon the parties in accordance with
Sec. 47.4.
* * * * *
15. In Sec. 47.17, a sentence is added at the end of paragraph (a)
to read as follows:
Sec. 47.17 Subpoenas.
(a) Issuance of subpoenas. * * * Except for good cause shown,
applications for subpoenas shall be filed with the Hearing Clerk at
least 30 days prior to the designated date of hearing or deposition.
Except for good cause shown, the examiner shall not issue subpoenas
less than 20 days prior to the designated date of hearing or
deposition.
* * * * *
16. In Sec. 47.19, paragraphs (d)(1), (d)(4), (d)(5) and (d)(6) are
revised to read as follows:
Sec. 47.19 Post-hearing procedure before the examiner.
* * * * *
(d) Claim for award of fees and expenses--(1) Filing. Prior to the
close of the hearing, or within 20 days thereafter, each party may file
with the Hearing Clerk a claim for the award of the fees and expenses
which he incurred in connection with the oral hearing. No award of fees
and expenses to the prevailing party and against the losing party shall
be made unless a claim therefor has been filed, and failure to file a
claim within the time allowed shall constitute a waiver thereof.
* * * * *
(4) Service of claim. A copy of each such claim filed shall be
served by the Hearing Clerk on the other party or parties to the
proceeding.
(5) Objections to claim. Within 20 days after being served with a
copy of a claim for fees and expenses, the party so served may file
with the Hearing Clerk written objections to the allowance of any or
all of the items claimed. If evidence is offered in support of an
objection, it must be in affidavit form. A copy of any such objections
shall be served by the Hearing Clerk on the other party or parties.
(6) Reply to objections to claim. A claimant who is served with a
copy of objections to his or her claim may, within 20 days after such
service, file with the Hearing Clerk a reply to such objection. If
evidence is offered in support of a reply, it must be in affidavit
form. A copy of any such reply shall be served by the Hearing Clerk on
the other party or parties.
* * * * *
17. In Sec. 47.20, the section heading, the first sentence in
paragraph (a), paragraphs (b)(1), (b)(2), and the introductory text of
paragraph (h) are revised to read as follows:
Sec. 47.20 Documentary procedure.
(a) In general. The documentary procedure described in this section
shall, whenever it is applicable as provided in paragraph (b) of this
section, take the place and serve in lieu of the oral hearing procedure
hereinbefore provided. Under the documentary procedure, the pleadings
of the parties, if verified in accordance with paragraph (h) of this
section, and any report of investigation filed with the hearing clerk
pursuant to Sec. 47.7 will be considered as evidence in the proceeding.
* * *
(b) When applicable--(1) Where damages claimed do not exceed
$30,000. The documentary procedure provided for in this section shall
(except as provided in Sec. 47.15(a)) be used in all reparation
proceedings in which the amount of damages claimed, either in the
complaint or in the counterclaim, does not exceed $30,000 (excluding
interest).
(2) Where damages claimed exceed $30,000. In any proceeding in
which the amount of damages claimed, either in the complaint or in the
counterclaim, is greater than $30,000 (excluding interest), the
examiner, whenever he or she is of the opinion that proof may be fairly
and adequately presented by use of the documentary procedure provided
for in this section, shall suggest to the parties that they consent to
the use of such procedure. Parties are free to consent to such
procedure if they
[[Page 38108]]
choose, and declination of consent will not affect or prejudice the
rights or interests of any party. A party, if he or she has not waived
oral hearing, may consent to the use of the documentary procedure on
the condition that depositions rather than affidavits be used. In such
case, if the other party agrees, depositions shall be required to be
filed in lieu of verified statements. If any party who has not waived
oral hearing does not consent to the use of the documentary procedure,
the proceeding will be set for oral hearing. The suggestion that the
documentary procedure be used need not originate with the examiner. Any
party may address a request to the examiner asking that the documentary
procedure be used.
* * * * *
(h) Verification. Verification shall be made under oath of any
facts set forth in the pleading or statement, by the person who signs
the pleading or statement. Certification by a notary public is
insufficient. The form of verification may be as follows:
* * * * *
18. Section 47.21 is revised to read as follows:
Sec. 47.21 Transmittal of record.
The Hearing Clerk, immediately after the filing of the examiners'
report, shall transmit to the Secretary the record of the proceeding.
Such record shall include: The pleadings; motions and requests filed,
and rulings thereon; the report of investigation conducted by the Fruit
and Vegetable Programs; the transcript or record of the testimony taken
at the hearing, together with the exhibits filed therein; any
statements or stipulations filed under the documentary procedure; any
documents or papers filed in connection with conferences; such proposed
findings of fact, conclusions, and orders and briefs as may have been
permitted to be filed in connection with the hearing as provided in
Sec. 47.19(b) and (c); such statements of objections, and briefs in
support thereof, as may have been filed in the proceeding; and the
examiner's report.
* * * * *
19. In Sec. 47.24, the section heading and paragraph (a) are
revised and a new paragraph (d) is added to read as follows:
Sec. 47.24 Rehearing, reargument, reconsideration of orders, reopening
of hearings , reopening after default.
(a) Petitions to rehear, reargue, and reconsider. A petition for
rehearing or reargument of the proceeding, or for reconsideration of
the order, shall be made by petition to the Secretary filed with the
Hearing Clerk within 20 days after the date of service of the order.
Every such petition shall state specifically the matters claimed to
have been erroneously decided and the alleged errors. If the Secretary
concludes that the questions raised by the petition have been
sufficiently considered in the issuance of the order, the Secretary
shall dismiss the petition without service on the other party.
Otherwise, the Secretary shall direct that a copy of the petition be
served upon such party by the Hearing Clerk. The filing of a petition
to rehear or reargue a proceeding, or to reconsider an order, shall
automatically operate to set aside the order pending final action on
the petition. Only one petition to rehear, reargue, or reconsider will
be accepted from each party, except when a mathematical or
typographical error appears in either the original decision and order
or in the decision on reconsideration.
* * * * *
(d) Reopening after default. The party in default in the filing of
an answer or reply required or authorized under this part may petition
to reopen the proceeding at any time prior to the expiration of 30 days
from the date of service of the default order. If, in the judgment of
the examiner, after notice to and consideration of the views of the
other party(ies), there is good reason for granting such relief, the
party in default will be allowed 20 days from the date of the order
reopening the proceeding to file an answer.
20. In Sec. 47.25, the section heading and paragraph (d) are
revised, paragraph (e) is removed and paragraph (f) is redesignated as
paragraph (e) to read as follows:
Sec. 47.25 Filing; extensions of time; effective date of filing;
computations of time; official notice.
* * * * *
(d) Computations of time. Saturdays, Sundays and holidays shall be
included in computing the time allowed for the filing of any document
or paper: Provided, That, when such time expires on a Saturday, Sunday
or Federal holiday, such period shall be extended to include the next
following business day.
* * * * *
21. Part 47 is amended by removing the words ``hearing clerk'' and
adding in their place the words ``Hearing Clerk'', everywhere they
appear.
22. Part 47 is amended by removing the word ``Division'' and adding
in its place the words ``Fruit and Vegetable Programs'', everywhere
they appear.
23. Part 47 is amended by removing the words ``Director'' and
``Director's'', and adding in their place the words ``Deputy
Administrator'' and ``Deputy Administrator's'' respectively, everywhere
they appear.
Dated: July 12, 1999.
Robert C. Keeney,
Deputy Administrator, Fruit and Vegetable Programs.
[FR Doc. 99-18047 Filed 7-14-99; 8:45 am]
BILLING CODE 3410-02-P
