8446 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

DEPARTMENT OF AGRICULTURE

Office of the Secretary of Agriculture

7 CFR Parts 0 and 1

Agricultural Marketing Service

7 CFR Parts 47, 50, 51, 52, 53, 54, and

97

Grain Inspection, Packers and

Stockyards Administration

9 CFR Chapter II and Part 202

Rules of Practice

AGENCY: Office of the Secretary of

Agriculture, USDA.

ACTION: Final rule.

SUMMARY: We are amending the Rules of

Practice Governing Formal Adjudicatory

Proceedings Instituted by the Secretary

Under Various Statutes, the Rules of

Practice Governing Cease and Desist

Proceedings Under Section 2 of the

Capper-Volstead Act, the Rules of

Practice Under the Perishable

Agricultural Commodities Act, and the

Rules of Practice Applicable to

Reparation Proceedings Under the

Packers and Stockyards Act. This final

rule provides that conferences shall be

conducted by telephone or

correspondence, hearings shall be

conducted by audio-visual

telecommunication, and depositions

shall be conducted either in the manner

agreed to by the parties or by telephone,

unless the person conducting the

proceeding determines that the

conference, hearing, or deposition may

be conducted by some other means. The

final rule also provides for the use of

recordings of hearings and depositions

and the exchange of written narrative

statements of the direct testimony prior

to hearings to be conducted by

telephone. These amendments will save

the government and those who

participate in the proceedings time and

money.

In addition, this rule amends 9 CFR

chapter II to reflect the abolishment of

the Packers and Stockyards

Administration and the establishment of

the Grain Inspection, Packers and

Stockyards Administration in the recent

Department of Agriculture

reorganization.

EFFECTIVE DATE: This final rule is

effective March 16, 1995, except for the

amendments to the chapter heading of

9 CFR chapter II and the references to

the agency name in the chapter which

are effective upon publication in the

Federal Register.

FOR FURTHER INFORMATION CONTACT:

William Jenson, Senior Counsel,

Regulatory Division, Office of the

General Counsel, USDA, room 2422,

South Building, 14th Street and

Independence Avenue SW.,

Washington, DC 20250, (202) 720–2453.

SUPPLEMENTARY INFORMATION:

Background

The Department conducts a number of

adjudicatory proceedings in which

conferences, depositions, and hearings

are held. Many of these conferences,

depositions, and hearings are conducted

by personal attendance which

necessitates travel by those who

participate in the conferences,

depositions, and hearings.

Generally, conferences at which

personal attendance is required are

attended by the person conducting the

proceeding (an administrative law

judge, hearing officer, examiner, or

presiding officer), the parties to the

proceeding, and counsel for the parties

to the proceeding. Depositions are

attended by an officer authorized to

administer oaths, a court reporter, the

parties, counsel for the parties, and the

deponent. Hearings are attended by the

person conducting the proceeding, the

parties to the proceeding, counsel for

the parties to the proceeding, a court

reporter, and witnesses called by the

parties.

The costs associated with travel to

conferences, depositions, and hearings

(meals, lodging, and actual travel

expense) are often substantial. These

travel costs burden all taxpayers and

particularly burden the individuals who

attend these proceedings. In addition to

expenditure of money, individuals

personally attending the proceedings

often must spend valuable time

traveling to and from these conferences,

depositions, and hearings.

Proposed Rule

Therefore, on February 25, 1994, we

published a document in the Federal

Register (59 FR 9114–9136) proposing

to amend the Rules of Practice

Governing Formal Adjudicatory

Proceedings Instituted by the Secretary

Under Various Statutes (7 CFR 1.130

through 1.151) (referred to as the

‘‘Uniform Rules’’ below), the Rules of

Practice Governing Cease and Desist

Proceedings Under Section 2 of the

Capper-Volstead Act (7 CFR 1.160

through 1.175) (referred to as the

‘‘Capper-Volstead Rules’’ below), the

Rules of Practice Under the Perishable

Agricultural Commodities Act

Applicable to Reparation Proceedings (7

CFR 47.1 through 47.25 and 47.46)

(referred to as the ‘‘PACA Reparation

Rules’’ below), the Rules of Practice

Under the Perishable Agricultural

Commodities Act Applicable to

Determinations as to Whether a Person

is Responsibly Connected With A

Licensee Under the Perishable

Agricultural Commodities Act (7 CFR

47.1, 47.2(a) through 47.2(h), and 47.47

through 47.68) (referred to as the

‘‘PACA Responsibly Connected Rules’’

below), and the Rules of Practice

Applicable to Reparation Proceedings

Under the Packers and Stockyards Act

(9 CFR 202.101 through 202.123)

(referred to as the ‘‘P&S Reparation

Rules’’ below). Specifically, we

proposed to provide that: (1)

Conferences may be conducted by

telephone, correspondence, audio-visual

telecommunication, or by personal

attendance of the participants; (2)

depositions and hearings may be

conducted by telephone, audio-visual

telecommunication, or personal

attendance of the participants; (3)

hearings and depositions may be

recorded rather than transcribed; and (4)

prior to a hearing, parties exchange

written narrative statements of the

direct testimony they intend to

introduce at the hearing.

Comments on the Proposed Rule

We solicited comments concerning

the proposal for a 60-day comment

period ending April 26, 1994. We

received 12 comments by that date. One

of the commenters requested that we

reopen and extend the comment period.

In response to that request, on June 22,

1994, we published a document in the

Federal Register (59 FR 32138)

reopening and extending the comment

period until July 22, 1994. We received

two additional comments by the close of

the reopening and extension of the

comment period. The fourteen

comments were from the following

organizations and individual: (1) The

Administrative Law Section of the

American Bar Association; (2) the

Agriculture Law Committee,

Administrative Law Section of the

American Bar Association; (3) the

American Meat Institute; (4) the Eastern

Meat Packers Association; (5) the

Federal Administrative Law Judges

Conference; (6) the Forum of United

States Administrative Law Judges; (7)

Janet L. Heins; (8) Holland & Knight; (9)

the Livestock Marketing Association;

(10) the National Association of

Perishable Agricultural Receivers; (11)

Olsson, Frank and Weeda, P.C.; (12) the

Society for Animal Protective

Legislation; (13) the United Fresh Fruit

& Vegetable Association; and (14) the

Western States Meat Association.
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8447

All of the commenters generally

opposed the proposed rule. However,

many of these commenters supported

some aspects of the proposal. Seven of

the commenters stated that the

Department should experiment with

adjudicatory proceedings conducted by

telecommunication, two commenters

praised the Department’s effort to save

money expended on adjudicatory

proceedings, and two of the commenters

supported the elimination of gender

specific references.

The comments and our responses to

those comments are as follows.

1. Constitutional Due Process

Ten commenters stated that a hearing

conducted by telecommunication would

violate the constitutional right to due

process.

We disagree with these comments.

Prior to drafting the proposed rule, we

carefully examined whether hearings

conducted by telecommunication

provide a full and fair evidentiary

hearing that comports with due process.

We concluded that the due process

clause does not preclude the use of

telecommunication in adjudicatory

proceedings.

The memorandum containing our

analysis and findings was placed in the

rulemaking record upon publication of

the proposed rule. As we stated in that

memorandum, due process is flexible

and calls for such procedural

protections as the particular situation

demands. Morrissey v. Brewer, 408 U.S.

471 (1972). The courts have applied a

balancing test that examines: (1) The

private interest that will be affected by

the official action; (2) the risk of an

erroneous deprivation of such interest

through the procedures used, and the

probable value, if any, of additional or

substitute procedural safeguards; and (3)

the government’s interest, including the

function involved and the fiscal and

administrative burdens that the

additional or substitute procedural

requirement would entail. Mathews v.

Eldridge, 424 U.S. 319 (1976).

The question of what process is due

requires flexibility rather than an either/

or analysis which assumes that either

face-to-face oral hearings are always

required or that face-to-face oral

hearings are never required. The

proposed rule provides such flexibility.

Hearings would be conducted by

telephone, audio-visual

telecommunication, or by the personal

attendance of any individual who is

expected to participate in the hearing.

Under the proposal, the person

conducting the proceeding would

determine which method of conducting

the hearing is to be used in a particular

instance based, in part, on the need to

conduct the hearing in a manner that

would not prejudice any of the parties

to the proceeding. (See proposed 7 CFR

1.141(b) (3) and (4), 1.168(b) (3) and (4),

47.15(c) (3) and (4), and 47.49(f) (2) and

(3) and 9 CFR 202.112(a) (3) and (4).)

Despite our view that the proposal

provides the person conducting the

proceeding with sufficient flexibility to

tailor the manner in which a hearing is

conducted so that due process is

provided, we have made changes that

address the due process concerns raised

by the commenters.

Specifically, the final rule provides

that the hearings held under the

Uniform Rules, the Capper-Volstead

Rules, the PACA Reparation Rules, the

PACA Responsibly Connected Rules,

and the P&S Reparation Rules shall be

conducted by audio-visual

telecommunication unless the person

conducting the proceeding determines

that conducting the hearing by personal

attendance of any individual who is

expected to participate in the hearing:

(1) Is necessary to prevent prejudice to

a party; (2) is necessary because of a

disability of any individual expected to

participate in the hearing; or (3) would

cost less than conducting the hearing by

audio-visual telecommunication.

The person conducting the

proceeding may, in his or her sole

discretion or in response to a motion by

a party to the proceeding, conduct the

hearing by telephone only if the person

conducting the proceeding finds that a

hearing conducted by telephone: (1)

Would provide a full and fair

evidentiary hearing; (2) would not

prejudice any party; and (3) would cost

less than conducting the hearing by

audio-visual telecommunication or

personal attendance of any individual

who is expected to participate in the

hearing. (See 7 CFR 1.141(b) (3) and (4),

1.168(b) (3) and (4), 47.15(c) (3) and (4),

and 47.49(f) (2) and (3) and 9 CFR

202.112(a) (3) and (4) in this final rule.)

2. Compliance with the Administrative

Procedure Act

Four commenters stated that a hearing

conducted by telecommunication would

violate the Administrative Procedure

Act. All four commenters stated that a

hearing conducted by

telecommunication would deprive the

parties of their right to cross-examine

witnesses in violation of 5 U.S.C.

556(d). Two commenters stated that a

hearing conducted by

telecommunication would deprive the

judge of the ability to control the

proceeding to ensure that only reliable

evidence is received. One commenter

stated that a hearing conducted by

telecommunication would deprive the

parties of the right to participate in the

hearing in violation of 5 U.S.C. 554(c)

and the right to present oral or

documentary evidence in violation of 5

U.S.C. 556(d).

We disagree with these comments.

Prior to drafting the proposed rule, we

carefully examined whether hearings

conducted by telecommunication would

violate the Administrative Procedure

Act. We concluded that the

Administrative Procedure Act does not

preclude the use of telecommunication

in adjudicatory proceedings. The

memorandum containing our analysis

and findings was placed in the

rulemaking record upon publication of

the proposed rule.

There is no provision in the

Administrative Procedure Act that

explicitly requires face-to-face

adjudicatory hearings and we found

nothing to indicate that Congress

intended to exclude the use of

telecommunication in adjudicatory

proceedings conducted pursuant to the

Administrative Procedure Act. As

previously discussed in this rulemaking

document, this final rule amends the

Uniform Rules, the Capper-Volstead

Rules, the PACA Reparation Rules, the

PACA Responsibly Connected Rules,

and the P&S Reparation Rules to

provide that the hearings shall be

conducted by audio-visual

telecommunication unless the person

conducting the proceeding determines

that conducting the hearing by personal

attendance of any individual who is

expected to participate in the hearing:

(1) Is necessary to prevent prejudice to

a party; (2) is necessary because of a

disability of any individual expected to

participate in the hearing; or (3) would

cost less than conducting the hearing by

audio-visual telecommunication. A

hearing conducted by audio-visual

telecommunication allows full crossexamination with an ability to observe

the demeanor of the witness; provides

an opportunity to transmit and receive

documents by the use of facsimile;

provides for a prior exchange of

exhibits; and allows the person

conducting the proceeding full control

of the course of the hearing. If a hearing

conducted by telecommunication would

not constitute a full and fair hearing, the

person conducting the hearing may

require a face-to-face hearing.

Further, the final rule provides that

the person conducting the proceeding

may, in his or her sole discretion or in

response to a motion by a party to the

proceeding, conduct the hearing by

telephone only if the person conducting

the proceeding finds that a hearing

conducted by telephone: (1) Would
8448 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

provide a full and fair evidentiary

hearing; (2) would not prejudice any

party; and (3) would cost less than

conducting the hearing by audio-visual

telecommunication or personal

attendance of any individual who is

expected to participate in the hearing.

Toward this end, we proposed to

amend the Uniform Rules, the CapperVolstead Rules, the PACA Reparation

Rules, the PACA Responsibly

Connected Rules, and the P&S

Reparation Rules to authorize the

person conducting a proceeding to: (1)

Require each party to provide all other

parties and the person conducting the

proceeding with a copy of any exhibit

that the party intends to introduce into

evidence prior to any hearing to be

conducted by telephone or audio-visual

telecommunication; and (2) require that

any hearing to be conducted by

telephone or audio-visual

telecommunication be conducted at

locations at which the parties and the

person conducting the proceeding are

able to transmit documents during the

hearing. These proposed provisions (see

proposed 7 CFR 1.144(c) (9) and (11),

1.173(d) (7) and (8), 47.11(c) (9) and

(11), and 47.56 (g) and (h) and 9 CFR

202.118(a) (8) and (10)) regarding the

exchange of exhibits prior to a hearing

conducted by telecommunication and

the ability to transmit documents during

a hearing conducted by

telecommunication are designed to

ensure that all parties have a full

opportunity to participate in the

hearing, present oral or documentary

evidence, and cross-examine witnesses.

We have retained these provisions in

the final rule with one minor

modification to correct an oversight in

the proposed rule. As stated above,

proposed 7 CFR 1.144(c)(11),

1.173(d)(8), 47.11(c)(11), and 47.56(h)

and 9 CFR 202.118(a)(10) would

authorize a person conducting a

proceeding to require that any hearing

to be conducted by telephone or audiovisual telecommunication be conducted

at locations at which the parties and the

person conducting the proceeding are

able to transmit documents during the

hearing. We have amended 7 CFR

1.144(c)(11), 1.173(d)(8), 47.11(c)(11),

and 47.56(h) and 9 CFR 202.118(a)(10)

to authorize a person conducting a

proceeding to require that any hearing

to be conducted by telephone or audiovisual telecommunication be conducted

at locations at which the parties and the

person conducting the proceeding are

able to transmit and receive documents

during the hearing.

3. Statutory Requirements

One commenter stated that the plain

meaning of statutes that require hearings

to be held ‘‘before the Secretary’’ is that

face-to-face hearings are required.

Therefore, any hearings under those

statutes which are conducted by

telecommunication would be

inconsistent with those statutes.

Numerous hearings conducted under

the rules of practice which this final

rule amends are conducted pursuant to

statutes that require hearings ‘‘before the

Secretary.’’ We fully examined whether

hearings conducted by

telecommunication in which some or all

of the evidence is introduced at

locations other than the location at

which the person conducting the

proceeding is situated would violate

statutes that require hearings to be

conducted ‘‘before the Secretary.’’ We

concluded that such hearings would not

violate these statutes. The memorandum

containing our analysis and findings

was placed in the rulemaking record

upon publication of the proposed rule.

A few courts have found that

telephone hearings were insufficient

due to language of the statute under

which the hearings were conducted. For

example, in Purba v. Immigration &

Naturalization Service, 884 F. 2d 516

(9th Cir. 1989), the court held that a

deportation hearing must be conducted

in the physical presence of the

immigration judge, absent the consent of

the parties, because the statute under

which the hearing was held required the

hearing to be ‘‘before’’ the judge. The

court found the plain meaning of the

word ‘‘before’’ is ‘‘in the presence of,’’

‘‘in sight of,’’ or ‘‘face-to-face with’’ a

person and that conducting the hearing

by telephone was not a hearing ‘‘before’’

the judge. However, the Supreme Court

has recently held that where Congress

has not decided, any alternative

dictionary definition of a word that has

a rational effect under a statute is a

possibility for agency choice, and the

courts are to defer to the agency’s choice

of the interpretation of the word, if it is

reasonable. National Railroad Passenger

Corp. v. Boston and Maine Corp., ll

U.S. ll, 112 S. Ct. 1394 (1992).

The eleventh circuit, applying the

rationale in National Railroad Passenger

Corp., found that a hearing conducted

by telephone did not violate the

Immigration and Nationality Act that

provides that a ‘‘[d]etermination of

deportability * * * shall be made only

on the record in a proceeding before a

special inquiry officer.’’ Bigby v. United

States Immigration and Naturalization

Service, 21 F. 3d 1059 (11th Cir. 1994).

(Emphasis added.) The eleventh circuit

explicitly rejected the argument that

‘‘before’’ was susceptible of only one

meaning. The court found that the word

‘‘before’’ did not of necessity mean ‘‘in

front of’’ or ‘‘in the presence of,’’

thereby mandating that the special

inquiry officer be physically present at

a hearing required to be held ‘‘before’’

the special inquiry officer. The court

found that ‘‘before’’ could be used in a

jurisdictional sense and mean ‘‘to be

judged or acted on by’’ or ‘‘under the

official or formal consideration of.’’ The

court, citing Chevron, U.S.A., Inc. v.

Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984), held that ‘‘[i]n

the absence of unambiguous

congressional intent, we defer to an

agency’s reasonable interpretation of a

statute it is charged with administering.

None of the statutes that require

proceedings to be conducted ‘‘before the

Secretary’’ under which hearings are

conducted pursuant to the rules of

practice amended by this final rule

define the word ‘‘before’’ nor do these

statutes provide any clear indication of

congressional intent with respect to the

meaning of the word ‘‘before’’ as used

in these statutes. Therefore, it is

reasonable for the Department to find

that the word ‘‘before,’’ as used in these

statutes, is jurisdictional and means ‘‘to

be judged or acted on by,’’ ‘‘under the

official or formal consideration of,’’ or

‘‘under the cognizance or jurisdiction

of.’’

4. Credibility Determinations

Seven commenters stated that

hearings conducted by

telecommunication negatively impact

credibility determinations. Five

commenters focused exclusively on the

need for the judge to observe demeanor

to determine credibility. One

commenter stated that it is important for

all participants to assess credibility of

other participants. Four commenters

raised the specter of witnesses reading

prepared statements without the

knowledge of all participants.

Hearings conducted by audio-visual

telecommunication do not impact

credibility determinations because the

fact finder is able to see and hear

witnesses in a hearing conducted by

audio-visual telecommunication in

much the same manner and to the same

extent as the fact finder would see and

hear witnesses in a face-to-face hearing.

Hearings conducted by telephone may,

but do not necessarily, negatively

impact credibility determinations.

While we believe that the proposal

provides the person conducting the

proceeding with sufficient flexibility to

tailor the manner in which a hearing is

conducted so that credibility
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8449

determinations are not negatively

impacted, in the final rule we made

substantial changes to these proposed

provisions which address the concerns

regarding credibility raised by the

commenters. The final rule provides

that hearings conducted under the

Uniform Rules, the Capper-Volstead

Rules, the PACA Reparation Rules, the

PACA Responsibly Connected Rules,

and the P&S Reparation Rules shall be

conducted by audio-visual

telecommunication unless the person

conducting the proceeding determines

that conducting the hearing by personal

attendance of any individual who is

expected to participate in the hearing:

(1) Is necessary to prevent prejudice to

a party; (2) is necessary because of a

disability of any individual expected to

participate in the hearing; or (3) would

cost less than conducting the hearing by

audio-visual telecommunication.

The person conducting the

proceeding may, in his or her sole

discretion or in response to a motion by

a party to the proceeding, conduct the

hearing by telephone only if the person

conducting the proceeding finds that a

hearing conducted by telephone: (1)

Would provide a full and fair

evidentiary hearing; (2) would not

prejudice any party; and (3) would cost

less than conducting the hearing by

audio-visual telecommunication or

personal attendance of any individual

who is expected to participate in the

hearing. (See 7 CFR 1.141(b) (3) and (4),

1.168(b) (3) and (4), 47.15(c) (3) and (4),

and 47.49(f) (2) and (3) and 9 CFR

202.112(a) (3) and (4) in this final rule.)

We do expect that, after the effective

date of this final rule, a number of

hearings will be conducted by telephone

based upon a finding by the person

conducting the proceeding that a

hearing conducted by telephone will

provide a full and fair evidentiary

hearing; will not prejudice any party;

and will cost less than conducting the

hearing by audio-visual

telecommunication or personal

attendance of any individual who is

expected to participate in the hearing.

Numerous courts have found that

hearings conducted by telephone do not

increase the risk of error because

witness demeanor cannot be viewed. In

Casey v. O’Bannon, 536 F. Supp. 350

(E.D. Pa. 1982), the court determined

that plaintiffs failed to prove that the

constitution compels face-to-face

hearings and that there is a risk of an

erroneous deprivation by virtue of the

telephone procedures as they currently

exist. The court was influenced by

testimony at trial showing that ‘‘hearing

examiners can effectively judge

credibility over the phone by noting

voice responses, pauses, levels of

irritation and other factors’’ and a

survey showing that 82% of examiners

who have presided over telephone

hearings believe they can judge

credibility in hearings conducted by

telephone. Id., at 353–54, citing

Attitudes Towards the Use of the

Telephone in Administrative Fair

Hearings, The California Experience, 31

Admin. L. Rev. 247 (1979).

Further, in Utica Mutual Ins. Co. v.

Vincent, 375 F.2d 129, 131 (2nd Cir.

1967), the Second Circuit stated, ‘‘Utica

finds in the due process clause of the

Fifth Amendment a requirement that

when there are issues of credibility, as

was assumed to be true here, no

determination of fact may be made

unless the decider has either seen the

witnesses himself or has been furnished

with a report as to the credibility by

another who has * * *. We discern no

such absolute in the history laden words

of the Fifth Amendment; Utica would

freeze what is usually a sensible rule of

judicial administration into a

constitutional imperative.’’ The court

further noted that when the Constitution

was adopted the settled practice in the

English chancery courts was to take

evidence almost wholly by deposition.

Id., at 131 n. 3. Utica was cited as

support in at least two other federal

cases involving the fact finder’s inability

to observe demeanor. See Moore v. Ross,

687 F.2d 604, 609–10 (2nd Cir. 1982),

cert. denied, 459 U.S. 1115 (1983); Blake

v. Ambach, 691 F.Supp. 651, 655–56

(S.D.N.Y. 1988).

Numerous state courts have also

upheld the use of telephone hearings

under circumstances in which the issue

of demeanor and credibility was raised.

In Babcock v. Employment Division, 696

P.2d 19, 21 (Or. App 1985), the court

considered credibility the most difficult

issue for unemployment compensation

telephone hearings, yet stated that while

‘‘[p]hysical appearance can be a clue to

credibility, * * * of equal or greater

importance is what a witness says and

how she says it.’’ The Oregon appellate

court was satisfied ‘‘that the audible

indicia of a witness’ demeanor are

sufficient for a referee to make an

adequate judgment as to believability.’’

Id.

In State, ex. rel. Human Services

Department v. Gomez, 657 P.2d 117,

124 (N.M. 1983), the court rejected

Gomez’s contention that the telephonic

hearing was not meaningful because his

efforts to remain on welfare depended

upon his credibility and the hearing

officer could not judge credibility

without seeing him. The court did state

that credibility may be a minimal factor

in disability determination, but ‘‘a

requirement that the hearing officer also

see Gomez testify * * * would impose

the rigidities of judicial procedure on

what is supposed to be an informal

proceeding.’’ Id., at 124–25.

5. Exchange of Direct Testimony of Each

Witness a Party Will Call

We proposed to amend the Uniform

Rules, the Capper-Volstead Rules, the

PACA Reparation Rules, the PACA

Responsibly Connected Rules, and the

P&S Reparation Rules to provide that

unless the hearing is scheduled to begin

less than 20 days after the person

conducting the proceeding issues a

notice stating the time of the hearing,

each party must exchange, in writing,

with all other parties, a verified

narrative statement of the direct

testimony of each witness that the party

will call to provide oral direct testimony

at the hearing. (See proposed 7 CFR

1.141(g), 1.168(f), 47.15(f), and 47.58(a)

and 9 CFR 202.112(e).)

One commenter objected to the

exchange of direct testimony of each

witness. Two commenters stated that

they had no objection to the exchange

of direct testimony as long as each

witness is required ‘‘to appear in court

for cross-examination.’’

The requirement that parties exchange

the written narrative statements of the

direct testimony of witnesses the parties

intend to call at a hearing may, in some

instances, necessitate a significant

expenditure of time and resources.

Based on our past experience, many

administrative proceedings conducted

under the rules of practice which we are

amending are settled just prior to the

scheduled date of hearing. In these

circumstances, the preparation and

exchange of a written verified narrative

statement of the oral direct testimony of

each witness the parties intend to call

would constitute an unnecessary

expenditure of time and resources. One

of the purposes of this final rule is to

make adjudicatory proceedings

conducted by the Department as

efficient as possible. Therefore, this

final rule limits the provisions regarding

the exchange of written verified

narrative statements of the oral direct

testimony of witnesses the parties

intend to call to hearings to be

conducted by telephone. Except as

discussed below, we have retained the

provision regarding the exchange of

written verified narrative statements of

oral direct testimony prior to hearings

conducted by telephone to expedite

these hearings, prevent surprise, ensure

that all parties have a full opportunity

to participate in the hearing and crossexamine witnesses, and assist the
8450 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

person conducting the hearing with

credibility determinations.

Proposed 7 CFR 1.141(g), 1.168(f),

47.15(f), and 47.58(a) and 9 CFR

202.112(e) would have required each

party to obtain written verified narrative

statements of oral direct testimony of all

witnesses the party intends to call to

provide oral direct testimony. Under the

proposal, testimony would be limited to

the written direct testimony.

Occasionally parties call hostile

witnesses or witnesses over whom they

have no control to provide oral direct

testimony at hearings in proceedings

conducted under the Uniform Rules, the

Capper-Volstead Rules, the PACA

Reparation Rules, the PACA

Responsibly Connected Rules, and the

P&S Reparation Rules. Requiring a party

to obtain and exchange written verified

narrative statements from hostile

witnesses and witnesses over whom a

party has no control could result in a

party’s inability to introduce relevant

and material evidence at a hearing.

Therefore, this final rule provides that

each party need only obtain and

exchange written verified narrative

statements of the oral direct testimony

of the following witnesses that the party

intends to call at hearings to be

conducted by telephone: (1) The party;

(2) the employees and agents of the

party; and (3) the party’s expert

witnesses. The oral direct testimony

provided by a witness at a hearing

conducted by telephone will be limited

to the presentation of the written direct

testimony, unless the person conducting

the hearing finds that oral direct

testimony which is supplemental to the

written direct testimony would further

the public interest and would not

constitute surprise.

6. Verbatim Recordings in Lieu of

Transcripts

We proposed to amend the Uniform

Rules, the Capper-Volstead Rules, the

PACA Reparation Rules, the PACA

Responsibly Connected Rules, and the

P&S Reparation Rules to provide for the

use of recordings of hearings, and,

where applicable, depositions. Four

commenters opposed the use of

recordings. One commenter objected to

the use of recordings of hearings and

depositions rather than transcripts, but

did not state the basis for the objection.

Three commenters stated that the

review of a recording is more timeconsuming than the review of a

transcript of the same proceeding and

the citation of relevant portions of a

recording more difficult than the

citation of relevant portions of a

transcript. Two commenters stated that

transcripts of prehearing conferences are

necessary at a hearing in order to refer

to evidentiary rulings made in

prehearing conferences and transcripts

of depositions are necessary for the

proper cross-examination of witnesses.

One commenter noted that the

Department would have to purchase

equipment to enable its counsel to

review recordings.

We made changes based on these

comments. The final rule requires that

hearings to be conducted by telephone

shall be recorded verbatim by electronic

recording device. Hearings conducted

by audio-visual telecommunication or

the personal attendance of any

individual who is expected to

participate in the hearing shall be

transcribed, unless the person

conducting the hearing finds that

recording the hearing verbatim would

expedite the proceeding and the person

conducting the hearing orders the

hearing to be recorded verbatim. The

person conducting the hearing shall

certify that to the best of his or her

knowledge and belief the recording with

exhibits that were accepted into

evidence is the record of the hearing.

The final rule provides that if a party

requests the transcript of a hearing or

part of a hearing and the person

conducting the hearing determines that

the disposition of the proceeding would

be expedited by a transcript of the

hearing or part of a hearing, the person

conducting the hearing shall order the

verbatim transcription of the recording

as requested by the party. (See 7 CFR

1.141(i), 1.168(h), 47.15(i), and 47.60

and 9 CFR 202.112(i) in this final rule.)

The final rule provides that transcripts

and recordings of hearings conducted

under the Uniform Rules and the

Capper-Volstead Rules shall be made

available to any person at actual cost of

duplication. (See 7 CFR 1.141(i) and

1.168(h) in this final rule.) We have

retained the provisions regarding the

cost and availability of transcripts that

are currently in the PACA Reparation

Rules, the PACA Responsibly

Connected Rules, and the P&S

Reparation Rules (see current 7 CFR

47.15(g) and 47.60 and 9 CFR

202.112(h)) and have applied these cost

and availability provisions to

recordings. (See 7 CFR 47.15(i) and

47.60 and 9 CFR 202.112 (i) in this final

rule.)

The discretion provided to the person

conducting the hearing to order that a

transcript be provided to a party rather

than a recording will ensure that

transcripts are available when a party

does not have access to equipment that

enables that party to use recordings.

Further, we believe that parties will be

able to review recordings as quickly as

they review transcripts by using the fast

forward and reverse modes that are

available on most recording devices. In

addition, relevant portions of recordings

can be referenced by time, revolution, or

some other method, as determined by

the person conducting the proceeding.

Prior to this rulemaking proceeding,

none of the rules of practice which are

the subject of this rulemaking

proceeding required that prehearing

conferences be recorded and we did not

propose to require the transcription of

prehearing conferences. Therefore, the

comment regarding the transcription of

prehearing conferences in order to refer

to evidentiary rulings made in

prehearing conferences is beyond the

scope of this rulemaking proceeding.

7. ‘‘Practical’’ Problems

Four commenters stated that hearings

conducted by telecommunication would

result in what the commenters

characterized as ‘‘practical problems.’’

(a) One commenter stated that

hearings conducted by

telecommunication would impair the

ability of the parties to observe

documents and call witnesses.

We proposed to amend the Uniform

Rules, the Capper-Volstead Rules, the

PACA Reparation Rules, the PACA

Responsibly Connected Rules, and the

P&S Reparation Rules to authorize the

person conducting a proceeding to: (1)

Require each party to provide all other

parties and the person conducting the

proceeding with a copy of any exhibit

that the party intends to introduce into

evidence prior to any hearing to be

conducted by telephone or audio-visual

telecommunication; and (2) require that

any hearing to be conducted by

telephone or audio-visual

telecommunication be conducted at

locations at which the parties and the

person conducting the proceeding are

able to transmit documents during the

hearing. These proposed provisions (see

proposed 7 CFR 1.144(c) (9) and (11),

1.173(d) (7) and (8), 47.11(c) (9) and

(11), and 47.56 (g) and (h) and 9 CFR

202.118(a) (8) and (10)) regarding the

exchange of exhibits prior to a hearing

conducted by telecommunication and

the ability to transmit documents during

a hearing conducted by

telecommunication are designed to

ensure that all parties have a full

opportunity to participate in the

hearing, present oral or documentary

evidence, and cross-examine witnesses.

As we stated above, we have retained

these provisions in the final rule with

one minor modification to correct an

oversight in the proposed rule.

Further, we proposed to amend the

Uniform Rules, the Capper-Volstead
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8451

Rules, the PACA Reparation Rules, the

PACA Responsibly Connected Rules,

and the P&S Reparation Rules to

provide that unless the hearing is

scheduled to begin less than 20 days

after the person conducting the

proceeding issues a notice stating the

time of the hearing, each party must

exchange, in writing, with all other

parties, the direct testimony of each

witness that the party will call to

provide oral direct testimony at the

hearing. (See proposed 7 CFR 1.141(g),

1.168(f), 47.15(f), and 47.58(a) and 9

CFR 202.112(e).) The written direct

testimony must be in narrative form and

must be verified. The written direct

testimony of witnesses shall be

exchanged by the parties at least 10 days

prior to the hearing. The oral direct

testimony provided by a witness at the

hearing will be limited to the

presentation of the written direct

testimony, unless the person conducting

the proceeding finds that oral direct

testimony which is supplemental to the

written direct testimony would expedite

the proceeding and would not constitute

surprise. These provisions regarding

exchange of direct testimony are

designed to ensure that all parties have

a full opportunity to participate in the

hearing, and cross-examine witnesses.

As discussed above, we have limited the

provisions regarding the exchange of

written verified narrative statements of

oral direct testimony to hearings to be

conducted by telephone and to certain

specified witnesses.

These provisions will ensure that

parties to adjudicatory proceedings

conducted under the rules of practice

which we are amending will have ample

opportunity to observe documents.

We do not agree with the comment

that parties will have any more

difficulty calling witnesses in a hearing

conducted by telecommunication than

parties will have when calling witnesses

in a face-to-face hearing. The

commenter did not provide any basis for

this concern.

(b) One commenter stated that no

provision can be made in hearings

conducted by telecommunication for—

the introduction of real evidence, the

examination of a witness regarding

documents that the witness has in his or

her possession on entering the

courtroom, the examination of a witness

regarding his or her ability to read at a

distance, the request that a witness draw

a picture; or any ‘‘other unexpected

events.’’

We have not made any change based

on this comment. Very few of the

hearings conducted under the rules of

practice which this final rule amends

necessitate the introduction of real

evidence, the examination of a witness

regarding documents that the witness

has in his or her possession on entering

the courtroom, the examination of a

witness regarding his or her ability to

read at a distance, or the request that a

witness draw a picture.

As discussed previously in this

rulemaking document, the final rule

provides that the person conducting the

proceeding may require hearings

conducted by telecommunication to be

held at locations at which the parties

and the person conducting the

proceeding are able to transmit and

receive documents during the hearing.

This requirement will enable parties to

examine witnesses regarding documents

that the witness has in his or her

possession on entering the courtroom

and the ability to read at a distance, and

to request witnesses to draw pictures or

diagrams in hearings conducted by

telecommunication.

If real evidence is to be introduced in

a hearing, the hearing or that part of the

hearing in which the real evidence is to

be introduced can be conducted by the

personal attendance of those who are to

participate in the hearing. As stated

above, the person conducting the

proceeding can require the hearing to be

conducted by personal attendance of

any individual who is expected to

participate in the hearing if personal

attendance is necessary to prevent

prejudice to a party. The inability of a

party to introduce admissible evidence

because a hearing is conducted by

telecommunication may prejudice a

party, and, in such circumstances, a

face-to-face hearing will be conducted.

(c) Two commenters stated that

hearings conducted by

telecommunication would reduce the

appearance of justice.

We disagree with the comment and

have not made any change based on this

comment. The quality of justice will not

be affected by this final rule. If any party

will be prejudiced by a hearing

conducted by telecommunication, the

person conducting the proceeding will

require the hearing to be conducted by

personal attendance of any individual

who is expected to participate in the

hearing. The use of audio-visual

technology preserves due process,

promotes ease of participation by those

for whom travel is difficult, and allows

each party and the person conducting

the proceeding to participate fully and

with the effect of face-to-face

confrontation. Therefore, we believe

that this final rule will in fact heighten

the appearance and fact of justice done.

(d) Two commenters stated that

hearings conducted by

telecommunication would make

sequestration difficult.

A person conducting a hearing by

telecommunication could order

sequestration in the same manner in

which it is ordered in a face-to-face

hearing. We agree that, in most

situations, the person conducting a

hearing by telecommunication will not

be in a position to determine whether a

sequestration order has been followed.

We expect that all parties in

adjudicatory proceedings conducted by

the Department and counsel to those

parties will make every effort to comply

with lawful orders issued by the person

conducting the proceeding.

(e) Two commenters stated that

hearings conducted by

telecommunication would make

recesses impractical.

We disagree and have made no

change based on these comments.

Recesses can be called as easily in a

hearing conducted by

telecommunication as in a hearing

conducted by personal attendance of

those involved with the hearing.

(f) Four commenters stated that

prompting witnesses at hearings

conducted by telecommunication would

be difficult to control.

Prompting of witnesses can occur in

face-to-face hearings, but we do agree

that, in some situations, it may be more

difficult for a person conducting a

hearing to detect witness prompting at

a hearing conducted by

telecommunication than to detect

witness prompting at a hearing

conducted by personal attendance of

participants. However, prompting of

witnesses in hearings conducted by

audio-visual telecommunication will be

far more difficult to conceal from other

parties and the person conducting a

hearing than in hearings conducted by

telephone. In fact, current audio-visual

technology can provide the person

conducting the proceeding and the

parties with virtually unlimited vision

in the room in which a hearing is being

conducted. We believe that the potential

prompting problem is minimized by

making audio-visual hearings the

prevalent method of hearing.

(g) Two commenters stated that

hearings conducted by

telecommunication could be negated by

a signal or power failure or electronic

interference.

We disagree. If a signal or power

failure were to occur, the hearing would

be adjourned until such time as the

hearing could be resumed. That portion

of the hearing which is completed prior

to the signal or power failure would not

be negated. A signal or power failure

which causes the adjournment of a
8452 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

hearing conducted by

telecommunication is not different than

an event, such as a power failure or fire

in the building in which a hearing is

being conducted, that may cause the

person conducting a face-to-face hearing

to temporarily adjourn a hearing.

(h) One commenter stated that the

rules of practice would be subject to

challenge which would add to

uncertainty and cost money to defend.

While proceedings conducted by

telecommunication could be challenged,

we believe that these challenges can be

easily defended. Above, we cited a

number of cases in which adjudicatory

proceedings conducted by

telecommunication have been

challenged, and the state and federal

agencies conducting proceedings by

telecommunication have prevailed.

(i) Two commenters stated that

hearings conducted by

telecommunication would often

necessitate the employment of multiple

counsel by each party to observe

witness demeanor at each location at

which a hearing is being held.

The final rule does not require

counsel to be present at the location at

which a witness is testifying in a

proceeding conducted by

telecommunication. While we do not

believe that the presence of counsel at

each location at which witnesses testify

is necessary, a party may chose to have

counsel present at some or all of the

locations at which witnesses testify in

hearings conducted by

telecommunication. Such an

expenditure would be at the option of

each party to the proceeding.

8. The Rulemaking Record

Six commenters stated that the

rulemaking record is deficient.

(a) Four commenters stated that the

cost-benefit analysis is inadequate or

nonexistent.

We have not made any change based

upon these comments. In accordance

with Executive Order 12866, we

prepared an assessment in connection

with the preparation of the notice of

proposed rulemaking which preceded

this final rule. The assessment, which

was included in the rulemaking record,

contains a discussion of the costs and

benefits associated with the proposed

rule. Again, in accordance with

Executive Order 12866, we prepared an

assessment in connection with the

preparation of this final rule. The

assessment, which was included in the

rulemaking record, contains a

discussion of the costs and benefits

associated with the final rule.

(b) Two commenters stated that there

was no ‘‘justification of the technical

feasibility of conducting crossexamination via audio-visual devices.’’

We have not made any change based

upon these comments. Prior to

preparing the proposed rule, we

thoroughly examined the range of

equipment available to conduct

adjudicatory proceedings by

telecommunication. We found that both

the telephone and audio-visual

telecommunication equipment are

generally adequate to conduct crossexaminations. Again, the final rule

amends the Uniform Rules, the CapperVolstead Rules, the PACA Reparation

Rules, the PACA Responsibly

Connected Rules, and the P&S

Reparation Rules, to provide that

hearings will be conducted by the

personal attendance of any individual

who is expected to participate in the

hearing if the person conducting the

proceeding finds that personal

attendance: (1) Is necessary to prevent

prejudice to a party; (2) is necessary

because of a disability of any individual

expected to participate in the hearing; or

(3) would cost less than conducting the

hearing by audio-visual

telecommunication. The person

conducting the proceeding may, in his

or her sole discretion or in response to

a motion by a party to the proceeding,

conduct the hearing by telephone only

if the person conducting the proceeding

finds that a hearing conducted by

telephone: (1) would provide a full and

fair evidentiary hearing; (2) would not

prejudice any party; and (3) would cost

less than conducting the hearing by

audio-visual telecommunication or

personal attendance of any individual

who is expected to participate in the

hearing.

(c) One commenter stated that it did

not have adequate notice of the

proposed rule, and, therefore, the

comment period should be extended.

On June 22, 1994, in response to this

comment, we published a document in

the Federal Register (59 FR 32138)

reopening and extending the comment

period until July 22, 1994.

9. Suggestions

(a) Five commenters stated that the

Department should experiment with

proceedings conducted by

telecommunication on a limited basis.

We have not made any change based

on these comments. The use of

telecommunication in adjudicatory

proceedings is not new. Numerous state

and federal agencies have conducted

adjudicatory proceedings by

telecommunication in the past. We

believe that experience of other state

and federal agencies is sufficient to

enable the Department to forego the

implementation of telecommunication

on an experimental basis.

(b) Five commenters stated that

hearings should only be conducted by

telecommunication when the parties

agree.

We have not made any change based

on this comment. The final rule

provides the parties with ample

opportunity to make the person

conducting the proceeding aware of the

parties’ preferences regarding the

manner in which the hearing should be

conducted and to persuade the person

conducting the proceeding to conduct

the hearing in a manner other than that

ordered by the person conducting the

proceeding. Specifically, the final rule

amends the Uniform Rules, the CapperVolstead Rules, the PACA Reparation

Rules, the PACA Responsibly

Connected Rules, and the P&S

Reparation Rules to provide that any

party may move that the hearing be

conducted by telephone or personal

attendance of any individual expected

to attend the hearing rather than by

audio-visual telecommunication.

Further, within 10 days after the person

conducting the proceeding issues a

notice stating the manner in which the

hearing is to be conducted, any party

may move that the person conducting

the proceeding reconsider the manner in

which the hearing is to be conducted.

(See 7 CFR 1.141(b)(2), 1.168(b)(2),

47.15(c)(2), and 47.53 (b) and (c) and 9

CFR 202.112(b) (2) and (3) in this final

rule.)

(c) Two commenters stated that the

parties should elect the manner in

which depositions are to be held and

judges should only be involved if the

parties cannot agree.

We agree with the commenters with

respect to the PACA Reparation Rules

and the P&S Reparation Rules. We

proposed to amend the Uniform Rules,

the PACA Reparation Rules, and the

P&S Reparation Rules to provide that a

deposition shall be conducted by

telephone unless the person conducting

the proceeding determines that

conducting the deposition by audiovisual telecommunication: (1) Would

cost less than conducting the deposition

by telephone; (2) is necessary to prevent

prejudice to a party; or (3) is necessary

because of a disability of any individual

expected to participate in the

deposition. If the deposition is not

conducted by telephone, the deposition

shall be conducted by audio-visual

telecommunication unless the person

conducting the proceeding determines

that conducting the deposition by

personal attendance of any individual

who is expected to participate in the

deposition: (1) Would cost less than
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8453

conducting the deposition by telephone

or audio-visual telecommunication; (2)

is necessary to prevent prejudice to a

party; or (3) is necessary because of a

disability of any individual expected to

participate in the deposition.

However, the government is never a

party in proceedings conducted under

the PACA Reparation Rules and the P&S

Reparation Rules and incurs very little

cost associated with depositions taken

in PACA and P&S reparation

proceedings. Therefore, the final rule

provides that in proceedings conducted

under the PACA Reparation Rules and

the P&S Reparation Rules the parties

may agree upon the manner in which

the depositions are to be conducted and

the person conducting the proceeding

will only determine the manner in

which a deposition is to be conducted

when the parties cannot agree. (See 7

CFR 47.16(b) (3) and (4) and 9 CFR

202.109(d) (4) and (5) in this final rule.)

(d) One commenter opposed the

proposal, but urged the Department to

modernize its rules and to form an ad

hoc committee to review the rules.

We welcome any comments or

petitions for rulemaking which any

interested member of the public may

wish to make regarding any of the

Department’s rules of practice, but we

do not believe that it is necessary to

form a committee to review the

Department’s rules or practice. The

Department regulation regarding

petitions for issuance, amendment, or

repeal of a rule is set forth in 7 CFR

1.28.

(e) Two commenters supported

conducting conferences by telephone

when the judge decides that the use of

the telephone is appropriate.

We did not make any change based on

these comments. The proposed rule

provided that conferences are to be held

either by telephone or by

correspondence unless certain findings

are made by the person conducting the

proceeding. The final rule retains those

provisions.

Conclusion

Based on the rationale in the

proposed rule and this rulemaking

document, we are adopting the

provisions of the proposal as a final rule

except as previously discussed in this

rulemaking document and except for

minor editorial changes for clarity. In

addition, since the preparation of the

notice of proposed rulemaking 7 CFR

180.300 has been redesignated as 7 CFR

97.300. Therefore, we have removed the

amendment of 7 CFR 180.300 in this

final rule and, instead, amended 7 CFR

97.300.

Further, based upon the general need

to allow the person conducting the

proceeding to tailor the manner in

which the proceeding is conducted to

prevent prejudice to any party and to

ensure that any hearing is a full and fair

evidentiary hearing, we have eliminated

all of the provisions which appeared in

the proposal concerning interlocutory

appeal. Specifically, we proposed to

amend 7 CFR 1.143(e) to allow any

party to appeal to the Judicial Officer a

Judge’s order: (1) To conduct a

conference by audio-visual

telecommunication or personally attend

a conference; (2) to conduct a hearing by

audio-visual telecommunication or

personally attend a hearing; or (3) to

conduct a deposition by audio-visual

telecommunication or personally attend

a deposition. Further, we proposed to

amend 7 CFR 47.13(b) to allow any

party to appeal to the Secretary an

examiner’s order: (1) To conduct a

conference by audio-visual

telecommunication or personally attend

a conference; (2) to conduct a hearing by

audio-visual telecommunication or

personally attend a hearing; or (3) to

conduct a deposition by audio-visual

telecommunication or personally attend

a deposition. Further still, we proposed

to amend 7 CFR 1.172(e) to allow any

party to appeal to the Judicial Officer a

Judge’s order: (1) To conduct a

conference by audio-visual

telecommunication or personally attend

a conference; or (2) to conduct a hearing

by audio-visual telecommunication or

personally attend a hearing. Finally, we

proposed to amend 9 CFR 202.118(b) to

allow any party to appeal to the Judicial

Officer a presiding officer’s order: (1) To

conduct a conference by audio-visual

telecommunication or personally attend

a prehearing conference; (2) to conduct

an oral hearing by audio-visual

telecommunication or personally attend

an oral hearing; or (3) to conduct a

deposition by audio-visual

telecommunication or personally attend

a deposition. None of these proposed

amendments concerning interlocutory

appeal have been adopted in this final

rule.

Further, the proposed rule amended

the Uniform Rules, the PACA

Responsibly Connected Rules, and the

P&S Reparation Rules to require

hearings to be recorded verbatim by an

electronic recording device. Only if a

party to the proceeding requests a

transcript of the hearing or a part of the

hearing and the person conducting the

proceeding determines that the

disposition of the proceeding would be

expedited by a transcript of the hearing

could the person conducting the

proceeding order the verbatim

transcription of the recording as

requested by the party. We proposed to

require that any presiding person’s

order to transcribe a hearing and the

basis for the order be reduced to a

written order and filed with the Hearing

Clerk. We have eliminated the

requirement that the order of the person

conducting the proceeding and the basis

of that order be reduced to a written

order and filed with the Hearing Clerk.

(See 7 CFR 1.141(i) and 47.60 and 9 CFR

202.112(i) in this final rule.) We do not

believe that an order regarding

transcription of a hearing must be

handled in a manner different than any

other order issued by the person

conducting the proceeding.

Finally, the Department will bear the

entire cost of audio-visual transmission

and only some of the travel costs related

to face-to-face hearings, conferences,

and depositions. Therefore, there could

be rare circumstances in which the

overall cost of conducting a conference,

hearing, or deposition by audio-visual

telecommunication may be cheaper than

conducting the same conference,

hearing, or deposition in some other

manner and at the same time the

Department’s cost of conducting the

conference, hearing, or deposition by

audio-visual telecommunication could

be higher than conducting that

conference, hearing, or deposition in

some other manner. In order to avoid a

measurable increase in costs to the

Department, this final rule provides that

if the person conducting the proceeding

finds that a hearing or deposition

conducted by audio-visual

telecommunication would measurably

increase costs to the Department, the

hearing or deposition shall be

conducted by personal attendance or by

telephone. If the person conducting the

proceeding finds that a conference

conducted by audio-visual

telecommunication would measurably

increase costs to the Department, the

conference shall be conducted by

personal attendance, by telephone, or by

correspondence. (See 7 CFR 1.140(c),

1.141(b), 1.148(b), 1.167(b), 1.168(b),

47.14(c), and 47.15(c), and 9 CFR

202.110(b) and 202.112(a) in this final

rule.) We did not make this change with

respect to depositions conducted under

the PACA Reparation Rules or the P&S

Reparation Rules because the

government is never a party in

proceedings conducted under those

rules and incurs very little cost

associated with depositions taken in

PACA and P&S reparation proceedings.
8454 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

Establishment of the Grain Inspection,

Packers and Stockyards Administration

Pursuant to Public Law 103–354, the

Federal Crop Insurance Reform and

Department of Agriculture

Reorganization Act of 1994, the

Secretary of Agriculture published a

notice of the Department’s

reorganization establishing the Grain

Inspection, Packers and Stockyards

Administration (59 FR 66517). This rule

includes amendments to 9 CFR chapter

II which are necessary to bring agency

regulations in alignment with the

departmental reorganization.

Executive Order 12866 and Regulatory

Flexibility Act

We are issuing this final rule in

conformance with Executive Order

12866. This rule has been determined to

be significant and has been reviewed by

the Office of Management and Budget

under Executive Order 12866.

This final rule provides for

conducting certain conferences,

depositions, and hearings in connection

with proceedings under the Uniform

Rules, the Capper-Volstead Rules, the

PACA Reparation Rules, the PACA

Responsibly Connected Rules, and the

P&S Reparation Rules by

telecommunication. Further, the final

rule provides for the use of recordings

in connection with depositions and

hearings conducted under the Uniform

Rules, the Capper-Volstead Rules, the

PACA Reparation Rules, the PACA

Responsibly Connected Rules, and the

P&S Reparation Rules. Finally, this final

rule requires each party to exchange, in

writing, with all other parties in the

proceeding a verified narrative

statement of the oral direct testimony of

certain specified witnesses the party

intends to call in hearings to be

conducted by telephone. These

amendments are designed to save

money associated with the purchase of

transcripts and time and money

associated with travel to conferences,

depositions, and hearings.

Most of the costs of the proceedings

conducted under the Uniform Rules, the

Capper-Volstead Rules, the PACA

Reparation Rules, the PACA

Responsibly Connected Rules, and the

P&S Reparation Rules are borne by the

United States, which is not a small

entity. The vast majority of conferences,

hearings, and depositions held under

the rules we are amending are

conducted at locations convenient to the

private individuals participating in the

proceeding. Therefore, the United States

will incur most of the costs associated

with travel in connection with the

proceedings. Further, most conferences

held under the rules that we are

amending are currently held by

telephone, unless the conference is held

during the hearing. Therefore, this final

rule will not result in a change with

respect to the manner in which most

conferences are conducted.

Nonetheless, we believe that private

individuals who participate in

conferences, depositions, and hearings

conducted by telecommunication,

which will be paid for by the United

States, will reduce costs which are

associated with travel, even to

convenient locations, and private

parties who participate in these

proceedings will save the difference

between the cost of transcripts and

recordings in depositions and hearings

in which recordings are used.

Most of the private individuals who

participate in proceedings conducted

under the Uniform Rules, the CapperVolstead Rules, the PACA Reparation

Rules, the PACA Responsibly

Connected Rules, and the P&S

Reparation Rules are small entities. This

final rule will result in a small

economic impact on private individuals

who participate in the proceedings in

question.

Under these circumstances, the

Secretary has determined that this

action will not have a significant

economic impact on a substantial

number of small entities.

Executive Order 12778

This rule has been reviewed under

Executive Order 12778, Civil Justice

Reform. This rule: (1) Preempts all State

and local laws and regulations that are

inconsistent with this rule; (2) has no

retroactive effect; and (3) does not

require administrative proceedings

before parties may file suit in court

challenging this rule.

Paperwork Reduction Act

The Paperwork Reduction Act of 1980

does not apply to this rule because the

rule does not seek answers to identical

questions or impose reporting or record

keeping requirements on 10 or more

persons, and the information collected

is not used for general statistical

purposes.

List of Subjects

7 CFR Part 0

Conflict of interest.

7 CFR Part 1

Administrative practice and

procedure, Agriculture, Antitrust, Blind,

Claims, Concessions, Cooperatives,

Equal access to justice, Federal

buildings and facilities, Freedom of

information, Lawyers, Privacy.

7 CFR Part 47

Administrative practice and

procedure, Agricultural commodities,

Agricultural Marketing Service, Brokers.

7 CFR Part 50

Administrative practice and

procedure, Agricultural commodities,

Agricultural Marketing Service.

7 CFR Part 51

Agricultural commodities, Food

grades and standards, Fruits, Nuts,

Reporting and recordkeeping

requirements, Vegetables.

7 CFR Part 52

Food grades and standards, Food

labeling, Frozen foods, Fruit juices,

Fruits, Reporting and recordkeeping

requirements, Vegetables.

7 CFR Part 53

Cattle, Hogs, Livestock, Sheep.

7 CFR Part 54

Food grades and standards, Food

labeling, Meat and meat products.

7 CFR Part 97

Administrative practice and

procedure, Labeling, Plants.

9 CFR Part 202

Agriculture, Animals, Administrative

practice and procedure, Reparation

proceedings.

Accordingly, 7 CFR part 0, part 1,

subpart H and subpart I, part 47, part 50,

part 51, part 52, part 53, part 54, and

part 97 and 9 CFR part 202 are amended

as follows:

TITLE 7—[AMENDED]

SUBTITLE A—OFFICE OF THE SECRETARY

OF AGRICULTURE

PART 0—EMPLOYEE

RESPONSIBILITIES AND CONDUCT

1. The authority citation for part 0 is

revised to read as follows:

Authority: E.O. 11222, 30 FR 6469, 3 CFR,

1965 Comp., page 306; 5 CFR 735.104; 18

U.S.C. 207(j), unless otherwise noted.

§ 0.735–11 [Amended]

2. Section 0.735–11 is amended as

follows:

a. In paragraph (b)(6), by adding the

words ‘‘or such monitoring or recording

occurs in the course of a Department of

Agriculture proceeding conducted by

telephone or audio-visual

telecommunication and the person

conducting the proceeding is an

administrative law judge, hearing

officer, examiner, or presiding officer’’

immediately before the semicolon.
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8455

3The 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.

b. In paragraph (b)(7), by adding the

words ‘‘or such monitoring or recording

occurs in the course of a Department of

Agriculture proceeding conducted by

telephone or audio-visual

telecommunication and the person

conducting the proceeding is an

administrative law judge, hearing

officer, examiner, or presiding officer’’

immediately before the semicolon.

PART 1—ADMINISTRATIVE

REGULATIONS

3. The authority citation for part 1,

subpart H, is revised to read as follows:

Authority: 5 U.S.C. 301; 7 U.S.C. 61, 87e,

149, 150gg, 162, 163, 164, 228, 268, 499o,

608c(14), 1592, 1624(b), 2151, 2621, 2714,

2908, 3812, 4610, 4815, 4910; 15 U.S.C. 1828;

16 U.S.C. 620d, 1540(f), 3373; 21 U.S.C. 104,

111, 117, 120, 122, 127, 134e, 134f, 135a,

154, 463(b), 621, 1043; 43 U.S.C. 1740; 7 CFR

2.35, 2.41.

§ 1.131 [Amended]

4. In § 1.131, paragraph (a), the second

sentence is revised to read ‘‘Section 1.26

shall be inapplicable to proceedings

covered by this subpart.’’

§ 1.132 [Amended]

5. Section 1.132 is amended as

follows:

a. In paragraph (d), the reference to

‘‘459g’’ is removed and ‘‘450g’’ added in

its place.

b. In paragraph (d), the reference to

‘‘1970 ed. appendix, p. 550’’ is removed

and ‘‘App. (1988)’’ added in its place.

c. In paragraph (d), the reference to ‘‘7

CFR 2.35(a)’’ is removed and ‘‘§ 2.35(a)

of this chapter’’ added in its place.

d. Section 1.132 is amended by

removing all alphabetical paragraph

designations and placing the definitions

in alphabetical order.

§ 1.133 [Amended]

6. In § 1.133, paragraph (a)(1), the first

sentence is amended by removing the

words ‘‘of this subpart’’.

§ 1.140 [Amended]

7. In § 1.140, the section heading is

revised to read as set forth below;

paragraph (a)(1) introductory text is

amended by removing the word

‘‘prehearing’’ and revising the second

sentence to read ‘‘Reasonable notice of

the time, place, and manner of the

conference shall be given.’’; paragraph

(b) is amended by removing the word

‘‘prehearing’’; and paragraph (c) is

revised to read as follows:

§ 1.140 Conferences and procedure.

* * * * *

(c) Manner of Conference. (1) The

conference shall be conducted by

telephone or correspondence unless the

Judge determines that conducting the

conference by audio-visual

telecommunication:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the conference; or

(iii) Would cost less than conducting

the conference by telephone or

correspondence. If the Judge determines

that a conference conducted by audiovisual telecommunication would

measurably increase the United States

Department of Agriculture’s cost of

conducting the conference, the

conference shall be conducted by

personal attendance of any individual

who is expected to participate in the

conference, by telephone, or by

correspondence.

(2) If the conference is not conducted

by telephone or correspondence, the

conference shall be conducted by audiovisual telecommunication unless the

Judge determines that conducting the

conference by personal attendance of

any individual who is expected to

participate in the conference:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the conference; or

(iii) Would cost less than conducting

the conference by audio-visual

telecommunication.

* * * * *

§ 1.141 [Amended]

8. Section 1.141 is amended as

follows:

a. Paragraph (b) is revised to read as

set forth below.

b. Paragraph (e) is amended by

removing the words ‘‘of these rules’’

both times they appear.

c. Paragraph (g)(7) is amended by

adding the words ‘‘or recording’’

immediately after the word ‘‘transcript’’

each of the three times the word

‘‘transcript’’ appears.

d. Paragraphs (g) and (h) are

redesignated as paragraphs (h) and (i)

respectively.

e. New paragraph (g) is added to read

as set forth below.

f. Redesignated paragraph (i) is

revised to read as set forth below.

§ 1.141 Procedure for hearing.

* * * * *

(b) Time, place, and manner. (1) If

any material issue of fact is joined by

the pleadings, the Judge, upon motion of

any party stating that the matter is at

issue and is ready for hearing, shall set

a time, place, and manner for hearing as

soon as feasible after the motion is filed,

with due regard for the public interest

and the convenience and necessity of

the parties. The Judge shall file with the

Hearing Clerk a notice stating the time

and place of the hearing.3 This notice

shall state whether the hearing will be

conducted by telephone, audio-visual

telecommunication, or personal

attendance of any individual expected

to participate in the hearing. The Judge’s

determination regarding the manner of

the hearing shall be made in accordance

with paragraphs (b)(3) and (b)(4) of this

section. If any change in the time, place,

or manner of the hearing is made, the

Judge shall file with the Hearing Clerk

a notice of such change, which notice

shall be served upon the parties, unless

it is made during the course of an oral

hearing and made part of the transcript

or recording, or actual notice is given to

the parties.

(2) (i) If any material issue of fact is

joined by the pleadings and the matter

is at issue and is ready for hearing, any

party may move that the hearing be

conducted by telephone or personal

attendance of any individual expected

to attend the hearing rather than by

audio-visual telecommunication. Any

motion that the hearing be conducted by

telephone or personal attendance of any

individual expected to attend the

hearing must be accompanied by a

memorandum in support of the motion

stating the basis for the motion and the

circumstances that require the hearing

to be conducted other than by audiovisual telecommunication.

(ii) Within 10 days after the Judge

issues a notice stating the manner in

which the hearing is to be conducted,

any party may move that the Judge

reconsider the manner in which the

hearing is to be conducted. Any motion

for reconsideration must be

accompanied by a memorandum in

support of the motion stating the basis

for the motion and the circumstances

that require the hearing to be conducted

other than in accordance with the

Judges’s notice.
8456 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

(3) The hearing shall be conducted by

audio-visual telecommunication unless

the Judge determines that conducting

the hearing by personal attendance of

any individual who is expected to

participate in the hearing:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the hearing; or

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication. If the Judge

determines that a hearing conducted by

audio-visual telecommunication would

measurably increase the United States

Department of Agriculture’s cost of

conducting the hearing, the hearing

shall be conducted by personal

attendance of any individual who is

expected to participate in the hearing or

by telephone.

(4) The Judge may, in his or her sole

discretion or in response to a motion by

a party to the proceeding, conduct the

hearing by telephone if the Judge finds

that a hearing conducted by telephone:

(i) Would provide a full and fair

evidentiary hearing;

(ii) Would not prejudice any party;

and

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication or personal

attendance of any individual who is

expected to participate in the hearing.

* * * * *

(g) Written statements of direct

testimony. (1) Except as provided in

paragraph (g)(2) of this section, each

party must exchange with all other

parties a written narrative verified

statement of the oral direct testimony

that the party will provide at any

hearing to be conducted by telephone;

the direct testimony of each employee

or agent of the party that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone; and the direct testimony of

each expert witness that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone. The written direct testimony

of witnesses shall be exchanged by the

parties at least 10 days prior to the

hearing. The oral direct testimony

provided by a witness at a hearing

conducted by telephone will be limited

to the presentation of the written direct

testimony, unless the Judge finds that

oral direct testimony which is

supplemental to the written direct

testimony would further the public

interest and would not constitute

surprise.

(2) The parties shall not be required

to exchange testimony in accordance

with this paragraph if the hearing is

scheduled to begin less than 20 days

after the Judge’s notice stating the time

of the hearing.

* * * * *

(i) Transcript or recording. (1)

Hearings to be conducted by telephone

shall be recorded verbatim by electronic

recording device. Hearings conducted

by audio-visual telecommunication or

the personal attendance of any

individual who is expected to

participate in the hearing shall be

transcribed, unless the Judge finds that

recording the hearing verbatim would

expedite the proceeding and the Judge

orders the hearing to be recorded

verbatim. The Judge shall certify that to

the best of his or her knowledge and

belief any recording made pursuant to

this paragraph with exhibits that were

accepted into evidence is the record of

the hearing.

(2) If a hearing is recorded verbatim,

a party requests the transcript of a

hearing or part of a hearing, and the

Judge determines that the disposition of

the proceeding would be expedited by

a transcript of the hearing or part of a

hearing, the Judge shall order the

verbatim transcription of the recording

as requested by the party.

(3) Recordings or transcripts of

hearings shall be made available to any

person at actual cost of duplication.

§ 1.142 [Amended]

9. Section 1.142 is amended as

follows:

a. In paragraph (a), the heading is

amended by adding the words ‘‘or

recording’’ immediately after the word

‘‘transcript’’.

b. Paragraph (a)(1) is amended by

adding the words ‘‘or recording’’

immediately after the word ‘‘transcript’’.

c. Paragraph (a)(2) is amended by

adding the words ‘‘or recording’’

immediately after the word ‘‘transcript’’

both times the word ‘‘transcript’’

appears.

d. Paragraph (a)(3) is amended by

adding the words ‘‘or recording’’

immediately after the word ‘‘transcript’’

each of the three times the word

‘‘transcript’’ appears.

e. Paragraph (c)(2) is amended by

removing the words ‘‘of the record’’ and

adding the words ‘‘or recording’’ in their

place.

§ 1.144 [Amended]

10. Section 1.144 is amended as

follows:

a. Paragraph (c)(2) is revised to read

as set forth below.

b. Paragraphs (c)(9) and (c)(10) are

redesignated as paragraphs (c)(13) and

(c)(14) respectively.

c. New paragraphs (c)(9), (c)(10),

(c)(11), and (c)(12) are added to read as

set forth below.

§ 1.144 Judges.

* * * * *

(c) * * *

(2) Set the time, place, and manner of

a conference and the hearing, adjourn

the hearing, and change the time, place,

and manner of the hearing;

* * * * *

(9) Require each party to provide all

other parties and the Judge with a copy

of any exhibit that the party intends to

introduce into evidence prior to any

hearing to be conducted by telephone or

audio-visual telecommunication;

(10) Require each party to provide all

other parties with a copy of any

document that the party intends to use

to examine a deponent prior to any

deposition to be conducted by

telephone or audio-visual

telecommunication;

(11) Require that any hearing to be

conducted by telephone or audio-visual

telecommunication be conducted at

locations at which the parties and the

Judge are able to transmit and receive

documents during the hearing;

(12) Require that any deposition to be

conducted by telephone or audio-visual

telecommunication be conducted at

locations at which the parties are able

to transmit and receive documents

during the deposition;

* * * * *

§ 1.145 [Amended]

11. Section 1.145 is amended as

follows:

a. In paragraph (a), the reference to

‘‘§ 1.141(g)(2)’’ is removed and

‘‘§ 1.141(h)(2)’’ added in its place.

b. In paragraph (c), the second

sentence is amended by adding the

words ‘‘or recording’’ immediately after

the word ‘‘transcript’’.

§ 1.147 [Amended]

12. In section 1.147, paragraph (c)(2)

is amended by removing the words ‘‘of

this part’’; and paragraph (d) is amended

by removing the words ‘‘of this part’’.

§ 1.148 [Amended]

13. Section 1.148 is amended as

follows:

a. Paragraph (b) is revised to read as

set forth below:

b. In paragraph (f), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ in the paragraph

heading; in paragraph (f)(1), once; in

paragraph (f)(2), twice; and in paragraph

(f)(3), twice.

§ 1.148 Depositions.

* * * * *
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8457

(b) Judge’s order for taking deposition.

(1) If the Judge finds that the testimony

may not be otherwise available at the

hearing, the taking of the deposition

may be ordered. The order shall be filed

with the Hearing Clerk and shall state:

(i) The time of the deposition;

(ii) The place of the deposition;

(iii) The manner of the deposition

(telephone, audio-visual

telecommunication, or personal

attendance of those who are to

participate in the deposition);

(iv) The name of the officer before

whom the deposition is to be made; and

(v) The name of the deponent. The

officer and the time, place, and manner

need not be the same as those suggested

in the motion for the deposition.

(2) The deposition shall be conducted

by telephone unless the Judge

determines that conducting the

deposition by audio-visual

telecommunication:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the deposition; or

(iii) Would cost less than conducting

the deposition by telephone. If the Judge

determines that a deposition conducted

by audio-visual telecommunication

would measurably increase the United

States Department of Agriculture’s cost

of conducting the deposition, the

deposition shall be conducted by

personal attendance of any individual

who is expected to participate in the

deposition or by telephone.

(3) If the deposition is not conducted

by telephone, the deposition shall be

conducted by audio-visual

telecommunication unless the Judge

determines that conducting the

deposition by personal attendance of

any individual who is expected to

participate in the deposition:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the deposition; or

(iii) Would cost less than conducting

the deposition by telephone or audiovisual telecommunication.

* * * * *

§ 1.149 [Amended]

14. In § 1.149, paragraph (b), the last

sentence is amended by removing the

words ‘‘of this part’’.

15. The authority citation for part 1,

subpart I, is revised to read as follows:

Authority: 7 U.S.C. 291, 292; 7 CFR 2.35,

2.41.

§ 1.161 [Amended]

16. Section 1.161 is amended as

follows:

a. In paragraph (c), the words ‘‘or her’’

are added immediately after the word

‘‘his’’.

b. In paragraph (g), the reference to

‘‘1976 ed., appendix, p. 764’’ is removed

and ‘‘App. (1988)’’ added in its place.

c. In paragraph (g), the reference to ‘‘7

CFR 2.35’’ is removed and ‘‘§ 2.35(a) of

this chapter’’ added in its place.

d. In paragraph (g), the words ‘‘or

she’’ are added immediately after the

word ‘‘he’’.

e. Section 1.161 is amended by

removing all alphabetical paragraph

designations and placing the definitions

in alphabetical order.

§ 1.162 [Amended]

17. Section 1.162 is amended as

follows:

a. In paragraph (b), in the first

sentence, the word ‘‘part’’ is removed

and the word ‘‘paragraph’’ added in its

place.

b. In paragraph (b), in the first

sentence, the word ‘‘he’’ is removed and

the words ‘‘the Secretary’’ added in its

place.

c. In paragraph (b), in the second

sentence, the word ‘‘he’’ is removed and

‘‘, the Secretary’’ added in its place.

§ 1.164 [Amended]

18. In § 1.164, paragraph (a), the first

sentence is amended by removing the

word ‘‘his’’ and adding the words ‘‘the

respondent’s’’ in its place.

§ 1.167 [Amended]

19. Section 1.167 is revised to read as

follows:

§ 1.167 Conference

(a) Purpose. Upon motion of a party

or upon the Judge’s own motion, the

Judge may direct the parties to attend a

conference when the Judge finds that

the proceeding would be expedited by

discussions on matters of procedure

and/or possible stipulations. The

conference may include discussions

regarding:

(1) Simplification of the issues;

(2) Limitation of expert or other

witnesses;

(3) The orderly presentation of

evidence; and

(4) Any other matters that may

expedite and aid in the disposition of

the proceeding.

(b) Manner of the Conference. (1) The

conference shall be conducted by

telephone or correspondence unless the

Judge determines that conducting the

conference by audio-visual

telecommunication:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the conference; or

(iii) Would cost less than conducting

the conference by telephone or

correspondence. If the Judge determines

that a conference conducted by audiovisual telecommunication would

measurably increase the United States

Department of Agriculture’s cost of

conducting the conference, the

conference shall be conducted by

personal attendance of any individual

who is expected to participate in the

conference, by telephone, or by

correspondence.

(2) If the conference is not conducted

by telephone or correspondence, the

conference shall be conducted by audiovisual telecommunication unless the

Judge determines that conducting the

conference by personal attendance of

any individual who is expected to

participate in the conference:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the conference; or

(iii) Would cost less than conducting

the conference by audio-visual

telecommunication.

§ 1.168 [Amended]

20. Section 1.168 is amended as

follows:

a. In paragraph (e)(1), the first

sentence is amended by removing the

word ‘‘reported’’ and adding the words

‘‘transcribed or recorded’’ in its place.

b. In paragraph (e)(2), the first

sentence is amended by removing the

word ‘‘he’’ and by adding the words

‘‘the party’’ in its place.

c. In paragraph (e)(2), the second

sentence is amended by adding the

words ‘‘or recording’’ immediately after

the word ‘‘transcript’’.

d. Paragraph (e)(6) is amended by

adding the words ‘‘or recording’’

immediately after the word ‘‘transcript’’

each of the three times the word

‘‘transcript’’ appears.

e. Paragraphs (b), (c), (d), and (e) are

redesignated as (c), (d), (e), and (g)

respectively.

f. New paragraphs (b), (f), and (h) are

added to read as follows:

§ 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
8458 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

hearing shall be made in accordance

with paragraphs (b)(3) and (b)(4) of this

section. If any change in the manner of

the hearing is made, the Judge shall file

with the Hearing Clerk a notice of the

change, which notice shall be served on

the parties, unless it is made during the

course of an oral hearing and made part

of the transcript or recording, or actual

notice is given to the parties.

(2)(i) Any party may move that the

hearing be conducted by telephone or

personal attendance of any individual

expected to attend the hearing rather

than by audio-visual

telecommunication. Any motion that

the hearing be conducted by telephone

or personal attendance of any individual

expected to attend the hearing must be

accompanied by a memorandum in

support of the motion stating the basis

for the motion and the circumstances

that require the hearing to be conducted

other than by audio-visual

telecommunication.

(ii) Within 10 days after the Judge

issues a notice stating the manner in

which the hearing is to be conducted,

any party may move that the Judge

reconsider the manner in which the

hearing is to be conducted. Any motion

for reconsideration must be

accompanied by a memorandum in

support of the motion stating the basis

for the motion and the circumstances

that require the hearing to be conducted

other than in accordance with the

Judges’s notice.

(3) The hearing shall be conducted by

audio-visual telecommunication unless

the Judge determines that conducting

the hearing by personal attendance of

any individual who is expected to

participate in the hearing:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the hearing; or

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication. If the Judge

determines that a hearing conducted by

audio-visual telecommunication would

measurably increase the United States

Department of Agriculture’s cost of

conducting the hearing, the hearing

shall be conducted by personal

attendance of any individual who is

expected to participate in the hearing or

by telephone.

(4) The Judge may, in his or her sole

discretion or in response to a motion by

a party to the proceeding, conduct the

hearing by telephone if the Judge finds

that a hearing conducted by telephone:

(i) Would provide a full and fair

evidentiary hearing;

(ii) Would not prejudice any party;

and

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication or personal

attendance of any individual who is

expected to participate in the hearing.

* * * * *

(f) Written statements of direct

testimony. (1) Except as provided in

paragraph (f)(2) of this section, each

party must exchange with all other

parties a written narrative verified

statement of the oral direct testimony

that the party will provide at any

hearing to be conducted by telephone;

the direct testimony of each employee

or agent of the party that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone; and the direct testimony of

each expert witness that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone. The written direct testimony

of witnesses shall be exchanged by the

parties at least 10 days prior to the

hearing. The oral direct testimony

provided by a witness at a hearing

conducted by telephone will be limited

to the presentation of the written direct

testimony, unless the Judge finds that

oral direct testimony which is

supplemental to the written direct

testimony would further the public

interest and would not constitute

surprise.

(2) The parties shall not be required

to exchange testimony in accordance

with this paragraph if the hearing is

scheduled to begin less than 20 days

after the Judge’s notice stating the time

of the hearing.

* * * * *

(h) Transcript or recording. (1)

Hearings to be conducted by telephone

shall be recorded verbatim by electronic

recording device. Hearings conducted

by audio-visual telecommunication or

the personal attendance of any

individual who is expected to

participate in the hearing shall be

transcribed, unless the Judge finds that

recording the hearing verbatim would

expedite the proceeding and the Judge

orders the hearing to be recorded

verbatim. The Judge shall certify that to

the best of his or her knowledge and

belief any recording made pursuant to

this paragraph with exhibits that were

accepted into evidence is the record of

the hearing.

(2) If a hearing is recorded verbatim,

a party requests the transcript of a

hearing or part of a hearing, and the

Judge determines that the disposition of

the proceeding would be expedited by

a transcript of the hearing or part of a

hearing, the Judge shall order the

verbatim transcription of the recording

as requested by the party.

(3) Recordings or transcripts of

hearings shall be made available to any

person at actual cost of duplication.

* * * * *

§ 1.169 [Amended]

21. Section 1.169 is amended as

follows:

a. In paragraph (a), the heading is

revised to read ‘‘Corrections to

transcript or recording.’’

b. In paragraph (a)(1), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’.

c. In paragraph (a)(2), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ both times the

word ‘‘transcript’’ appears.

d. In paragraph (a)(3), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ each of the three

times the word ‘‘transcript’’ appears.

e. In paragraph (c), in the last

sentence, the word ‘‘herein’’ is removed.

§ 1.170 [Amended]

22. Section 1.170 is amended as

follows:

a. In paragraph (a), in the second

sentence, the reference to ‘‘§ 1.167(e)(2)’’

is removed and ‘‘§ 1.168(g)(2)’’ added in

its place.

b. In paragraph (c), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’.

c. In paragraph (i), in the last

sentence, the word ‘‘herein’’ is removed.

§ 1.171 [Amended]

23. Section 1.171 is amended by

removing the word ‘‘herein’’.

§ 1.172 [Amended]

24. In § 1.172, paragraph (a) is

amended by adding the words ‘‘or

recording’’ immediately after the word

‘‘transcript’’.

§ 1.173 [Amended]

25. Section 1.173 is amended as

follows:

a. In paragraph (b)(1), the words ‘‘or

herself’’ are added immediately after the

word ‘‘himself’’.

b. In paragraph (b)(2), the word ‘‘he’’

is removed and the words ‘‘the Judge’’

added in its place.

c. In paragraph (b)(2), the words ‘‘or

herself’’ are added immediately after the

word ‘‘himself’’.

d. In paragraph (d), in the

introductory language, the words ‘‘or

her,’’ are added immediately after the

word ‘‘him’’.

e. Paragraph (d)(2) is revised to read

as set forth below.
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8459

f. Paragraph (d)(7) is redesignated as

paragraph (d)(9).

g. New paragraphs (d)(7) and (d)(8)

are added to read as set forth below.

h. In paragraph (e), the word ‘‘his’’ is

removed and the words ‘‘the Judge’s’’

added in its place.

i. In paragraph (e), the word ‘‘him’’ is

removed and the words ‘‘the Judge’’ are

added in its place both times the word

‘‘him’’ appears.

§ 1.173 Judges.

* * * * *

(d) * * *

(2) Set the time, place, and manner of

any conference, set the manner of the

hearing, adjourn the hearing, and

change the time, place, and manner of

the hearing;

* * * * *

(7) Require each party to provide all

other parties and the Judge with a copy

of any exhibit that the party intends to

introduce into evidence prior to any

hearing to be conducted by telephone or

audio-visual telecommunication;

(8) Require that any hearing to be

conducted by telephone or audio-visual

telecommunication be conducted at

locations at which the parties and the

Judge are able to transmit and receive

documents during the hearing;

* * * * *

§ 1.174 [Amended]

26. In § 1.174, paragraph (c) is

amended by adding the words ‘‘or

recording’’ immediately after the word

‘‘transcript’’.

SUBTITLE B—REGULATIONS OF THE

DEPARTMENT OF AGRICULTURE

CHAPTER I—AGRICULTURAL MARKETING

SERVICE

PART 47—RULES OF PRACTICE

UNDER THE PERISHABLE

AGRICULTURAL COMMODITIES ACT

27. The authority citation for part 47

is revised to read as follows:

Authority: 7 U.S.C. 499o; 7 CFR

2.17(a)(8)(xiii), 2.50(a)(8)(xiii).

§ 47.2 [Amended]

28. Section 47.2 is amended as

follows:

a. In paragraph (c), the words ‘‘or her’’

are added immediately after the word

‘‘his’’.

b. In paragraph (e), the words ‘‘or her’’

are added immediately after the word

‘‘his’’.

c. In paragraph (f), the words ‘‘or her’’

are added immediately after the word

‘‘his’’.

d. In paragraph (h), the words ‘‘or

her’’ are added immediately after the

word ‘‘his’’.

§ 47.3 [Amended]

29. Section 47.3 is amended as

follows:

a. In paragraph (b)(1), in the first

sentence, the word ‘‘his’’ is removed

and the words ‘‘the Director’s’’ added in

its place.

b. Paragraph (c) is revised to read as

follows:

§ 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.

§ 47.4 [Amended]

30. In section 47.4, paragraph (b)(2) is

amended by removing the words ‘‘of

this part’’.

§ 47.5 [Amended]

31. Section 47.5 is amended by

removing the words ‘‘of these

regulations in this part’’ and ‘‘of the

regulations in this part’’ and revising the

last sentence to read as follows:

§ 47.5 Scope and applicability of rules of

practice.

* * * In addition, except to the extent

that they are inconsistent with §§ 1.130

through 1.151 of this chapter, §§ 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 §§ 1.130

through 1.151 of this chapter.

§ 47.11 [Amended]

32. Section 47.11 is amended as

follows:

a. In paragraph (b), in the second

sentence, the word ‘‘he’’ is removed and

the words ‘‘the Secretary’’ are added in

its place.

b. In paragraph (c), in the introductory

language, the words ‘‘elsewhere in the

regulations’’ are removed.

c. In paragraph (c), in the introductory

language, the words ‘‘or her’’ are added

immediately after the word ‘‘him’’.

d. Paragraph (c)(2) is revised to read

as set forth below.

e. Paragraph (c)(9) is redesignated as

(c)(13).

f. New paragraphs (c)(9), (c)(10),

(c)(11), and (c)(12) are added to read as

set forth below.

g. In paragraph (d), the word ‘‘him’’ is

removed and the words ‘‘the examiner’’

added in its place.

§ 47.11 Examiners.

* * * * *

(c) * * *

(2) Set the time, place, and manner of

the hearing, adjourn the hearing, and

change the time, place, and manner of

the hearing;

* * * * *

(9) Require each party to provide all

other parties and the examiner with a

copy of any exhibit that the party

intends to introduce into evidence prior

to any hearing to be conducted by

telephone or audio-visual

telecommunication;

(10) Require each party to provide all

other parties with a copy of any

document that the party intends to use

to examine a deponent prior to any

deposition to be conducted by

telephone or audio-visual

telecommunication;

(11) Require that any hearing to be

conducted by telephone or audio-visual

telecommunication be conducted at

locations at which the parties and the

examiner are able to transmit and

receive documents during the hearing;

(12) Require that any deposition to be

conducted by telephone or audio-visual

telecommunication be conducted at

locations at which the parties are able

to transmit and receive documents

during the deposition;

* * * * *

§ 47.12 [Amended]

33. Section 47.12 is amended by

removing the word ‘‘he’’ and adding the

words ‘‘the petitioner’’ each of the three

times the word ‘‘he’’ appears.

§ 47.13 [Amended]

34. Section 47.13 is amended as

follows:

a. In paragraph (a)(1), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’.

b. Paragraph (b) is revised to read as

follows:

§ 47.13 Motions and requests.

* * * * *

(b) Certification to the Secretary. The

submission or certification of any

motion, request, objection, or other

question to the Secretary prior to

transmittal of the record to the Secretary

as provided in this part shall be made

by and in the discretion of the examiner.

The examiner may either rule upon or

certify the motion, request, objection, or

other question to the Secretary, but not

both.
8460 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

§ 47.14 [Amended]

35. Section 47.14 is revised to read as

follows:

(a) In any proceeding in which it

appears that a conference will expedite

the proceeding, the examiner, at any

time prior to or during the course of the

oral hearing, may request the parties or

their counsel to appear at a conference

before the examiner to consider:

(1) The simplification of the issues;

(2) The necessity or the desirability of

amendments to the pleadings;

(3) The possibility of obtaining

stipulations of fact and of documents

which will avoid unnecessary proof;

(4) The limitation of the number of

expert or other witnesses; or

(5) Such other matters as may

expedite and aid in the disposition of

the proceeding.

(b) No transcript or recording of the

conference shall be made. If the

conference is conducted by

correspondence, the examiner shall

forward copies of letters and documents

to the parties as circumstances require.

The correspondence in connection with

a conference shall not be part of the

record. The examiner shall prepare and

file for the record a written summary of

the action agreed upon or taken at the

conference, which shall incorporate any

written stipulations or agreements made

by the parties at the conference or as a

result of the conference.

(c) Manner of the Conference. (1) The

conference shall be conducted by

telephone or correspondence unless the

examiner determines that conducting

the conference by audio-visual

telecommunication:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the conference; or

(iii) Would cost less than conducting

the conference by telephone or

correspondence. If the examiner

determines that a conference conducted

by audio-visual telecommunication

would measurably increase the United

States Department of Agriculture’s cost

of conducting the conference, the

conference shall be conducted by

personal attendance of any individual

who is expected to participate in the

conference, by telephone, or by

correspondence.

(2) If the conference is not conducted

by telephone or correspondence, the

conference shall be conducted by audiovisual telecommunication unless the

examiner determines that conducting

the conference by personal attendance

of any individual who is expected to

participate in the conference:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the conference; or

(iii) Would cost less than conducting

the conference by audio-visual

telecommunication.

§ 47.15 [Amended]

36. Section 47.15 is amended as

follows:

a. Paragraph (c) is revised to read as

set forth below.

b. In paragraph (d)(2), the word ‘‘he’’

is removed and the words ‘‘the party’’

are added in its place.

c. In paragraph (d)(2), the words ‘‘or

her’’ are added immediately after the

word ‘‘his’’.

d. In paragraph (d)(3)(i), the words ‘‘or

her’’ are added immediately after the

word ‘‘him’’.

e. In paragraph (f)(2)(i), the word ‘‘he’’

is removed and the words ‘‘the party’’

are added in its place.

f. In paragraphs (f)(2)(i), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ both times the

word ‘‘transcript’’ appears.

g. In paragraph (f)(6)(ii), ‘‘recording,’’

is added immediately after ‘‘document,’’

both times ‘‘document,’’ appears.

h. In paragraph (f)(8), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ the three times

the word ‘‘transcript’’ appears.

i. In paragraph (g), in the first

sentence, the words ‘‘hereinafter

provided’’ are removed and the words

‘‘provided in this part’’ are added in

their place.

j. In paragraph (g), in the second

sentence, the word ‘‘he’’ is removed and

the words ‘‘the examiner’’ are added in

its place.

k. Paragraphs (f), (g), and (h) are

redesignated as (g), (h), and (i)

respectively.

l. A new paragraph (f) is added to read

as set forth below.

m. Redesignated paragraph (i) is

revised to read as set forth below.

§ 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, audiovisual telecommunication, or personal

attendance of any individual expected

to participate in the hearing and the

examiner’s determination regarding the

manner of the hearing shall be made in

accordance with paragraphs (c)(3) and

(c)(4) of this section. If any change in

the time, place, or manner of the hearing

is made, the examiner shall file with the

hearing clerk a notice of the change. The

notice of any change in the time, place,

or manner of the hearing shall be served

on the parties, unless it is made during

the course of an oral hearing and made

part of the transcript or recording, or

actual notice is given to the parties.

(2)(i) If and when the proceeding has

reached the stage of oral hearing, any

party may move that the hearing be

conducted by telephone or personal

attendance of any individual expected

to attend the hearing rather than by

audio-visual telecommunication. Any

motion that the hearing be conducted by

telephone or personal attendance of any

individual expected to attend the

hearing must be accompanied by a

memorandum in support of the motion

stating the basis for the motion and the

circumstances that require the hearing

to be conducted other than by audiovisual telecommunication.

(ii) Within 10 days after the examiner

issues a notice stating the manner in

which the hearing is to be conducted,

any party may move that the examiner

reconsider the manner in which the

hearing is to be conducted. Any motion

for reconsideration must be

accompanied by a memorandum in

support of the motion stating the basis

for the motion and the circumstances

that require the hearing to be conducted

other than in accordance with the

examiner’s notice.

(3) The hearing shall be conducted by

audio-visual telecommunication unless

the examiner determines that

conducting the hearing by personal

attendance of any individual expected

to attend the hearing:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the hearing; or

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication. If the examiner

determines that a hearing conducted by

audio-visual telecommunication would

measurably increase the United States

Department of Agriculture’s cost of

conducting the hearing, the hearing

shall be conducted by personal

attendance of any individual who is

expected to participate in the hearing or

by telephone.
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8461

(4) The examiner may, in his or her

sole discretion or in response to a

motion by a party to the proceeding,

conduct the hearing by telephone if the

examiner finds that a hearing conducted

by telephone:

(i) Would provide a full and fair

evidentiary hearing;

(ii) Would not prejudice any party;

and

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication or personal

attendance of any individual who is

expected to participate in the hearing.

* * * * *

(f) Written statements of direct

testimony. (1) Except as provided in

paragraph (f)(2) of this section, each

party must exchange with all other

parties a written narrative verified

statement of the oral direct testimony

that the party will provide at any

hearing to be conducted by telephone;

the direct testimony of each employee

or agent of the party that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone; and the direct testimony of

each expert witness that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone. The written direct testimony

of witnesses shall be exchanged by the

parties at least 10 days prior to the

hearing. The oral direct testimony

provided by a witness at a hearing

conducted by telephone will be limited

to the presentation of the written direct

testimony, unless the examiner finds

that oral direct testimony which is

supplemental to the written direct

testimony would further the public

interest and would not constitute

surprise.

(2) The parties shall not be required

to exchange testimony in accordance

with this paragraph if the hearing is

scheduled to begin less than 20 days

after the examiner’s notice stating the

time of the hearing.

* * * * *

(i) Transcript or recording. (1)

Hearings to be conducted by telephone

shall be recorded verbatim by electronic

recording device. Hearings conducted

by audio-visual telecommunication or

the personal attendance of any

individual who is expected to

participate in the hearing shall be

transcribed, unless the examiner finds

that recording the hearing verbatim

would expedite the proceeding and the

examiner orders the hearing to be

recorded verbatim.

(2) If a hearing is recorded verbatim,

a party requests the transcript of a

hearing or part of a hearing, and the

examiner determines that the

disposition of the proceeding would be

expedited by a transcript of the hearing

or part of a hearing, the examiner shall

order the verbatim transcription of the

recording as requested by the party.

(3) If a reporter transcribes or records

the testimony at a hearing, the reporter

shall deliver the original transcript or

recording, with exhibits thereto

attached, to the examiner, who will

retain such copy for the official file and

for use in preparing his or her report.

The reporter will also deliver to the

examiner such other copy or copies as

may be ordered by the Department,

which copy or copies the examiner will

forward to the hearing clerk.

(4) Parties to the proceeding, or

others, who desire a copy of the

transcript or recording of the hearing

may place orders at the hearing with the

reporter, who will furnish and deliver

such copies direct to the purchaser

upon payment of the applicable rate.

* * * * *

§ 47.16 [Amended]

37. Section 47.16 is amended as

follows:

a. Paragraphs (a)(3) and (a)(4) are

revised and (a)(5) and (a)(6) are added

to read as set forth below.

b. Paragraph (b) is revised to read as

set forth below.

c. Paragraph (d)(1) is revised to read

as set forth below.

d. In paragraph (e), in the first

sentence, the word ‘‘him’’ is removed

and the words ‘‘the officer’’ added in its

place.

e. In paragraph (e), in the second

sentence, the word ‘‘He’’ is removed and

the words ‘‘The officer’’ added in its

place.

§ 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 § 47.4.

(2) The order shall state:

(i) The time of the deposition (which

unless otherwise agreed shall not be less

than 20 days after the filing of the

order);

(ii) The place of the deposition;

(iii) The manner of the deposition

(telephone, audio-visual

telecommunication, or personal

attendance of those who are to

participate in the deposition);

(iv) The name of the officer before

whom the deposition is to be made; and

(v) The name of the deponent.

(3) The deposition shall be conducted

in the manner (telephone, audio-visual

telecommunication, or personal

attendance of those who are to

participate in the deposition) agreed to

by the parties.

(4) If the parties cannot agree on the

manner in which the deposition is to be

conducted:

(i) The deposition shall be conducted

by telephone unless the examiner

determines that conducting the

deposition by audio-visual

telecommunication:

(A) Is necessary to prevent prejudice

to a party;

(B) Is necessary because of a disability

of any individual expected to

participate in the deposition; or

(C) Would cost less than conducting

the deposition by telephone.

(ii) If the deposition is not conducted

by telephone, the deposition shall be

conducted by audio-visual

telecommunication unless the examiner

determines that conducting the

deposition by personal attendance of

any individual who is expected to

participate in the deposition:

(A) Is necessary to prevent prejudice

to a party;

(B) Is necessary because of a disability

of any individual expected to

participate in the deposition; or

(C) Would cost less than conducting

the deposition by telephone or audiovisual telecommunication.

* * * * *

(d) Procedure on examination. (1) The

deponent shall be examined under oath

or affirmation and shall be subject to

cross-examination. The testimony of the

deponent shall be recorded by the

officer or some person under the

officer’s direction. In lieu of oral

examination, parties may transmit

written questions to the officer prior to

examination and the officer shall

propound the written questions to the

deponent.

* * * * *
8462 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

§ 47.17 [Amended]

38. In § 47.17, paragraph (c), the last

sentence is amended by removing the

words ‘‘of this part’’.

§ 47.19 [Amended]

39. Section 47.19 is amended as

follows:

a. In paragraph (a), the heading is

revised to read ‘‘Certification of

transcript or recording.’’.

b. In paragraph (a), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ each of the five

times the word ‘‘transcript’’ appears.

c. In paragraph (a), the words ‘‘or her’’

are added immediately after the word

‘‘his’’ both times time the word ‘‘his’’

appears.

d. In paragraph (a) the word ‘‘he’’ is

removed and the words ‘‘the examiner’’

added in its place both times the word

‘‘he’’ appears.

e. In paragraph (b), in the second

sentence, the words ‘‘or she’’ are added

immediately after the word ‘‘he’’.

f. In paragraph (d)(3), the word ‘‘his’’

is removed and the words ‘‘the party’s’’

are added in its place.

g. In paragraph (d)(6), in the first

sentence, the words ‘‘or her’’ are added

immediately after the word ‘‘his’’.

h. In paragraph (e), the words ‘‘or her’’

are added immediately after the word

‘‘his’’.

§ 47.20 [Amended]

40. Section 47.20 is amended as

follows:

a. In paragraph (b)(2), the words ‘‘or

she’’ are added immediately after the

word ‘‘he’’ both times the word ‘‘he’’

appears.

b. In paragraph (h), ‘‘(or she)’’ is

added immediately after the word ‘‘he’’

both times the word ‘‘he’’ appears.

c. In paragraph (k), the words ‘‘or her’’

are added immediately after the word

‘‘his’’.

d. In paragraph (l), the words ‘‘or her’’

are added immediately after the word

‘‘his’’.

§ 47.21 [Amended]

41. Section 47.21 is amended by

adding the words ‘‘or recording’’

immediately after the word ‘‘transcript’’

and by removing the word

‘‘prehearing’’.

§ 47.22 [Amended]

42. In § 47.22, paragraph (a) is

amended by removing the reference to

‘‘§ 47.15(g)’’ and adding ‘‘§ 47.15(h)’’ in

its place.

§ 47.23 [Amended]

43. Section 47.23 is amended by

removing the word ‘‘he’’ and adding the

words ‘‘the Secretary’’ in its place each

of the three times the word ‘‘he’’

appears; and by adding the words ‘‘or

her’’ immediately after the word ‘‘his’’

each of the three times the word ‘‘his’’

appears.

§ 47.24 [Amended]

44. In § 47.24, paragraph (a) is

amended by removing the word ‘‘he’’

and adding the words ‘‘the Secretary’’ in

its place both times the word ‘‘he’’

appears.

§ 47.25 [Amended]

45. In § 47.25, paragraph (e) is

amended by removing the words ‘‘the

regulations in’’, and by adding the

words ‘‘or her’’ immediately after the

word ‘‘him’’.

§ 47.46 [Amended]

46. Section 47.46 is amended by

removing the word ‘‘he’’ and adding the

words ‘‘the Secretary’’ both times the

word ‘‘he’’ appears; and adding the

words ‘‘or her’’ immediately after the

word ‘‘his’’.

§ 47.47 [Amended]

47. Section 47.47 is amended as

follows:

a. In the introductory language, the

reference to ‘‘7 CFR 47.2 (a) through (h)’’

is removed and ‘‘§§ 47.2 (a) through (h)’’

added in its place.

b. In the introductory language, the

reference to ‘‘7 CFR 47.47 through

47.68’’ is removed and ‘‘§§ 47.47

through 47.68’’ added in its place.

c. Section 47.47 is amended by

removing all paragraph designations

and placing the definitions in

alphabetical order.

§ 47.49 [Amended]

48. In section 47.49, paragraph (f) is

revised to read as follows:

§ 47.49 Determinations.

* * * * *

(f)(1) The presiding officer will order

that an oral hearing be held if one is

requested by the petitioner, or if the

presiding officer determines that an oral

hearing is necessary. A verbatim record

shall be made of the hearing. In the

event that an oral hearing is neither

requested by the petitioner, nor ordered

by the presiding officer, the presiding

officer shall provide the petitioner a

copy of the official file, and give the

parties an opportunity to submit

documents and other evidence to

support their positions, as well as

written arguments pertaining to their

positions.

(2) If an oral hearing is held, it shall

be conducted by audio-visual

telecommunication unless the presiding

officer determines that conducting the

hearing by the personal attendance of

any individual expected to attend the

hearing:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the hearing; or

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication. If the presiding

officer determines that a hearing

conducted by audio-visual

telecommunication would measurably

increase the United States Department

of Agriculture’s cost of conducting the

hearing, the hearing shall be conducted

by personal attendance of any

individual who is expected to

participate in the hearing or by

telephone.

(3) The presiding officer may, in his

or her sole discretion or in response to

a motion by a party to the proceeding,

conduct the hearing by telephone if the

presiding officer finds that a hearing

conducted by telephone:

(i) Would provide a full and fair

evidentiary hearing;

(ii) Would not prejudice any party;

and

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication or personal

attendance of any individual who is

expected to participate in the hearing.

§ 47.53 [Amended]

49. Section 47.53 is revised to read as

follows:

§ 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

§ 47.49(f)(2) and § 47.49(f)(3). The

parties will be notified as soon as

possible of any change in the time,

place, or manner of the hearing.

(b) If the presiding officer orders an

oral hearing, any party may move that

the hearing be conducted by telephone

or personal attendance of any individual

expected to attend the hearing rather

than by audio-visual

telecommunication. Any motion that

the hearing be conducted by telephone

or personal attendance of any individual
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8463

expected to attend the hearing must be

accompanied by a memorandum in

support of the motion stating the basis

for the motion and the circumstances

that require the hearing to be conducted

other than by audio-visual

telecommunication.

(c) Within 10 days after the presiding

officer issues a notice stating the

manner in which the hearing is to be

conducted, any party may move that the

presiding officer reconsider the manner

in which the hearing is to be conducted.

Any motion for reconsideration must be

accompanied by a memorandum in

support of the motion stating the basis

for the motion and the circumstances

that require the hearing to be conducted

other than in accordance with the

presiding officer’s notice.

(d) Upon assignment of the matter for

oral hearing, the presiding officer shall

make the official file a part of the

records of the proceeding and shall

provide the petitioner with a copy of the

official file.

§ 47.56 [Amended]

50. Section 47.56 is amended as

follows:

a. Paragraph (b) is revised to read as

set forth below.

b. Paragraphs (g) and (h) are

redesignated as paragraphs (i) and (j)

respectively.

c. New paragraphs (g) and (h) are

added to read as set forth below.

§ 47.56 Powers of presiding officer.

* * * * *

(b) Set the time, place, and manner of

the hearing, adjourn the hearing, and

change the time, place, and manner of

the hearing;

* * * * *

(g) Require each party to provide all

other parties and the presiding officer

with a copy of any exhibit that the party

intends to introduce into evidence prior

to any hearing to be conducted by

telephone or audio-visual

telecommunication;

(h) Require that any hearing to be

conducted by telephone or audio-visual

telecommunication be conducted at

locations at which the parties and the

presiding officer are able to transmit and

receive documents during the hearing;

* * * * *

§ 47.58 [Amended]

51. Section 47.58 is amended as

follows:

a. In paragraph (b), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ both times the

word ‘‘transcript’’ appears.

b. In paragraph (f), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ both times the

word ‘‘transcript’’ appears.

c. Paragraphs (a), (b), (c), (d), (e), and

(f) are redesignated as (b), (c), (d), (e), (f),

and (g) respectively.

d. A new paragraph (a) is added to

read as follows:

§ 47.58 Evidence.

(a) Written statements of direct

testimony. (1) Except as provided in

paragraph (a)(2) of this section, each

party must exchange with all other

parties a written narrative verified

statement of the oral direct testimony

that the party will provide at any

hearing to be conducted by telephone;

the direct testimony of each employee

or agent of the party that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone; and the direct testimony of

each expert witness that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone. The written direct testimony

of witnesses shall be exchanged by the

parties at least 10 days prior to the

hearing. The oral direct testimony

provided by a witness at a hearing

conducted by telephone will be limited

to the presentation of the written direct

testimony, unless the presiding officer

finds that oral direct testimony which is

supplemental to the written direct

testimony would further the public

interest and would not constitute

surprise.

(2) The parties shall not be required

to exchange testimony in accordance

with this paragraph if the hearing is

scheduled to begin less than 20 days

after the presiding officer’s notice

stating the time of the hearing.

* * * * *

§ 47.59 [Amended]

52. Section 47.59 is amended as

follows:

a. The section heading is revised to

read ‘‘Filing transcripts or recordings

and exhibits.’’

b. In section 47.59, the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ each of the five

times the word ‘‘transcript’’ appears.

§ 47.60 [Amended]

53. Section 47.60 is revised to read as

follows:

§ 47.60 Transcript or recording.

(a) Hearings to be conducted by

telephone shall be recorded verbatim by

electronic recording device. Hearings

conducted by audio-visual

telecommunication or the personal

attendance of any individual who is

expected to participate in the hearing

shall be transcribed, unless the

presiding officer finds that recording the

hearing verbatim would expedite the

proceeding and the presiding officer

orders the hearing to be recorded

verbatim. The presiding officer shall

certify that to the best of his or her

knowledge and belief any recording

made pursuant to this paragraph with

exhibits that were accepted into

evidence is the record of the hearing.

(b) If a hearing is recorded verbatim,

a party requests the transcript of a

hearing or part of a hearing, and the

presiding officer determines that the

disposition of the proceeding would be

expedited by a transcript of the hearing

or part of a hearing, the presiding officer

shall order the verbatim transcription of

the recording as requested by the party.

(c) Parties to the proceeding who

desire a copy of the transcript or

recording of the hearing may place

orders at the hearing with the reporter

who will furnish and deliver such

copies direct to the purchaser upon

payment therefore at the rate provided

by the contract between the reporter and

the Department for such reporting

services.

§ 47.62 [Amended]

54. In § 47.62, the last sentence is

amended by removing the words ‘‘of

this part’’.

PART 50—RULES OF PRACTICE

GOVERNING WITHDRAWAL OF

INSPECTION AND GRADING

SERVICES

55. The authority citation for part 50

is revised to read as follows:

Authority: 7 U.S.C. 1621 et seq.; 7 CFR

2.35, 2.41.

56. Part 50 is revised to read as

follows:

PART 50—RULES OF PRACTICE

GOVERNING WITHDRAWAL OF

INSPECTION AND GRADING

SERVICES

Subpart A—General

Sec.

50.1 Scope and applicability of rules of

practice.

Subpart B—Supplemental Rules of Practice

50.10 Definitions.

50.11 Conditional withdrawal of service.

50.12 Summary suspension of service.

Subpart A—General

§ 50.1 Scope and applicability of rules of

practice.

(a) The Rules of Practice Governing

Formal Adjudicatory Proceedings

Instituted by the Secretary Under

Various Statutes set forth in §§ 1.130
8464 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

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

§§ 1.130 through 1.151 of this title nor

the supplemental rules of practice in

subpart B of this part modify existing

procedures for refusing to inspect,

grade, or certify a specific lot of a

product because of adulteration,

improper preparation of the lot for

grading, improper presentation of the lot

for grading, or because of failure to

comply with any similar requirements

set forth in applicable regulations.

Subpart B—Supplemental Rules of

Practice

§ 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.

§ 50.11 Conditional withdrawal of service.

(a) The Director may withdraw

grading or inspection service from a

person for correctable cause. The

grading or inspection service

withdrawn, after appropriate corrective

action is taken, will be restored

immediately, or as soon thereafter as a

grader or inspector can be made

available.

(b) Written notice of withdrawal of

grading or inspection service under this

section shall be given to the person from

whom grading or inspection services

will be withdrawn in advance of

withdrawal, whenever it is feasible to

provide such an advance written notice.

If advance written notice is not given,

the withdrawal action and the reasons

for the withdrawal shall be confirmed as

promptly as circumstances permit,

unless the deficiency which is the basis

for the withdrawal has already been

corrected.

§ 50.12 Summary suspension of service.

(a) General. In any situation in which

the integrity of grading or inspection

service would be jeopardized if the

grading or inspection service were

continued pending a decision in a

proceeding to withdraw grading or

inspection service, such service to the

respondent may be suspended effective

on the third day after mailing of a

written notice of the suspension of

service to the respondent’s last known

address or designated address or upon

actual receipt of the written notice,

whichever is earlier.

(b) Actual or threatened physical

violence. In any case of actual or

threatened physical violence to an

inspector or grader, grading and

inspection services to the respondent

may be suspended prior to the

transmittal of the written notice of

suspension to the respondent. A written

notice shall be given as promptly as

circumstances permit.

PART 51 [AMENDED]

57. The authority citation for part 51

is revised to read as follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17,

2.50; unless otherwise noted.

§ 51.46 [Amended]

58. Section 51.46 is amended by

revising the last sentence to read ‘‘The

Rules of Practice Governing Formal

Adjudicatory Proceedings Instituted by

the Secretary Under Various Statutes set

forth in §§ 1.130 through 1.151 of this

title and the Supplemental Rules of

Practice in part 50 of this chapter shall

govern proceedings conducted pursuant

to this section.’’

PART 52 [AMENDED]

59. The authority citation for part 52

is revised to read as follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17,

2.50.

§ 52.54 [Amended]

60. In § 52.54, paragraph (a) is

amended by revising the last sentence to

read ‘‘The Rules of Practice Governing

Formal Adjudicatory Proceedings

Instituted by the Secretary Under

Various Statutes set forth in §§ 1.130

through 1.151 of this title and the

Supplemental Rules of Practice in part

50 of this chapter shall be applicable to

such debarment action.’’

PART 53–LIVESTOCK (GRADING,

CERTIFICATION, AND STANDARDS)

61. The authority citation for part 53

is revised to read as follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17,

2.50.

§ 53.13 [Amended]

62. In § 53.13, paragraph (a)(2) is

revised to read as follows:

§ 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

§§ 1.130 through 1.151 of this title and

the Supplemental Rules of Practice in

part 50 of this chapter.

* * * * *

PART 54—MEATS, PREPARED

MEATS, AND MEAT PRODUCTS

(GRADING, CERTIFICATION, AND

STANDARDS)

63. The authority citation for part 54

is revised to read as follows:

Authority: 7 U.S.C. 1622, 1624; 7 CFR 2.17,

2.50.

§ 54.11 [Amended]

64. In § 54.11, paragraph (a)(2) is

revised to read as follows:

§ 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

§§ 1.130 through 1.151 of this title and

the Supplemental Rules of Practice in

part 50 of this chapter.

* * * * *

PART 97—PLANT VARIETY

PROTECTION

65. The authority citation for part 97

is revised to read as follows:

Authority: 7 U.S.C. 2321, 2326, 2352, 2353,

2356, 2371, 2402(b), 2403, 2426, 2427,

2501(c); 7 CFR 2.17, 2.50.

§ 97.300 [Amended]

66. In § 97.300, paragraph (d), the last

sentence is revised to read ‘‘If a formal

hearing is requested, the proceeding

shall be conducted in accordance with

the Rules of Practice Governing Formal

Adjudicatory Proceedings Instituted by

the Secretary Under Various Statutes set

forth in §§ 1.130 through 1.151 of this

title.’’
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8465

TITLE 9—[AMENDED]

Chapter II—Grain Inspection, Packers and

Stockyards Administration (Packers and

Stockyards Programs), Department of

Agriculture

67. The heading of 9 CFR chapter II

is revised to read as set forth above.

68. In 9 CFR chapter II, consisting of

parts 200 to 205, all references to

‘‘Packers and Stockyards

Administration’’ are revised to read

‘‘Grain Inspection, Packers and

Stockyards Administration (Packers and

Stockyards Programs)’’ and all

references to ‘‘P&SA’’ are revised to read

‘‘GIPSA’’.

PART 202—RULES OF PRACTICE

GOVERNING PROCEEDINGS UNDER

THE PACKERS AND STOCKYARDS

ACT

69. The authority citation for part 202

is revised to read as follows:

Authority: 7 U.S.C. 228(a); 7 CFR 2.17(e),

2.56.

§ 202.102 [Amended]

70. Section 202.102 is amended by

removing all paragraph designations

and placing the definitions in

alphabetical order.

§ 202.103 [Amended]

71. In § 202.103, paragraph (a), the

second sentence is amended by

removing the words ‘‘the provisions of’’.

§ 202.105 [Amended]

72. In § 202.105, paragraph (f)(2) is

amended by removing the words ‘‘of

this part’’.

§ 202.109 [Amended]

73. Section 202.109 is amended as

follows:

a. Paragraph (a)(5) is revised to read

as set forth below.

b. In paragraph (c)(2), in the second

sentence, the word ‘‘pace’’ is removed

and the word ‘‘place’’ is added in its

place.

c. Paragraph (d) is revised to read as

set forth below.

d. In paragraph (g), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ each of the four

times the word ‘‘transcript’’ appears.

e. In paragraph (h), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ each of the four

times the word ‘‘transcript’’ appears.

f. In paragraph (i), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ each of the six

times the word ‘‘transcript’’ appears

and, in the first sentence, the words

‘‘the provisions of’’ are removed.

g. In paragraph (j), the word ‘‘therein’’

is removed and the words ‘‘in the

deposition’’ added in its place.

h. In paragraph (l), the words ‘‘or

recording’’ are to be added immediately

after the word ‘‘transcript’’ both times

the word ‘‘transcript’’ appears.

§ 202.109 Rule 9: Depositions.

(a) * * *

(5) if oral, a suggested time and place

where the proposed deposition is to be

made and a suggested manner in which

the proposed deposition is to be

conducted (telephone, audio-visual

telecommunication, or by personal

attendance of the individuals who are

expected to participate in the

deposition). The application for an

order for the taking of testimony by

deposition shall be made in writing,

unless it is made orally on the record at

an oral hearing.

* * * * *

(d) Order. (1) The presiding officer, if

satisfied that good cause for taking the

deposition is present, may order the

taking of the deposition.

(2) The order shall be served on the

parties and shall include:

(i) The name and address of the

officer before whom the deposition is to

be made;

(ii) The name of the deponent;

(iii) Whether the deposition will be

oral or on written questions;

(iv) If the deposition is oral, the

manner in which the deposition is to be

conducted (telephone, audio-visual

telecommunication, or personal

attendance of those who are to

participate in the deposition); and

(v) The time, which shall not be less

than 20 days after the issuance of the

order, and place.

(3) The officer, time, place, and

manner of the deposition as stated in

the presiding officer’s order need not be

the same as the officer, time, place, and

manner suggested in the application.

(4) The deposition shall be conducted

in the manner (telephone, audio-visual

telecommunication, or personal

attendance of those who are to

participate in the deposition) agreed to

by the parties.

(5) If the parties cannot agree on the

manner in which the deposition is to be

conducted:

(i) The deposition shall be conducted

by telephone unless the presiding

officer determines that conducting the

deposition by audio-visual

telecommunication:

(A) Is necessary to prevent prejudice

to a party;

(B) Is necessary because of a disability

of any individual expected to

participate in the deposition; or

(C) Would cost less than conducting

the deposition by telephone.

(ii) If the deposition is not conducted

by telephone, the deposition shall be

conducted by audio-visual

telecommunication unless the presiding

officer determines that conducting the

deposition by personal attendance of

any individual who is expected to

participate in the deposition:

(A) Is necessary to prevent prejudice

to a party;

(B) Is necessary because of a disability

of any individual expected to

participate in the deposition; or

(C) Would cost less than conducting

the deposition by telephone or audiovisual telecommunication.

* * * * *

§ 202.110 [Amended]

74. Section 202.110 is amended as

follows:

a. In paragraph (a), the last sentence,

the words ‘‘or recording’’ are added

immediately after the word ‘‘transcript’’.

b. Paragraph (b) is revised to read as

set forth below.

§ 202.110 Rule 10: Prehearing Conference.

* * * * *

(b) Manner of the prehearing

conference. (1) The prehearing

conference shall be conducted by

telephone or correspondence unless the

presiding officer determines that

conducting the prehearing conference

by audio-visual telecommunication:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the prehearing conference;

or

(iii) Would cost less than conducting

the prehearing conference by telephone

or correspondence. If the presiding

officer determines that a prehearing

conference conducted by audio-visual

telecommunication would measurably

increase the United States Department

of Agriculture’s cost of conducting the

prehearing conference, the prehearing

conference shall be conducted by

personal attendance of any individual

who is expected to participate in the

prehearing conference, by telephone, or

by correspondence.

(2) If the prehearing conference is not

conducted by telephone or

correspondence, the prehearing

conference shall be conducted by audiovisual telecommunication unless the

presiding officer determines that

conducting the prehearing conference

by personal attendance of any

individual who is expected to

participate in the prehearing conference:

(i) Is necessary to prevent prejudice to

a party;
8466 Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations

(ii) Is necessary because of a disability

of any individual expected to

participate in the prehearing conference;

or

(iii) Would cost less than conducting

the prehearing conference by audiovisual telecommunication.

§ 202.112 [Amended]

75. Section 202.112 is be amended as

follows:

a. Paragraph (a) is revised to read as

set forth below.

b. Paragraph (b) is revised to read as

set forth below.

c. In paragraph (e)(2), in the second

sentence, the words ‘‘or recording’’ are

added immediately after the word

‘‘transcript’’, and the word ‘‘thereon’’ is

removed and the words ‘‘on objections’’

added in its place.

d. In paragraph (e)(3), the words ‘‘or

recording’’ are added immediately after

the word ‘‘transcript’’ both times the

word ‘‘transcript’’ appears.

e. In paragraph (e)(5), the word

‘‘thereof’’ is removed and the words ‘‘of

the Department’’ added in its place, and

the word ‘‘therein’’ is removed and the

words ‘‘in the record of the Department’’

added in its place.

f. Paragraphs (e), (f), (g), (h), (i), and

(j) are redesignated as (f), (g), (h), (i), (j),

and (k) respectively.

g. New paragraph (e) is added to read

as set forth below.

h. Redesignated paragraph (i) is

revised to read as set forth below.

i. In redesignated (j), the heading is

revised to read ‘‘Filing, and presiding

officer’s certificate, of the transcript or

recording.’’; the words ‘‘or recording’’

are added immediately after the word

‘‘transcript’’ each of the 10 times the

word ‘‘transcript’’ appears; and the

words ‘‘or recorded’’ are added

immediately after the word

‘‘transcribed’’.

j. In redesignated paragraph (k), the

heading is revised to read ‘‘Keeping of

copies of the transcript or recording.’’;

and the words ‘‘or recording’’ are added

immediately after the word ‘‘transcript’’

each of the three times the word

‘‘transcript’’ appears.

§ 202.112 Rule 12: Oral hearing.

(a) Time, place, and manner. (1) If

and when the proceeding has reached

the stage where an oral hearing is to be

held, the presiding officer shall set a

time, place, and manner for oral

hearing. The time shall be set based

upon careful consideration to the

convenience of the parties. The place

shall be set in accordance with

paragraph (a)(2) of this section and

careful consideration to the convenience

of the parties. The manner in which the

hearing is to be conducted shall be

determined in accordance with

paragraphs (a)(3) and (a)(4) of this

section.

(2) The place shall be set in

accordance with paragraphs (e) and (f)

of section 407 of the Act, if applicable.

In essence, under paragraphs (e) and (f)

of section 407 of the Act, if the

complainant and the respondent, or all

of the parties, if there are more than

two, have their principal places of

business or residence within a single

unit of local government, a single

geographical area within a State, or a

single State, the oral hearing is to be

held as near as possible to such places

of business or residence, depending on

the availability of an appropriate

location for conducting the hearing. If

the parties have such places of business

or residence distant from each other,

then paragraphs (e) and (f) of section

407 of the Act are not applicable.

(3) The oral hearing shall be

conducted by audio-visual

telecommunication unless the presiding

officer determines that conducting the

oral hearing by personal attendance of

any individual who is expected to

participate in the hearing:

(i) Is necessary to prevent prejudice to

a party;

(ii) Is necessary because of a disability

of any individual expected to

participate in the hearing; or

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication. If the presiding

officer determines that a hearing

conducted by audio-visual

telecommunication would measurably

increase the United States Department

of Agriculture’s cost of conducting the

hearing, the hearing shall be conducted

by personal attendance of any

individual who is expected to

participate in the hearing or by

telephone.

(4) The presiding officer may, in his

or her sole discretion or in response to

a motion by a party to the proceeding,

conduct the hearing by telephone if the

presiding officer finds that a hearing

conducted by telephone:

(i) Would provide a full and fair

evidentiary hearing;

(ii) Would not prejudice any party;

and

(iii) Would cost less than conducting

the hearing by audio-visual

telecommunication or personal

attendance of any individual who is

expected to participate in the hearing.

(b) Notice. (1) A notice stating the

time, place, and manner of oral hearing

shall be served on each party prior to

the time of the oral hearing. The notice

shall state whether the oral hearing will

be conducted by telephone, audio-visual

telecommunication, or personal

attendance of any individual expected

to participate in the hearing. If any

change is made in the time, place, or

manner of the oral hearing, a notice of

the change shall be served on each party

prior to the time of the oral hearing as

changed, unless the change is made

during the course of an oral hearing and

shown in the transcript or on the

recording. Any party may waive such

notice, in writing, or orally on the

record at an oral hearing and shown in

the transcript or on the recording.

(2) If the presiding officer orders an

oral hearing, any party may move that

the hearing be conducted by telephone

or personal attendance of any individual

expected to attend the hearing rather

than by audio-visual

telecommunication. Any motion that

the hearing be conducted by telephone

or personal attendance of any individual

expected to attend the hearing must be

accompanied by a memorandum in

support of the motion stating the basis

for the motion and the circumstances

that require the hearing to be conducted

other than by audio-visual

telecommunication.

(3) Within 10 days after the presiding

officer issues a notice stating the

manner in which the hearing is to be

conducted, any party may move that the

presiding officer reconsider the manner

in which the hearing is to be conducted.

Any motion for reconsideration must be

accompanied by a memorandum in

support of the motion stating the basis

for the motion and the circumstances

that require the hearing to be conducted

other than in accordance with the

presiding officer’s notice.

* * * * *

(e) Written statements of direct

testimony. (1) Except as provided in

paragraph (e)(2) of this section, each

party must exchange with all other

parties a written narrative verified

statement of the oral direct testimony

that the party will provide at any

hearing to be conducted by telephone;

the direct testimony of each employee

or agent of the party that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone; and the direct testimony of

each expert witness that the party will

call to provide oral direct testimony at

any hearing to be conducted by

telephone. The written direct testimony

of witnesses shall be exchanged by the

parties at least 10 days prior to the

hearing. The oral direct testimony

provided by a witness at a hearing

conducted by telephone will be limited

to the presentation of the written direct
Federal Register / Vol. 60, No. 30 / Tuesday, February 14, 1995 / Rules and Regulations 8467

testimony, unless the presiding officer

finds that oral direct testimony which is

supplemental to the written direct

testimony would further the public

interest and would not constitute

surprise.

(2) The parties shall not be required

to exchange testimony in accordance

with this paragraph if the hearing is

scheduled to begin less than 20 days

after the presiding officer’s notice

stating the time of the hearing.

* * * * *

(i) Transcript or recording. (1)

Hearings to be conducted by telephone

shall be recorded verbatim by electronic

recording device. Hearings conducted

by audio-visual telecommunication or

the personal attendance of any

individual who is expected to

participate in the hearing shall be

transcribed, unless the presiding officer

finds that recording the hearing

verbatim would expedite the proceeding

and the presiding officer orders the

hearing to be recorded verbatim. The

presiding officer shall certify that to the

best of his or her knowledge and belief

any recording made pursuant to this

paragraph with exhibits that were

accepted into evidence is the record of

the hearing.

(2) If a hearing is recorded verbatim,

a party requests the transcript of a

hearing or part of a hearing, and the

presiding officer determines that the

disposition of the proceeding would be

expedited by a transcript of the hearing

or part of a hearing, the presiding officer

shall order the verbatim transcription of

the recording as requested by the party.

(3) Parties to the proceeding who

desire copies of the transcript or

recording of the oral hearing may make

arrangements with the reporter, who

will furnish and deliver such copies

direct to such parties, upon receipt from

such parties of payment for the

transcript or recording, at the rate

provided by the contract between the

reporter and the Department for such

reporting service.

* * * * *

§ 202.115 [Amended]

76. Section 202.115 is amended as

follows:

a. Paragraph (b), the second sentence

is amended by adding the words ‘‘or

recording’’ immediately after the word

‘‘transcript’’.

b. Paragraph (d) is revised to read as

set forth below.

§ 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), § 202.112(h).

§ 202.118 [Amended]

77. Section 202.118 is amended as

follows:

a. Paragraph (a)(1) is revised to read

as set forth below.

b. In paragraph (a)(7), the word ‘‘and’’

is removed.

b. Paragraph (a)(8) is redesignated as

paragraph (a)(12).

c. New paragraphs (a)(8), (a)(9),

(a)(10), and (a)(11) are added to read as

set forth below.

202.118 Rule 18: Presiding officer.

(a) * * *

(1) Set the time, place, and manner of

a prehearing conference and an oral

hearing, adjourn the oral hearing from

time to time, and change the time, place,

and manner of oral hearing;

* * * * *

(8) Require each party to provide all

other parties and the presiding officer

with a copy of any exhibit that the party

intends to introduce into evidence prior

to any oral hearing to be conducted by

telephone or audio-visual

telecommunication;

(9) Require each party to provide all

other parties with a copy of any

document that the party intends to use

to examine a deponent prior to any

deposition to be conducted by

telephone or audio-visual

telecommunication;

(10) Require that any hearing to be

conducted by telephone or audio-visual

telecommunication be conducted at

locations at which the parties and the

presiding officer are able to transmit and

receive documents during the hearing;

(11) Require that any deposition to be

conducted by telephone or audio-visual

telecommunication be conducted at

locations at which the parties are able

to transmit and receive documents

during the deposition; and

* * * * *

Done in Washington, D.C., this 31st day of

January, 1995.

Richard E. Rominger,

Acting Secretary of Agriculture.

[FR Doc. 95–3464 Filed 2–13–95; 8:45 am]

BILLING CODE 3410–01–P